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The first decision regar480px-Portrait_of_King_Henry_VIIIding the Minor Injury Guide (MIG) resulted in the award of payment for treatment beyond the $3500 limit.  Arbitrator John Wilson was critical “…of the insurer’s cookie-cutter application of an expense limit in every case where there is a soft tissue injury present.”

He stated, “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 from the minor injury.”

On March 26, 2013, a decision was rendered by FSCO in the case of Lenworth Scarlett and Belair Insurance Company Inc.

Lenworth Scarlett maintained that although he suffered strains sprains and whiplash related injuries, he also suffered from pre-existing conditions and subsequent psychological disabilities arising from a motor vehicle accident which occurred on September 18, 2010.

Ms. Nicole Corriero, Barrister & Solicitor, from Lofranco Corriero Personal Injury Lawyers appeared for Mr. Scarlett.

The Arbitration Result: Mr. Scarlett is not precluded from claiming housekeeping, attendant care, as well as medical and rehabilitation expenses, beyond the $3500 limit within the Minor Injury Guideline.

I found the following passages interesting to read:

1. Arbitrator Wilson was critical of the Belair’s handling of the claim: “Mr. Scarlett’s attempts to claim certain benefits from Belair were being rebuffed because Belair took the position that he was within the MIG…this appeared to be a major stumbling block since, even when Mr. Scarlett provided further evidence of complicating features of his claim that in his mind took it outside the MIG framework, he was met with the same response.”

2. The complete SABS should be considered more important than the MIG: “…Guidelines are informational and non-binding, providing only that they be considered.” And later: “The Insurance ACT, however, does not provide for a Henry VIII clause which delegates to a subordinate authority the power to make legislation that prevails over its enabling statute.”

3. The default category of benefits under the SABS is non-catastrophic benefits and the MIG is a specified exception: “Barring exceptions, then an insurer is obligated to make payments of medical and rehabilitation benefits to an insured who sustains an impairment as a result of an accident.”

4. The burden of proof for the exception is the Insurer’s: “…it is then incumbent for an insurer to prove that the insured then comes under a specified exception that would justify non-payment either in part or in full.” And later:  “At first glance, it would appear that the MIG stands on its head and proceeds with the burden of proving the exception on the insured” And later: “it remains the Insurer’s burden to prove any exception to or limitation of coverage.”

5. The definition of compelling evidence: “…provide credible or convincing evidence if they wish to ensure that an insured is to be treated as being outside of the MIG”

6. The MIG should not be used to resolved disputes “…while Insurer’s reports may disagree (with the conclusions of reports), that is the very sort of conflict that is meant to be resolved in court or by arbitration, on the issue of reasonableness of the particular treatment proposed, not by a unilateral veto of benefits by the Insurer.”

7. The first principle of the MIG: “speed access to rehabilitation for persons who sustain minor injuries in auto accidents.” And later: “it makes no sense if the Insurer is positioned to veto access to benefits on the basis of the delivery of a single report, in the face of credible evidence to the contrary, when the delay in treatment could last for years.”

8. The insurer needs to make timely determinations for treatment beyond the MIG : “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.”

In summary, this decision will change the way that claims are managed.