Compelling Evidence: How to improve chances of getting out of the Minor Injury Guideline (MIG)

Monetary limits re medical and rehabilitation benefits

18. (1) The sum of the medical and rehabilitation benefits payable in respect of an insured person who sustains an impairment that is predominantly a minor injury shall not exceed $3,500 plus the amount of any applicable harmonized sales tax payable under Part IX of the Excise Tax Act (Canada) for accidents that occur on or after June 3, 2019 for any one accident, less the sum of all amounts paid in respect of the insured person in accordance with the Minor Injury Guideline. 

(2) Despite subsection (1), the limit in that subsection 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 was documented by a health practitioner before the accident and that will prevent the insured person from achieving maximal recovery from the minor injury if the insured person is subject to the limit or is limited to the goods and services authorized under the Minor Injury Guideline.  

I have noticed an increasing trend whereby insurance adjusters in accident benefit claims are denying treatment beyond the $3,500 under the MIG on the basis that there is no compelling evidence that the injuries fall outside the MIG (see s. 18(2) of the SABS above) without reference to an IE. Simply put, adjusters are making decisions on the basis of their own review of the medical documents without the benefit of a medical opinion.

A file handled in his manner has the potential to come back to haunt an insurer but, at the same time, case law has clearly elucidated that the claimant still has the onus to prove that the pre-existing medical condition prevents them from achieving maximal recovery within the limits (Scarlett v Belair Insurance, 2015 ONSC 3635 (CanLII)) . An adjuster may be wrong in maintaining a claim remains within the MIG but if a claimant fails to adduce compelling evidence that recovery from the minor physical impairments sustained in the subject accident is prevented by this condition then an adjudicator at the LAT may not find in favour of the claimant.  Thus, it is imperative to obtain evidence that will directly speak to this issue if there is to be a legitimate chance of convincing an adjudicator that the MIG limits are not sufficient.

In many LAT cases, there are references from adjudicators of reliance on a treatment plan as compelling evidence that the pre-existing condition prevents recovery from a minor injury.  That in and of itself is not necessarily sufficient to meet the test if it simply . As well, a few entries on an OHIP summary may not necessarily constitute compelling evidence.

Before the commencement of an LAT hearing, steps should be taken to improve the chances of persuading an adjudicator that a pre-existing medical condition satisfies s. 18(2) of the SABS.  Such steps include:

1. Ensure the credibility of the claimant. This is always a factor, especially in chronic pain cases. If the claimant is not credible then this will work against the claim.
2. Obtain, as soon as is practicable, pre-accident medical records to ensure that you have a complete picture of the claimant’s history.
3. Unless it is an obvious injury outside of the MIG, be careful with submitting OCF-18s without the benefit of a clear picture of the pre-existing medical history. This will inevitably result in an adjuster denying the benefit.
4. If reports are to be obtained to support the claimant’s claim, the doctor must be provided with a complete (as best as can be achieved) copy of medical records. Simply relying on the evidence of the claimant will likely not be enough.
5. Have the doctor provide a cogent opinion on why the pre-existing condition prevents achieving maximal recovery from the minor injury. Do not beat around the bush. This is the heart of the issue and should be dealt with forthrightly.
6. If assessments are conducted beyond simple reliance on the claimant’s evidence, the methodology or testing conducted should be identified to ensure that there is a level of objectivity in the findings.
7. Corroborative evidence will improve chances of meeting the test outlined in s. 18(2) of the SABS. Keep in mind that if a treatment plan outlines issues that prevent maximal recovery, this should be supported by other medical practitioners.
8. The claimant must continue with treatment through the family doctor if treatment is denied on the basis that the MIG is exhausted. Further investigation may help to provide the compelling evidence needed to satisfy s. 18(2).
9. If there is a psychological component to the claim, it is imperative that the testing be conducted and that a cogent diagnosis be made on why the applicant meets DSM-5 diagnostic criteria.

Unfortunately, the cards are stacked against injured claimants who sustain what are deemed to be “minor injuries.” However, with some planning at the initial stages of a claim you may provide a claimant with the best chance of  overcoming the MIG.