Earlier this year Arbitrator Wilson released his controversial MIG decision, Scarlett v. Belair. The claimant argued that the injuries he suffered in a motor vehicle accident did not fit within the MIG due to his pre-existing conditions, psychological disability and TMJ syndrome. Arbitrator Wilson agreed with Mr. Scarlett. It was not the Arbitrators decision itself that led to confusion but the rational.
Arbitrator Wilson held that the MIG is a non-binding interpretive aid. He also held that the onus to prove a claimant falls under the MIG is on the insurance carrier. The Arbitrator used his own arguments, translations and a number of cases. The parties did not have an opportunity to make submissions on the many of the issues raised by the Arbitrator.
The Directors Delegate has allowed Belairs appeal. Importantly he confirmed that the guidelines, which have been incorporated into the SABS, including the MIG, are binding. The Directors Delegate also determined that the Arbitrator failed to deal with a number of key issues, including:
- whether the claimants injuries were predominantly soft tissue
- whether some of Mr. Scarletts chronic pain, depression, and TMJ were separate from his soft tissue injuries
The Directors Delegate sent the matter back for a full hearing before a different Arbitrator.
Written by Jan Marin, Lawyer, Gluckstein Personal Injury Lawyers