An arbitrator for the Financial Services Commission of Ontario recently ruled against Belair Insurance Company Inc. in a claim which the carrier said fell under the minor injury guideline (MIG).

The provincial government introduced in September 2010 a $3,500 cap on payments for injuries that fall under the MIG. That cap was one of several auto insurance reforms, which also included a reduction in medical, rehabilitation and attendant care benefits in the standard auto policy for non catastrophic injuries.

Last week, FSCO arbitrator John Wilson wrote in a decision that claimants who would otherwise fall into the MIG can be treated outside of the MIG “if there is credible medical evidence that a pre-existing condition will prevent the insured person from achieving maximal recovery” from the injury.

According to a blog post by Smitiuch Injury Law, Wilson’s March 26 decision is “the very first (FSCO) decision with respect to injuries” the fall within the MIG. In his decision, Wilson ruled a Belair claimant was not precluded from claiming housekeeping, attendant care, medical and rehabilitation expenses beyond the $3,500 MIG limit.

“It makes no sense if the insurer is positioned to veto access to benefits on the basis of the delivery of a single report, in the face of credible evidence to the contrary, when the resulting delay in treatment could last for years,” Wilson wrote March 26 in his ruling. “This runs contrary to both the spirit of the accident benefit scheme and the stated purpose of the Guideline itself.”

Wilson’s decision was in the case of Lenworth Scarlett, a passenger in a vehicle insured by Belair and rear ended by another in September, 2010. Although there was “no disagreement as to most of the fundamentals” of his claim, Belair did rely on reports from its own medical examiners in its contention that Scarlett’s injuries fell within the MIG.

The issue in Scarlett’s case, which was heard Feb. 22, 2013, was whether the claimant was “precluded from claiming housekeeping, attendant care and medical and rehab expenses, beyond the $3,500 limit” of the MIG.

Scarlett contended that although he suffered strains, sprains and whiplash related injuries he also had pre-existing conditions and subsequent psychological difficulties.

Much of the decision discussed burden of proof, and Wilson quoted from a 1957 Ontario Court of Appeal decision, in the case of Losier v. St. Paul Mercury Indemnity Company. In that case, the appeal court wrote: “Since exceptions are inserted in the policy mainly for the purpose of exempting the insurers from liability for a loss which, but for the exception, would be covered by the policy, they are construed against the insurer.”

Quoting from Ontario Regulation 34/10, Wilson noted in the Scarlett decision that an insurer “is liable to pay benefits” except as provided in the same regulation.

Wilson suggested 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.

“Barring exceptions, then an insurer is obliged to make payments of medical and rehabilitation benefits to an insured who sustains impairment as a result of an accident,” Wilson wrote.

Wilson added Belair “had not met its burden of showing that Mr. Scarlett’s claim is restricted to the parameters of the MIG.”

Quoting from FSCO’s guideline, Wilson noted that MIG means “a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae.”

He wrote that “while there is no doubt” that Scarlett suffered soft tissue injuries, “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.”

Wilson added that while an insurer may disagree that the claimant suffered depressive symptoms or PTSD, “that is the very sort of conflict that is meant to be resolved in court or by arbitration, on the issue of reasonableness of the particular treatment proposed, not by unilateral veto of benefits of the insurer.”

In general, Wilson suggested that the decision to treat a claimant under the MIG “should be made on the basis of credible medical evidence and not on speculation.”

He added: “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 Scarlett’s case, Wilson noted Belair paid $1,582.34 towards medical and rehabilitation expenses and $3,658.50 for its own assessments of his claims, which led to conflicting reports from Belair’s experts. Wilson suggested the only way to fully reconcile conflicting reports from medical experts would be through a full trial where expert witnesses would be subject to cross examination

“At the early stages in the claim process where the MIG is situated, such would be neither desirable more possible” he wrote. “The insurer is in effect mandated to make an early determination of an insured’s entitlement to treatment beyond the MIG,” but that the determination is “an interim one” that is “open to review.”