Volume. 8 Issue. 14 – April 10, 2024

This week we review the court’s ruling on an appeal wherein the Respondent once again attempted to preclude an Applicant from securing an ACB assessment, despite being removed from the MIG on the basis of pre-existing health implications for recovery within the MIG. Ultimately, the court found that the insurer was for the third time unsuccessful in this quest.

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Court Upholds Tribunal Decision That a MIG Removal is a Complete MIG Removal

Strike Three You’re Out! – We have reported previously on Co-Operator’s unsuccessful attempts to preclude the applicant Bennett from securing an in-home attendant care (ACB) assessment despite removing Bennett from the MIG. The removal was based upon a finding that there was compelling evidence that Bennett would be prevented from a recovery from the minor injury if subject to the limit or is limited to the goods and services authorized under the Minor Injury Guideline. In 21-005362 v Pembridge, the court heard Co-Operator’s appeal of the decision and reconsideration of the Tribunal.

Co-Operators submitted that Bennett “was not entitled to benefits for an attendant care assessment because although she was removed from the MIG due to her pre-existing condition, she nevertheless only suffered minor injuries in her accident… the respondent was excluded from any attendant care assessment on a plain reading of s.14.2 and 25(2) of the SABS, and the MIG is irrelevant to the determination of the question.” S.14 of the Schedule indicates in part that an insurer is “Liable to pay (2) If the impairment is not a minor injury, attendant care benefits under section 19.” S.25 indicates that an insurer is obliged to fund assessments, however “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.”

Co-Operators submitted “because s. 25(2) does not refer to the MIG limits, but only to whether the person has “sustained an impairment that is not a minor injury”, that this is a stand-alone constraint that prevents the respondent from being eligible for funding for an in-home assessment… the phrase, an “impairment that is not a minor injury” is not the same as circumstances in which a person is subject to the MIG constraints… the LAT erred in law and conflated “minor injury” with the MIG”. The court noted that this was the same argument made before the Tribunal.

The court further noted that the Tribunal had “concluded that the insurer cannot “split the determination” and continue to categorize the injuries as “minor” once an injured person has been removed from the MIG.” In addition, the Tribunal had confirmed that s.14(2) “does not mention attendant care assessments, but merely excludes attendant care benefits for minor injuries such that, in any event, this subsection did not prevent the respondent from being eligible for an assessment.” Further, “Once the determination has been made that H.B. is removed from the MIG based on pre-existing conditions, there is no further MIG discussion regarding her injuries and impairments… her impairments are no longer considered predominantly minor.”

The court summarized the position of the Tribunal to be that “a minor injury alone means the claimant is subject to the MIG, and the other constraints that flow from this categorization. However, once a claimant is put into the unusual category of having suffered a predominantly minor injury, alongside a documented pre-existing medical condition that will prevent maximal recovery, they are both not subject to the MIG, and cannot be said to have an impairment that is solely or considered “predominantly a minor injury… one must consider the entire description of their situation that includes a pre-existing medical condition and the expectation that the claimant is not expected to achieve maximal recovery if they are subject to the limits of the MIG.”

The court agreed with the analysis of the Tribunal as it “accords with the principles of statutory interpretation by reading the words of the SABS in their ordinary and grammatical meaning, in harmony with the scheme and object of the SABS, and in accord with the intention of the legislature”. The Tribunal had “rejected the respondent’s piecemeal approach to interpretation” for applicant’s removed from the MIG based upon pre-existing health related issues, with the court confirming that to accept that approach would “lead to illogical results and treat those claimants as if they were still within the MIG, that is, as if they had “only” minor injuries… This illogical outcome is the result of focusing solely on the words in sections 14.2 and 25(2) of the SABS without regard to the other provisions dealing with the rehabilitation, treatment and assessment of persons found to have pre-existing conditions which would prevent maximal recovery by subjecting them to the MIG limits.”

The court further found that the “overall scheme of the SABS supports the LAT’s finding that claimants with minor injuries and their placement within the framework for treatment of only minor injuries under the MIG are intertwined concepts.” It was also noted that the decision on the part of the Tribunal was consistent with its own jurisprudence, in which several claimants removed from the constraints of the MIG were found to be eligible for in-home assessments, because they were not merely suffering from a minor injury. Additionally, the decision was consistent with the consumer protection objective of insurance legislation. Costs in the amount of $1,000 was payable to Bennett.

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