Stakeholders and interest groups in the auto insurance sector have been anxiously waiting for over 2 years for a ruling on what types of impairments fall within and outside the SABS definition of “minor injury.” That finally happened with week when FSCO posted a recent arbitration decision on a preliminary issue in Scarlett and Belair.
Lenworth Scarlett was injured in a motor vehicle accident several weeks after the 2010 reforms became effective in September of that year. Shortly after the accident Mr. Scarlett submitted a disability certificate that described his injuries as various sprains and strains to joints and ligaments of the lumbar spine as well as headaches and acute stress reaction. The disability certificate describes an injury that falls under the minor injury definition.
Subsequently, a dentist reported that Mr. Scarlett also suffered from temporal mandibular joint (TMJ) syndrome.
Later there were additional diagnoses of chronic pain and psychological impairments.
Belair stuck to the original diagnosis and insisted that Mr. Scarlett’s injuries were subject to the
Minor Injury Guideline (MIG) and the $3,500 cap on treatment and assessment expenses set out in the SABS.
The arbitrator agreed with the claimant that his injuries were not minor and not subject to the $3,500 cap. Some of his rationale will likely make some people unhappy.
The arbitrator noted that the SABS provided the Superintendent with authority to issue the MIG since it is incorporated by reference. However, he determined that it was a non-binding interpretive aid. As a result, he challenged the use of “compelling evidence” in determining whether a pre-existing condition would bring a claimant out of the MIG and not subject to the $3,500 cap. However, this language has been pulled from the SABS in subsection 18(2) and was not created by the Superintendent. In addition, it wasn't clear why there was pages of analysis regarding the use of compelling evidence since the test only relates to pre-existing conditions and none were discussed in the decision.
The arbitrator also suggests that without "clear legislative direction that would override" existing rules on the burden of proof, the onus is on the insurance carrier "to prove any exception to or limitation of coverage" based on a balance of probabilities. So it is up to the insurer to prove that the claimant falls under the MIG and not the other way around.
The outcome of this case was something I have been predicting and has been a topic of some of my past presentations and articles. I have always said that there will be claims which begin as soft tissue injuries and become more complex over time. Specifically, in cases such as this one where chronic pain and psychological impairments develop. These cases should be treated initially in the MIG but may eventually fall outside as other problems manifest themselves.
The arbitrator is correct that a “cookie cutter” approach to adjudicating these cases is problematic.
Not all soft tissue injuries follow the same pattern or resolve themselves in the same period of time. That was reflected in the 234-page report of the Neck Pain Task Force in 2008 and published in the
Spine journal.
The problem with the existing MIG is that it only covers the acute phase of an injury and does not consider a possible chronic phase. The SABS does not specifically address it either but it also does not prohibit someone who is initially diagnosed with a minor injury subsequently being diagnosed with additional impairments at a later date.
FSCO currently is overseeing a project to conduct research on the treatment of minor injuries and hopefully some of these gaps will be addressed by the
project team lead by Dr. Pierre Côté.
Finally, many of the assessments conducted by the insurer were paper reviews and it appears the arbitrator did not give them much weight. This claim occurred shortly after the 2010 reforms became effective and the insurer may have had a large volume of claims to refer for a third party medical assessment as part of the process of trying to determine what injuries fell under the minor injury definition. To accomodate the volume of assessments needed the insurer may have requested a large number of paper reviews.