December 12, 2019 by Greg Meckbach
Correction Notice: In an earlier version of this story, L&A Mutual was identified as the defendant’s insurer, which is the insurer identified in court documents. However, Aviva has since identified itself as the defendant’s insurer.
When a driver is sued by an accident victim, a psychologist does not qualify as a “physician” under Ontario’s verbal threshold, a judge said in a ruling released Wednesday in favour of Aviva.
Kasey Mundinger was injured in a vehicle accident near Uxbridge on July 9, 2010. She sued Heather Ashton, who was insured by Aviva. Ashton admitted liability but disputed the extent of Mundinger’s injuries as well as the amount of compensation.
Last week, the jury in Mundinger v. Ashton awarded Mundinger $29,000 for past lost income, $4,000 for future lost income, and $20,000 for general damages (the latter being reduced to zero because of a controversial tort deductible intended to keep less serious cases out of court).
But when it came to health care costs, Ontario Superior Court Justice Robert Charney ruled that Mundinger did not meet the so-called “verbal threshold.” In other words, she would not have been entitled to damages for health care costs even if the jury had made such an award (which it did not).
The controversial verbal threshold is a very tight restriction in Ontario insurance law on awards for either health care costs or pain and suffering (also known as non-pecuniary damages or non-economic losses). Specifically, plaintiffs cannot get awards under either head of damage unless they have evidence from a physician that they suffered either a “permanent serious disfigurement” or a “permanent serious impairment of an important physical, mental or psychological function,” as stipulated in Ontario Regulation 381/03, which pertains to court proceedings for automobile accidents that occur on or after Nov. 1, 1996.
In arguing she suffered serious impairments of important mental and psychological functions, Mundinger relied mainly on evidence of a psychologist, though she also had evidence from her family doctor and other experts. Aviva argued that a psychologist is not a physician within the meaning of Ontario Regulation 381/03. In any case, Ashton’s liability carrier added, the evidence does not support the plaintiff’s argument that her impairments are permanent.
In deciding that a psychologist is not a physician under Regulation 381/03, Justice Charney noted that the Ontario Medicine Act provides that no person other than a member of the College of Physicians and Surgeons may use the title physician. Although the statutory accident benefits schedule defines both physicians and psychologists and health practitioners, it does not define psychologist as a physician.
Had the legislature intended to include psychologists or other health practitioners in Regulation 381/03, it would have used the words physician or psychologist – or simply the more general term “qualified health practitioner” – in order to avoid conflict with the Medicine Act, Justice Charney wrote.
Section 4.3 of Regulation 381/03 says if a plaintiff is arguing they fall outside the threshold, they must adduce evidence from a physician “who is trained for and experienced in the assessment or treatment of the type of impairment that is alleged;” and that the evidence “shall be based on medical evidence, in accordance with generally accepted guidelines or standards of the practice of medicine.”
The term “physician” is defined in more than 40 other Ontario laws, Justice Charney observed. “In all cases, it is limited to persons entitled to practice medicine and does not include psychologists. Where psychologists are referenced, they are identified by title or under the broader category of ‘practitioner’, but are never included under the term ‘physician.’”
The question of whether a psychologist could be considered a physician for the purpose of paragraph 4.3 of Regulation 381/03 was considered by the Court of Appeal for Ontario in Rodrigues v. Purtill, Justice Charney noted. But the appeal court did not actually decide the issue because the defence only raised an objection in closing arguments, not when the psychologist was actually qualified as an expert witness. Also in Rodrigues, the psychologist’s evidence was confirmed by the evidence of the insurer’s (also Aviva in that case) own expert psychiatrist.
Because the appeal court in Rodrigues did not rule on the issue, Justice Charney decided that in Mundinger, he would hear evidence on the extent of her impairments. He ultimately decided that even if a psychologist could be considered as a physician, the evidence still did not prove Mundinger suffered permanent serious impairment of an important physical, mental or psychological function.
“Section 4.3 does not suggest that psychologists may not testify for plaintiffs on threshold motions, only that the plaintiff must have at least one physician to explain the application of the factors in s. 4.3(2). Nothing in s. 4.3 precludes psychologists from providing evidence to corroborate the evidence provided by a physician pursuant to s. 4.3,” Charney wrote in Mundinger.
Even if there are valid policy reasons for allowing evidence from a psychologist, it is up to the legislature – not a judge – to make such an amendment, suggested Justice Charney.