FSCO Against Combining Physical and Psychological Impairments to Determine Catastrophic Impairment

By Roger Foisy on June 18th, 2012

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.

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