December 23, 2013, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Heard Before: Adjudicator David Evans
Date of Decision: November 28, 2013
Under section 283 of the Insurance Act it is ordered that:
The appeal of the Arbitrator’s order dated March 26, 2013 is allowed and the decision is rescinded.
The determination of whether Mr. Scarlett sustained an impairment that is predominantly a minor injury and all other matters at issue in the Application for Arbitration shall be made at a full hearing before another arbitrator.
REASONS FOR DECISION
I. NATURE OF THE APPEAL
This appeal concerns the monetary limits set by section 18 of the SABS–2010 and the Minor Injury Guideline (MIG). Belair appeals Arbitrator Wilson’s March 26, 2013 preliminary issue order that Mr. Scarlett’s medical and rehabilitation claim is not subject to the $3,500 limit for minor injuries on the basis that the Arbitrator failed to apply the appropriate tests, inappropriately placed the burden of proof on Belair, and breached procedural fairness. It seeks either an order that Mr. Scarlett is subject to the limit, or that a new arbitration hearing be ordered before a different arbitrator.
Arbitrator Evans accepted this appeal of a preliminary issue and stayed the Arbitrator Wilson’s order that Mr. Scarlett is not subject to the MIG because of the novelty of the issue and the parties’ agreement to have it heard. There were substantive reasons for the appeal, including the findings on the effect of the MIG, the burden of proof, and the issues of due process.
The law provides that
a minor injury means 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
an insured who sustains a minor injury can receive no more than $3,500 towards medical and rehabilitation expenses (including assessments)
an exception for pre-existing conditions may apply based on “compelling evidence”
With respect to the test of whether or not Mr. Scarlett’s injuries were minor, Arbitrator Wilson found that Mr. Scarlett’s chronic pain, depressive symptoms and temporomandibular joint (TMJ) disorder were separate and distinct from his soft tissue injuries and were not the sequelae thereof. However, Arbitrator Evans found that the Arbitrator Wilson failed to address why this was so.
With respect to the $3,500 limit itself, Arbitrator Wilson simply found the totality of Mr. Scarlett’s injuries put him outside of the MIG. Arbitrator Evans concluded that he did not direct his mind to the relevant test of whether Mr. Scarlett’s impairment was predominantly a minor injury.
Arbitrator Wilson also dealt at length with the burden of proof, finding that it lay on the insurer to show that Mr. Scarlett was subject to the MIG. However, Arbitrator Evans found that the burden of proof always rests on the insured, proving that he or she fits within the scope of coverage.
Although the Arbitrator Wilson found that “compelling evidence” simply means credible evidence. Arbitrator Evans found that “compelling evidence” means more than that.
Arbitrator Wilson found that although the MIG is incorporated into the SABS, it is only advisory because it is issued pursuant to s. 268.3 of the Insurance Act. However, Arbitrator Evans found that the MIG is binding precisely because it is specifically issued pursuant to s. 268.3(1.1) of the Act, the definition of MIG in the SABS refers to s. 268.3(1.1), and the MIG is then applied in s. 18(1) and s. 18(2), thereby incorporating the MIG into the SABS by reference.
Finally, Arbitrator Evans found that Arbitrator Wilson breached procedural fairness.
Mr. Scarlett was injured in a motor vehicle accident on September 18, 2010. He sought medical and rehabilitation benefits, non-earner benefits, attendant care benefits, payments for housekeeping and home maintenance services, and the cost of a medical assessment from Belair under the SABS–2010. Belair’s position was that Mr. Scarlett’s injuries limited his med/rehab benefits to the $3,500 limit. The Arbitrator stated that Mr. Scarlett “maintained that although he indeed suffered strains sprains and whiplash related injuries, he also suffered from pre-existing conditions and subsequent psychological disabilities that take him out of the MIG constellation.”
There was ample contradictory medical evidence before the Arbitrator Wilson including a disability certificate from Dr. RJ a chiropractor, a report from Dr. JC, Chiropractor finding MIG applied, conflicting dental reports that TMJ problem may exist, a psychologist report indicating no psychological diagnosis, a surgeon’s report indicating depressed affect with restricted range of motion and emotional response to injury with a port prognosis for recovery, and another psychologist report indicating that the severe psychological symptoms exceeded the MIG guidelines.
In the preliminary issue hearing Arbitrator Wilson found that the MIG is incorporated into the SABS, “it remains a non-binding interpretative aid in deciding specifically whether Mr. Scarlett comes within the MIG.” He found that Mr. Scarlett did not come within the MIG, and accordingly, Arbitrator Wilson ordered that “Mr. Scarlett is not precluded from claiming housekeeping, attendant care, as well as medical and rehabilitation expenses, beyond the $3,500 limit within the Minor Injury Guideline.”
Arbitrator Evans found that the matter must be remitted for a new hearing before a different arbitrator and that the issue of whether Mr. Scarlett is subject to the MIG limit of $3500 should be determined at a full hearing along with all the other matters at issue for the following reasons:
Arbitrator Wilson failed to address why Mr. Scarlett’s chronic pain, depressive symptoms and TMJ disorder were separate and distinct from his soft tissue injuries and were not the sequelae thereof. By doing so Arbitrator Wilson placed the burden of proof on Belair rather than placing the burden of proof for entitlement to benefits on Mr. Scarlett.
Mr. Scarlett does not deny that he has some minor injuries, and injuries that come within the MIG. He also has significant other problems arising from the accident that are not necessarily consequent to soft tissue injuries. When the totality of his injuries is assessed, they come outside of the MIG.
Arbitrator Wilson raised his own arguments on several issues without providing counsel opportunity to respond and provide submissions. Arbitrator Evans determined this to be a lack of procedural fairness.
Arbitrator Evans did not accept Mr. Scarlett’s submission that only the portions in the MIG referenced by the SABS should be considered binding, and with his submission that the MIG invalidly redefines the meaning of minor injury.
Arbitrator Evans stated appropriate approach is a flexible, fact-based one, in which, while the legal onus always remains on the insured, the sufficiency of the proof depends on what is reasonable in the circumstances. Arbitrator Evans found that the ultimate burden always rests on the insured. The burden of proof is significant here because at the end of his decision, Arbitrator Wilson stated that “The only way to fully reconcile the conflicting [expert] reports with any certainty would be to undertake a full trial of the issue with all experts subject to cross-examination.” Having put the burden of proof on Belair, he therefore found in favour of the insured, given the differences in expert opinion. Arbitrator Evans found that Arbitrator Wilson should have done the opposite, as the burden lay on Mr. Scarlett.