We are now two and a half years post the September 2010 regulatory changes that introduced the concept of “Minor Injury” and the associated Minor Injury Guideline (MIG). The pressing question over these past 30 months has been how the courts and arbitrators would interpret this definition and the applicable Guideline.
Well, the first decision has now been released. Heard February 22, 2013 by Arbitrator John Wilson, Lenworth Scarlett and Belair Insurance Company is the first decision to come down regarding the application of the MIG.
In this case, Mr. Scarlett was injured in a motor vehicle accident on September 18, 2010. He was new to Canada and did not have access to OHIP. The decision does not tell us whether or not Mr. Scarlett’s policy renewed after September 1, 2010; therefore it is difficult to comment on the housekeeping component of the case. That being said, the main issue here is the application of the MIG.
Mr. Scarlett submitted a Disability Certificate less than a month post accident that confirmed he sustained various sprains and strains to the joints and ligaments of the lumbar and cervical spine, as well as headaches and acute stress reaction. Subsequent to this, a report was submitted that confirmed Mr. Scarlett suffered from TMJ as well as intra-capsular TMJ syndrome.
In December 2011, an orthopaedic surgeon reported positive Waddell signs and noted positive testing for an adverse psychological and emotional response to injury and a poor prognosis for recovery. Also in December, a psychologist assessed Mr. Scarlett and found that he suffered from pain disorder, severe depressive symptoms, chronic symptoms of a post-traumatic stress disorder and driver anxiety. Plaintiff counsel submitted that based on the above, Mr. Scarlett’s injuries cannot be treated within the MIG.
The insurer, Belair, completed a paper review with a chiropractor to address the nature of the injuries and application of the MIG after it received the initial treatment plan. The chiropractor found that injuries were commensurate with minor injuries as described in the MIG and that the minor injury guideline applies.
The insurer completed a further assessment with a psychologist after receipt of the attendant care and TMJ report. The psychologist concluded that based on Mr. Scarlett’s narrative and presentation, his symptoms did not meet the criteria for any psychological diagnosis.
Finally, a paper review was conducted by a dentist in response to the TMJ Assessment. The dentist indicated that the file documentation did not provide compelling substantive objective evidence or subjective complaints to suggest the claimant has an ongoing concern with TMJ.
For purposes of this article we will look at how Arbitrator Wilson came to his decision and the areas that may prove to be problematic as a result of some of his reasonings.
This case is interesting for a number of reasons. In contemplating his decision, Arbitrator Wilson considered the application of the MIG, the French translation of the Guideline, as well as where the Burden of proof lies when applying exceptions to the policy.
First, Arbitrator Wilson looked at the Guideline itself. He made it very clear that the Guidelines are informational and non-binding – despite the fact the Guidelines are specifically referenced in the Statutory Accident Benefits Schedule (SABS) and the provisions of the Schedule are binding. Section 1 of the Guidelines specifically state that the Guideline is pursuant to sec. 268.3 of the Act. There is a hierarchy of legislation and the Act trumps the Schedule. Section 268 of the Act basically states that a guideline shall be considered in any determination involving the interpretation of the SABS. Arbitrator Wilson suggested that guidelines are non-binding and are no more than an interpretive aide.
Notwithstanding his opinion of the Guideline and its application, Arbitrator Wilson did choose to take it into consideration when determining whether or not Mr. Scarlett’s injuries were minor in nature and if the Guideline should apply.
To date, I believe that the insurance industry has been relying on the Guideline as being part of the SABS, which is a binding regulation. In his interpretation, it appears as though Arbitrator Wilson has diluted the intent of the Guideline, which may open the door to further challenge as to the application of the MIG Arbitrator Wilson then spoke to the Burden of Proof. The intent of the Guideline is for the Insured to prove that:
a) Based on compelling evidence provided by his or her health practitioner, the insured person has a pre-existing medical condition that will prevent the insured person from achieving maximal recovery from the minor injury if he or she is subject to the $3500 limit referred to in section 18(1) of the SABS or is limited to the goods and services authorized under this Guideline;
b) His/her injuries do not fall within the definition of Minor injury.
Arbitrator Wilson reported that Section 14 of the SABS states an Insurer is required to pay medical and rehabilitation benefits under section 15 and 17 of the schedule. Barring exceptions, the Insurer is obliged to make payments in accordance with this section.
