Important Decisions on Catastrophic Impairment Determination
Nov 30, 2022
- Impairment ratings under criteria (f) and (g) can be combined (Desbiens, ONSC 2004)
- Non-statutory instruments that have been incorporated into a regulation by reference are considered part of the regulation (Desbiens, ONSC 2004)
- Material Contribution test confirmed (Monks, ONSC, 2005)
- Mental and Behavioural impairment can be expressed as a per cent WPI (Arts, ONSC 2008)
- One Marked impairment under Criterion 8 is sufficient to meet CAT definition
(Pastore and Aviva FSCO Arbitration 2009, Arbitrator Nastasi)
- Methodologies discussed to identify percent WPI from ordinal (Mild, Moderate, Marked) Chapter 14 ratings.
“As I have already indicated, in close cases, I find it appropriate to give the benefit of doubt to the insured person so that he or she will have an opportunity to make further claims and to try to prove entitlement should those claims be denied.”
(Jaggernauth and Economical FSCO Arbitration 2010. Richard Feldman)
- Physical and psychiatric impairments can be separately rated and combined
(Kusnierz ONCA 2011)
- Pain from a general medical condition and from a psychological Pain Disorder are cumulative and may not be able to be separated (Pastore ONCA 2012)
- “I am persuaded by Ms. Morrison’s submission that a fair assessment of her range of motion should be taken on her worst day” (Morrison and State Farm, FSCO Arbitration, Arbitrator Osunde 2016)
- “Given the admonition of the Court of Appeal to give the concept of catastrophic entitlement an inclusive and not a restrictive meaning, it is appropriate in a case of slightly differing results to use the more generous calculation”. (Galloway and Echelon, FSCO Arbitration, Arbitrator Barrington 2016)
- Ratings from brain impairment (Ch 4) and psych impairment (Ch 14) can be combined (Allen and Security National (FSCO Arbitration Appeal, Delegate Blackman 2016)
- “I find the Arbitrator erred in not combining the scores from both Chapters 4 and 14 to arrive at a total WPI.” (Matthews and Dunfries FSCO Arbitration Appeal, Delegate Evans 2017)
- “There is no indication in the SABS of a legislative intent that an insurer’s liability for the accident benefits in issue in this case should be subject to discount for apportionment of causation due to an insured’s pre-existing injuries … The SABS simply states, in clear and unambiguous language, that an insurer ‘shall pay an insured person who sustains an impairment as a result of an accident, medical, rehabilitation and attendant care benefits: See Monks at paragraphs 94 to 96;” (Sabadash v. State Farm et al., 2019 ONSC 1121)
