Anyone injured in a car accident regardless of fault is entitled to No Fault Benefits as outlined on our website. Since September 1, 2010, the level of benefits you receive is based on the severity of your injuries. Injuries can be under the Minor Injury Guidelines (MIG), which injuries are defined as “a sprain, strain, whiplash associated disorder, contusion, abrasions, lacerations.” This is the lowest level of injury assistance provided and entitles the victim to only $3,500.00 including the cost of medical assessments. The other two levels of injuries are catastrophic injuries, which are defined specifically in the legislation (entitling the victim to several benefits including up to 1 million dollars in med-rehab and 1 million dollars in attendant care), and injuries that fall between the MIG and the catastrophic designation (which are entitled to up to $50,000.00 inclusive of medical assessments).
A recent decision in Scarlett v. Belair Insurance showcases the challenges in assessing whether or not injuries fall under the MIG or can escape the MIG and take the victim into one of the two higher compensation levels of injuries. This case was about whether Mr. Scarlett’s injuries fell within the minor injury guideline, or were worse and entitled him to $50,000.00, as opposed to the $3,500.00 worth of benefits.
Following the car accident, Mr. Scarlett only appeared to have sprains, strains, and other minor related problems. In reviewing the case, Belair Insurance declared that he fell within the MIG (Minor Injury Guidelines). Subsequently, a series of psychological assessments undertaken by Mr. Scarlett and his counsel confirmed that Mr. Scarlett was diagnosed as having chronic pain; post- traumatic stress disorders; a severe depression; a pain disorder; and a driving phobia. He also had problems with an imbalance of the craniomandibular apparatus resulting in symptoms of cranial facial pain/temporomandibular joint syndrome.
Although the case is presently under appeal by Belair Insurance, the Arbitrator concluded that these other symptoms brought Mr. Scarlett out of the MIG category of compensation and into the higher levels. Of significance in the case are the Arbitrator’s opinions that:
1. The burden of proof in a MIG case is on the insurer not the insured to prove the victim falls within the Minor Injury Guideline
2. The minor injury definition is an exception under the policy as opposed to one standard of coverage under a three tier system.
Using the french translation of the regulations, Arbitrator Wilson also concluded that the regulations reference to “compelling evidence” simply meant “credible evidence” as opposed to compelling evidence implying a higher standard of proof.
Further significance is the fact that the Arbitrator, while finding that the insurer had initially been correct in their assessment of the injuries as following within the MIG, found that such early assessment is only a “Interim ” one and that as the injuries develop and more information is available, injuries can become more complex, and result in a reassessment as to the appropriate category of injury level.
(Released March 26, 2013)
Nicholson Gluckstein Lawyers