CATASTROPHIC IMPAIRMENT FOR ALL!

February 2nd, 2012 by

The Ontario Court of Appeal’s recent decision in Kusnierz v. Economical Mutual Insurance Company confirmed that psychological impairments should be combined with physical impairments to determine whether a car accident victim has suffered a catastrophic impairment. 
This is an important decision for all victims of motor vehicle accidents in Ontario, who, according to current motor vehicle legislation generally fall into two categories:  those who receive minor injuries, and those who are catastrophically impaired.  Accident victims who meet the definition of catastrophic impairment are entitled to claim greater accident benefits, and for a longer period of time.

Writing for a unanimous Court of Appeal, Justice MacPherson, ruled that the proper interpretation of section 2(1.1.)(f) of the Statutory Accident Benefits Schedule (the “SABS”) is consistent with allowing the combination of both psychological and physical impairment scores to determine an injured person’s WPI score.  Referencing the American Medical Association’s Guides to the Evaluation of Permanent Impairment, which is explicitly designated as the frame of reference for the relevant sections of the SABS, Justice MacPherson writes:
 
In my view the trial judge erred by concluding that combining physical and psychiatric impairments “would contradict the express purpose of the Guides, which is to provide a system for evaluating impairments that is objective and standardized”.  With respect, this ignores the Guides’ parallel aim of assessing the total effect of a person’s impairments on his or her everyday activities.  An objective, standardized system of assessment is only useful to the extent that it can reflect persons’ actual levels of impairment.  To disregard the mental and behavioural consequences of a person’s injuries because they are too hard to measure would defeat the purpose of the Guides.

The Court determined that combining scores produces results that are consistent with the purposes of the SABS and that allowing combination promotes fairness and the objectives of the statutory scheme.

This is a positive outcome for all victims of motor vehicle accidents in Ontario as it means that people with severe psychological and physical impairments may get easier access to the medical benefits recommended by their doctors and hasten their recovery and improve their quality of life.

 


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