Getting out of the Minor Injury Guideline (MIG) with a psychological impairment is possible, but not straightforward, as a recent decision shows.
The applicant in Murray v. Economical Insurance Company convinced an adjudicator with Ontario’s Licence Appeal Tribunal (LAT) that psychological impairments she had suffered since a rear-ending were enough to fall outside the Minor Injury Guideline (MIG), which limits medical and rehabilitation expenses to just $3,500.
Relying on notes from her family physician and a psychological assessment by a psychologist, the woman claimed that she had suffered flashbacks, worsening anxiety and nervousness as a result of the accident.
The insurer countered with the results of its own assessment carried out by a psychotherapist, claiming that the injury victim lacked credibility because of the inconsistency of the information she had provided to different medical practitioners.
In his decision, the adjudicator sided with the applicant, concluding that none of the discrepancies in her evidence were material and that they did not detract from its essence, “namely that she has anxiety, it got worse after the accident, and it continues to impact her to date.”
As a result, he ordered the insurance company to pay a combined $4,000 she had incurred for a psychological assessment and psychotherapy treatment.
On the face of it, this sounds like great news for injury victims, but there are a few caveats to consider.
The good news
Under Ontario’sStatutory Accident Benefits Schedule, a “minor injury” is defined 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.” Murray is the latest in a series of LAT cases where the tribunal has determined that a psychological impairment can warrant removal from the MIG.
The LAT’s apparent openness to expanding the circumstances in which applicants can escape the MIG — especially in the context of this applicant’s imperfect evidence — is an encouraging sign for injury victims whose treatment needs go beyond the paltry amount provided for under the guidelines. Previous tribunal cases have also determined that chronic pain with functional impairment may be enough to break past the $3,500 limit.
Traditionally, insurers have been quick to shut down attempts by claimants to get out of the MIG based purely on a psychological impairment, but this case shows that it may not be such a slam-dunk for them.
The bad news
This is a great outcome for this applicant, but it is just one decision. As the adjudicator in Murray pointed out, LAT members are not bound by the rulings of their fellow decision-makers, which means that every claimant with a psychological impairment has to build their own case separately when challenging their insurer’s MIG determination. Still, the more decisions we see along the same lines, the harder insurers will have to think about their denials in psychological impairment cases.
In addition, challenging an insurer’s MIG determination remains a risky business for claimants. If their insurer is denying treatment beyond the MIG limit, injury victims must pay out of their own pocket for the very psychological assessments they need to prove their case — money that may not be recovered if they ultimately lose at the LAT.
Under the rules of the LAT, insurers who unreasonably withhold or delay the payment of benefits could be liable for a special award to claimants worth as much as 50 per cent of their total benefits.
The adjudicator in this case declined to make an award, and you will struggle to find many other cases where a claimant was successful with such a request. In my view, this is an under-utilized tool at the LAT, and the threshold for an award may be too high. An award against an insurer could have a big deterrent effect when it comes to harsher MIG determinations.
Lessons for accident victims with psychological impairments
The Murray decision provides something of a blueprint for getting your case removed from the Minor Injury Guideline (MIG).
One of the keys to the success of the injury victim in this case was her decision to fund her own psychological assessment, which provided evidence in support of her claim. This was a risk, and the gamble paid off for her, but it’s important to remember that there are no guarantees that the same will be true for other claimants appearing before different adjudicators.
In addition, this case highlighted the value to claimants of a supportive family physician with strong clinical notes. Faced with competing opinions from psychological experts on the injury victim’s condition or psychological impairment, the LAT adjudicator seemed to place significant weight on the evidence of the family doctor — the treatment provider who knew her best — regarding the patient’s worsening anxiety and adherence to medical advice.