May 1, 2019

ACCIDENT BENEFITS UPDATE: FSCO MISSES THE POINT OF MIG APPEAL

In Aviva Canada Inc. v. Sleep(FSCO Appeal P17-00034), Director’s Delegate Murray was required to review an arbitration decision concerning the Minor Injury Guideline (MIG) of the Statutory Accident Benefits Schedule (SABS).  In the decision, Arbitrator Anschell found that the Respondent, Mr. Sleep had sustained injuries from a March 26, 2014 collision that exceeded the definition of “Minor Injury” under the MIG.

At the time of the collision, Mr. Sleep was 15 years old.  He was a passenger in his father’s vehicle when it was struck on the driver’s side.  He began feeling back pain within days of the collision and sought treatment with a chiropractor and other care providers.  He was diagnosed with soft tissue injuries and was categorized under the MIG by Aviva, his father’s insurer. As a result, his treatment was capped at $3500.

When his ongoing treatment was denied by Aviva, Mr. Sleep filed for mediation.  Aviva refused to fund further treatment plans, and eventually, arbitration was commenced.

At the arbitration hearing, Mr. Sleep presented evidence of ongoing sharp daily pain which made hockey, weightlifting and other activities impossible.  He also identified ongoing depression for which he was taking medication. His limitations were supported by a Functional Abilities Evaluation (FAE) and an Orthopedic Surgeon’s report by Dr. Fern.

In the report, Dr. Fern described the evolution of Mr. Sleep’s condition from soft tissue injuries to chronic mechanical back pain.  He referred to an MRI identified several bulging discs with neurological impairment, concluding that this condition was caused by the collision.

Mr. Sleep’s lawyer did not call Dr. Fern or the FAE assessors as witnesses.

Aviva called two experts, Drs. Khumbare and Dr. Dessouki (both Orthopedic Surgeons).

Dr. Dessouki saw Mr. Sleep on November 25, 2014 in support of Aviva’s MIG determination.  At that time, Mr. Sleep presented as perfectly healthy, without any major issues. Dr. Dessouki diagnosed back strain and confirmed that this was a minor injury.  When presented with the MRI at arbitration, he disagreed with Dr. Fern’s conclusions regarding chronic pain. He stated that chronic pain sufferers would have severe restrictions to movement and severe muscle spasm, and Mr. Sleep had neither 8 months post-collision.

Dr. Khumbare saw Mr. Sleep on June 21, 2016 more than 2 years post-collision.  He found that Mr. Sleep had full range of motion with some end-range back pain, and diagnosed soft tissue injuries with ongoing lumbar strain.  When asked to comment on the MRI, he concluded that the conditions described were not caused by the collision, but were degenerative in nature, likely from a decade of competitive hockey and intensive weight training.

While she was impressed with Aviva’s experts and found their evidence very helpful, Arbitrator Anschell accepted Dr. Fern’s diagnosis of chronic pain.  She found Mr. Sleep’s own evidence concerning his limitations believable and in accordance with Dr. Fern’s opinion. As a result, she ruled that the MIG did not apply to Mr. Sleep’s claim.  She specifically concluded that a, “chronic pain diagnosis a few years post-accident establishes a severity beyond that contemplated by the Minor Injury Guideline”.

Aviva appealed the decision.  It argued that Arbitrator Anschell had erred in law by not applying the proper legal test to determine whether a “minor injury” exceeded the MIG by evolving into chronic pain.

Under the SABS, a “minor injury” is defined as one or more of a, “sprain, strain, whiplash associated disorder… and includes any clinically associated sequelae to such an injury”.  The leading case in this area, Scarlett and Belair Insurance Company Inc., found that an Arbitrator must address why impairments, such as chronic pain and psychological impairments, are not “clinically associated sequelae” to the original “minor” injuries.

While not bound to follow Scarlett, Director’s Delegate Murray accepted that the Scarlett test was appropriate in this claim.  She concluded that Arbitrator Anschell erred in law by not following this test.  Specifically, the arbitrator gave no consideration to whether Mr. Sleep’s chronic pain complaints were separate and distinct from his original soft tissue complaints.  Delegate Murray found that the arbitrator understood Mr. Sleep’s original back pain transitioning into chronic pain, which automatically took him out of the MIG.

Based on the failure to apply Scarlett, Delegate Murray overturned the Arbitration decision, and found that the MIG applied to Mr. Sleep’s injuries.   She specifically refused to remit the matter back to Arbitrator Anschell for reconsideration.

This appeal should be challenged further by Mr. Sleep’s lawyer.  First, it makes a finding of fact (i.e.: MIG applies) that more appropriately should have been made by Arbitrator Anschell, who had the benefit of a full factual matrix including Mr. Sleep’s credible evidence.  More importantly, Delegate Murray made this determination despite evidence before her in the decision, accepted by Arbitrator Anschell, that Mr. Sleep’s chronic back pain was mechanical rather than soft-tissue in nature.  While issues with causation were raised by Aviva, disc degeneration and neurological impairment cannot simply be described as “clinically associated sequelae” to the originally diagnosed muscle strain. This issue should have been considered fully through the Scarlett test.

If you have been placed in the MIG by your insurance company after a car accident, and have questions related to this decision or with your claim generally, please contact us for a free consultation.  At Campisi LLP, we are proud to practice law “Clients First, Excellence Always”.  Put us to work for you.


Cesar Carranza

Cesar Carranza is the head of Campisi Law's Accident Benefits Department. He represents the firm’s clients at mediations and pre-arbitration hearings at the Financial Services Commission of Ontario (FSCO). Under Cesar’s representation, clients are in very good hands. Cesar is a veritable encyclopaedia of accident benefits and is well-versed in the intricate issues that surround Accident Benefits claims.

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