The recent and much anticipated release of the FSCO appeal decision in Scarlett v. Belair1 signals that injured accident victims will have to work harder to get out from under a Minor Injury Guideline (“MIG”) classification by their insurers.
Mr. Scarlett was involved in a motor vehicle accident in which he suffered soft tissue injuries (i.e., sprains, strains and whiplash related injuries). Later, he went on to develop chronic pain, depression and other psychological problems, as well as temporomandibular joint syndrome (“TMJ”). Belair, his accident benefits insurer, considered Mr. Scarlett’s injuries to fall under the MIG and capped his medical and rehabilitation benefit entitlements to the prescribed $3,500 limit, including the cost of medical assessments.
The MIG defines “minor injury” as:
“A sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. This term is to be interpreted to apply where a person sustains any one or more of these injuries.
The MIG goes on to say that an insured’s injuries do not fall within the MIG where:
“An insured person’s impairment is predominantly a minor injury but, 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 $3,500 limit … under this Guideline.”