Single Impairment Triggers Catastrophic Designation
Two recent arbitral decisions have expanded the trend toward a fair and liberal interpretation of the definition of catastrophic impairment under Ontario's Statutory Accident Benefits Schedule.

Focused on the (g) criterion of the catastrophic impairment definition under the Statutory Accident Benefits Schedule, Accidents on or after November 1, 1996 (Schedule), these decisions from the Financial Services Commission of Ontario (FSCO) state that, where an applicant for first party benefits has suffered a mental or behavioural disorder as a result of a motor vehicle collision, a finding of Class 4 impairment (marked impairment) or Class 5 impairment (extreme impairment) in only one of four areas of functioning is sufficient to trigger the catastrophic impairment designation.

In defining catastrophic impairment, clause (g) of the definition in the Schedule includes an impairment that, in accordance with the American Medical Association's Guides to the Evaluation of Permanent Impairment, 4th Edition, 1993 (Guides), results in a Class 4 (marked impairment) or Class 5 (extreme impairment) due to mental or behavioural disorder.

The Guides state that a Class 4 (marked impairment) is an impairment level which significantly impedes useful functioning; Class 5 (extreme impairment) is an impairment level that precludes useful functioning. After identifying a mental or behavioural disorder, the Guides proscribe that clinicians must assess four spheres of functioning: (1) activities of daily living; (2) social functioning; (3) concentration; (4) adaptation.

Pastore v. Aviva Canada

Anna Pastore was a pedestrian who was injured in a Nov. 16, 2002 motor vehicle collision (Pastore v. Aviva Canada Inc., [2009] O.F.S.C.D. No. 24). She sustained, among other injuries, a fracture of her left ankle that requires numerous surgeries. As a result, she was also diagnosed as suffering a pain disorder with psychological factors. She applied for catastrophic impairment designation under both clause (f) and (g) of the definition.

Under clause (f) of the Schedule, there must be a finding of 55 per cent or more whole person impairment (WPI) in order to be catastrophic. Arbitrator Natasi found that a combination of the impairment ratings (in accordance with the Guides) for her physical and psychological impairments, under clause (f), failed to result in a WPI of 55 percent or more.

Pastore's mental and behavioural impairments were then assessed under the (g) criterion. Medical opinion evidence showed that although Pastore had difficulties in all of the four areas of function, it was only within the sphere of activities of daily living that she suffered from a Class 4 marked impairment, due to her recognized pain disorder. Arbitrator Nastasi concluded that Pastore sustained a catastrophic impairment as defined by clause 2(1.1)(g) of the Schedule, having suffered a Class 4 marked impairment in one of the four spheres of functioning as set out in the Guides.

On appeal, the decision was affirmed ([2009] O.F.S.C.D. No. 163). Director's Delegate Blackman followed the arbitral decisions in H and Lombard General Insurance Company of Canada [2007] O.F.S.C.D. No. 193 and McMichael and Belair Insurance Co. Inc. [2005] O.F.S.C.D., No. 34, as well as the decision of Justice Spiegel in Desbiens v. Mordini [2004] O.J. No. 4735 (S.C.J), in concluding an insured need only suffer "a marked impairment" in one of the four areas of function to qualify as catastrophically impaired.

The guides do not state that the four spheres of functioning must be looked at together, nor do they provide guidance on how one should combine all spheres to arrive at an overall rating. Narrow interpretation of the word "a" in clause 2 (1.1) (g) of the Schedule to mean an overall rating from all four areas of functioning would result, contrary both to the intent and to the plain wording of the Schedule, in an unjust or unacceptable result depriving much-needed enhanced health care benefits to accident victims most likely in greatest need. As such, no "overall" impairment assessment was required.

The Director's Delegate also concluded that there is no inconsistency if the insured person meets the (g) criterion of catastrophic impairment based on mental or behavioural disorders alone, but fails to meet the (f) criterion after combining the percentage impairment ratings of both physical and psychological impairments. He confirmed that each of the provisions under subs. 2(1.1) of the Schedule are to be considered when determining catastrophic impairment.

An application for judicial review has recently been filed in Pastore.

Fournie v. Coachman Insurance

Fournice v. Coachman Insurance co., [2010] O.F.S.C.D. No. 15, confirms that a Class 4 marked impairment is required in only one area of functioning to trigger catastrophic impairment designation. Like Pastore, the applicant suffered significant lower leg injuries, requiring numerous surgeries. He also suffered numerous psychological impairments as a result. In this case, the medical evidence showed that the applicant was catastrophically impaired in three of the four areas of functioning due to mental or behavioural disorder.

Although originally believed to be catastrophically impaired in all four areas, the assessment of impairment of social functioning was upgraded to Class 3 impairment after the applicant testified that his social functioning had improved, including a return to fishing and kayaking. Despite this, the applicant's list of pre-accident activities was extensive, and the injuries and psychological sequelae changed his level of activity.

Arbitrator Richards stated that the applicant's attempts to improve his condition did not necessarily lead to the conclusion that he was free from mental or behaviour impairment. The arbitrator accepted the evidence that the applicant was a Class 4 or higher in activities of daily living, adaption, persistence and pace, but that his impairment in social functioning was below the catastrophic level. Acknowledging that the applicant only required one marked impairment to be deemed catastrophically impaired, a finding of catastrophic impairment was made under the provisions of clause (g).

The two decisions are important for insured persons who have suffered impairments due to mental or behavioural disorders as a result of motor vehicle collision. An assessment of the (g) criterion should be made to determine whether the person has suffered a catastrophic impairment. Under the Schedule, a finding of catastrophic impairment allows an insured person access to an enhanced level of first-party benefits, primarily in the realm of medical, rehabilitation and attendant care benefits.

The Ontario Court of Appeal noted in Liu v. 1226071 Inc., [2009] O.J. No. 3014, that a catastrophic impairment designation "does not automatically mean entitlement" to payment of any specific benefit under the Schedule. It remains for the insured person to demonstrate that the benefits required are both reasonable and necessary.

Source: Hall, J., "Single Impairment triggers catastrophic designation" The Lawyers Weekly (April 20, 2010).
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