On March 26, 2013, the very first decision regarding the Minor Injury Guideline (“MIG”) was released by the Financial Services Commission of Ontario, Scarlett v. Belair Insurance Company Inc. , F.S.C.O.  A12-001079. 

 

This decision is a very important step forward for those who have been injured in a motor vehicle accident and who have been placed within the MIG by their insurer. 

 

The MIG requires “compelling evidence” that an insured has a pre-existing condition that will prevent them from reaching maximum medical recovery if they were to be limited to treatment within the MIG.   In addition, the obligation of providing this compelling evidence lay with the insured’s health care professionals.  Until now, what would satisfy this requirement was largely unknown since “compelling evidence” is not defined within the MIG.  With the release of the decision in Scarlett however, we now have some guidance as to what would constitute “compelling evidence”.  Arbitrator John Wilson states that, to satisfy this requirement, health care professionals must provide “credible or convincing evidence if they wish to ensure that the insured is treated as being outside of the MIG”.    

 

In addition and perhaps more importantly, the decision in Scarlett states that an insurer must continue to re-evaluate the claim as more information becomes available to determine if continued application of the MIG is appropriate. 

 

On the last page of the decision, Arbitrator Wilson states:

 

 “The insurer is in effect mandated to make an early determination of an insured’s entitlement to treatment beyond the MIG.  In essence, because of the necessarily early stage of the claim when the MIG is applied, the determination must be an interim one, one that is open to review as more information becomes available.

 

What it is not is the “cookie-cutter” application of any expense limit in every case where there is a soft tissue injury present.  Such does not respond to either the spirit of the accident benefits system or the policy enunciated in the Guideline of getting treatment to those in need early in the claims process.

 

While it is quite possible that the majority of claimants can be accommodated within the MIG, averages are misleading when applied to individual cases.  Each case merits and open-minded assessment, and an acceptance that some injuries can be complex even when there are soft tissue injuries present amongst the constellation of injuries arising from an accident.”

 

Insurers must recognize that just because an individual has suffered soft tissue injuries does not necessarily mean that treatment automatically falls within the MIG.

 

Hopefully the decision in Scarlett will alter the rather inflexible approach that insurers have taken with their application of the MIG to date.