Scarlett and Belair Insurance Company Inc.: FSCO Arbitrator provides guidance on Minor Injury Guideline

In a recent FSCO arbitration decision, Scarlett and Belair Insurance Company Inc. (A12-001079), Arbitrator Wilson provides much needed guidance on the evidence that is required to take an insured out of the Minor Injury Guideline (MIG).

Mr. Scarlett was injured in a motor vehicle accident on September 18, 2010. The Disability Certificate indicated that he sustained various sprains and strains to the joints and ligaments of the lumbar and cervical spine, as well as headaches and acute stress reaction. He was subsequently diagnosed with TMJ syndrome, as well as pain disorder, severe depressive symptoms, post-traumatic stress disorder and driver anxiety. Mr. Scarlett submitted that his subsequent diagnoses took his claim outside of the MIG, and that he was entitled to non-catastrophic medical and rehabilitation benefits.

Belair had obtained reports indicating that Mr. Scarlett’s impairments did not take him outside of the MIG. Following a paper review, a chiropractor concluded that Mr. Scarlett sustained soft tissue injuries and that there was no evidence of any neurological compromise, fracture or dislocation. A psychologist concluded that, based on Mr. Scarlett’s narrative and presentation, his symptoms did not meet the criteria for any psychological diagnosis.

Arbitrator Wilson held that the Guideline required medical practitioners and other stakeholders to provide credible or convincing evidence for an insured to be removed from the MIG. Critical elements of the Guideline were highlighted:

• Persons who suffer minor injuries as defined) should be treated appropriately, with early, quick and limited intervention to assist in recovery.
• The decision to treat an insured either within the MIG or not, should be made on the basis of credible medical evidence and not on speculation.
• Even those persons who otherwise might be within the MIG can be treated outside of the Guideline if there is credible medical evidence that a pre-existing condition will prevent the insured person from achieving maximal recovery within the MIG.

It remains the insurer’s burden to prove any exception to, or limitation of, coverage in benefits. The onus is not on the insured. Arbitrator Wilson concluded that while Mr. Scarlett did suffer soft tissue injuries, it was not clear that the sum of his injuries from the accident was minor in nature. He specifically noted that the reports of chronic pain were evidence of symptoms separate from the soft tissue injuries, presenting as a psychological, neurolocognitive and emotional impairment. The psychological report provided by Mr. Scarlett was credible evidence that took him outside of the MIG. While Belair had reports which disagreed with the conclusions of Mr. Scarlett’s treatment providers, the conflict in evidence was meant to be resolved in court or by arbitration, on the issue of the reasonableness of the particular treatment proposed, not by a unilateral veto of benefits by the insurer.

Arbitrator Wilson noted that the determination of an insured being placed into the MIG is an interim one, and is open to review as more information becomes available. The MIG is not a “cookie cutter” application of an expense limit to every case where there is a soft tissue injury present. Each case is to merit an open-minded assessment, and the insurer is to recognize that some injuries can be complex, even when they are soft tissue injuries present amongst a constellation of injuries arising from an accident.

The Scarlett decision highlights the importance of discussing and documenting all of an insured’s symptoms throughout treatment. An insured who presents initially as a MIG case, can ultimately be entitled to additional benefits when their constellation of symptoms is taken into consideration. When an insured has legal counsel, it is important to communicate with them as a client nears the MIG cap, in order to discuss whether there is evidence of injuries or impairments that removes them from the MIG.

Alysia Christiaen is a personal injury lawyer in the London, Ontario law firm, Lerners LLP. Alysia’s personal injury practice includes assisting people injured in car accidents, motorcycle accidents, slip and fall injuries, brain injuries, and other injury cases. See Alysia’s for more information about her work in the area of plaintiff personal injury law or contact her at 519.640.6344 or by e-mail at achristiaen@lerners.ca.