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First ever decision released on Minor Injury Guideline (MIG FSCO)


April 3, 2013

Lots of injury and insurance lawyers across Ontario have been looking for some guidance with respect to what sort of cases rightly, or wrongly fall in to the Minor Inury Guideline or MIG as it's known in the industry.

If you've never heard of the MIG, that's ok. You're not alone. Probably 99% of Ontarians have never heard of it, despite of the fact that it now applies to 100% of insured motorists in the province.

After a car accident, people are entitled to no fault benefits from their car insurer. These no fault or accident benefits are intented to help the accident victim get better following the collision. They pay for such things as physiotherapy, massage, chriopractic care, occupational therapy, speech language therapy, or just a gym membership.

The MIG was introduced by Ontario's Provincial Government and took place effective September 1, 2010. Insurers and their lobbysists pushed for its introduction. Essentially, it allowed insurance companies to cut your medical and rehabilitative benefits from $50,000 down to $3,500. The justification for this was that insurers were paying too much to litigate matters, too much on rehab following car crashes, and spending too much money on fraud. Here is a copy of the MIG

Accident benefits are so complicated, that a special tribunal has been set up by Ontario's government to adjudicate these claims. Hearings take place at the Financial Services Commission of Ontario or FSCO for short. Here is a link to FSCO's website.

The very fact that a special tribunal has been set up specifically to deal with no fault accident benefits should tell you a little something about their complexity. The laws surrounding accident benefits are constantly changing and getting tinkered with. The introduction of the MIG on September 1, 2010 is a perfect example of such a drastic change. Why? I have my suspicions, but I don't want to sound like some whacky conspiracy theorist, but all things usually come back to the almighty dollar and I will leave it at that.

Lawyers across the province now have a bit more clarity on how the MIG works, and what cases should go in there, and what cases shouldn't. If you've been in an accident, you don't want to get put in to the MIG. Your benefits are reduced significantly, regardless of who was at-fault or how the accident happened. The only thing which the MIG allows insurers to take into consideration are the nature of your injuries, and that's it.fsco logo high quality (1).png

In Lenworth Scarlett v. Belair Insurance Company FSCO #A-12-001079, Mr. Scarlett was a passenger in a car insured by Belair Insurance, which was rear ended by another car. Mr. Scarlett did not break any bones in the car accident, but he sustained various other soft tissue injuries, and had TMJ and psychological injuries, including severe depression and PTSD. At the time of the car accident, Mr. Scarlett was new to Canada, and did not have any access to the OHIP system. If he wanted treatment, the only way he could get it was by paying for it out of his own pocket like they do in the United States; or through car insurance for an accident which was entirely not his fault.

The MIG requires that the insurance company make an early determination whether or not the accident victim falls in to the MIG or not. You're either in the MIG and your benefits are limited to $3,500 or you're not and entitled to more in benefits. This determination ought ot be re-assessed from time to time and a person's condition can change from day to day. In any event, Mr. Scarlett was put in to the MIG at an early stage by the insurance adjuster at Belair Direct.

Mr. Scarlett's lawyer presented compelling medical evidence that Mr. Scarlett's injuries did not fall inside of the MIG. Belair refutted this evidence by sending Mr. Scarlett to their own medical assessors (who Belair paid and who are essentially hired guns). The reports, not surprising, came back supporting Belair's initial decision to put Mr. Scarlett in the MIG and limit his benefits to just $3,500.

In case you're wondering, $3,500 in medical/rehabilitative benefits isn't very much money. You can go through that money very quickly.

Mr. Scarlett's lawyer brought an Application to FSCO for a determination whether or not he fell in to the MIG or not. The Preliminary Issue Hearing required an appearance from both lawyers before Arbitrator John Wilson. He found that Mr. Scarlett's injuries did not fall in to the MIG. In his decision, Arbitrator Wilson stated:

"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 resulting delay in treatment could last for years. This runs contrary both to the spirit of the accident benefits scheme and the stated purpose of the Guideline itself...

When the totality of his injuries is assessed, they come outside of the MIG. To find otherwise would not, in Scarlett's case at least, speed access to rehabilitation or improve utilization of health care resources, since at the time of the accident he had no access to OHIP to pay for any treatments arising from the accident....

What it is not is the "cookie cutter" application of an expense limit in every case where there is a soft tissue injury present. Such does not respond either to 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"

The car accident took place on September 18, 2010. The Aribtrator at FSCO released his decision on March 26, 2013. That means that in between September 18, 2010 and March 26, 2013 (920 days or 2.5 years) Mr. Scarlett recieved just $3,500 in treatment!!! Although, Belair did pay $2,740.84 over the limit in this case as $3,658.50 was paid for in assessments. In any event, imagine going 2.5 years for your day at a Tribunal which is suppposed to be SPEEDIER THAN COURT, to have your case heard solely on the issue of whether or not you're entitled to more then $3,500 for medical treatment.

If it took you 2.5 years just to hear your case on that small issue where liability is not at play, and there is no need to examinations for discovery, just imagine how long it will take to have your case heard inside of a Courtroom before a Judge and Jury for the totality of your pain and suffering and income loss case! Unbelievable!

I'm not certain what will become of this decision. As of the time of composing this Toronto Injury Lawyer Blog Post, I'm not certain if Belair is appealing. It wouldn't surprise me if they did. None the less, lawyers across Ontario now have a bit more clarity on how insurers should handle their claims when the MIG is in play.

So did Scarlett really win his case? Belair has to pay more in benefits, but who's the real winner here? In my mind, if anyone has to wait 2.5 years to get the insurer to pay for a $100 massage, I don't think it's a "win". It just shows the handicap which real people have to face given the delays in our system, and the complexities which our government has created when handling accident benefit matters. The MIG, in combination with the $30,000 deductible for pain and suffering claims, along with the threshold which such claims have met has made it considerably more difficult for accident victims to get the compensation which they deserve.