On September 1, 2010, the Minor Injury Guideline (MIG) was introduced as a part of the new Statutory Accident Benefits Schedule in Ontario. Automobile insurance claims for individuals who suffer from minor injuries were then capped such that an injured party suffering from a minor injury, defined as “a sprain, strain, whiplash associated disorder, contusion abrasion, laceration or subluxation and any clinically associated sequelae” can only claim a maximum of $3,500 for treatment.
On July 7, 2015, the Financial Services Commission of Ontario (FSCO) revisited the contentious issue of injuries that fall outside the MIG, and rendered an eye opening decision: Arruda v Western Assurance (FSCO A13-003926). On May 5, 2012, the Applicant was involved in a motor vehicle accident and sustained psychological and soft tissue injuries as a result. The Applicant applied for Accident Benefits with her automobile insurance company, Western Assurance. Western Assurance took the position that the Applicant’s injuries fell within the MIG. The Applicant exhausted her $3,500 limit and then applied for further treatment and assessments. Western Assurance denied her claims.
The case proceeded to Arbitration where one of the issues to be decided was whether the Applicant’s injuries fell outside the injuries defined by the MIG. The Applicant’s position was that her injuries did not fall within the MIG because the Applicant had pre-existing back injuries related to her pregnancy, which occurred prior to the motor vehicle accident, and that she had developed soft tissue and psychological injuries as well as chronic pain.
Western Assurance agreed that the Applicant suffered soft tissue injures, but took the position that the Applicant’s psychological injuries were merely minor difficulties with respect to her psyche, and that these injuries fell within the scope of the MIG. Arbitrator Shapiro determined that shortly after the motor vehicle accident, the Applicant’s injuries were not severe enough to fall outside the MIG. However, after a thorough analysis of the definition of MIG and the medical evidence, the Arbitrator found that as the Applicant was diagnosed with chronic pain syndrome (one and a half years after the accident), which had not yet resolved. This, in the Arbitrator’s opinion, put her injuries outside the MIG.
In coming to this Decision, Arbitrator Shapiro referenced the case of Cowans v Motor Insurance Company (FSCO A09-003237), dated October 15, 2010, in which it was established that the insurer has an ongoing duty and responsibility to assess and reassess, if necessary, an Applicant’s medical status and claim as new information becomes available. The Arbitrator criticized Western Assurance for failing to respond to the Applicant’s position that her later diagnosed chronic pain syndrome should remove her from the MIG.
Based on the above, it is imperative for insurers to consider chronic pain when diagnosed and revisit claims based on new medical evidence. Western Assurance’s response to the Applicant’s argument that the Chronic Pain Syndrome removed the Applicant from the MIG was silence and the Arbitrator concluded that this silence was effectively an agreement with the Applicant’s position that Chronic Pain Syndrome does in fact remove the Applicant from the MIG. If and when new medical information is presented to the insurer, the insurer must reconsider its previous position.
There is currently no information available as to whether or not Western Assurance will appeal. Until such time, an Applicant’s unresolved chronic pain may be enough to get them out of the MIG.
For more information on this article or any Accident Benefit Claims generally or more specifically related to Chronic Pain, please contact us at 887-771-7006.
