High rate of claimants in the MIG explained by backlog of arbitrations: plaintiffs’ lawyer

Currently, 75% to 80% of auto accident claimants in Ontario are ending up within the Minor Injury Guideline (MIG), but this should be of false comfort to insurers, said Adam Wagman, a lawyer with Howie Sacks & Henry LLP.
Wagman represented the plaintiff counsel’s view during A Debate Between Plaintiff & Defence Counsel Concerning Those ‘Problem Cases’ at the Canadian Defence Lawyers Accident Benefits seminar on Oct. 21 in Toronto.
“The stats we are hearing is that somewhere between 75% to 80% of people are currently ending up in the MIG,” Wagman said. “If insurers are taking comfort in the number of people who are currently being placed in the MIG, they can continue to take comfort for as long as the mediation backlog will allow them to.”
Approximately 30,000 cases are waiting to be heard by a Financial Services Commission of Ontario (FSCO) arbitrator, Wagman said.
“Once these cases start hitting arbitrators’ doors, without telling you that I have a crystal ball, those people with whiplash or concussions – I think you’re going to have a hard time keeping those people in the MIG,” he said. “Even a 10% or 11% [reduction in the number of people in the MIG] is a really big difference. The comfort insurers are taking from this is a false sense of comfort.”
Kadey B. J. Shultz, partner at Hughes Amys LLP, added defence counsel would be wise to “get creative” and work towards resolving questionable cases before arbitrations start trickling down from FSCO.
“The idea of being strategic, analytical and creative, this is the time to do it,” she said. “Now is the time to be risk managers on top of being claims adjusters; not three years from now, when the decisions start to come out.
“It is time to manage the risk, to be creative, to think outside the box. Even though the accident benefits box is so codified and restricted, it does not mean you cannot be creative. It does mean that, to be creative, you need to take the time and engage in the discussion. You need to pick up the phone or respond to the [plaintiff’s] call.”