Getting Out of the MIG in Ontario: What the Schedule Says

Search "how to get out of the MIG" and the answers tend to be lists of injuries said to qualify. The Schedule itself works differently: it defines "minor injury" in a short list, attaches the $3,500 limit to impairments where a minor injury predominates, and provides two exceptions. This guide explains those provisions of the Schedule (the SABS, which is O. Reg. 34/10) and why the evidence behind a classification matters.

What the MIG limit is and where it comes from

The "Minor Injury Guideline" (MIG) is a guideline put out by the Chief Executive Officer under the Insurance Act and published in The Ontario Gazette. The $3,500 figure comes from s. 18(1) of the Schedule. It is a ceiling on combined medical and rehabilitation benefits for one accident when the impairment is mostly a minor injury in the Schedule's sense, with HST added for accidents on or after June 3, 2019 and amounts already paid under the Guideline subtracted. The amount is stated as of the date of this article and should be confirmed as current.

Section 3(1) defines "minor injury" by a specific list: sprain, strain, whiplash associated disorder, contusion, abrasion, laceration and subluxation, along with any sequelae clinically associated with them. The text of the Guideline itself is not reproduced in this article.

What the $3,500 limit covers

The limit is on the combined total of medical and rehabilitation benefits (s. 18(1)). Under s. 14, attendant care benefits attach to impairments that are not minor injuries. Whether $3,500 is enough for a particular person depends on the treatment recommended by that person's health practitioners and on how the injury develops over time.

The two exceptions in the Schedule and how the evidence fits

The Schedule points to two routes to treatment beyond the limit, and both appear in the statement a health practitioner makes on a treatment and assessment plan (s. 38(3)).

1. The impairment is more than a minor injury. The limit bites only where the minor injury is the predominant part of the impairment, and an injury absent from the list is outside the definition. A fracture, for example, is not on that list. The definition likewise does not mention a psychological condition. How an impairment is characterised as "predominantly" minor depends on the medical evidence. Insurers can obtain an examination by a regulated health professional chosen by the insurer (s. 44(1)), and where an examination is conducted for a treatment and assessment plan, s. 38(13) requires the insurer to send the insured person a copy of the resulting report within 10 business days of getting it. Whether an insurer's examination or the treating practitioners' evidence is preferred is decided on the facts, ultimately by the Licence Appeal Tribunal if the dispute goes there.

2. A pre-existing medical condition. Section 18(2) removes the limit where the person's health practitioner determines, and supports with compelling evidence, that a condition existed and was recorded by a practitioner before the accident and that it would stop the person reaching maximal recovery while confined to the limit or to the Guideline's authorised goods and services. This route depends on a pre-accident record and on a practitioner's evidence connecting that condition to the person's recovery.

Where chronic pain, a concussion or a psychological condition is involved, the question is typically whether the evidence shows an impairment beyond the minor injury category. The categories people commonly cite are not a substitute for that evidence. This article does not predict how any such argument will be decided.

What kind of evidence is typically considered

The Schedule does not list the evidence that will succeed. In general terms, a lawyer or health practitioner reviewing a MIG classification typically looks at:

• the clinical record of symptoms and when each was first recorded;
• how the impairment affects daily activities and work, recorded specifically and with dates;
• whether more than one treating provider describes the condition consistently;
• any insurer-arranged examination (s. 44) and whether the treating providers' evidence responds to its specific findings; and
• for the pre-existing condition route, records made before the accident.

When it is worth talking to a lawyer

A person who has been told the MIG applies may want legal advice where:

• the insurer has treated the impairment as a minor injury and the person's practitioners disagree;
• an insurer-arranged examination (s. 44) has been relied on to refuse or limit treatment;
• the $3,500 limit is close to being used up while treatment is still recommended; or
• the insurer has refused a treatment and assessment plan. The Schedule allows an insurer to refuse a plan covering a period in which the person is entitled to goods and services under the Guideline, and says that refusal is final and not subject to review (s. 38(5) and (6)); how that interacts with a given plan depends on the facts.

Under s. 280 of the Insurance Act, the Licence Appeal Tribunal resolves disputes over entitlement to, or the amount of, statutory accident benefits, and SABS s. 56 gives two years from the insurer's refusal to commence the application. See also Ontario accident benefits explained.