The Minor Injury Guideline: A Major Change to Accident Benefits?

October 1, 2010 | Ashleigh T. Leon | Kitchener-Waterloo

Late this summer, our
office published an article discussing some of the regulatory framework
pursuant to the introduction of the new Statutory Accident Benefits Schedule,
O.Reg. 34/10, (the “new Schedule”) on which the Minor Injury Guideline (02/10)
(the “Guideline”) is based. This month, I will focus on some of the provisions
of the Guideline itself.

Those affected by
the introduction of the new Schedule are waiting anxiously to see whether or
not the changes introduced will be significant enough to actually bring about
the changes intended by the legislature.

The Guideline is
one of the most predominant changes to the old Statutory Accident Benefits
Schedule, O.Reg 403/96 (the “old Schedule”). It is the intention of the
legislature that the Guideline be considered “in any determination requiring
the interpretation of the new Schedule” and states that most persons injured in car accidents
in Ontario sustain minor injuries for which the goods and services provided
under this Guideline are appropriate”.

The objectives of the Guideline are to:

a)  Speed access to rehabilitation for persons who sustain minor
injuries in auto accidents;

b)  Improve utilization of health care resources;

c)  Provide certainty around cost and payment for insurers and
regulated health professionals; and

d)  Be more inclusive in providing immediate access to treatment
without insurer approval for those persons with minor injuries as defined in
the Statutory Accident Benefit Schedule.

Further to these objectives, the Guideline establishes goods
and services that will be paid for by the insurer without the requirement of
prior approval, if the injured person has sustained a minor injury. Thus, the
intention is to facilitate access to immediate
health care, albeit within the provisions of the Minor Injury Guideline.

Section 8 of the
Guideline provides for three stages of treatment over a twelve week period,
allowing for discharge by the treating health care practitioner at any of the
four week-intervals if maximal recovery is achieved. Block fees through each of
these stages steadily decrease beginning at $775 for the first four weeks, then
reducing to $500 for the second four weeks and finally $225 for the third four
week block. Treating practitioners also have the option of charging for
monitoring services at the rate of $200 at each block, instead of the treatment
fees if treatment is no longer required. This phasing system may lead to an
increase in emphasis on education and self-directed exercise as the health care
practitioners will have less access to funds over the course of the twelve
weeks period and will therefore likely become less involved in patient care as
the care period continues. 

Definition of a
minor injury as well as the statutorily embedded exemptions to the Guideline
were discussed previously. I think that one of the most contentious and
litigious areas regarding the Guideline will be whether or not an exemption for
psychological impairment will be granted, as was the case with the Guideline’s
predecessor, the Pre-Approved Framework Guideline. This issue could have easily
been dealt with by including psychological impairment in the definition of a
minor injury. Nevertheless, the definition of a minor injury does not
explicitly include psychological impairment and thus this door seems to have
been left open. However, the current definition does include “any clinically
associated sequelae” which has been left undefined.

To some extent the
Guideline itself seems to acknowledge the possibility that some psychological
difficulties can be dealt with under the Guideline, in sections 7(b) and 8(d). For
example, under section 7(b), during an initial visit to a health practitioner,
the practitioner is to review and document the functional status and psychosocial risk factors associated with
the injury
. Further, section 8(d) of the Guideline states that outside
of the block fees described, there are “additional
funds available to provide supplementary goods and additional services to
support restoration of functioning and address barriers to recovery”. These supplementary goods and services may
include “supportive interventions such as advice/education to deal with
accident-related psycho-social issues, such as but not limited to: distress; difficulties coping with the
effects of his/her injury; driving problem/stress

As you can see from
last month’s article and this article, while it seems the intention of the
introduction of the Guideline was to bring about a major change to Accident
Benefits, there are many areas that have been left open to interpretation. It
is likely that the effect the Guideline will have on the Accident Benefits
scheme will not be fully realized until these litigious areas have been better
defined and explained through the decisions of Arbitrators and the courts.