Canadian Underwriter

Ontario arbitration case may have widened definition of ‘catastrophic impairment’

February 4, 2010   by Canadian Underwriter

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Ontario’s definition of a “catastrophic impairment” may have widened as a result of a recent decision by the Financial Services Commission of Ontario, lawyers are saying about the case of Aviva and Pastore.
In Aviva and Pastore, a FSCO director delegate ruled there is no inconsistency in defining an auto injury victim as “catastrophically impaired,” even though she suffered only a single Class 4 impairment, and her physical and psychological injuries fell well below the 55% threshold for a person to be classified as catastrophically impaired under s. 2(1.1)(f) of the province’s Statutory Accident Benefits Schedule (SABS).
If an auto accident victim is found to be catastrophically impaired, he or she can claim medical and rehabilitation benefits of up to $1 million, as opposed to the limit of up to $100,000 for non-catastrophic impairments.
In making his decision, FSCO Director Delegate Lawrence Blackman relied on s. 2(1.1)(g) of the SABS which says a person may be catastrophically impaired if “an impairment…results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder.”
“In short, there is no ‘inconsistency’ in an insured person meeting the ‘g’ definition of catastrophic impairment but not the [55% whole body impairment] definition in ‘f,'” Blackman wrote in his ruling.
In a bulletin on the case, law firm Dutton Brock observed the director delegate also rejected the argument that in a chronic pain case it is inappropriate to “double count.”
Dutton Brock explains further in its bulletin: “In other words, when assessing physical impairment, the impairment ratings have already taken into consideration issues relating to pain and therefore, when examining the mental behavioural impairments under Chapter 14, you cannot recount pain as a grounds for a mental behavioural disorder.”
Blackman disagreed.
“The plain language of clause 2(1.1)(g) of the Schedule requires an impairment that, in accordance with the Guides, results in a class 4 (marked) impairment or a class 5 (extreme) impairment due to mental or behavioural disorder,” Blackman wrote. “There is no statutory requirement that the arbitrator dissect the mental or behavioural disorder into supposed constituent parts.”
Commenting on the case, Dutton Brock observed: “This is a case well worth reading and has become a topic of some heated discussion in the accident benefit world.”

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