Pain in the Neck

Insureds are taking advantage of a little known provision in Ontario’s Insurance Act to dispute insurers’ decisions that they should be treated under the Minor Injury Guideline (MIG), which includes a $3,500 cap on minor personal injury claims.

Philippa Samworth of Dutton Brock LLP made the observation in her presentation to vpi’s Insurance Services Annual Accident Benefits Adjuster Seminar in Mississauga, Ontario on Nov. 18, 2011. Entitled ‘Pain in the Neck,’ the seminar featured Samworth as a speaker in addition to Dr. Howard Platnick and Dr. Leslie Kiraly.

Samworth observed that insureds are retaining lawyers to dispute insurers’ decisions that the insureds should be treated under the MIG, and with MIG files, time is of the essence. Because of an existing backlog for mediation in Ontario in the range of between 12 and 18 months, insureds are using a little known provision in the Insurance Act, Section 280, to achieve a quick “failed mediation” ruling to move these cases forward, Samworth said.

According Section 21 of the Ontario Insurance Act, mediation has failed if the time limit has expired and no settlement has been reached. Section 19 says the mediation must be concluded within 60 days of the filing of the application for mediation. The big problem with this approach is that insureds are under no obligation to serve insurers with a copy of their application, Samworth said. Once insureds have a “failed mediation,” they are able to file their claim.

Samworth said insurers now need to review every application for mediation to make sure it has been properly completed and that it identifies the issues in dispute. If it is not properly completed, an argument could be made that the clock did not start to run at the time of filing. If a statement of claim is issued, the insurer should confirm when the application for mediation was filed at the Financial Services Commission of Ontario (FSCO) and verify that the claim was not issued before the “deemed failed mediation” date. The insurer should also request a copy of the application for mediation and a letter from opposing counsel stating the issues deemed to be failed, including all of the pertinent dates.  

Where are MIG claims headed? Samworth said files are getting to her very quickly, generally within six months after an accident. Some insureds have filed their claims in the Ontario Superior Court, while others have filed claims under the Simplified Rules in Superior Court. The rest are filed in Small Claims Court. The dollar value attached to treatment plans under dispute frequently comes in under the Small Claims Court limits.

The issue with MIG claims is that insureds are seeking a declaration that they do not fall within the definition of a minor injury and therefore should not be restricted to the MIG, Samworth said. But Small Claims Court judges do not have the jurisdiction to give such a declaration. These cases involving small dollar amounts should be handled under the $100,000 limit for the Simplified Rules in Superior Court, Samworth said, and this is the position she is taking with her cases.  

Samworth said she is seeing “bizarre” cases that clearly appear to fall within the MIG. She reports seeing treatment plans with no documentation to support the claim. In some instances, she said, treatment providers have provided nothing in support of an insured’s assertion that “compelling evidence” exists to prove the insured does not belong in the MIG. There appear to be a lot of psychological issues associated with MIG claims, just as there were with the MIG’s precursor, the Pre-Approved Framework (PAF) Guidelines, she said. However, the definition of a minor injury in the MIG includes “clinically associated sequelae.” The MIG addresses psychosocial risk factors and has some provisions for dealing with issues such as stress and driving phobias. But there is some disagreement about how psychological conditions should be addressed in the Ontario Psychological Association Guidelines for Assessment and Treatment in Auto Insurance Claims, July 29, 2010. In summary, the guideline states psychological impairments are not included in the definition of a minor injury. But it also indicates the MIG will allow for some psychological interventions under the heading of “Supplementary Goods and Services,” although these are limited to addressing circumstances such as coping skills and distress. The guideline goes on to say driving phobia and transit phobia are not “sequelae” of physical injuries, so there will likely be many treatment plans for insureds having these phobias. Samworth said we will have to wait and see how these issues are handled when they get to court.

Samworth concluded with a comment about “the irony of the MIG.” She said that out of the files she has seen (between 20 and 25) involving a request to be taken out of the MIG, the cases are identical in that the treatment plans in dispute are for treatment that is available within the MIG. The treatment under dispute is usually longer and more expensive, but it is the same type of treatment. This begs the question of why providers feel their clients cannot get better within the MIG unless they have the identical treatment outside of the MIG, she said.  

In his presentation, Platnick focused on WAD injuries, giving an overview of specific signs and symptoms, and looking at the mechanics of injury as a way for the adjusters to gain greater insight into the WAD rating system, as established by the Quebec Taskforce. He highlighted the manner in which WAD injuries are addressed by the MIG, as well as the need for a precise diagnosis and knowledge of any pre-existing conditions.  

Dr. Leslie Kiraly delivered an in-depth analysis of the psychological aspects of whiplash and chronic pain. He presented some sobering chronic pain statistics reinforcing Platnick’s assertion that it is essential for adjusters to obtain the insured’s medical files and understand any pre-existing conditions. By defining the signs, symptoms and potential causes of different types of pain — neuropathic, nociceptive and mixed pain — he illustrated the correlation between psychological factors and the occurrence of chronic pain.