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


February 19, 2010   by Canadian Underwriter


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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 are 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% score for the purpose of meeting the 55% threshold for a catastrophic impairment. When added to his 5% for a skin disorder and 2% adjustment order, that would make him catastrophically impaired.
Coachman said Guides assign a 40% 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.


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