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Funding Beyond the MIG

The Minor Injury Guideline (“MIG”) came into effect with the September 1, 2010 amendments to the Statutory Accident Benefits Schedule (“SABS”).  A minor injury means one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae.  The MIG only provides for $3,500 towards medical and rehabilitation expenses.  What if you need more than $3,500 of medical/rehab?  Section 38 of the SABS states that in order to show that the MIG does not apply, the insured must provide a Treatment and Assessment Plan (OCF-18) stating that the insured’s impairment is not predominantly a minor injury, or have compelling evidence of a pre-existing medical condition that would prevent the insured from achieving maximum medical recovery if subject to the $3,500 limit.

The Arbitration case of Julia Lo-Papa and Certas Direct Insurance Company (FSCO A12-005538) (“Lo-Papa and Certas”) was heard January 29, 2014 before Arbitrator Arbus.  Here the Applicant claimed her injuries entitle her to funding for treatment beyond the $3,500 limit.  At the time of the accident, October 20, 2010, she suffered pain to her spine and her head and then went on to suffer from headaches, lower back pain, leg pain, moodiness, anxiousness and depression.

As per Scarlett v. Belair, “the burden of proof always rests on the insured of proving that he or she fits within the scope of the coverage”.  In Lo-Papa and Certas, the Applicant relied upon a chronic pain specialist report who stated that she suffered anxiety and depression but does not address whether the anxiety and depression are sufficient to remove the injuries from the MIG.  He also offered no opinion as to whether there is any pre-existing medical condition that might impede recovery or whether the impairment was other than predominantly a minor injury.

There was nothing provided by the Applicant which satisfied the test of removing the injuries from being predominantly a minor injury.  Arbitrator Arbus ordered that the Applicant was subject to the MIG limits.