Once the Insured has proved that he/she is an insured and has suffered impairment, the onus is on the Insurer to prove that the Insured falls within an exception that would justify part or non-payment of the whole benefit, in this case the MIG. In his opinion, Arbitrator Wilson found that the Insurer did not meet the burden of proof and refers to “the Insurer positioning itself on the basis of a single report.”
I believe that this shift of onus creates another area of challenge for insurers. If the insured submits a treatment plan by their treating health care practitioner, the insurer must prove on the balance of probability that the treating physician is incorrect in regards to their opinion as to whether the injuries fall within the MIG. In certain cases, it may be that the treating health care practitioner is not familiar with the insurance definition of minor and the application of the Guidelines. This should be easily resolved with a phone call from the adjuster to the practitioner and, if agreed, the practitioner can submit an amended plan on the appropriate OCF-23 that coincides with the MIG.
In those cases, however, where the practitioner does not agree that the injuries are minor or that they can be treated within the MIG, it may be difficult for the Insurer to prove this with a single assessment. It is even more important now that insurers conduct proper assessments with the appropriate health care practitioners at the right time and in the correct format (in-person versus paper). It is highly recommended that the initial MIG assessments be conducted in person with a GP and any other practitioner that may be reasonably require based on the treating practitioner’s diagnosis. It is equally as important to continue to address all new medical evidence in a similar manner as it is received.
In regards to the issue of “Compelling Evidence”, Arbitrator Wilson seemed to put quite an emphasis on the translation of the French guideline. The French Guideline once translated merely “encourages” submission of compelling evidence, it does not mandate it. He suggested the only way to reconcile the English and French versions would be to interpret both as encouraging or urging medical practitioners and other stakeholders to provide credible or convincing evidence if they are looking to be taken out of the MIG.
In addition, he suggested that it is not clear at all that compelling evidence translates directly into any burden of proof when adjudicating whether the Insured falls within the MIG. Again, I
believe this dilutes the intent of the Guideline. If we go with this interpretation, coupled with a shift in the burden of proof as outlined above, then it can be argued that credible or convincing evidence is encouraged, but not necessarily required to be submitted by the Insured.
Notwithstanding Arbitrator Wilson’s interpretation of the application of the MIG, onus of proof and translation of “compelling,” in this case much emphasis was placed on the fact the insured was diagnosed with TMJ, psychological impairments, as well as neurolocogenitive and emotional impairments. He found that Mr. Scarlett provided timely and credible information and came to the conclusion that when the totality of his injuries is assessed, they come outside of the MIG.
A key point to consider here is that the Arbitrator specifically noted these additional impairments were separate from the soft tissue injuries and were not sequalae related to the soft-tissue impairments. In many other cases, it can be argued that anxiety, stress, headaches or other minor psychological impairments are resulting sequalae of the soft tissue injuries and therefore may fall with the MIG.
In conclusion, it is clear that the application of the MIG should be decided on a case by case basis and, in the words of the Arbitrator Wilson, a “cookie cutter” application should not be used where there is a soft tissue injury present.
From a handling perspective, adjusters need to be proactive in their approach. This means early contact with claimants to secure information, explain benefits, the definition of minor and the associated available treatment. In addition, it also should involve early contact with the treating health care practitioner to educate them on the definition of minor and the application of the Guideline.
Open communication should continue throughout the duration of the claim with both the treating practitioner and the claimant, to set expectations, measure progress and ensure outcome-driven results. Practitioners should be held accountable to the expected improvements they have identified as a result of the treatment. Insurers should properly utilize Insurer examinations to help them understand diagnosis, prognosis, the effect of prior injuries/ conditions and reasonable treatment required.
It is important to have a good understanding of the claimant’s pre-accident health, to continually evaluate new information as it is received and to assess the claim based on its own merits and the totality of information, as opposed to each individual submission.
Notwithstanding the conclusion that Mr. Scarlett’s injuries were not “minor” and therefore the MIG does not apply, I do believe that by diluting the meaning of compelling, shifting the onus onto the insurer and viewing the Guidelines as “non-binding,” Arbitrator Wilson has opened the door to further challenges regarding the application of the MIG.
It should be noted that this decision will most likely be appealed. It will be interesting to see how it all plays out in the end.
Tammie Norn, FCIP, is CEO of ProFormance Group Inc.