March 06, 2020, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Is there a temporal component to ‘permanent’ in context of ASIA injury - Aiysha Patel v RSA Insurance
Date of Decision: February 10, 2020
Heard Before: Adjudicator Sandeep Johal
SABS: is there a temporal component to the word ‘permanent’ in Section 3.1 (1) para 1 of the SABS; can insurer ask applicant to resubmit claim for CAT benefits at the two year mark to make sure ASIA impairment is permanent; there is no temporal component to the ASIA score; a potential to improve sometime in the future is not a reason to discount the score of impairment
Ms. Patel was injured in motor vehicle accident on November 10, 2016 and sought benefits pursuant to the SABS. She was assessed in December 2016 by a pysiatrist, Dr. M, who diagnosed a T7 ASIA Impairment Scale C injury (motor incomplete non-functional paraplegia). In January of 2017 she was re-examined by Dr. M and received a revised diagnosis of a Scale D T7 SAIS Impairment (motor incomplete paraplegia).
Ms. Patel was also scored at less than 5 ont eh Spinal Cord Independence Measure. She required a urological diversion and has impaired anorectal function. She was found to meet the CAT impairment definition by Dr. M on the basis of Sec. 3.1 (1) of the SABS as she sustained an incomplete motor functional paraplegia which scores as a C under the ASIA Impairment Scale and that has since improved to an ASIA Impairment Scale D.
Ms. Patel was also examined by Dr. F on June 2, 2017 in and IE. Dr. F made a similar diagnosis opining that she met the CAT definition under criteria 2(iii):
Severe permanent alternation (sic) of prior structure and function involving one or both legs as a result of which the insured person’s score on the Spinal Cord Independence Measure Version III, item 12 and applied over a distance of up to 10 metres on a even indoor surface is 0-5 with a score of 4
Dr. F however, did not agree that Ms. Patel’s condition met the definition of permanency as she is less than 1 year post accident and spinal cord injuries have potential “to improve particularly over the initial 18-24 month period”. He recommended she be re-ezamined at the 24 month post accident mark.
RSA submits that the work ‘permanent’ in the SABS must be just that, and the recovery was not yet at a point were a permanent ASIA grade can be determined as Ms. Patel’s condition was still changing.
Ms. Paterl argues that as the main objective of insurance law is customer protection its statues should be interpreted in light of their purpose and interpretation. Coverage provisions should be construed broadly and exclusions narrowly. She also submits that there is no explicitly stated temporal element of CAT impairment in section 3.1(1) in the SABS. Any narrow interpretation of this consumer protection is incorrect.
This decision is the LAT’s first interpretation of the new paragraph 1 of section 3.1 (1). In his decision the Adjudicator agreed with Ms. Patel noting that her ASIA impairment score was agreed to by all assessors and that there was no evidence that her score would change moving forward. Adjudicator Johal noted that the wording in section 3.1 (1) is clearly “is or will be” indicating that a score can change but as long as it fits into the scale from A-D the applicant is CAT impaired.
Adjudicator Johal also noted that a potential to improve does not mean a permanent score of impairment on the ASIA scale can’t be determined. He also noted that it is not the role of the medical community to interpret the SABs. That is the role of the LAT and the courts.