Proven Methods for Avoiding or Removing a Client from the Minor Injury Guideline (MIG)

Your client was in a car accident. At first, she felt fortunate to come away with just a few minor aches and pains. By law in Ontario, she is covered for medical insurance up to $3,500, which seemed enough at the time. But in the weeks that followed, the pain doesn’t go away. After repeated medical appointments, she is prescribed rehabilitation therapy. But the cost of treatment is greater than her coverage. Now she faces hundreds, even thousands of dollars in additional fees.

The above scenario points out what happens in Ontario today when a car insurance company determines under the Minor Injury Guideline (MIG) that someone’s injuries are “minor”. This determination caps the amount of treatment the patient is entitled to receive so that the insurance company doesn’t have to meet the victims complete needs. It is not an unusual occurrence. In fact, in the majority of cases, people in motor vehicle accidents are placed in the minor injury guideline unless it is very clear at the time that the injuries are not minor (for example, someone is unconscious at the scene.)

Is there anything you can do as a lawyer or healthcare practitioner to avoid, or remove that client from the MIG? Yes, but first let’s look at the guideline itself.

Defining a minor injury

Ontario’s Minor Injury Guideline came into effect in 2010, issued from the Financial Services Commission of Ontario. Section 2 of the Guideline defines a minor injury as:

“A sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. This term is to be interpreted to apply where a person sustains any one or more of these injuries”.

Section 4 defines impairments that do not come within this Guideline:

“An insured person’s impairment does not come within this Guideline if the insured person’s impairment is predominantly a minor injury, but based on compelling evidence provided by his or her health practitioner, the insured person has a pre-existing medical condition that was documented by a health practitioner before the accident that will prevent the insured person from achieving maximal recovery from the minor injury if he or she is subject to the $3,500 limit referred to in section 18(1) of the SABS or is limited to the goods and services authorized under this Guideline”.

Within the parameters of the above, the MIG limits insured, injured persons to $3,500 in medical and rehabilitation benefits.

Removing an injured person from the MIG

There are three readily accessible methods for removing an injured person from the MIG:

  1. Psychological and/or psychiatric impairment
  2. Chronic pain syndrome; or
  3. A pre-existing condition

Psychological and/or psychiatric impairment related to the accident:

If you have any reason to believe that your client/patient is suffering from a psychological condition related to a motor vehicle accident (for example, anxiety, PTSD, or depression) you should refer them to an appropriate treating psychologist for assessment. Assuming a psychological and/or psychiatric impairment is identified and substantiated, the client will be out of the MIG and have up to $65,000 available for their medical and rehabilitation benefits. (This monetary limit applies for motor vehicle accidents on or after June 1, 2016.)

Chronic Pain

Since the 2003 Supreme Court of Canada decision of Martin v Nova Scotia, chronic pain has been acknowledged by the courts as a real and potentially disabling medical condition. It has also been considered to fall outside the ambit of the MIG if compelling evidence can be provided by the injured party’s healthcare practitioner. This was recently affirmed in Ali v Certas Direct Insurance Company (2016).

Most treatments for minor injuries are envisioned to take place within 12 weeks of the accident; chronic pain, it has been noted, is not identifiable in the patient until approximately six months after the accident or later. For instance, the applicant in the 2015 case Arruda v Western Assurance Co. was diagnosed with chronic pain 20 months after the subject accident. If chronic pain was intended to be dealt with by the MIG, it would be listed as a condition or injury for that purpose.

Pre-Existing Condition

A minor injury may be exempt from the MIG if the injured party has a well-documented, pre-existing condition. Therefore, if a medical practitioner can provide compelling evidence that the condition existed prior to the accident, and that the condition would prevent the injured party from achieving maximum medical recovery within the MIG, the injured party would not be restricted by the $3,500 limit set out in the MIG. The 2015 case Scarlett v Belair Insurance set the threshold for evidence of the pre-existing condition as ‘compelling’ and not ‘merely credible’.

Note, in 2014 the MIG was amended to clarify that the pre-existing condition must have been documented before the subject accident.

Conclusion

Those who are injured in automobile accidents should be effectively and fairly treated. This isn’t possible in cases where someone is wrongly placed in the MIG.

Almost all of the relevant cases where the client failed to be removed from the MIG involved a failure substantiate the client’s claim. In order to successfully remove a client from the MIG, it is incumbent upon the injured person, their lawyer, and the health care practitioners to provide a proper evidentiary foundation. This can be done through documentation, good communication and willingness from all parties to better understand both the barriers to recovery and the necessary treatments.