The Canadian Bar Insurance Association
Personal Injury

Decision likely to spur better results for accident victims

A recent Financial Services Commission of Ontario arbitration decision is likely to have a “profound” effect on how soft-tissue injury claims are interpreted moving forward, says Toronto personal injury lawyer Kevin Marshall.

Scarlett v. Belair Insurance Company Inc. deals with the case of Lenworth Scarlett, who was involved in an auto accident where he sustained strains, sprains and whiplash, and also had pre-existing injuries and subsequent psychological difficulties, the Toronto Star reports.

Scarlett and his lawyer argued his injuries claim fell outside of the minor injury guideline (MIG), which limits the amount of medical and rehabilitation treatment that an insurer is required to pay to $3,500 in treatment costs. The insurer argued that Scarlett’s injuries were soft tissue in nature, and were within the MIG.

“The question became, ‘Is he confined to the MIG or, as he and his lawyer argued, should he be moved away from the MIG and the $3,500 restriction,’” says Marshall.

The arbitrator sided with Scarlett, finding that while he had soft-tissue injuries, he may have had other conditions that weren’t soft tissue in nature.

The decision contained other important factors as well, says Marshall.

“The arbitrator ruled that it’s the insurer’s burden to prove the insured person falls within the MIG, not the insured person’s burden to prove they fall outside of it,” he says.

“Secondly, the ruling says that the determination that a person is within the MIG is an interim one that can be open to review as more documentation and information becomes available.”

Also, perhaps most importantly, says Marshall, the decision says, “just because a person has soft-tissue injuries does not automatically mean they should fall into the MIG, especially in instances where they have pre-existing injuries or they develop other issues beyond soft-tissue injuries.”

It’s an important case because of the high rate in which these injuries occur, says Marshall.

“The MIG was one of the key things the insurance industry lobbied the government to implement because there’d been great concern about individuals with whiplash-type injuries, which insurance companies were quite concerned with because they comprise the majority of claims,” he says. “Their intent was to minimize the majority of these types of claims. Now, the insurance industry has the onus of proof, and just because there’s soft-tissue injuries, independent of other considerations, they can’t simply automatically assume it falls under the MIG.”

Marshall says, “This will have a profound impact, precisely because soft-tissue injuries comprise the majority of claims.”

On the ground level, Marshall says the ruling isn’t likely to change the approach taken by insurance companies, but it will likely eventually lead to better results for accident victims.

“My guess is the insurance companies will still take a more hardline approach that any soft-tissue injury will put that person into the MIG and effectively that person will have to prove otherwise, which can be quite intimidating.”

Marshall says it’s generally believed that the MIG had to be implemented due to minor injury victims attempting to work the system – an idea he says isn’t justified.

“Some people, for whatever reason, genuinely develop complications and they can't get back in the workforce or back on their feet within a few weeks or months,” he says. “Also, what’s really unfair is for people with soft-tissue injuries plus other injuries being treated as straight whiplash injuries. That’s what this particular decision is saying: If it’s whiplash plus something else, that should really take the claim out of the MIG.”

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