Pre-existing Conditions and the Minor Injury Guideline (MIG)

Find out about the implications pre-existing conditions can have on the minor injury funding limit

Statutory accident benefits coverage for injury(ies) sustained in a car accident is governed by the legal classification of the injury(ies).  A minor injury is “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury”[1]. Unless the policy contains modifying optional benefits, recovery for med-rehab benefits for predominantly minor injuries is limited to $3,500.[2] An exception to this limit is if the applicant can demonstrate that they have (a) pre-existing medical condition(s) that will prevent them from achieving maximal medical recovery from the minor injury if subject to the $3,500 limit.[3]

In Tesla v. TD General Insurance Company,[4] the applicant used this argument to justify coverage for expenses, for treatment of the MVA-related injuries, which exceeded the MIG funding limit. He was seeking med-rehab benefits in relation to the chiropractic and psychological services he received.

In this case, the applicant argued that he qualified for the s. 18(2) exception on the basis of his pre-existing conditions including diagnosed depression, hypertension, dyslipidemia, chronic neck discomfort and headaches and that he had received bilateral carpel tunnel surgeries and fissure repair. His supporting evidence included: clinical notes and records (CNRs) from two family physicians, of whom he had consulted, and from his paramedical health care providers, of whom he was provided with physiotherapy, chiropractic services and acupuncture; as well as X-ray and MRI scans. The applicant reported that while the paramedical treatment he had received provided him with some pain relief, his symptoms were generally worsening; and that his pain prevented him from sitting and standing for prolonged periods of time. At the time of the accident, he had not been working due to recovering from a fissure surgery.

The respondent insurer argued that the applicant did not qualify for the s. 18(2) exception on the basis that the applicant had not submitted evidence demonstrating that his pre-existing conditions would prevent him from reaching maximum medical recovery if confined to the MIG. The respondent pointed out that the CNRs did not say that the applicant’s pre-existing issue would impact his recovery. The first family physician’s notes indicated that the applicant had improved, that his pain had gone away, and that he had returned to regular duties. An independent examination (IE) physician’s report indicated that the applicant’s MVA-related injuries were all soft-tissue, and therefore minor, injuries. The IE physician also opined that the applicant had no pre-existing conditions.

The Tribunal found the respondent’s arguments compelling and decided that the applicant did not qualify for the s. 18(2) exception. Most importantly, neither of the applicant’s family doctors commented on the applicant’s neck issues and pain and its impact on his recovery. As well, no medical evidence had been presented about the applicant’s fissure injury and how it was a barrier to recovery from his MVA-related injuries. The applicant did not submit evidence that contradicted the IE physician’s findings. Finally, the CNRs of the paramedical health care providers did not include any persuasive evidence that the applicant’s pre-existing medical condition prevented him from achieving maximal medical recovery.

This case demonstrates an important point for insureds who are putting forward the argument that they should not be subject to the $3,500 funding limit to med-rehab benefits because of their pre-existing medical condition. To be successful, they must prove, not only that they have a pre-existing medical condition, but that the pre-existing medical condition would prevent them from achieving maximal recovery from their accident-related injuries if subject to the $3,500 limit.

[1] Statutory Accident Benefits Schedule, O. Reg. 34/10 (SABS), s. 3. (https://canlii.ca/t/55fz9)

[2] SABS, s. 18(1). (https://canlii.ca/t/55fz9)

[3] SABS, s. 18(2). (https://canlii.ca/t/55fz9)

[4] Tesla v. TD General Insurance Company, 2022 ONLAT 20-006447/AABS (https://canlii.ca/t/jslsg)