June 7, 2017 by Kadey B.J. Schultz, Co-Managing Partner, Schultz Frost LLP
The Licence Appeal Tribunal (LAT), which is the adjudicative body for Ontario auto accident benefits (AB) disputes, has been sparing in ruling against insurers when they argue that a claimant falls under the Minor Injury Guideline (MIG).
Introduced in 2010, the MIG caps claims for certain injuries at $3,500. MIG was part of an AB overhaul. Consultation with insurance industry stakeholders, healthcare professionals and legal representatives led to the creation of a recovery program that was meant to be faster, more inclusive and capped at $3,500.
Consistent with these goals, treatment for minor injuries are funded without prior insurer approval to a maximum amount of $2,200. As such, it acts as the first path for treatment for individuals who sustained predominantly minor injuries as result of a motor vehicle accident.
If the AB scheme was a building, the MIG is the lobby where every person injured in a motor vehicle accident may enter. The upper floors of the building, known as the non-MIG and the Cat floors, can only be accessed if specific legislative criteria are met. The upper floors have a security code: reasonable and necessary.
Since its inception, the LAT has dealt with various cases where entitlement to benefits turned on whether or not the applicant’s injuries fell within the MIG. Interestingly, the LAT has ruled in the insurer’s favour for the majority of these cases.
This tendency seems to be a product of the applicant’s inability to meet the evidentiary threshold to remove themselves from the MIG. Where the LAT has found that an applicant’s injuries fall within the MIG, this determination has usually been made on the basis he or she has not provided sufficient medical evidence to prove otherwise.
In meeting their burden of proof, applicants can provide objective and subjective evidence to substantiate their injuries. Objective evidence refers to medical imaging and test results not based on self-reports. Subjective evidence includes opinions expressed by medical practitioners or an applicant’s self-reported complaints or symptoms. The relative weight attributed to each type of evidence will depend on the context of the claim.
In circumstances where the applicant is attempting to establish that his or her injury falls outside of the MIG, objective evidence will suffice. However, an applicant may need to submit both objective and compelling subjective medical evidence when claiming that pre-existing injuries would make rehabilitation difficult within the MIG’s $3,500 limit. Understanding the interplay between objective and subjective evidence is central to the potential outcome of a MIG case.
Most MIG disputes before the LAT start with outlining which party bears the onus of establishing that the applicant’s injuries fall within or outside of the MIG. In its ruling in Scarlett v. Belair, released in 2015, Ontario’s Divisional Court held that it is the applicant’s responsibility to prove that his or her injuries should not be subject to the $3,500 limit prescribed by Section 18(1) of the Statutory Accident Benefits Schedule (SABS).
Additionally, the applicant must provide medical evidence which indicates he or she suffers from an impairment that does not fall under the definition of a “minor injury” under Section 3(1) of the SABS.
It is always worth re-reading the definition: “one or more of a sprain, strain, whiplash-associated disorder, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” In effect, these are predominantly soft tissue injuries.
LAT vice-chair Gregory Flude comments in L.C. and Aviva Insurance Company of Canada that the impact of the definition of minor injury and Section 18(1) is to create a regulatory scheme where the focus is on the nature of the injuries sustained and not on the consequences arising out of those injuries. While the SABS provides some legislative guidance as to what injuries will qualify as “minor”, it does not paint the full picture of what injuries would take an applicant out of the MIG. For the full picture, it is important to review the case law.
The LAT decisions to date show the LAT is placing greater weight on objective medical evidence as opposed to the testimony and self-reported complaints of the applicant. This is especially true where credibility is an issue. The LAT has not only been critical of applicants’ oral testimony, but also of subjective complaints referenced by medical practitioners in their reports.
In another case, an applicant complained of headaches and chronic pain. The LAT found that her injuries fell outside the MIG after considering that she never visited a chronic pain specialist or underwent any diagnostic testing. It was noted that the applicant only complained of headaches three out of the 22 times she visited her family doctor.
Keeping with earlier case law from arbitrators with the Financial Services Commission of Ontario (FSCO), the LAT places significant weight on objective medical evidence when determining whether or not the alleged injuries fall within the MIG. This is epitomized in LAT’s ruling in 2016 in N.C. and RBC General Insurance Company.
