Applying the Minor Injury Guideline (“MIG”) in Statutory Accident Benefit Schedule (“SABS”) Claims

On September 1, 2010, the Statutory Accident Benefit Schedule (the “SABS”) came into effect. Within this regulation, there were a number of changes that have affected an insured’s entitlement to accident benefits and how claims should be evaluated. At the core of these changes was the development of the Minor Injury Guideline (“MIG”), issued in June 2010, which replaced the Pre-Authorized Framework (“PAF”) for minor injuries. In order to provide further guidance to insurance companies and professionals working in the area of automobile insurance in Ontario, the Financial Services Commission of Ontario (“FSCO”) released a revised MIG, which came into effect on November 1, 2011.

The purpose of this article is to provide a brief overview and some guidance with respect to the MIG and the specific sections of the SABS which may apply, as well as to highlight areas that insurers should consider when evaluating a claim.

The MIG was developed in consultation with insurance industry stakeholders, healthcare professionals and legal representatives drawing extensively on findings surrounding the treatment of whiplash and associated disorders. Studies showed that for both whiplash associated disorders (“WAD”) and other neck pain without radicular symptoms, “interventions that focused on regaining function and returning to work as soon as possible were relatively more effective than interventions that did not have such a focus.“¹ Accordingly, the MIG is based on the functional restoration model with a structured 12-week program broken into three phases.² The focus of the program is not to only provide the insured with the knowledge to effectively self-manage their condition, but most importantly, to reduce the risk of developing chronic pain. The hope is that, although the insured’s impairment may not be resolved within the recommended 12-week period, they will have been provided with the knowledge, education and strategies to help return them to full function within a reasonable amount of time without further treatment.

FSCO has indicated that the objectives of the MIG are to:

1. speed access to rehabilitation for persons who sustain minor injuries in auto accidents;
2. improve utilization of health care resources;
3. provide certainty around cost and payment for insurers and regulated health professionals;
4. be more inclusive in providing access to treatment without insurer approval for those persons with minor injuries as defined in the SABS and as set out in part 2 of the MIG.³

Consistent with these objectives, the MIG sets out the goods and services that will be paid for by the insurer “without prior-approval,” set at a maximum amount of $2,200.00, provided that the insured sustained a “minor injury,” and the Treatment Confirmation Form (OCF-23) is submitted within 10 business days of the initial visit with the health practitioner ⁴. In response, and within 5 business days, an insurer must acknowledge receipt of the OCF-23 and advise if the person claiming benefits is an insured person with respect to the accident.⁵ Following this, no further approval is required to access the pre-approved funding within the MIG. It is important to note that if the goods or services available under the MIG have not been provided within the time specified, the insured must submit a Treatment and Assessment Plan (OCF-18) for approval in order to obtain medical and rehabilitation benefits to which the MIG would otherwise apply⁶.

The MIG delineates that the SABS and the MIG, “are intended to encourage and promote the broadest use of the MIG, recognizing that most persons injured in car accidents in Ontario sustain minor injuries for which the goods and services provided under the MIG are appropriate.“⁷ While the insurance industry is hopeful the MIG will successfully curb claim costs, there is currently an underlying fear that perceived loopholes will prevent its effectiveness, such as:

1. undefined terms like “partial-tear,” “clinically associated sequelae” and “compelling evidence;”
2. whether or not psychological conditions can be treated within the MIG or within the $3,500.00 minor injury limit; and
3. the consequence of the insurer’s failure to provide a Notice within the allocated time.

The new SABS, like the old regulation, will continue to evolve and take shape through the current development of the regulations, and guidelines, and later through arbitration and judicial process. Notwithstanding, we must acknowledge that the MIG will be interpreted by judicial members with historical perspectives, normative values and decision-making patterns that have evolved within the context of the SABS over the last several years.

