Medical Rehabilitation Limits after September 1, 2010 (Part II)

The Minor Injury Guideline and Income Replacement Benefits

by Nick White, Accident Benefits Consultant

The current three tiered approach to medical rehabilitation limits is not new.  Insurers were already used to handling claims in the Pre-Approved Framework (PAF), which is arguably a precursor to the Minor Injury Guideline (MIG).   The new MIG seems more inclusive in its definitions, and at first blush, far less porous than the PAF.

Both the MIG and the PAF limited a claimant’s access to Attendant Care Benefits (ATC), again predicated on the notion that the injuries sustained are minor, soft-tissue in nature.  The new Schedule dictates that if their injury is still ‘Minor’ as described in the Guideline, they are not eligible for ATC.  The Schedule also  allows a person to escape from the restrictions of the Minor Injury Guideline if they can demonstrate by compelling evidence provided by a health practitioner that due a pre-existing condition  will prevent them from achieving maximal recovery from the minor injury[1].  The nexus between Attendant Care Benefits and the MIG , appears to be fairly straight forward.  The nexus between the Income Replacement Benefit (IRB) and the MIG is far more difficult for an insurer to navigate.

The PAF limited a claimant’s recovery of IRB to a 12 or 16 week cap depending on whether the injuries described were a WAD I or WAD II.  The MIG has no such connection to IRB.  A claimant determined to be in the MIG will collect IRB predicated on medical eligibility based on the Disability Certificate (OCF-3), which can be reassessed by requesting an update OCF-3 and/or moving to an insurer’s examination.

A major hurdle for insurers has come out of this more inclusive definition of a Minor Injury  – it includes partial tears.  An insured person who uses their shoulders regularly in the job, and sustains a partial tear rotator cuff, may meet the pre-104 week test of ‘substantial inability’ to engage in their pre-accident employment.  So if insurers read the letter of the SABS – they will pay the MIG limit of $3500 in medical rehabilitation and pay IRB for 104 weeks (at which time the test changes to a ‘complete inability’).   The insurer will have to hope the claimant can access community resources, OHIP or their private plan if applicable.

What is a claims handler to do? Do you hold the letter of the SABS/ MIG and simply pay  $3500, the maximum level of  medical rehabilitation benefits, and hope that FSCO and/or the Courts agree in your literal interpretation?  Or do you identify these files now and allow these claimants to leave the MIG, access medical rehabilitation beyond $3500 in the hope of minimizing the length of time they collect a disability benefit?

An  argument can be made that the partial tear (and other injuries)  – if not treated will become chronic thus negating the original MIG determination.   This could put not only the accident benefit insurer in an awkward situation, but ultimate increase the volume of third party bodily injury claims.

[1] The Superintendent’s Guideline 02/10