Good, Bad, And Ugly. Thoughts On The FSCO Minor Injury Guideline Ruling

By Albert Conforzi | April 5, 2013

The first FSCO ruling dealing with the minor injury guideline (MIG) has finally arrived, 2.5 years after the MIG came into effect. It is a preliminary issue ruling only. Aside from documents filed, no evidence was called. It was all based on a written record.

The result was favorable to the applicant, and it would be easy to simply applaud the result and say that the MIG is dead. The truth is far from that. Those who simply repeat what Arbitrator John Wilson said within the decision do a great disservice to the discussion, and potentially to their clients. It is through careful analysis that we find the good, bad and the ugly of the MIG. More accurately, through the decision we can see the unanswered and unresolved issues that must still be addressed.

Among the helpful aspects of the decision is the discussion of burden of proof. That is, who must prove what? Wilson found that once the applicant had proven that he was insured and had sustained an impairment, the onus then shifted to the insurance company to prove the MIG exclusion should apply.

This is in keeping with past insurance law, where the onus to demonstrate an exclusion rested with the insurer. The Statutory Accident Benefits Schedule (SABS) does not clearly state that it intended to depart from this previous law with respect to the onus of proof and exclusions. In part, Wilson reaches this conclusion by finding that the MIG is a guideline and remains a “nonbinding interpretive aid.”

This decision has loosened the hinges on the door, but has not knocked the door down. I am certain that there will be an appeal.

Another good is the finding that the applicants’ TMJ, chronic pain diagnosis, and psychological impairments are separate and distinct injuries. Not revolutionary in of itself, but it supports the position that non-MIG injuries will take you out of the MIG for all purposes.

Wilson analyzes the word compelling in both official languages and decides that compelling must equate to credible or convincing evidence. He does this in part by finding that the word used in the official French version of the insurance act does not carry the same connotation as the word compelling does in the English language. It is unclear from the decision whether the conclusion with respect to linguistic subtleties was based on expert evidence or the arbitrator’s own analysis.

Wilson does admonish the insurer between the lines by having identified only $1,582.34 paid-for benefits and $3,658.50 paid-for assessments. The arbitrator also roundly criticizes the cookie-cutter denial method preferred by insurers.

While acknowledging that insurers must make a decision early on, the arbitrator tells them that they must remain open to credible or convincing evidence and be prepared to revisit the decision when more information is available.

At the same time, Wilson also says that the only way to reconcile conflicting reports is to have a full-blown trial or arbitration (which this decision was not based upon). For those of us who have been doing accident benefits for more years than we would care to admit, it feels a bit like pay-and-dispute from the days of OMPP, but clearly it cannot be.

What this decision highlights is what has been missing all along: a clear mechanism for getting out of the MIG. Once you are outside the MIG, you should be treated as though you were
never in it. That includes exposures for past outstanding treatment and
assessments. Sadly, this decision leaves us really no further ahead.

This decision has loosened the hinges on the door, but has not knocked the door down. I am certain that there will be an appeal.

Beware of those who would tell you that the MIG is gone or has been neutered into a new PAF. It is far more complicated than that, and the argument will likely get uglier.

Albert Conforzi is a personal injury lawyer with Pace Law Firm in Toronto.