Minor Injury Guideline: Punitive And Unjust Law
By Alexander Voudouris | December 9, 2013
Toronto Personal Injury Lawyer Alex Voudouris: On September 1, 2010, the Ontario Government radically changed the Statutory Accident Benefits Schedule (SABS), to the detriment of all accident victims. For example, medical and rehabilitation limits were reduced from the non-catastrophically injured limit of $100,000 to $3,500, if someone has sustained an impairment that is predominantly a Minor Injury as defined in the SABS and the Minor Injury Guideline (MIG).
Additionally, if one were considered a “MIG,” then they would be disentitled to claim attendant care benefits. Other than the obvious, the problem with the Minor Injury Guideline is that it potentially encompasses Major Injuries, such as a 99% tear to every muscle, tendon or ligament in your body.
Since coming into force, insurance companies have reportedly slotted some 85% of all accident benefit claimants into the MIG. Personally, I had a client who was catatonic as a result of a motor vehicle accident, and for months the insurer claimed he was simply a MIG. So it was a pleasant surprise when the Financial Services Commission of Ontario released its first ever decision concerning the MIG, in the case of Scarlett and Belair. In the decision, Arbitrator John Wilson essentially turned the MIG on its head, and ruled:
1. The MIG is an exclusionary clause, and as such all accident benefit claimants are automatically outside the MIG unless the insurer proves otherwise.
2. TMJ (Temporomandibular joint; found in the jaw) and chronic pain will keep accident victims outside the MIG.
3. Compelling evidence as required by the MIG, in terms of establishing a pre-existing medical condition is a barrier to recovery in the MIG, means evidence on a balance of probabilities.
4. Insurers are prohibited from taking a cookie-cutter approach to every claimant.
5. The MIG, being a Guideline, is only interpretive, and not binding.
While the Scarlett decision is great news for accident victims, the time for rejoicing is not upon us yet. Nearly every insurer is ignoring the decision, and Belair has appealed it.
I have now been asked by Mr. Scarlett’s original law firm to co-counsel the appeal, which was heard on September 10th, 2013. If all goes well, it may be possible to have a decision by year’s end. Until then, accident victims will continue to be re-victimized by this wholly punitive and unjust law.
Pace’s personal injury lawyers have been helping accident victims since 1980.