The Statutory Accident Benefits Schedule (SABS) introduced in September 2010 expands on the previous definition of whiplash associated disorders (WADs) by including sprains, strains, dislocations, lacerations, contusions, abrasions and any clinically associated sequelae (secondary consequences or results of an injury) in a new minor injury definition. Including associated sequelae in the definition is meant to cover common complaints associated with soft tissue injuries such as pain, headaches, dizziness, difficulty sleeping, anxiety, depression and fatigue.
The Minor Injury Guideline (MIG) and a $3,500 cap on treatment and assessment expenses apply if the claimant sustains an impairment that is predominantly a minor injury. Currently there hasn’t been any guidance provided from the Superintendent, arbitrators or the courts on how to determine which impairment is predominant where the claimant sustains multiple impairments. However, another impairment may not necessarily create entitlement to medical and rehabilitation expenses in excess of $3,500.
In other jurisdictions over 80% of auto accident injuries fall under this description. That fact that the percentage is lower in Ontario suggests that some health care providers resist categorizing their patients as having a minor injury.
The MIG was not intended to cover complete tears of muscles or ligaments, fractures or serious psychological impairments. Still a minor fractured nose or finger may require little treatment in comparison to a WAD injury and therefore it could be argued that the WAD injury is the predominant one. Adjusters should seek independent medical advice when a claimant appears to have multiple impairments or a more serious impairment that would exclude them from treatment under the MIG. As well, the SABS does not set out that all claimants start out being treated under the MIG, only those with minor injuries. An insurer that insists on starting all claims in the MIG is providing clients with poor service and exposes themselves to special awards and bad faith claims.
The MIG and $3,500 cap do not apply to a claimant if his or her practitioner determines and provides compelling evidence that a pre-existing condition prevents the claimant from achieving maximal recovery if subject to the cap or the MIG. There is no guidance as yet as to what constitutes compelling evidence but these situations should be rare and an independent medical opinion would be appropriate.
Common diagnoses used by providers to escape the $3,500 cap are psychological impairment and WAD III (see below). Depression and anxiety are common complaints following an auto accident and often resolve themselves over time. That is not the case with post-traumatic stress disorder. Again, an independent medical opinion would be appropriate in these situations. Keep in mind that if the exam needs to determine whether a physical impairment or psychological impairment is predominant you need to select a provider with an appropriate background, who can properly weigh the impact of both impairments.
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