June 08, 2008, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Judge: R. MacKinnon
Decision date: May 28, 2008
Nigel Arts suffered serious injury in a car accident. An application was made on his behalf for determination of Catastrophic Impairment. The insurer applied to the court for the determination of a question of law. The question was whether it was permissible to assign percentage ratings in respect of a person´s psychological or psychiatric impairments and combine them with a percentage rating in respect of the person´s physical impairments, for the purpose of determining whether the person´s impairments meet the definition of catastrophic impairment as defined by section 2(1) (f) of the Statutory Accident Benefits Schedule.
Mr. Arts injuries included: right posterior parietal depressed skull fracture and presumptive basal skull fracture with underlying brain contusion and evidence of intracranial haemorrhage and diffuse axonal injury; fracture of the right clavicle, right posterior maxillary, and lateral orbital wall of the right orbit; and soft tissue injuries to the neck, right shoulder and low back. He was also found to have blood in the left maxillary sinus and subsequently developed a significant visual field defect with left homonymous hemianopsia. He underwent an open craniotomy with elevation of the depressed skull fracture and debridement of the contused brain.
Mr. Arts suffered and continued to suffer from a number of impairments including chronic pain, cognitive impairments, headaches, subjective vertigo, tinnitus, sleep disturbance, anergia, vision impairment, panic attacks, specific phobia and reported sexual dysfunction. He also received a number of psychiatric diagnosis including mood disorder due to a general medical condition (brain injury) with depressive features, cognitive disorder, adjustment disorder with mixed anxiety and depressed mood - chronic, personality change due to a general medical condition (brain injury) - combined type (liable, disinhibited), and social anxiety.
The Catastrophic assessment that was completed for Mr. Arts assigned a 23 percent Whole Person Impairment (WPI) rating for his neuro-muskuloskeletal injuries, including his traumatic brain injury. The assessors then concluded that Mr. Arts suffered a 40 percent WPI for mild to moderate mental and behavioural impairment. When these two ratings were combined the total score was 55 percent WPI and therefore he met the definition for Catastrophic Impairment with respect to the whole person impairment rating. Interestingly, Mr. Arts suffered a Glasgow Coma Scale rating of 9 or less and had been assessed as suffering from a "marked" impairment due to a mental or behavioural disorder, all arising from the car accident.
The trial judge considered the reasoning and analysis of Justice Spiegel in Desbiens v. Mordini at paragraphs 212 through 262. The trial judge found his reasoning to be "compelling, reasonable and persuasive". He concluded that the definition for the determination of catastrophic impairment under paragraph 2(1) (f) of the Statutory Accident Benefits schedule (SABs) required a consideration of all impairments, however caused, and that the impairments be totaled together in arriving at the whole person impairment.
The judge noted that the SABs definition for impairment included psychological impairments. Paragraph 2(1) (f) uses the words "impairment or combination of impairments". He also noted that there is nothing in the SABs that suggested that combining of physical and psychological impairments was not permitted.
The judge also noted that the American Medical Association (AMA) Guides are intended to be interpreted liberally. The Guides provided that physicians must use their clinical judgment to arrive at impairment estimates. The AMA Guides provide no absolute prohibition on the use of percentage ratings for psycho-emotional impairments. The AMA Guides recognize that it may be necessary to arrive at percentage ratings in appropriate cases in order to provide physicians with informed guidance. The AMA Guides permit physicians to combine ratings from different chapters to arrive at a compound impairment rate. The judge also noted that the AMA Guides were not designed for the purpose specifically directed by the Ontario legislature under the SABs. Therefore the AMA Guides have to be interpreted in a manner that is contextually consistent with the language of the SABs.
The judge also noted that arbitrators and adjudicators for the Financial Services Commission of Ontario (FSCO) have indicated approval for the reasoning in Desbiens in a number of FSCO decisions. The judge indicated that while the court is not bound by a FSCO decision it is provided with some "deference" because of FSCO´s interpretive expertise. In this case, the judge found the FSCO decisions that supported Desbiens, and allowed for the combining of physical and psychological impairments, to be "correct, weighty and helpful".