Overturned ruling hurts injured: McLeish

Toronto critical injury lawyer John McLeish tells Law Times the implications the decision in Scarlett v. Belair Insurance Co. Inc. has for injured individuals gives the insurance industry more reasons to put somebody into the Minor Injury Guideline, thus hurting injured individuals.

In the much-anticipated Appeal Order, the Financial Services Commission of Ontario (FSCO) Director’s Delegate overturned the arbitrator’s decision in the case and remitted the case to a full hearing before a different arbitrator., according to the article.

This was an appeal from the decision of arbitrator John Wilson, released in March 2013 concerning the monetary limits set by s. 18 of the Statutory Accident Benefits Schedule (SABS) and by the Minor Injury Guideline (MIG).  In the original hearing, Arbitrator Wilson found in favour of Mr. Scarlett, concluding that the totality of his injuries removed him from the MIG.

‘Taken away tools’

McLeish, partner at McLeish Orlando LLP, says Arbitrator Wilson’s findings provided tools for the plaintiffs’ bar and benefits for injured persons, by allowing practitioners to tell insurance companies that certain conditions, such as chronic pain, depression and TMJ syndrome, fell outside the MIG. McLeish says, “now the appeal decision has taken away those tools.”

In the appeal decision, Director’s Delegate David Evans disagreed with Arbitrator Wilson’s approach in a number of ways.  A major area of disagreement was the Arbitrator’s definition of “compelling evidence,” as referred to in s. 18(2) of the SABS.  As McLeish explains, the claimant attempted to prove that he did not fall within the MIG by showing compelling evidence that he had a pre-existing medical condition that prevented him from reaching maximal recovery, if confined to the monetary limits of the MIG.  Although Arbitrator Wilson interpreted “compelling evidence” to simply mean “credible evidence,” the Director’s Delegate held that it meant more than that.

Burden of proof

A second area of dispute had to do with the burden of proof.  The Director’s Delegate disagreed with Arbitrator Wilson’s decision that the burden of proof fell on the insurer, a decision McLeish feels was helpful to an injured person trying to access $50,000 of benefits available to those outside the MIG. In Evans’ view, however, the burden of proof always rests on a claimant to prove that he or she fits within the scope of the coverage.

A third area of disagreement was Arbitrator Wilson’s understanding of the nature of the MIG, declaring it a non-binding interpretative aid.  Instead, the Director’s Delegate held that the MIG is part of the SABS, and as such, is binding.

McLeish agrees with Delegate Evans’ finding on this issue, noting, “the MIG is incorporated by reference into SABS and anyone deciding whether a case should be considered in or out is going to look at the MIG. In my view, it does have the same weight as a regulation.”

Nonetheless, McLeish is disappointed about the appeal decision and the major obstacles it raises for injured individuals.