Two cases at the opposite ends of the spectrum
Once again, Allen Wynperle is co-chairing the Annual Joint Insurance Seminar for the Hamilton Law Association and Insurance Adjusters’ Association on April 30th. It’s the 27th year for the event, which brings together over 300 attendees: lawyers, the insurance community, and healthcare providers. In Allen’s presentation, he’ll provide an update on important accident benefit cases. Two of particular interest represent opposite ends of the spectrum in terms of kind of injury defined by the SABS: catastrophic and minor. They also resulted in interesting and for some, surprising rulings.
In Mujku v. State Farm, we see the outer boundaries of what normally would be considered a case resulting in catastrophic injuries. In 2005, Mrs. Mujku’s vehicle was hit from behind. The damages to the car were about $700—not an amount that anyone would assume to be “bad accident.” But in the weeks and months that followed, Mrs. Mujku experienced both physical pain and a worsened mental state; which added to her pre-existing mental health issues. She made an Application for Determination of Catastrophic Impairment and the case went to arbitration. The Arbitrator, ruling in her favour, found that she did suffer a marked mental or behavioural disorder as a result of the motor vehicle accident. The result was not one that should be expected at the early stages of recovery, given that on the surface, the accident appeared to be minor.
The second case, Scarlett v. Belair concerns the decision reached by FCSO Arbitrator Wilson this March 2013 involving the new Minor Injury Guideline (MIG). The case concerned whether or not the applicant, Mr. Scarlett, sustained injuries in a motor vehicle collision that fell within the new guidelines (MIG).
Immediately following Mr. Scarlett’s accident, the insurer, Belair, took the position that his injuries placed him in the MIG category; in his ruling this March, Wilson ruled otherwise. His findings followed an extensive, and welcomed analysis of the MIG, in which he stated that the Guidelines are advisory in nature, that is, they are an “aid” in the interpretation of the Schedule of Benefits but they don’t take precedence over the Schedule itself.
In his decision, Wilson wrote that claimants 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. That is, someone like Mr. Scarlett who suffered minor injuries should be treated appropriately and that an insurer, such as Belair, can’t use a single medical report to deny access to further accident benefits. Arbitrator Wilson also found that the determination as to whether the MIG is appropriate in a given claim: “…must be an interim one, and one that is open to review as more information becomes available.”
This is the first ruling regarding minor injuries since the new accident benefits regime was introduced in Ontario in 2010. The ruling makes sense to lawyers like those at DWA LAW who work as advocates for clients injured in motor vehicle accidents. It’s how we’d hoped the MIG would be interpreted, in particular, the emphasis that every case should be treated as individual, and that insurers must be adaptable as new information about the injuries and/or treatment becomes available.
Download the full Accident Benefits Case Law Update for 2012-2013 here.
