The first ever decision interpreting the Minor Injury Guideline (MIG), Scarlett v Bel Air, is going to a new hearing with a new arbitrator. FSCO Director’s Delegate David Evans granted Bel Air’s appeal of the decision finding that Arbitrator Wilson erred in many respects including:
- – in finding that the burden of proof is on the insurer to prove that the insured falls within the MIG. The Director’s Delegate found that the burden of proof is with the insured to prove that he or she fits within a scope of coverage
- – failing to explain why Mr. Scarlett’s psychological disabilities were separate from his soft tissue injuries and therefore not “minor”;
- – failing to apply the test for MIG by not addressing whether the insured’s injuries were “predominantly” minor injuries;
- – reading down “compelling evidence” to mean credible evidence. The Director’s Delegate found it means more than just credible evidence.
- – indicating that the MIG was not binding because it was only a Guideline. The Director’s Delegate found that the MIG is binding because it is incorporated into the SABS by reference.
- – breaching procedural fairness by conducting his own research and relying on cases and statutory provisions he raised after the hearing without giving notice to the parties and an opportunity to respond.
While claimants’ lawyers await further guidance from the courts and arbitrators, we will have to continue making creative arguments to advocate that our clients’ claims should be taken out of the Minor Injury Guideline so that they can access appropriate funding for their rehabilitation.