The Lawyers Weekly - December 16, 2011

Minor injuries, major changes

Ontario’s new minor injury guideline has resulted in major changes for individuals injured in a car accident. In some cases, the changes are perilously close to catastrophic.

“The landscape has changed in that the benefits for therapy are significantly reduced. We have clients that need treatment and have run out of…money,” said John McLeish of McLeish Orlando LLP, a personal injury law firm in Toronto.

The guideline, a key pillar of the province’s auto insurance reform package, was implemented in September, 2010, and created a new accident class: minor injury. Two other classes—non-catastrophic and catastrophic —remain, but the benefits for the former have been significantly reduced from their previous levels.

The Financial Services Commission of Ontario (FSCO), which issued the
minor injury guideline, or MIG as it is commonly called, defines minor injury as
“a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or
subluxation and any clinically associated sequelae” and stresses that treatment
should be “focused on what the insured person needs to do in order to function
at his/her pre-accident level in his/her home and work environment.”
The rules allow for a maximum of $3,500 for medical treatment and
rehabilitation under the MIG category. For individuals in the non-catas-
trophic category, the maximum amount allowable for medical treatment is
now $50,000, down from $100,000.

One of the contentious issues is determining what category an individual
belongs in. “It’s an automatic placement into the MIG, and it’s up to the
insured to demonstrate otherwise. It can be very difficult,” said Shane
Katz, a personal injury lawyer with Singer, Kwinter in Toronto.

Insurance companies make their own determination about
the correct category but, ultimately, it is the family doctor
who determines if someone has suffered a minor injury,
said Charles Gluckstein, a lawyer with Gluckstein &
Associates LLP in Toronto. However, he pointed out,
“GPs are not up to date in these categories.”
Injury classification can be more problematic
for people with serious injuries who are placed
in the non-catastrophic category. “Those most