FSCO upholds practice of combining psychological impairment percentages with physical impairments

The Financial Services Commission of Ontario (FSCO) has upheld the controversial practice of assigning percentages to psychological impairments and combining these with physical impairment ratings for the purpose of determining an individual’s whole person catastrophic impairment.
In Maria Augello and Economical Mutual Insurance Company, Maria Augello was injured in a 2002 motor vehicle accident and was assessed for a catastrophic impairment. Based on a 55% or more whole person impairment, she was found to have fallen within the definition of a catastrophic impairment.
However, the insurer’s assessors did not agree with the formula for assessing the whole body impairment. In particular, they disagreed with the method of combining assigning percentages to psychological impairments with physical impairments to determine the whole body impairment.
Without combining the psychological percentages, the insurer’s assessors determined Augello’s whole person impairment score was 20%. They agreed that if psychological percentages are to be included, then the whole body impairment would in fact be 55%.
FSCO arbitrator John Wilson noted that combining psychological impairments with physical impairments to determine whole body impairment was consistent with the purpose of the province’s accident benefits legislation.
The exact language of the province’s Statutory Accident Benefits Schedule (SABS) allows for a determination of brain impairment “in accordance with the American Medical Association’s Guide to the Evaluation of Permanent Impairment” resulting in “marked” or “extreme” impairments due to mental or behavioural disorders.
The inclusion of AMA guides for the purpose of assessing psychological impairments is controversial, Wilson noted, and insurers do not agree with its inclusion. Nevertheless, the SABS does incorporate the guide under Regulation 121.(2.2.). Also, combining psychological and physical assessments is already a feature of prior decisions rendered by FSCO and by the courts (Desbiens v. Mordini).
Since the purpose of the legislation is to determine the scale of benefit payments, Wilson noted, the practice of assigning percentages for psychological disorders is entirely consistent with the intent of the SABS legislation.