Catastrophic Determination:

The term “catastrophic,” defined in the Ontario Statutory Accident Benefit Schedule (SABS), is used as a division for the most serious and permanently injured to access substantially enhanced benefits past the fixed periods assigned for “non-catastrophic” claimants.

Paraplegics, quadriplegics, amputees, blind persons and those with significant brain impairments and marked psycho-emotional impairments all qualify as catastrophically impaired. They are included in the definition of catastrophic impairment as it is expected they will require enhanced medical, rehabilitation, attendant care and housekeeping needs.

The drafters of the SABS also recognized that a combination of impairments can result in substantial care needs. Accordingly, a person can be catastrophically impaired based on a combination of impairments, pursuant to subsection (f) of the definition of catastrophic impairment, which includes a combination of impairments that results in a 55 per cent whole person impairment. ¹

The first case to examine the definition of clause (f) was Desbiens v. Mordini ² in 2004, when the Court was asked to interpret 2(1.1)(f) of the SABS. An issue in that case was whether psychological impairments could be considered in determining whole person impairment under subsection (f).

Prior to his motor vehicle collision, Phillipe Desbiens was a paraplegic as a result of falling off a roof while at work. Despite his paraplegia. Desbiens was quite independent as he still had the ability to move around in his manual wheelchair and drive his altered vehicle. He was also able care for himself with little assistance. Very few accommodations were required to his home. However, after he was involved in a motor vehicle collision, Desbiens claimed to have lost the independence he once had; as his new injuries did not permit him to perform some of the essential tasks he was once able.

The defendant in Desbiens argued psychological impairments could not be considered in determining whole person impairment pursuant to the American Medical Association’s Guides to the Evaluation of Permanent Impairment. There is a combined values table in the Guides which allows physicians to combine impairment ratings to arrive at a ‘whole person impairment’ (WPI) rating in to assess catastrophic impairment.

It was Desbiens’ position that the definition of impairment included both psychological and physical aspects and since clause (f) referred to a combination of impairments and not a combination of just ‘physical’ impairments, both physical and psychological impairments ought to be included in evaluating WPI.

Justice Harvey Spiegel analyzed the history and purpose of the definition of catastrophic impairment and held it was intended to foster fairness for the victims of collisions by ensuring those with the most need have access to expanded medical and rehabilitation benefits.

Spiegel concluded the clause (f) was intended to be a ‘catch-all’ provision for the benefit of those who are in the greatest need of health care. There was nothing in the legislation to indicate physical and psychological impairments could not be added. As he saw it, clause (f) used the wording ‘any’ combination of impairments. Believing that if the drafters had intended to exclude psychological impairments from clause (f), the legislation could have specified only physical impairments be included. He also found the defendant’s proposed interpretation violated the Charter of Rights and Freedoms at it discriminated against persons with mental disabilities.

Desbiens has been followed in subsequent decisions and continues to be the leading court decision on the issue of calculating WPI.

In McMichael and Belair Insurance3, Arbitrator David Muir was faced with the issue of whether or not the claimant had suffered a catastrophic impairment pursuant to clauses (f) and (g) of section 2(1) of the SABS. Muir first analyzed the application of clause (g), impairment due to mental and behavioural disorders. Muir also considered whether McMichael met the catastrophic definition in clause (f): whether he had a WPI of 55 per cent or more. On the basis of his physical impairments alone, Muir found the claimant did not meet the 55 per cent WPI threshold, but he then considered the issue of combining both physical and psychological impairments to reach the 55 per cent WPI rating as set out in Desbiens.

Belair raised the argument that in Desbiens the Court had expert opinion evidence before it to comment on the translation of qualitative psychological impairment ratings into a WPI rating, which was not the case in McMichael. Muir rejected Belair’s argument and found the plaintiff did not need an expert’s evidence to determine whether or not it was appropriate to add psychological and physical impairments. He determined this was a question involving the interpretation of the SABS. Muir agreed with the claimant that the SABS required the addition of all impairments to arrive at the appropriate WPI and adopted the Desbiens analysis. However, he did conclude there would be some risk of double counting if the claimant’s psychological and physical impairments were added in this case and he therefore did not continue to assign a percentage to the psychological impairments. While the facts giving rise to the circumstances in Desbiens and McMichael are very different, Muir appears to have followed the reasoning in Desbiens.

The appeal of McMichael4 was heard by Director’s Delegate Nancy Makepeace on the issue of the method of assessing catastrophic impairment under the SABS and Muir’s decision was ultimately upheld on appeal. Makepeace adopted the statements in Desbiens that the AMA Guides are to be given a “fair, large and liberal” interpretation. Makepeace noted that ‘impairment’ is defined very broadly under the SABS thereby ensuring the most seriously impaired claimants may qualify for enhanced benefits, whatever the nature of their impairments. According to Makepeace, the drafters of the legislation created alternative ways of satisfying the catastrophic impairment definition to avoid under-inclusiveness and ensure impairments of equal seriousness are treated equally under the SABS. The appeal, however, did not consider the issue of combining physical and psychological impairments to arrive at a WPI rating.

