Canada: LAT TALES (Div. Ct. Edition): "Minor Injury" Vs. "Subject To MIG Limits" And Entitlement To S. 25 In-Home Assessments (And Potentially, Attendant Care Benefits)

This matter of Co-Operators Insurance Company v. Bennett¹ concerns an appeal by Co-operators General Insurance Company ("Co-Operators") from a LAT decision which determined that the respondent, Helen Bennett, was eligible for funding for an attendant care benefit assessment, given that she had been removed from the Minor Injury Guideline ("MIG") based on her pre-existing medical conditions.

The issue on appeal was whether the LAT erred in law in interpreting the SABS. The standard of review was one of correctness.

The Court dismissed the appeal and determined that there was no error in law made by the LAT.

This decision hinged on the LAT's interpretation (and the Court's subsequent agreement) of several sections and definitions in the SABS. We have included all of the relevant sections and definitions in Schedule A below.

BACKGROUND

Ms. Bennett was involved in a motor vehicle accident on December 5, 2018. She alleged that she sustained concussion-like symptoms, memory difficulty, blurry vision, headaches, neck, back and hip pain, arm and hand numbness and pain, feet and calves numbness and pain, sleep issues, driving anxiety and psychological issues.

Co-Operators determined that Ms. Bennett's accident-related injuries were predominantly minor, but she was removed from the MIG because of compelling evidence that she had a pre-existing medical condition documented before the accident by a health practitioner that would likely prevent her from achieving maximal recovery if subject to the MIG limits of $3,500 (specifically pre-existing fibromyalgia and spinal stenosis).

Ms. Bennett brought a LAT application disputing the denial of several treatment plans including one for an attendant care assessment in the amount of $2,200. The LAT determined that the claimant was entitled to payment of the OCF-18 for an attendant care assessment plus interest.

At the LAT, Co-Operators correctly differentiated between a claim for a s. 25 In-Home Assessment for:

1. An insured person taken out of the MIG due to accident-related injuries that were not predominantly minor (the accident-related impairments are not "minor"); and
2. An insured person taken out of the MIG due to a documented pre-existing condition which would preclude maximum medical recovery if subjected to the MIG policy limits of $3,500 (the accident-related impairments are "minor").

An "accident" is defined in the SABS as an incident in which the use or operation of an automobile directly causes an "impairment". Under section 2 of the SABS, the benefits set out in the SABS are payable in respect of an "accident".

A pre-existing "condition" is not caused by a subsequent accident. A pre-existing "condition" is therefore not an "impairment" (on the right facts, a worsening of a pre-existing condition can be an accident-related impairment, but that was not the case in this matter).

Co-Operators' argued that because s. 25(2) states "an insurer is not required to pay for an assessment or examination conducted in the insured person's home unless the insured person has sustained an impairment that is not a minor injury" and Ms. Bennett's impairment was a minor injury, she was not eligible to claim a s. 25 In-Home Assessment.

Co-Operators accurately noted the interpretation of s. 25(2) depends upon whether an insured suffers a minor injury as a result of the accident – the applicability of the MIG or MIG limits is irrelevant to whether an insured person can claim a s. 25 In-Home Assessment.

The LAT rejected Co-Operators' position. The LAT found that once a claimant is removed from the MIG, the claimant is no longer subject to the limits under the MIG. The insurer could not "split the determination" and continue to categorize a minor injury as being a "minor injury" once the MIG no longer applied.

One serious potential consequence of this decision and the LAT's reasoning is that insureds removed from the MIG due to a pre-existing condition can now arguably claim Attendant Care Benefits even though s. 14(2) bars claims for Attendant Care Benefits if the accident-related impairment is a minor injury.

According to the LAT, once the claimant is removed from the MIG, the test for rehabilitation goods or services becomes what is "reasonable and necessary" under s. 14(2) and implicitly, the wording "except as otherwise provided in this Regulation" (such as what is otherwise provided in s. 25(2) of the SABS) in s. 14 is to be ignored.

The LAT further indicated that an insurer cannot "split the determination" of an insured suffering a predominantly minor injury as a result of the accident and the application of the MIG when the insured has a pre-existing condition. According to the LAT, there are only two types of claimants: those who suffered minor injuries within the MIG, and those who suffer non-minor injuries which are out of the MIG.

The LAT relied upon the wording of s. 38(3)(c)(1)B to find that once the claimant was removed from the MIG due to a pre-existing medical condition, the individual no longer remained in the MIG or under the funding limits of the MIG. Once Ms. Bennett was removed from the MIG due to her pre-existing conditions, there was no further MIG discussion to be had and according to the LAT, the insured person no longer had a minor injury as a result of the accident even though their accident-related impairments were predominantly minor in nature.

Co-Operators requested reconsideration on the basis that the LAT had conflated the defined term "minor injury" with "the MIG" in interpreting the SABS as it applied to Ms. Bennett. On reconsideration, the LAT rejected this submission and upheld the original decision.

DIVISIONAL COURT DECISION

The Court affirmed the decision of the LAT. It was noted that the LAT had rejected Co-Operators allegedly "piecemeal" interpretation approach, finding that Co-Operators' approach would lead to allegedly illogical results.

The example provided by the Court was that Co-Operators' position would treat an insured person with a pre-existing condition who only suffered a predominantly minor injury as a result of the accident as though they had only suffered a predominantly minor injury as a result of the accident.

