June 16, 2010 by Canadian Underwriter
Auto injuries pending surgery – and which are therefore not “stable” – still count for the purpose of determining catastrophic impairments, according to a Financial Services Commission of Ontario (FSCO) arbitrator.
In Sonia Bains and RBC General Insurance Company, Bains sought to appeal an initial finding by a FSCO arbitrator that the auto injuries she suffered resulted in only a 28% Whole Person Impairment (WPI) under the Statutory Accident Benefits Schedule (SABS).
Under the SABS, a person must suffer a 56% WPI to be eligible for higher benefits owed to people determined to be catastrophically impaired.
The initial decision of a FSCO arbitrator agreed with the insurer that several of Baines’ injuries, including left shoulder and right knee impairments, should not count under the WPI, because Bains was scheduled for surgery and the injuries were thus not “stablized.”
RBC argued the SABS guides used to determine catastrophic injury say it is inappropriate to rate an injury until it is “stabilized,” meaning that surgeries are complete, and the patient had fully recovered.
But FSCO Director Delegate Lawrence Blackman overturned the initial arbitration result, saying this reading of the guides would defeat the purpose of the SABS legislation, which is to determine accident benefits as quickly as possible after an injury has occurred.
“It would be contrary to the [SABS] to require the piecemeal or repetitive assessments implicit in [RBC’s] argument,” Blackman ruled. “Nor is it the intent of the Schedule to sacrifice timeliness on the altar of medical certainty as to permanence.”
Noting the legislative purpose of the SABS regime is early treatment, Blackman observed the SABS allows a person to re-apply for a catastrophic impairment rating two years after the accident occurred.
“Respectfully, it would be illogical to allow an insured person to apply for a catastrophic designation two years post-accident in accordance with the Schedule [i.e. once a surgery is completed], but then not rate impairments that are not permanent, stable or static,” he wrote.