Do You Think That a Brain Injury is a Minor Injury? Your Insurance Company Might Think So Following A Car Accident in Ontario
I have previously blogged about the Minor Injury Guideline and how it can have a major impact on an injured person's ability to obtain treatment and support following a car accident in Ontario. Many Ontario personal injury lawyers have been critical of the Minor Injury Guideline and, more particularly, many have been critical of its abuse by some of Ontario's auto insurers. If you are not familiar with the Minor Injury Guideline, or MIG as it is sometimes called, you can learn more about it and other changes that occurred to Ontario auto insurance by reading one of my earlier blogs here.
Simply, the Minor Injury Guideline allows the auto insurance company to limit the amount of money it will pay for medical and rehabilitation on behalf of an injured person following a car accident. That is, if your injury is considered to be predominantly a "Minor Injury", then the insurance company is not required to pay anything more than $3,500.00 toward medical and rehabilitation costs. Even then, the insurance company will often try to save some more money, and will often deny claims for medical and rehabilitation treatment before exhausting the $3,500.00 limit. You may be thinking to yourself, "So what?, Thirty five hundred bucks sounds like plenty for a minor injury . . ." In some cases $3,500.00 may be enough. The application of the Minor Injury Guideline does more than just save the insurance company money on the medical and rehabilitation benefits, it also means they pay nothing for attendant care and some other benefits. It offers the insurance company significant savings on a claim and, in my opinion, that is why it is being abused by some insurance companies in Ontario.
So what is a "Minor Injury"? A "minor injury" is defined as a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae.
A strain or a sprain is defined as an injury to one or more muscles, ligaments or tendons with a partial -- but not complete -- tear. Subluxation is a partial, but not a complete dislocation of a joint. Whiplash is an injury to a person's neck following a sudden acceleration or deceleration that does not exhibit objective, demonstrable, definable and clinically relevant neurological signs and a fracture or dislocation of the spine.
How Can A Brain Injury To A Child Meet the Definition of a Minor Injury?
It can't - at least not with any reasonable and good faith assessment. But, your auto insurance company may say it does anyway. Although the phrase, "Minor Injury Guideline" suggests that its application is limited to minor injuries, this is not always the case in practice. Because the definition of a minor injury is broad, some insurance companies, and some insurance adjusters, take the view that it should apply to every single claim where the injured person does not have broken bones. So, if a child has a mild traumatic brain injury, without any broken bones, the insurance company might assert that it is a "minor injury" claim and deny medical and rehabilitation benefits. Although this scenario may sound absurd (because it is), I have seen some unscrupulous insurance adjusters attempt to place both adults and children with mild traumatic brain injuries in the Minor Injury Guideline. Keep in mind that this is the same insurance company that these people paid to give them financial protection and peace of mind in the event of an injury from a car accident.
A mild traumatic brain injury cannot be seen and measured the way that a broken bone can. Mild traumatic brain injuries are not diagnosed with imaging studies like CTs, MRI and X-ray. Nonetheless, they are diagnosed by doctors and specialists everyday. Don't let the word "mild" mislead - a mild traumatic brain injury can have profound consequences. In fact, mild traumatic brain injury, including concussion, can result in physical, cognitive, emotional and behavioral changes. Some common difficulties for individuals following a mild traumatic brain injury include slowing of cognitive processes, confusion, memory problems, chronic headache, phono and photophobia, post-traumatic stress disorder and depression.
Getting back to the point, however, there is simply no reasonable basis for an insurance company to conclude that a mild traumatic brain injury could meet the definition of a "minor injury." A mild traumatic brain injury is not a sprain or strain injury as contemplated under the Minor Injury Guideline. The Minor Injury Guideline is not appropriate for the treatment of mild traumatic brain injuries, including concussion and post-concussive syndrome. If your insurance company says it is - call me and have an Ontario car accident lawyer on your side.
Iacobelli Law Firm is a personal injury law firm that represents those injured in car accident throughout the province of Ontario. We have offices in Toronto and York Region and offer free consultations to car accident and personal injury victims. If you would like to learn more about your rights following a car accident, contact us to request a free consultation. We can be reached at your convenience 24 hours per day 7 days per week at 1-866-234-6093 or 416-900-1070, or you can complete our online contact form here.
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