The Minor Injury Guideline
The Minor Injury Guideline (MIG) is probably one of the most critical of the amendments that were made to the Statutory Accident Benefits Schedule (SABS) in September 2010. Presented as an interpretive guide, the MIG limits medical/rehabilitation benefits to $3500 for impairments categorized as predominantly a minor injury no matter what level of policy coverage a person has opted for.
For the purposes of the MIG, impairment as a result of a motor vehicle accident (MVA) is predominantly a minor injury if it is one or more of a sprain, strain, whiplash associated disorder, partial tear of a ligament/tissues, contusion, abrasion, laceration or subluxation, including any clinically associated sequelae to such an injury. In addition to the $3500 cap on medical/rehabilitation benefits, attendant care benefits are not available to MIG claims.
MIG identified claimants can only be treated outside of the MIG if a health practitioner determines and provides compelling evidence that the injured person had a pre-existing medical condition that was documented before the accident allowing the non-catastrophic claimant access to $50,000 in medical/rehabilitation funds and a maximum of $36,000 in attendant care over 2 years.
The purported goals behind the MIG were to allow claimants with minor injuries immediate access to treatment, and provide cost containment and certainty for the insurance system. The expectation was that it would dramatically reduce expenses by not only reducing benefit payout costs, but also reduce assessment expenses and cost of counsel.
Yet five years later, has the MIG lived up to the promise of promoting a more cost-effective, yet sufficient system? Are insurers being flexible and responsive to allowing more treatment outside of the MIG when warranted, or are they continuing to dispute the claim through mediation and arbitration?
Almost 80% of claimants are being placed in the MIG, and analysis of the General Insurance Statistical Agency (GISA) data as of December 31, 2013 indicated that the Reforms have indeed contributed to reducing claim cost levels – by as much as 48.1 % for medical/rehab accident benefits.
While the percentage of MIG claimants is reduced as the claim matures, there is still concern that some insurers are mistakenly assigning injuries such as tendon and ligament tears, joint dislocations or even serious injuries such as concussions into the MIG from the outset. For example, The Ontario Rehab Alliance, a non-profit organization of 97 health care firms has concluded from post-reform data that “people with injuries that are more serious than a simple strain are being treated inappropriately in the MIG.”
Being identified in the MIG can mean automatic refusals of higher benefits, regardless of complicating factors that may require treatment beyond the $3500 cap. For example, some musculoskeletal injuries can become chronic or otherwise resistant to short term treatment preventing the claimant from returning to gainful employment, or a claimant with an otherwise minor injury may develop a life disrupting driving phobia. Yet these claimants may not be able to access rehab funds for return to work plans or driving anxiety programs.
As the emphasis in the MIG is on physical treatment, those with mental health disorders face additional barriers in their ability to access treatment. The Ontario Psychologist Association (OPA) observed in the Automobile Insurance Transparency and Accountability Expert Report – 2014 Annual Report that there is a subset of claimants whose physical injuries fall within the MIG, but who go on to develop psychological impairments as a result of pain and/or functional limitations. Psychological assessment and treatment is sometimes denied for those whose physical injuries fall under the MIG. When claimants needing psychological treatment have their claim denied, they give up seeking help, which often leads to prolonged disorders and ongoing decline in function.
Seriously injured claimants placed in the MIG will quickly exhausts the $3500 cap, and then have to fight to access their entitlement of benefits beyond the MIG. In the case of psychological difficulties, for example, an insurer examination to determine if the claimant should be removed from the MIG is complicated by the fact that there is no standard question for the legislative test of whether an injured person is exempt from the MIG from a psychological perspective.
There are also barriers for claimants to get the necessary diagnostic information to confirm that their injuries are serious enough to keep them out of the MIG. For complicated musculoskeletal injuries for instance, it is difficult for patients in Ontario to acquire such diagnostic interventions as physicians are not able to make referrals for unnecessary MRIs. In addition, there is often limited documentation for pre-existing conditions that may exempt a claimant from the MIG, and such documentation can often be difficult to access at the early stage of a claim. This is especially true for claimants new to the country, or for those who have never had a family doctor, or otherwise have fragmented, incomplete health records.
The choices then for the seriously injured claimant who cannot get out of the MIG is either to forgo the benefits they need to get better, or seek legal representation and pursue a lengthy mediation/arbitration process. Either way, the claimant loses out on the opportunity for early rehabilitation and returning to normal life, which inevitably ends up costing the system more in the longer term.
As a rehabilitation company offering medical-legal reports and support for seriously injured people, we usually encounter these wrongly assigned MIG claims when asked by the legal representative to complete assessments denied by the insurer, or once the insurer finally removes the claimant from the MIG. This can be up to 2 or more years after the MVA.
Our experience has often been that as a result of having to wait for needed treatment, clients lose many things besides an opportunity for timely access to therapy and recovery– they lose their jobs, relationships, health and overall sense of well-being.
While we are able to assess the need for benefits retroactively, including assessments for retroactive attendant care, there is no way to make up for the critical therapy and benefits that were required at the early stages of the injury.
The MIG, which was only implemented as temporary measure, will soon be replaced by a new treatment protocol for minor injuries that according to FSCO “reflects current scientific and medical literature”. This new Minor Injury Treatment Protocol (MITP) was developed by a team of scientists and other experts under the leadership of Dr. Pierre Côté, Associate Professor, Faculty of Health Sciences, University of Ontario Institute of Technology. It has reportedly been completed and will now be taken into wider consultation before final government review and approval. Among the numerous, important examinations undertaken by the MITP Project were a qualitative study for injured persons’ experiences under the Minor Injury Guideline and a systematic review of the incidence of psychological sequelae, course of recovery, and predictors of recovery following a motor vehicle collision.
It is hoped that the new MITP will live up to expectations and help to both contain claims costs, as well as guide insurers and healthcare providers to fairly and effectively treat those injured in motor vehicle accidents.