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Pace Law

Changing The Definition Of Catastrophic Impairment

March 18, 2013

Toronto Personal Injury Lawyer Albert Conforzi: The Financial Services Commission of Ontario(FSCO) is holding a catastrophic impairment roundtable to discuss changes to catastrophic impairments under the Statutory Accident Benefits Schedule (SABS).

We have in Ontario a curious situation. The SABS requires utilization of the American Medical Association Guides to the Assessment of Permanent Impairment (4th edition). This determines how to calculate whole person impairments, as well as mental and behavioral disorders, in order to decide if a victim has sustained a catastrophic impairment. And yes, the edition of the book matters – more on that in a minute.

The roundtable will be discussing the findings of an expert panel (composed largely of insurer-oriented assessors), which reported to the superintendent of insurance some time ago. That panel made suggestions on changes to the current definition of “catastrophic impairment.” For the most part, those suggestions would make access to the catastrophic impairment benefits significantly more difficult for victims. In doing so, they have, according to Dr. Harold Becker, blurred the lines between policy, politics, and science.

In essence, I believe the government is utilizing this roundtable – and the expert panel recommendations – as a cloak behind which they can characterize a policy decision as science.

Instead of hiding behind a bunch of doctors and their recommendations, the government should stand up and say what they are doing so that voters can judge the policy on its merits.

Remember, doctors do not decide who is, or who is not, catastrophically impaired. Judges and arbitrators do that. The Ontario Court of Appeal has held that the whole person impairment calculation must include not only physical impairments, but also mental and behavioral disorders. Why? Simply because “the whole person” is made up of not only their physical characteristics, but also their mental and emotional complexities.

Notwithstanding this, the expert panel suggests that a whole person impairment rating should exclude combining percentage values for mental and behavioral disorders from the physical whole person impairment rating. The 4th edition of the guides does not specifically speak to whether physical impairments and percentage values for mental and behavioral disorders should be added together. Hardly surprising, since the guides themselves indicate that they should not be used in cases involving the court system and compensation.

Subsequent editions of the guides do discuss the addition of physical and mental disorders, but the expert panel did not advocate the use of the most current edition of the AMA guides among its recommendations. It is disturbing to note that the Workplace Safety and Insurance Board utilizes the 3rd edition of the AMA guides, making it even more outdated than the insurance act is. (In case you’re wondering, the guides are now in their 6th edition).

The catastrophic impairment designation affects about 1% of all claimants. The government is spending significant time and money to reinvent catastrophic definitions that presently affect a miniscule number of claimants in the greater scheme of things. Why should a cloistered group of doctors be allowed to create policy as to who should be catastrophically impaired, when catastrophic impairment is a legal conclusion that is made by judges and arbitrators?

The only thing that is constant about automobile insurance in Ontario is change. Instead of hiding behind a bunch of doctors and their recommendations, the government should stand up and say what they are doing so that voters can judge the policy on its merits.

Albert Conforzi is a personal injury lawyer with Pace Law Firm in Toronto. Pace’s personal injury lawyers have been helping accident victims since 1980.

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