The second pressing issue in motor vehicle insurance today is The Minor Injury Guideline. The Minor Injury Guideline is designed to cap a claimant’s entitlement to benefits to a maximum of $3,500.00 where their injuries fall within the definition of Minor Injury as set out in the Statutory Accident Benefit schedule.
Pursuant to the Accident Benefit schedule “minor injury” means one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.
There is a further provision which states “Despite the $3,500 limit in subsection (1) it shall not apply to an insured person if his or her health practitioner determines and provides compelling evidence that the insured person has a pre-existing medical condition that will prevent the insured person from achieving maximal recovery from the minor injury if the insured person is subject to the $3,500 limit or is limited to the good and services authorized under the Minor Injury Guideline.
The determination of the applicability of the Minor Injury Guideline is made by treatment providers and or insurance adjusters. Practically this is extremely prejudicial to the injured claimant as due to fee schedule changes that accompanied the implementation of the Minor Injury Guideline there are financial incentives for treatment providers to complete an OCF 23 which will place someone in the Minor Injury Guideline. Further treatment providers may not have access or the qualifications to undertaking the detailed medical review of the claimant’s pre-existing health issues to determine if the insured person has a medical condition that will prevent him from achieving maximal recovery if he is subject to the $3,500.00 limit.
The obvious question is “What happens if the claimant does not agree that he or she should be in the Minor Injury category?” The onus than shifts to the claimant to provide the insurer with compelling medical evidence at his own expense to justify his removal from the Minor Injury Guideline. The insurer may also arrange a date for an Insurer’s Examination and if that examiner agrees the insured person will be removed from the Minor Injury Guideline.
(*Note the cost of this examination comes from the medical benefits available to the insured which if the insured’s injuries are not catastrophic and not within the Minor Injury Guideline are capped at $50,000.00).
If the insurer will not remove the claimant from the Minor Injury Guideline the claimant’s best course of action is to issue a claim against the insurer, however this option is time consuming and expensive. There are serious implications to persons injured in motor vehicle collisions if their injuries are categorized as falling within the Minor Injury Guideline which are summarized as follows:
- The $3,500.00 allotment is quickly used up and will only fund a very limited amount of treatment.
- Being in the Minor Injury may make it more difficult to find a lawyer who is willing to provide representation.
- As there is no fast way out of the Minor Injury Guideline recovery may be delayed by an inability to access treatment in a timely fashion.
In order to maximize the chances of the insurer voluntarily removing the claimant from the Minor Injury Guideline it is imperative that the claimant work closely with their family doctor who can provide documentation to confirm injuries that may make the Minor Injury Guideline inapplicable and/or confirm that pre-existing health issues which make it unlikely that the claimant can reach maximal medical recovery from the injuries sustained in the collision if treatment expenses are capped at $3,500.00.
At this juncture it is significant that the implications of the Minor Injury Guideline remain untested by the courts. Without case law to define the parameters of the Minor Injury Guideline there are no safeguards in place to protect claimants from the Minor Injury Guideline being arbitrarily applied by insurers who are under an obligation to exercise good faith when they are adjusting claims who may face bad faith claims if a court determines their refusal to remove someone from the Minor Injury Guideline based upon compelling medical evidence was unreasonable. This could also ground a claim for punitive damages.
Any reader questions or comments are welcome and can be submitted to email@example.com or feel free to pop into our Brantford office at 515 Park Road North to make an inquiry.
Lisa Morell Kelly
Morell Kelly Personal Injury Law
515 Park Road North