Only one Class 4 impairment required for injury victim to be deemed catastrophically impaired: FSCO arbitrator

A person injured in a motor vehicle accident requires only one marked (i. e. Class 4) impairment to be considered catastrophically impaired, a Financial Services Commission of Ontario (FSCO) arbitrator has ruled.

“[FSCO] Arbitrator [Elizabeth] Nastasi in Pastore and Aviva Canada Inc. . . . notes that the Superintendent’s Guidelines for undertaking catastrophic impairment assessments state that two marked impairments are required to render a catastrophic determination under the [S. 2(1.2)](g) criterion [of the Statutory Accident Benefits Schedule],” FSCO arbitrator Lloyd (J. R.) Richards wrote in his decision in Dean Fournie and Coachman Insurance Company.

“She determined that the [SABS] Guidelines are an assessment tool for physicians and are not incorporated into the legislation and therefore she is not bound by them.

“I agree with her. In light of this, I find that Mr. Fournie only requires one marked impairment to be deemed catastrophically impaired.”

Fournie was injured when he was struck from behind in August 2004 by a pickup truck as he was biking to Petrolia from his home in Sarnia. He applied to Coachman Insurance Company for a determination of catastrophic impairment under the schedule.

Coachman argued that he did not suffer a catastrophic impairment.

Fournie broke his left heel, ankle and thumb, in addition to losing some teeth.

Fournie’s position was that because he required two crutches and a short leg brace for pain relief, the Guides dictate that is a 50 per cent score for the purpose of meeting the 55 per cent threshold for a catastrophic impairment. When added to his 5 per cent for a skin disorder and 2 per cent adjustment order, that would make him catastrophically impaired.

Coachman said Guides assign a 40 per cent maximum to such impairments.

Fournie’s doctor, a clinical psychologist, said his patient rated a Class 4 impairment in his activities of daily living, adaptation to work and social functioning.

Richards found that just one Class 4 finding was enough to determine that Fournie had suffered a catastrophic impairment. •