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29/06/2020

How to Get Out of the MIG Part 1: Introduction to SABS and Categories

 

If you have been injured in a motor vehicle accident, you are eligible to receive provincial Statutory Accident Benefits (“SABs”) from your automobile insurer, regardless of who is at fault.

 

These benefits are governed by the Statutory Accident Benefits Schedule (“SABS”), which is a regulation enacted under the Insurance Act that sets eligibility standards for the SABs. Possible benefits include income replacement, medical rehabilitation, and attendant care, amongst others depending on your individual condition. The entitlements are accessed through your own mandatory motor vehicle insurance policy, as section 268(1) of the Insurance Act states that “every motor vehicle insurance liability policy shall be deemed to provide for the statutory benefits provided in the SABS.

 

However, eligibility to specific benefit types and the amounts of their entitlement are dependent on the nature of your injuries. For the purposes of SABS, injuries resulting from motor vehicle accidents are classified into three main categories:

  1. Minor Injury Guideline (“MIG”);
  2. Non-Catastrophic Impairment (“NCAT”); and
  3. Catastrophic Impairment (“CAT”).

An insured person has access to more benefits in greater amounts as they move from the MIG to the more severe designations. Therefore, classification under the MIG can significantly limit the treatments available and prevent you from receiving the optimal level of care and rehabilitation. For example, if your injuries are classified as falling within the MIG instead of the NCAT, you will not be eligible to receive Attendant Care benefits. Additionally, those in the MIG are only eligibility to a maximum of $3,500.00 for Medical and Rehabilitation benefits, whereas those classified as NCAT and CAT have a maximum of $65,000.00 and $1,000,000.00 respectively.

 

Your insurer may deny requested benefits based on their assessment of your medical condition by placing you into one of these categories. These denials may be challenged through the License Appeal Tribunal (LAT), which is the specialized administrative tribunal for adjudicating SABS disputes.

 

This blog post, the first in a series, focuses on the demarcation between the MIG and NCAT. It will compare the categories generally, before more specifically investigating a series of common ways to get out of the MIG, depending on the type of injury sustained in the motor vehicle accident.

 

Distinguishing Between the Categories

There is no standard checklist which determines your accident benefits classification with regards to the MIG and NCAT, as the categorization depends on medical reports and influential LAT jurisprudence.

 

The MIG establishes a framework for the treatment of minor injuries. A “minor injury” is defined in subsection s. 3(1) of the SABS as:

 “… 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.”

            Statutory Accident Benefits Schedule [O. Reg. 34/10], s. 3(1).

 

The terms “sprain”, “strain”, “subluxation”, and “whiplash associated disorder” are also defined in that subsection. According to Scarlett v. Belair Insurance, 2015 ONSC 3635 (CanLII), as adopted by the LAT, the MIG is a limit on an insurer’s liability and not exclusion from coverage. Therefore, the onus lies with the insured to prove on the balance of probabilities that their entitlement to medical benefits are not subject to the Guideline (i.e. beyond the $3,500.00 limit). Therefore, the insured must prove that it is more likely than not that their injuries are not a “minor injury” as defined by the SABS. Should you satisfy this requirement, then you are out of the MIG. Determining whether your injuries are NCAT or CAT, depends on a more tangible set of criteria within s. 3.1(1) of the SABS. An individual’s impairment must meet one of these eight criteria to be considered CAT. If they cannot, but are out of the MIG, then they are necessarily NCAT.

 

Conclusion

The following posts will give an overview of the types of injuries that the LAT recognizes as not being a “minor injury” as defined by the SABS, or actions by the insurer that entitles the insured to NCAT entitlements. These will include:

  1. Chronic Pain;
  2. Concussion;
  3. Psychological Impairment;
  4. Pre-Existing Injury; and
  5. Technical Breach of the SABS.

 

 

Notes:

1. Statutory Accident Benefits Schedule, O Reg 34/10, retrieved on 2020-06-29

2. Scarlett v Belair Insurance, 2015 ONSC 3635 (CanLII), , retrieved on 2020-06-29

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