Seriously injured claimants may find it more difficult to access the motor vehicle accident benefits they need if the recent recommendations from Ontario’s insurance regulator are adopted into legislation. The recent report by the Financial Services Commission of Ontario (FSCO) finds that there is no scientific evidence to support the combining of physical and psychological or mental/behavioural impairments for the purposes of determining catastrophic impairment.
This decision comes in direct response to Kusnierz v. Economical Mutual Insurance Company, 2011 ONCA 826, a significant 2011 Ontario Court of Appeal decision, which found the exact opposite. In this case it was held that that it was appropriate to have a more inclusive approach of combining assessments of physical and psychological impairments into one measure as to determine catastrophic impairment. Specifically, if by combining both assessments the claimant has a ‘whole person impairment’ of at least 55 per cent their injuries are classified as catastrophic. Paraplegia, tetraplegia or quadriplegia, severe impairment of ambulatory mobility, blindness, traumatic brain injury, and physical and psychological impairment are all considered to be catastrophic injuries.
As a result of a serious single vehicle incident in 2001, Robert Kusnierz suffered numerous physical and psychological injuries including the loss of his left leg below the knee and clinical depression. Due to his disabilities he lost his job and sought accident benefits from his insurance company, Economical Mutual Insurance Company, under the Statutory Accident Benefits Schedule (SABS). The Ontario Court of Appeal held that combining the physical and psychological impairments offers a more inclusive and fair measure that allows those with the greatest need of care to receive it. As a result, the Kusnierz decision offered greater support for the earlier Ontario Superior Court of Justice’s ruling in Desbiens v. Mordini, 2004 CanLII 41166 which also held that combining impairments was appropriate.
However, FSCO’s Superintendent supports the recommendations of an expert medical panel which is against combining the assessments of physical and psychological impairments into one measure. In the Superintendent’s Report on the Definition of Catastrophic Impairment in the Statutory Accident Benefits Schedule it states that the panel found no evidence to support such a combination as there is no “valid and reliable way with currently available tools”. The report also states that the different rating systems to determine physical and psychological impairments are not compatible and cannot be combined in “a simple additive process”.
This finding seems to be at odds with existing literature which would suggest otherwise. Dr. Angela Mailis-Gagnon, Director of the Comprehensive Pain Program at Toronto Western Hospital, and a Senior Investigator with the Krembil Neuroscience Centre and the Toronto Western Research Institute, is one of the world’s leading experts on chronic pain diagnosis and treatment. She is also a Professor of Medicine at the University of Toronto and Chair of ACTION Ontario. After years of clinical practice and research she authored a popular science book with journalist David Israelson titled Beyond Pain which explores the connection between mind and body as it relates to chronic pain:
“There is now growing agreement that pain, and in particular chronic pain, is multidimensional and that one must see the problem from its biological, psychological and social dimensions to get the whole picture. Even so, unfortunately, many doctors bound by conventional medical thinking still see things as caused by either mind or body.” (Page 10-11)
In diagnosing and treating pain it is the nexus between body and mind that must be considered. FSCO’s expert medical panel did not adopt this way of thinking. If this understanding was applied to the issue of catastrophic impairment it would suggest that combining physical and psychological impairments is necessary in order to fully assess the scope of the pain and how it impairs the whole person. While quantifying pain may seem like an ominous task, this should not diminish its significance.
If the government chooses to adopt these recommendations by FSCO it will undo what was accomplished in the Kusnierz and Desbiens cases and those suffering from serious injuries as a result of car accidents will find themselves vulnerable and financially strapped. Even though a very small percentage of all accident cases would be affected the ramifications for this group would be substantial. The government has not yet decided whether it will adopt these changes that are essentially to the benefit of insurance companies and to the detriment of those that need accident benefits the most.