In finding that the applicant’s injuries fell outside of the MIG, the LAT considered diagnostic testing results which, it held, were consistent with the applicant’s subjective complaints. Particularly, the LAT referenced an MRI of the applicant’s right arm and hand, which revealed a deposit of fluid that was indicative of carpal tunnel syndrome. Further neurological testing revealed that the applicant had “crush syndrome” with ulnar neuropathy below the elbow. The LAT held that the applicant provided sufficient medical evidence to substantiate his alleged injuries as falling outside the MIG.
This distinction between objective and subjective evidence and the relative weight afforded to each type is not a stranger to AB litigation. FSCO made a similar distinction. In FSCO’s ruling in Qasimi v. State Farm Mutual Automobile Insurance, arbitrator Marvin Huberman found sufficient medical evidence to substantiate the alleged neurological impairments. The arbitrator placed significant weight on neurological test results that demonstrated signs of radiculopathy and nerve damage.
As one would hope, the LAT decisions to date show that the adjudicator will critically assess practitioners’ medical reports. Notwithstanding the expertise of medical assessors, the LAT has critiqued medical reports where objective medical evidence is inconsistent with the assessor’s conclusions.
In the dispute before the LAT in B.U. and Aviva Canada Inc., the applicant alleged psychological sequelae. In response, the insurer ordered a psychological assessment, which concluded that the applicant’s psychological impairments were minor and did not warrant treatment in excess of the MIG limit.
The LAT held that there was a discrepancy between the assessor’s conclusion and psychological test results. Particularly, the tribunal noted that the assessor’s conclusion contradicted the objective medical tests which indicated the applicant suffered from “severe anxiety and severe depression.”
Thus, the LAT will not accept medical practitioners’ subjective conclusions without evaluating its consistency with the objective medical findings.
WEIGHT ON TESTIMONY
While objective medical evidence has a central role in arbitrators’ decision-making, subjective evidence can also be persuasive. The LAT may place greater weight on the applicant’s testimony where there is little objective evidence. In such circumstances, the LAT will apply a holistic approach, considering how the totality of evidence compares to the applicant’s allegations.
This approach is illustrated in N.E. and Waterloo Regional Municipalities Insurance Pool. In this case, the applicant could not afford to commission an independent medical assessment and companion report. He argued that this should not prejudice his claim.
Addressing this issue, the LAT held that the applicant’s failure to provide an independent medical assessor’s report was not fatal to his case. Rather, it suggested that he could meet his evidentiary burden by providing other, more accessible documentation such as “clinical notes and records from treating physicians, consultation reports from medical referrals, employer’s records, government documentation, correspondence, photographs as well as copies of emails, texts and social media accounts.”
The LAT will subsequently consider this evidence along with any medical opinions from treating or assessment practitioners to evaluate their consistency with any objective medical documentation. The LAT will, ultimately, consider the totality of the evidence to determine whether or not the applicant is credible.
An important issue to consider when assessing a case and the subjective and objective evidence available is what kind of hearing to have. The majority of the LAT decisions addressing the MIG to date have been in writing. Absent the opportunity to give oral evidence, an applicant is left to the written medical evidence, and perhaps an affidavit, to make his or her case.
Objective evidence continues to play a significant role in establishing pre-existing injuries. The LAT requires the applicant to provide sufficient medical evidence that he or she suffered from a pre-existing injury. In L.C. and Aviva, supra, the adjudicator did not accept the applicant’s evidence that his pre-existing degenerative disc changes entitled him to treatment above the $3,500 cap.
The degenerative spine diagnosis was made three years after the accident and, therefore, failed to show that a pre-existing condition was identified by a healthcare practitioner prior to the accident.
Vice-chair Flude took a strict and critical view of the reports submitted.
From the insurer’s perspective, this narrow interpretation of the legislation is particularly helpful in that the LAT requires documented proof that the pre-existing injury was, in fact, diagnosed before the accident and not retroactively in the course of adjusting the applicant’s AB claim.
