This blog post will focus on Pre-Existing Injuries, a designation that can substantially increase entitlements to med-rehab benefits beyond the MIG. For more information on the categories and their criteria, please see our Introductory Blog.
This series of blogs focuses on the Minor Injury Guideline (MIG) vs. Non-Catastrophic Impairment (NCAT) demarcation and gives an overview of the types of injuries that the License Appeal Tribunal (LAT) recognizes as not being a “minor injury” as defined by the Statutory Accident Benefits Schedule. The personal injury lawyers at Littlejohn Barristers have significant experience representing clients suffering from injuries resulting from pre-existing injuries. If you have been in an accident or have been denied disability benefits, contact our Barrie office at 705-725-7355 to see if we can help.
THE MIG AND PRE-EXISTING INJURIES
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).
In addition to a number of injuries that the law recognizes as not being a “minor injury”, a person can also effectively get out of the MIG by satisfying the section 18(2) pre-existing injury provision of the SABS. While section 18(1) limits medical and rehabilitation benefits payable to a person in the MIG to $3,500, the limit does not apply if the person can provide “compelling evidence” proving that:
There was a pre-existing medical condition that was documented by a health practitioner before the accident; and
The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 limit on treatment costs under the MIG. Statutory Accident Benefits Schedule [O. Reg. 34/10], s. 18(2).
Therefore, to be removed from the MIG due to a pre-existing condition, a person must have compelling pre-accident evidence documented by a health practitioner showing that due to their impaired pre-accident baseline, they will be prevented from achieving maximal recovery if restrained to the MIG med-rehab limit of $3,500. This is not technically a removal from the MIG, but an expansion of an injured party’s med-rehab entitlement beyond the MIG limit.
SUBSEQUENT INTERPRETATION OF PRE-EXISTING INJURIES IN THE CASE LAW
The standard for excluding impairment from the MIG on the basis of a pre-existing condition is well-defined and strict. The Financial Services Commission of Ontario’s (“FSCO”) Superintendent Guideline No. 01/14: Minor Injury Guideline states that the existence of any pre-existing condition will not automatically satisfy section 18(2) and discharge the person from the MIG, as most pre-existing conditions will be insufficient. However, in interpreting the Guideline, the court in Scarlett v Belair Insurance, 2015 ONSC 3635 stated that there is no evidence that the standard of proof was elevated beyond a balance of probabilities. Rather, the word ‘compelling’ refers to the sufficiency of the evidence required against a standard of reasonableness.
A common reason for denial in pre-existing injury cases is that the applicants are either (a) unaware of the medical condition or (b) have no medical documentation in support of the underlying condition. In 17-008686 v Unifund Assurance Company, 2018 CanLII 95586, the Applicant alleged that her pre-existing condition of scoliosis would prevent her from achieving maximal recovery. However, the Applicant did not discover the condition until she underwent an x-ray two years post-accident. As a result, the LAT dismissed the case.
In addition to proof of a baseline condition, the applicant must prove that due to the condition, they would be unable to achieve maximal recovery in the MIG. For instance, the Applicant in 16-004272 v Continental Casualty Insurance Company, 2017 CanLII 63661 provided pre-accident documentation that proved several conditions, including osteoarthritis in both knees, abdominal pain, obesity and diabetes, and back pain. In finding for the Applicant, the LAT considered relevant an increase in the number of cortisone injections for her knee post-accident, numerous hospitalizations due to abdominal pain drawing out her accident recovery, and her need for increased medications.
For a person to be removed from the MIG med-rehab limits due to a pre-existing condition under section 18(2) of the SABS, there must be (1) a physician-documented pre-existing medical condition before the accident; and (2) evidence that the condition will prevent maximal recovery if the person is subject to the $3,500 limit.