According to the Court, it is illogical and improper to treat an insured person with pre-existing conditions as if they had "only" minor injuries as a result of the accident. To justify this reasoning, the Court noted at paragraph 28 that there are several decisions of the LAT where insureds who sustained impairments that were not a minor injury were eligible to submit claims for in-home assessments.

The Court further stated that the LAT's decision was supported by the scheme of the SABS. The LAT's interpretation was consistent with the objectives of the MIG and having minor injuries alone function as a limit on those claimants, by keeping them within the MIG and limiting their entitlement to in-home assessments for attendant care benefits.

Co-Operators is seeking leave to appeal this decision to the Court of Appeal.

TAKEAWAY: If this decision is not reversed by the Court of Appeal, once an insured person is determined to have suffered a predominantly minor injury in conjunction with a documented pre-existing medical condition that will prevent maximal recovery, the insured can claim a s. 25 In-Home Assessment and Attendant Care Benefits despite the explicit intention of the Legislature and the wording of the SABS to preclude coverage for In-Home Assessments and Attendant Care Benefits claims for those insureds who suffer a predominantly minor injury as a result of an accident.

What's next? Hopefully the Court of Appeal grants leave to appeal this important decision and provides clear guidance that is consistent with the legislative scheme and the principles of statutory interpretation.

SCHEDULE A – RELEVANT SECTIONS OF THE SABS

Definition of a "minor injury"

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;

Definition of the "Minor Injury Guideline"

A "Minor Injury Guideline" means a guideline,

Section 18: Monetary limits re medical and rehabilitation benefits

Section 18, outlines that an injury that is subject to the MIG limits, has a cap of $3,500 (plus applicable HST) for medical and rehabilitation benefits payable. It is noted in s.18(2) that a claimant is not subject to the MIG limits if compelling evidence is provided that the claimant has a pre-existing medical condition that would prevent them from achieving maximal recover from the minor injury if the insured person is subject to the limit authorized by the MIG. If a claimant has suffered a more serious injury, higher caps for medical and rehabilitation benefits are available under s.18(3).

Section 14: Insurer liable to pay benefits

14. Except as otherwise provided in this Regulation, an insurer is liable to pay the

following benefits to or on behalf of an insured person who sustains an impairment as a result of an accident:

1. Medical and rehabilitation benefits under sections 15 to 17.
2. If the impairment is not a minor injury, attendant care benefits under section 19.

Section 25: Cost of examinations

25. (1) The insurer shall pay the following expenses incurred by or on behalf of an insured person:

1. Reasonable fees charged for preparing a disability certificate if required under section 21, 36 or 37, including any assessment or examination necessary for that purpose.

2. Fees charged in accordance with the Minor Injury Guideline by a person authorized by the Guideline for preparing a treatment confirmation form and for conducting an assessment or examination and preparing a report as authorized by the Guideline.

3. Reasonable fees charged by a health practitioner for reviewing and approving a treatment and assessment plan under section 38, including any assessment or examination necessary for that purpose, if any one or more of the goods, services, assessments or examinations described in the treatment and assessment plan have been:

i. approved by the insurer,

ii. deemed by this Regulation to be payable by the insurer, or

iii. determined to be payable by the insurer on the resolution of a dispute described in subsection 280 (1) of the Act.

4. Reasonable fees charged by an occupational therapist or a registered nurse for preparing an assessment of attendant care needs under section 42, including any assessment or examination necessary for that purpose.

5. Reasonable fees charged for preparing an application under section 45 for a determination of whether the insured person has sustained a catastrophic impairment, including any assessment or examination necessary for that purpose.

(2) Despite subsection (1), an insurer is not required to pay for an assessment or examination conducted in the insured person's home unless the insured person has sustained an impairment that is not a minor injury.

Section 38: Claims for medical and rehabilitation benefits and for approval of assessments etc.

38. (1) This section applies to,

(a) medical and rehabilitation benefits other than benefits payable in accordance with the Minor Injury Guideline; and

(b) all applications for approval of assessments or examinations.

...

(3) A treatment and assessment plan must,

(a) be signed by the insured person unless the insurer waives that requirement;

(b) be completed and signed by a regulated health professional; and

(c) include a statement by a health practitioner approving the treatment and assessment plan and stating that he or she is of the opinion that the goods, services, assessments and examinations described in the treatment and assessment plan and their proposed costs are reasonable and necessary for the insured person's treatment or rehabilitation and,

(i) stating, if the treatment and assessment plan is in respect of an accident that occurred on or after September 1, 2010,

(A) that the insured person's impairment is not predominantly a minor injury, or

(B) that the insured person's impairment is predominantly a minor injury but, based on compelling evidence provided by the health practitioner, the insured person does not come within the Minor Injury Guideline because the insured person has a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent the insured person from achieving maximal recovery from the minor injury if the insured person is subject to the limit or is limited to the goods and services authorized under the Minor Injury Guideline, or

...

Footnote

1 Co-Operators Insurance Company v. Bennett, 2024 ONSC 467 (CanLII), (https://canlii.ca/t/k2q9w)

Rogers Partners LLP is an experienced civil litigation firm in Toronto, Ontario. The firm represents insurers and self-insured companies in numerous areas, including motor vehicle negligence, occupiers' liability, product liability, professional negligence, construction claims, statutory accident benefits, disability benefits, municipal liability, medical negligence, sexual abuse, and insurance coverage disputes.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.