Accident victim wins challenge to Ontario’s $3,500 minor injury cap

Posted on behalf of Greg Monforton & Partners Injury Lawyers on Jul 18, 2013 in Auto Accident

In September 2010, the Ontario government reduced the medical benefits you could get under your car insurance policy for injuries suffered in a motor vehicle accident.

The $100,000 limit for treatments not covered by the health care system was reduced to $50,000. But for accident victims who had minor injuries, such as strains, sprains and whiplash, the $100,000 limit was slashed to $3,500.

The $3,500 cap was designed to stop unscrupulous rehabilitation providers from making you come back for more and more treatments.

And while you could opt to pay higher premiums to boost your benefits beyond $50,000, you were stuck with the $3,500 minor injury limit  whether you wanted to pay more or not.

The massive cuts were supposed to lead to lower rates, but most people still pay as much as before. The pressure to bring down car insurance costs has led Ontario Premier Kathleen Wynne to promise relief in the next budget .

Last month, the Financial Services Commission of Ontario (FSCO) ruled in favour of an automobile accident victim who claimed expenses beyond the minor injury limit.

 

 

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Lenworth Scarlett, a passenger insured by Belair Insurance, argued that in addition to strains, sprains and whiplash, he also had pre-existing injuries and subsequent psychological difficulties.

As a result, he wanted to claim housekeeping, attendant care, medical and rehabilitation expenses beyond the $3,500 cap.

While Scarlett had soft tissue injuries, he may have had other conditions that weren't soft tissue injuries, said FSCO arbitrator John Wilson. It wasn't at all clear that the victims injuries from the accident were minor in nature.

It makes no sense if the insurer is positioned to veto access to benefits on the basis of the delivery of a single report, in the face of credible evidence to the contrary, when the resulting delay in treatment could last for years, Wilson wrote.

This runs contrary to both the spirit of the accident benefit scheme and the stated purpose of the (minor injury) guideline itself.

The key concept is the burden of proof, says personal injury lawyer Stanley Pasternak.

The onus is not on the injured person to show the injuries fall outside the minor injury guideline, he explains. The onus is on the insurer to show the injuries fall inside the minor injury guideline.

Under insurance law, a company that excludes something from coverage has to be very precise. Any ambiguity goes in favour of the insured person.

The $3,500 minor injury cap is seen as an exclusion from the $50,000 limit for accident benefits. This means the burden of proof is on the insurer.

If you provide credible evidence that your injuries are more than the strains, sprains and whiplash covered by the $3,500 limit, the insurance company has to prove youre wrong, Pasternak says.

The arbitration decision in Scarlett vs. Belair is the first to consider the minor injury guideline, said FSCO spokeswoman Kristen Rose.

Arbitration decisions may be appealed and as this process has not been exhausted, further comment on this decision would be inappropriate.

The current minor injury guideline was introduced as a temporary measure. Work is under way to develop a new treatment protocol for minor injuries, based on medical and scientific evidence, Rose explained.

Heres the good news. Since 2010, thousands of accident victims have been denied benefits by insurers that put them into the minor injury category without proper medical support.

The FSCO ruling gives back rights to accident victims. It says that an insurers early determination of a persons entitlement to treatment beyond the $3,500 cap is an interim one that is open to review.

Ellen Roseman writes about personal finance and consumer issues. You can reach her at eroseman@thestar.ca , 416-945-8687 or ellenroseman.com