The Financial Services Commission of Ontario (FSCO) has released what appears to be the first published decision on the Minor Injury Guideline (MIG), which was introduced in September 2010. In Scarlett v. Belair Insurance Company Inc. F.S.C.O. A12-001079, released on March 26, 2013, Arbitrator J. Wilson determined whether Belair Insurance Company Inc. (Belair) appropriately placed Mr. Scarlett within the MIG. Belair argued that the injuries suffered by Mr. Scarlett placed him within the MIG. Mr. Scarlett argued that his pre-existing conditions as well as psychological injuries placed him outside of the MIG framework. Arbitrator Wilson discussed the burden of proof and held that the onus is on the insurer to prove that the claimant falls within the exception to the general rule. It is not up to the claimant to prove that they fall outside of the MIG; the insurer must prove the claimant falls within the MIG. He also held that it does not make sense to allow the insurer to rely on a single insurer examination as the basis for finding that the claimant falls within the MIG where there is credible evidence to the contrary. Arbitrator Wilson outlined the critical elements of the MIG as follows:
- Persons who suffer minor injuries (as defined) should be treated appropriately, with early, quick and limited intervention to assist in recovery.
- The decision to treat an insured either within the MIG or not should be made on the basis of credible medical evidence, and not on speculation.
- Even those persons who otherwise might be within the MIG can be treated outside of the Guideline if there is credible medical evidence that a pre-existing condition will prevent the insured person from achieving maximal recovery from the minor injury.
In his decision the Arbitrator held that there is no doubt that Mr. Scarlett did, in fact, suffer soft tissue injuries, but "it is not at all clear that he also did not suffer from any other conditions that were neither soft tissue injuries nor sequalae thereof, or that the sum of his injuries from the accident was minor in nature." Importantly, the Arbitrator also noted that the initial determination by the insurer to treat the claimant within the MIG must be an interim decision, one that is open for review once additional information is provided or becomes available. Reference:
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