September’s NewsWatch featured our “MIG Takes Flight” synopsis of the Minor Injury Guideline. That article considered the possibility that with the definition of serious injury so restricted, claims operations managers would set the bar for serious injury evidence higher than the MIG intended. After almost seven months since the MIG’s September 1 effective date, we asked personal injury lawyer Drew Sinclair of the firm Oatley Vigmond to offer his perspective on how practice compares with MIG theory.

Read Sinclair’s entire article in the next issue of The Health Professional magazine in mid-April.

Stakeholders

The Minor Injury Guideline is of concern to all stakeholders in the insurance system. For the injured, the ability to rehabilitate has been seriously compromised. For health care providers, without a financially backed client base, the ability to operate and provide medical and rehabilitation services has been put in jeopardy.

For insurers, the situation is slightly more complex. The broadly defined MIG will certainly capture more claims than its predecessor, the Pre-Approved Framework, and in the short term will provide financial savings. But in the long run insurers are going to feel the MIG’s ill effects as well. When incomplete rehabilitation eventually leads to more serious impairment, insurers are going to find themselves paying out their savings into other benefits. This situation is an opportunity for health care professionals and insurers to work together to make sure that claims with extensive rehabilitation needs are fully satisfied.

Adjusters are being advised to be strategic, and to watch for claims that could turn costly if rehabilitation is insufficient. Certainly many adjusters do their best to ensure claimants receive funding under the appropriate benefits stream (i.e. the MIG, non-catastrophic or catastrophic). But not all adjusters are advocates for their injured claimants and investigate claims to obtain the most comprehensive benefits. For some adjusters, there are too many files and not enough hours in a day. For others, the lure of immediate financial savings by putting a claim in the MIG may be too tempting to resist.

Health care professionals have been acting as advocates for their clients in the accident benefits system for many years. That duty is now heightened. When dealing with insurers, it’s going to be crucial for health care professionals to document as clearly as possible the cases where prolonged and intensive rehabilitation is needed.

Completing the OCF-23 – Completely

This goal may be best achieved through a careful accident benefits application. The Treatment Confirmation Form (OCF-23) must be thorough and complete. In particular, attention must be paid to Part 5 (Injury and Sequelae Information), Part 6 (Prior and Concurrent Conditions) and Part 7 (Barriers to Recovery). For an injury that initially seems to fall within the minor injury definition, without a thorough assessment of the injury and a review of the claimant’s history for possible pre-existing conditions, an adjuster could reasonably conclude that it belongs in the MIG.

Part 5

With respect to Part 5 (Injury and Sequelae Information) of the OCF-23, the broad definition of “minor injury” necessitates careful consideration. The new definition includes key words like sprain, strain, and subluxation. It follows that complete tears across tissue and full dislocations do not fall within the MIG. Appreciating this difference can be crucial to making a claim clearly non-MIG-appropriate.

Part 5 calls for an Injury Description and a corresponding Injury Code. Difficulty arises because the predetermined codes are not expressed in a form that complements the minor injury definition. For example, there are codes for “muscle strain,” “disorders of ligament,” “injury of muscle,” “sprain and strain,” “fractures,” “ruptures of ligaments” and “dislocations.” Consequently, the Injury Code cannot be relied on to clearly communicate the nature of the injury to the adjuster.

To keep an injury out of the MIG, the Injury Description must be specific and exact. The best practice would be to use clear and precise modifiers when describing injuries. For instance, an injury described as a “complete dislocation of the shoulder” patently does not belong in the MIG, while the ambiguous “dislocated shoulder” may or may not. The Injury Code is already too vague. The health practitioner should be careful not to compound the problem by failing to fully describe the injury when given the opportunity to do so.

Parts 6 and 7

Parts 6 (Prior and Concurrent Conditions) and 7 (Barriers to Recovery) of the OCF-23 become crucial for injuries that at first glance appear minor. The regulation states that where the claimant’s health practitioner “determines and provides compelling evidence that… a pre-existing medical condition… will prevent… maximal recovery from the minor injury,” the $3,500 cap will not apply. Accordingly, a thorough review of the claimant’s history can provide the impetus to get an otherwise seemingly minor injury out of the MIG. What makes for “compelling evidence” is unknown, but it will undoubtedly call for more than a perfunctory patient history to be taken during the initial assessment. For serious pre-existing injuries like depression or multiple sclerosis, clinical notes and records from treating practitioners will probably be required.

The Advantage of the OCF-18

Where an investigation into pre-existing injuries reveals a plethora of ailments, an OCF-18 will be necessary. An advantage of this form is that it provides the opportunity in Part 8 (Activity Limitations) to identify how a claimant’s impairments affect his or her employment and activities of normal life. The potential impact on these activities could alert adjusters that the claim does not belong in the MIG.

Income replacement benefits and non-earner benefits are limitless as long as the claimant continues to qualify. Once these benefits are activated, it will take only a few years paying these benefits for an insurer to have lost any savings generated by denying a claimant $50,000 in medical and rehabilitation benefits at the outset.

The implication for health practitioners is that a thorough and careful examination is required of a claimant’s activities of employment and daily living. Moreover, how a claimant’s impairments affect these activities must be understood precisely. If applicable, the OCF-18 should clearly articulate that if the claimant does not receive adequate rehabilitation, there will be unemployment.

The foregoing are merely suggestions for increasing the likelihood of insurers identifying a claim as not appropriate for the MIG. Whether insurers recognize these signals and respond appropriately remains to be seen.