Objective evidence is not determinative of whether or not an applicant’s pre-existing condition will remove him or her from the MIG. Rather, it shares an interdependent relationship with subjective evidence. In other words, it is insufficient for an applicant to demonstrate that he or she suffers from a pre-existing injury.
The LAT case law supports that the effect of an applicant’s pre-existing condition on the rehabilitation process is central to the analysis. Adjudicators often point to the presence or absence of a medical opinion drawing a connection between the pre-existing impairment and the applicant’s ability to achieve maximal medical rehabilitation.
In A.P. and Aviva Canada, the applicant’s family physician noted that pre-accident, she displayed evidence of “cervical facet joint involvement which [had] been established as a common contributor to chronic pain symptoms.” The LAT concluded, however, that the applicant’s health practitioner failed to show how the alleged pre-existing condition impacted the applicant’s ability to recover from the accident injuries within the MIG.
In another written hearing, M.M. and Wawanesa Mutual Insurance Company, the applicant submitted evidence of two prior motor vehicle accidents (MVA) and a workplace injury. In 2009, she suffered a thoracic strain as a result of an MVA, and received treated under the MIG’s predecessor, Pre-Approved Framework (PAF), reaching maximal medical recovery with only mild decrease in her low back range of motion.
In 2012, the applicant was involved in a second MVA in which she sustained further injuries to her back. The file with the Workplace Safety Insurance Board noted minor spinal strains with no previous barriers to recovery. The file documented a complete recovery at the end of treatment.
Although the applicant argued that these pre-existing injuries warranted entitlement to benefits beyond the MIG cap of $3,500, adjudicator Anna
Truong was not satisfied on the totality of evidence that these pre-existing injuries were sufficient to do so. Truong noted that none of the assessors had commented that any particular pre-existing injuries impeded her recovery from her minor injuries in the accident.
This decision took a hard look at the medical evidence and required the health practitioner to address the legal test head-on. The general absence of expert oral testimony and cross-examination, especially where minor injuries are in dispute, underscores the need for better quality medical reports to be provided as evidence at the LAT.
When there are conflicting medical assessments, the interdependent relationship between objective and subjective evidence in pre-existing injuries is most prominent.
In such cases, the LAT will evaluate the merits of each opinion against the totality of objective evidence. For example, where adverse medical opinions exist as to whether or not an applicant’s pre-existing arthritis in her hand will impact her ability to improve her grip strength, the LAT would likely consider which opinion is most consistent with diagnostic imaging or test results.
Where conflicting opinions exist, it is also possible the LAT would assess all reports and come to its own conclusion of whether or not the MIG applies and what treatment is reasonable and necessary.
PUSH FOR WRITTEN HEARINGS
From the modest pool of data available to date, on the LAT’s one year’s worth of MIG decisions, one could expect that the LAT will be more critical than FSCO arbirtrators were of expert reports to seek out the evidence required to satisfy the legal test as defined by the MIG and the SABS.
Given that MIG cases tend to be litigated in writing, documentary evidence becomes increasingly crucial to succeed in a MIG dispute. Mediocre or non-existent expert reports will cause the claim to fail.
Ultimately, the burden of proof lies with the applicant to show this relationship. Where such medical evidence does not exist, it is likely that the LAT will find that the MIG applies.
It will be interesting to see a year from now, whether MIG cases will still be predominantly in favour of insurers.
Until then, insurers are advised to do three things. For one, they should ensure that all pre-accident and post-accident records are requested pursuant to Section 33 of the SABS from the outset of the adjusting of the claim. They should also make sure that assessors with their insurers’ examiners are clearly asked to answer whether or not the injuries are predominantly minor in nature and if the treatment is reasonable and necessary. Third, insurers should push for written hearings, which are not only more cost-effective, but keep the subjective evidence to a minimum, while making a MIG case truly about the interpretation of the definition of minor injury and its application to the case at hand.
—Kadey B.J. Schultz, Co-Managing Partner, Schultz Frost LLP
This article was prepared with the assistance of Anissa Arra and Evan Presvelos, articling students at Schultz Frost.