Re: MIG and the Decision of the Director’s Delegate in Scarlett v. Belair Released on November 28, 2013
This decision reverses Arbitrator Wilson’s decision that Mr. Scarlett was not caught by the Minor Injury Guidelines even though his car accident related injuries included various sprains, strains to the joints and ligaments of the lumbar and cervical spine. Mr. Scarlett’s injuries also included an acute stress reaction. He also had chronic pain, depressive symptoms and TMJ joint disorder but these were found by the original Arbitrator to be separate and distinct from his soft tissue injuries and not the sequellae thereof.
In considering the regulations, the Director Delegate (who hears initially the Appeals from Arbitrator’s decisions) considered Section 3(1) of the SABS which defines minor injury as follows:
“Minor injury” means one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequellae to such an injury.”
In considering that definition, the Director Delegate confirmed the monetary limits regarding MIG injuries as being $3,500.00 in accordance with Section 18(1) of the SABS regulations “in respect of an insured person who sustains an impairment that is predominantly a minor injury”. As you may be aware, had Mr. Scarlett not been caught by the MIG definition, he would have been entitled to the next level of indemnity for Medical and Rehabilitation expenses which is $50,000.00 (had he been able to prove a catastrophic level of impairment, he would have been entitled to up to $1,000,000.00 of medical and rehabilitation benefits).
The Arbitrator had surprisingly found that the pre-existing problems were separate and distinct and did not in and of themselves take these injuries out of the MIG definition. Even more surprisingly, he found that these pre-existing conditions did not fall into the exception to the MIG which provides under Section 18(2) that:
“The $3,500.00 limit … does not apply to an insured person if his or her health practitioner determines and provides compelling evidence that the insured person has a pre-existing medical condition that will prevent the insured from achieving maximal recovery from the minor injury … “
In reversing the Arbitrator’s decision that Mr. Scarlett’s injuries were beyond the MIG, the Director Delegate on Appeal, held as follows:
1. That the onus is always on the insured to prove that the injuries caused by a motor vehicle accident fall within the coverages provided in the policy at any level;
2. That the onus is on the insured to prove that they are not captured by the MIG guidelines and not on the insurer to prove that the insured does fall within the MIG guidelines;
3. That the onus is on the insured to prove that they fall within the exception noted above created by pre-existing conditions that prohibit maximum recovery from the minor injuries;
4. That the Arbitrator erred in applying the onus in reverse requiring the insurer to prove that the insured fell within the MIG guidelines;
5. That the Arbitrator did not give cogent reasons for finding that chronic pain depressive symptoms and TMJ disorder were separate and distinct from the injuries.
In concluding the Director Delegate sent the entire matter back for a rehearing before a new Arbitrator.
The matter is now under Appeal to the Divisional Court. The Ontario Trial Lawyers Association will be applying to intervene in the argument of the Appeal to the Divisional Court.
The matter is significant because it may become the leading decision on how insured victims can avoid being captured by the MIG guidelines either through a combination of aggravating health factors arising out of the accident, or as a result of pre-existing conditions which prohibit maximal recovery.