In G. v. Pilot Insurance Co5 the issue was whether the claimant had sustained a catastrophic impairment as per clauses (f) and (g) of the definition in the SABS. Arbitrator Lawrence Blackman adopted and followed the reasoning in Desbiens. He noted arguments made that psychological impairments should not be included in a WPI rating but he rejected each one, stating that clauses (f) and (g) are separated by the word “or” which means that the clauses were meant to be mutually exclusive. However, Blackman found this was not the drafters’ intent as this would mean clauses (a) to (g) were mutually exclusive.

The second argument he rejected was the idea that a percentage could not be assigned to psychological impairments. According to Blackman, he was in agreement with the decisions in McMichael and Desbiens that despite the practical difficulties, all impairments however caused must be included in the WPI. He concluded an insured person should not be penalized just because medical science lacks an objective means of rating psychological impairments via percentages.

Blackman also noted the Guides deliberately did not use percentages to estimate mental impairment because of their subjective nature, the dilemma being that clause (f) requires a percentage analysis. Blackman stated the SABS provide that if an impairment, or by implication an impairment rating, is not provided, one must then look to a listed impairment most analogous to the impairment sustained.

In P. (B.) v
. Primmum6 the applicant was involved in a motorcycle collision. The damage to his right leg was so severe, amputation from the knee down was required. At issue in this case was whether the claimant was catastrophically impaired under clause (f) as a result of the amputation.

One of the experts in this case relied on his own interpretation of Desbiens and stressed the AMA Guides are not a complete guide and that an assessor should exercise clinical judgment to adjust a score upwards. He found the claimant met the 55 per cent threshold with an upwards final adjustment. Additionally, it was argued that discretion lies with the decision maker in cases where the cost of future treatment exceeded the non-catastrophic limits. In this case, the cost for future prosthesis and care were well beyond the non-catastrophic limits. In his reasons, Blackman rejected this approach to the determination of catastrophic impairment.

Ultimately, Blackman followed Desbiens and his own judgment in G. v. Pilot and considered the various experts reports and based on a review of them and the AMA Guides, he attributed various WPI designations to both physical and psychological impairments which exceeded the 55 per cent WPI threshold, therefore determining the claimant was catastrophically impaired.

In the case of Arts v. State Farm7, the insurer took the position that Desbiens was wrongly decided. Nigel Arts suffered a brain injury and multiple skull fractures as well as psychological impairments. State Farm sent him to an insurer’s examination to determine catastrophic impairment, where it was concluded his physical injuries resulted in a WPI of 23 per cent while his psychological impairments resulted in a 40 per cent impairment. Combined, Arts’ impairments exceeded 55p per cent. State Farm brought a motion for a determination of a question of law, namely, whether psychological impairments should be considered in determining WPI. Justice Robert MacKinnon found the AMA Guides allow the consideration of psychological impairments in determining WPI. State Farm has asked for leave to appeal the decision. As of publication, the Divisional Court has not released its decision.

It is apparent the law regarding the consideration of psychological impairments in determining whole person impairment is clear. Despite the insurance industry and government trying to strike a balance for a profitable industry and fair reparation system, it is apparent that the most seriously injured accident victims needs should be fully indemnified without compromise.

Charles Gluckstein practices insurance litigation, including personal injury, disability matters, occupier’s liability issues, product liability and medical malpractice. He is a director of the Ontario Trial Lawyers Association, a member of the Advocates Society, American Trial Lawyers Association and Medico-Legal Society of Ontario and director of the Advisory Board of the Neurological Rehabilitation Institute of Ontario.

Tiziana A. Romano wis an associate at Gluckstein & Associates LLP. She is involved in all aspects of litigation, including personal injury, insurance litigation and medical malpractice, from both the plaintiff and defence perspectives.

1 Statutory Accident Benefits Schedule – Accidents on or After November 1, 1996, O. Reg 403/96.

2 Desbiens v. Mordini [2004] O. J. No. 4735 (S. C. J.)

3 McMichael and Belair Insurance Company Inc. (2005) FSCO A02-001081

4 McMichael and Belair Insurance Company Inc., March 14, 2006 FSCO P05-00006

5 G. v. Pilot Insurance Co., March 16, 2006 FSCO A04-000446

6 P. (B.) v. Primmum Insurance Co., December 21, 2006 FSCO A05-001608

7 Arts v. State Farm [2008] O. J. No. 2096 (S. C. J.)