Recently, on March 26, 2013, FSCO released the first and only arbitral or judicial decision considering the application of the MIG, Scarlett v. Belair Insurance Company Inc. (“Scarlett”). The issue to be decided in this Motion was whether or not the insured, Mr. Scarlett, was precluded from claiming benefits that where not available to him under the MIG, and were beyond the $3,500.00 minor injury limit. Arbitrator Wilson found that the insured was “not precluded from claiming” housekeeping, attendant care, as well as medical expenses beyond the $3,500.00 limit. However, it is important to note, that there was no finding with respect to the insured’s “entitlement” to any of these benefits.

In somewhat of a contradiction, Arbitrator Wilson also ruled that any determination by an insurer related to the classification of the insured’s injuries could only be an interim one subject to a full hearing. He commented that the only way to fully reconcile conflicting medical opinions, with any certainty, would be to undertake a full trial of the issue with all experts subject to cross-examination.

In obiter, he addressed the following issues:

• • the MIG was a non-binding interpretive tool despite its reference directly in the SABS. This determination was reached as, according to the legislature which passed the Insurance Act, “guidelines” are informational and non-binding, providing only that they be “considered.”

• • the minor injury limits for medical and rehabilitation benefits and the prohibition on claiming attendant care benefits are an exception to or a limitation on coverage. As a result, once the insured satisfies the burden of proving he or she is an “insured” and has suffered an impairment as a result of the accident, the burden shifts to the insurer to prove that the insured comes under the specified exception (minor injury) that would justify non-payment either in part of in full.

• • The evidentiary burden for “compelling evidence,” to establish that an insured has a pre-existing medical condition and is not subject to the MIG limits, is on a balance of probabilities.

• In this particular case, temporomandibular joint pain (“TMJ”), chronic pain syndrome, and post-traumatic stress disorder (“PTSD”) were separate and distinct injuries rather than a secondary consequence or a result of soft-tissue injuries. Unfortunately, Arbitrator Wilson did not give any reasons for this finding nor did he explain whether or not these were the insured’s “predominant injuries.” The SABS provides that for an injury that is not a minor injury, to take someone out of the MIG, it must be the claimant’s predominant injury. For example, if the insured is being treated “primarily for soft-tissue injuries (or any other minor injury as defined under the SABS),” and has minor symptoms of TMJ or PTSD, this is not sufficient to take the insured outside of the MIG or the minor injury limits.

As an appeal is likely, together with the fact that the issues related to the MIG were addressed in obiter, it has yet to be seen what weight, if any, the Scarlett case will have on subsequent arbitral or judicial decisions.

As the MIG issues work their way through the courts and FSCO, I have put together a list of questions insurers ought to consider when evaluating claims:

1. When did the motor vehicle accident occur (pre or post September 1, 2010)?
2. Do the transitional provisions under section 68 of the SABS apply (when did the insured renew his/her policy pre or post September 1, 2010)?
3. Did the insured purchase optional benefits as to provide entitlement to caregiver and/or housekeeping and home maintenance benefits, etc.?
4. Did the insured purchase other optional benefits as listed in Part VI, s. 28 (1) of the SABS as to increase the limits of income replacement, medical and rehabilitation and/or attendant care benefits?
5. Has the insured suffered predominantly a “minor injury” as defined under s. 3 of the SABS?
6. What other injuries or impairments, if any, is the insured being treated for?
7. Can the insured be treated under the MIG?
8. Are there any exceptions which apply to the monetary limits provided under s.18 (1) of the SABS (which would increase the $3,500 minor injury limit)?
9. Has the insured’s health practitioner provided any compelling evidence?

For the full version of this article, which also addresses issues such as the treatment phases and fee schedule which apply, and provides insight into how certain accident benefits may be affected if an insured is found to have predominantly a “minor injury,” as defined under the SABS.

¹Spine: 15 February 2008, Volume 33, Issue 4S (p.S5-S7).
²FSCO Superintendent’s Guideline No.02/11, s. 8.
³FSCO Superintendent’s Guideline No.02/11, s. 1.
⁴FSCO Superintendent’s Guideline No.02/11, s. 7 (c)(ii).
⁵O. Reg. 34/10, s. 40(3).
⁶O. Reg. 34/10, s. 40(7).
⁷FSCO Superintendent’s Guideline No.02/11, s. 1.