The first Minor Injury Guideline (Guideline) decision has arrived. Pull out your French-English dictionary, as Arbitrator Wilson applies the language of love to determining Scarlett v. Belair, FSCO A12-00107, dated March 26, 2013.
In this case, the Applicant was injured in an accident on September 18, 2010. The Applicant took the position that he while he did suffer sprains and strains, he also suffered from pre-existing conditions and subsequent psychological disabilities that took him out of the Guideline. After the accident, the Applicant was diagnosed with TMJ syndrome, a Pain Disorder, severe depression, and chronic symptoms of PTSD, among other things.
Arbitrator Wilson found that the Guideline is informational and non-binding. He further held that the advisory nature of the Guideline was not altered by its incorporation in the Schedule.
That said, the Arbitrator quoted liberally from the Minor Injury Guideline-Superintendent Guideline No. 02/11. He noted that the Guideline appeared to create an exception to the obligation of an insurer to make payments of certain benefits to an insured person who would otherwise be entitled. Generally, the insurer would bear the burden to show than an insured falls under an exception to coverage. But, Arbitrator Wilson noted that the Guideline appeared to shift the burden of proving the exception onto the insured.
The Guideline, like the Schedule, notes that the $3,500 limit on benefits does not apply to an insured person if his or her health practitioner determines and provides compelling evidence that the insured person has a pre-existing medical condition that will prevent the insured person from achieving maximal recovery from the minor injury if the insured person is subject to the $3,500 limit or is limited to the goods and services authorized under the Minor Injury Guideline.
Arbitrator Wilson then turned his attention to the meaning of "compelling evidence" in the context of the Guideline, to understand the extent of the evidentiary burden imposed by the Guideline. In so doing, Arbitrator Wilson referenced the French version of the Guideline, as support for the argument that the Guideline did not create an extra evidentiary burden for an insured.
The Meanings of “Convincing”, “Compelling” and “Credible”
Arbitrator Wilson noted that the French version of the Guideline uses the phrase "la preuve convaincante" to qualify the information required to support an exception from the MIG. The word "convaincante" literally translates to "convincing". Arbitrator Wilson noted that any proof that is accepted by an adjudicator can always be called convincing since it persuades the adjudicator to make a certain decision. He noted that the word "convaincant" lacks the potential force of the word "compelling". This, he suggests, means that the authors of the Guideline intended that only "credible" evidence need be submitted to take an insured out of the Guideline.
And so Arbitrator Wilson slid from "compelling" to "convincing" to "credible". Perhaps a glass of red wine or cognac and flowers might be in order, as this interpretation is not convincing (or compelling), notwithstanding the romance of the French language.
Firstly, the French version of the Schedule does not use the word “convaincante” in respect of the evidence required to exempt an insured from the Guideline (indeed, the word “convaicant” or “convaincante” does not appear in the Schedule anywhere). Rather, the Schedule uses the word “probante”.
Specifically, the French version of section 18(2) of the Schedule states:
Malgré le paragraphe (1), le plafond de 3 500 $ qui y est prévu ne s’applique pas à la personne assurée si son praticien de la santé détermine, en fournissant des preuves probantes de ce fait…
Further, section 38(3)(c)(i)(B) of the French version of the Schedule states :
soit que la déficience de la personne assurée est principalement une blessure légère mais que, selon les preuves probantes fournies par le praticien de la santé….
“Probante” translates literally to probative but also can be held to mean “convincing”. To this end, it is not clear what Arbitrator Wilson would make of the word “probante” and whether its interpretation would change his conclusions in any way.
Conjugation Made Easy: the Meaning of “Devrait”
Again with respect to the interpretation of the phrase “la preuve convaincante devrait être fournie”, Arbitrator Wilson further held that the use of the conditional tense of the verb “devrait” (rather than, presumably, the “indicatif présent” conjugation “doit”) meant that the French version of the Guideline merely encouraged the provision of compelling evidence, rather than mandating it.
A close reading however suggests that the phrase "la preuve convaincante devrait être fournie" in the French version of the Guideline is in relation to the form in which the proof must be submitted. The phrase reads "la preuve convaincante devrait être fournie au moyen du formulaire FDIO-18, Plan de traitement et d'évaluation, auquel seront joints les documents médicaux préparés le cas échéant par un practicien de la santé".
The equivalent paragraph in the English version of the Minor Injury Guideline-Superintendent’s Guideline No. 02/10 states: “Compelling evidence should be provided using the Treatment and Assessment Plan (OCF-18) with attached medical documentation, if any, prepared by a health practitioner.”
Therefore, this phrase means that the proof or evidence to exempt a claimant from the Guideline should be provided on an OCF-18, not that the evidence itself is not mandatory.
Arbitrator Wilson found that the only way he could reconcile the English and French versions of the Guideline would be to interpret both provisions as merely an “exhortation” to medical practitioners and other stakeholders to provide credible or convincing evidence if they wish to ensure that an insured is to be treated as being outside of the Guideline.
Arbitrator Wilson distilled the critical elements of the Guideline as follows:
- Persons who suffer minor injuries should be treated appropriately, with early, quick and limited intervention to assist in recovery.
- the decision or not to treat an insured either within the MIG or not should be made on the basis of credible medical evidence and not on speculation.
- Even those persons who otherwise might be within the MIG can be treated outside of the Guideline if there is credible medical evidence that a pre-existing condition will prevent the insured person from achieving maximal recovery from the minor injury.
Arbitrator Wilson then examined the evidence and found the Applicant’s injuries “distinct” from soft tissue injuries, and that the existence of those injuries was supported by “credible” evidence. Therefore, Arbitrator Wilson found that the insurer had failed in its burden to prove that the Applicant fell within the Guideline.
Given Arbitrator Wilson’s conclusions, drawn from rather troubling interpretations of the French version of the Guideline, there is still a viable argument that some enhanced burden of proof rests with the insured, to provide “compelling” evidence of pre-existing issues. Arbitrator Wilson’s interpretation of the Guideline as an “exception” to the requirement that an insurer pay certain benefits may be over reaching. Interpreting the Guideline as an “exception” shifts the burden onto the insurer, to prove that the insured falls within the exception. The Guideline could simply be interpreted as a monetary cap to benefits, based the nature of the impairment sustained, and that, contrary to Arbitrator Wilson’s comments, standard benefits should not be considered an automatic “policy default”.
Many further implications and issues arise from Arbitrator Wilson’s decision, and these will be discussed in the days and weeks ahead. But, it suffices to say that, for insurers, the romance with the MIG is rocky. It might be a good time for Insurers to change that Facebook relationship status to “it’s complicated”.