“Whole-person impairment” speaks to the degree in which a person has been impaired; Section 2(1.1) (f) of the SABS permits the finding of a catastrophic impairment where someone has reached a 55% whole person impairment. Whole-person impairment remains a challenging and evolving part of the SABS. Fortunately, a recent decision by the Ontario Court of Appeal has restored some clarity and protection to accident victims with serious injuries.”
In 2010, the definition for catastrophic impairment took a dangerous turn. A trial decision named Kusnierz ats. Economical Mutual Insurance Company held that it was not permissible to combine physical and psychological impairments to reach a 55% whole-person impairment. The decision risked rolling back the rights of many seriously injured persons.
Up until then, there had been some clarity. Section 2(1.1) (f) of the SABS permits the finding of a catastrophic impairment where someone has reached a 55% whole-person impairment in accordance with the AMA Guidelines (4th Edition). In the winter of 2005, our newsletter outlined the case of Desbiens ats. Mordini, where Justice Spiegel’s decision made it possible to combine both physical and psychological impairments in order to reach a 55% whole-person impairment pursuant to Section 2(1.1)(f) of the SABS. Over the years, this decision has allowed worthy applicants the opportunity to obtain access to the enhanced benefits available for catastrophically impaired individuals.
I am pleased to report that the Ontario Court of Appeal has rendered its decision in Kusnierz upholding the Desbiens approach by stating (at paragraph 24).
“With respect, I do not agree with the trial judge’s conclusion and his reasons in support of it. I prefer the opposite conclusion and the reasons of Spiegel J. in Desbiens v. Mordini  O.J. No. 4735 (S.C.) and J.R. Mackinnon J. in Arts (Litigation Guardian of ) vs. State Farm Insurance Co. (2001), 91 O.R. (3d) 394 (S.C.), leave to appeal denied,  O.J. No. 5740 (S.C.). The language of the SABS, the purpose of the Guides, the Guides’ references to combining physical and psychological impairments, and the goals of the SABS lead me to conclude that the combination of physical and psychological impairments is appropriate under cl. 2(1.1.)(f).”
The Ontario Court of Appeal justified their decision indicating that the plain reading of the legislation suggested that combining different kinds of impairments was possible. The Court of Appeal also indicated that had the legislature intended not to allow combining of physical and psychological impairments, they easily could have stated this distinction. From a policy point of view, the Court of Appeal did not agree with the insurer’s assessment that allowing the combination of physical and psychological impairments in the assessment of whole-person impairments would lead to a flood of claims for catastrophic impairment.
What This Means
This recent decision is very helpful for those who suffer serious injuries in a motor vehicle accident in the Province of Ontario. It has restored some clarity for both accident victims and insurers about the meaning of catastrophic impairment. Those injured in motor vehicle accidents can be assured that if an application for catastrophic determination is necessary, the assessment of whole-person impairment will continue to evaluate and combine both physical and psychological impairments.