MIG Update – October 18, 2021

Fractured Finger Not Predominantly Minor

In this week’s edition, the Tribunal was asked to consider a fracture to a finger as ‘predominantly minor’ and that along with other soft tissue injuries to the neck and back treatment would be subject to the MIG limits. Was the fracture to the finger considered non minor?

Factor: Predominantly Minor

Fractured Finger Not Predominantly Minor – In Pereira v. Certas Direct Insurance Company (20-003876), Perieira submitted that her soft tissue injuries, as well as a fracture of her fifth digit in the accident which required treatment, took her out of the MIG. Certas argued that the fracture did not require follow-up or treatment and that the applicant’s “predominant injury – soft tissue injury to the neck and back – is a minor injury.

Certas further submitted that the word “predominantly” is used in s. 18(1) of the Schedule to prevent cases such as this, where there is a diagnosed injury that is not listed in the definition of minor injury under s. 3(1) of the Schedule, with no actual functional impairment. In this case, Perieira returned to work while she was still being treated within the MIG, and there was no treatment requirement for the non-minor injury.

The Tribunal held:

• As a matter of law, the definition of “minor injury” in the Schedule does not include a fracture. As a result, a fracture is not a minor injury under the Schedule. The definition of “minor injury” in the Schedule does not require “actual functional impairment”.
  
• “The definition of “impairment” in s. 3(1) includes a “loss or abnormality of a physiological or anatomical structure or function,” I find that this requirement is met by the fracture and the requirement for a splint.”
• The term “an impairment,” when applied to “predominantly a minor injury” on a plain and ordinary yet purposive reading of s. 18(1) is that each impairment sustained by an insured person must be considered on its own to determine whether that particular impairment is predominantly a minor injury.
• There is no provision in s. 18(1) for a group analysis of the insured’s “group” of impairments sustained in the accident, if more than one is sustained, to see if the group of injuries is predominantly minor.
• By referring to “an” impairment and predominantly “a” minor injury as singular and not plural, the legislature expressed its clear intention that each of the insured’s injuries be considered separately to determine whether that particular injury is predominantly a minor injury or not.

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