Insurance law - Automobile insurance - Catastrophic injury - impairment, definition - Apportionment - Benefits - Damages - Combination of impairments - Statutory provisions - Apportionment and contribution of claims - Discretion of court
July 2008Arts (Litigation guardian of) v. State Farm Insurance Co.
[2008] O.J. No. 2096
Ontario Superior Court of Justice
J.R. MacKinnon J.
May 28, 2008
In the main action the Insured claimed that he was "catastrophically impaired" based on three alternative definitions. Only the third definition, this being whether the Insured was catastrophically impaired because he suffered from a combination of impairments that resulted in 55% or more impairment to the whole person, was before the court on this application.
The court considered case authority which stood for the proposition that it was permissible to assign percentage ratings for combined physical injuries and mental or behavioural impairment. The court ultimately held that the relevant provision in the Ontario Statutory Accident Benefits Schedule ("SABS") required a consideration of all a person's impairments, however caused, and that these impairments be totalled together in arriving at the whole person impairment rating.
In reaching this conclusion the court considered the plain language of the Ontario Regulation, which defined catastrophic impairment in a number of ways and in particular used the words "impairment or combination of impairments". The court agreed that there was nothing in the SABS that suggested that a combination of physical and psychological impairment could not be considered when deciding if a person was catastrophically impaired. The court also noted that the American Medical Association guides did not prohibit inclusion of psychological impairments to determine the whole person impairment rating. Further, the court recognized that the Legislature's definition of "catastrophic impairment" was intended to foster fairness for victims of motor vehicle collisions by ensuring that accident victims with the most health needs have access to expanded medical and rehabilitation benefits. The court stated that it accords with the purpose of the SABS (i.e. to ensure that accident victims with the greatest needs obtain enhanced benefits) to consider the combined impact of both psycho-emotional and physical impairments in determining whole person impairment.
In conclusion, the court held that it was permissible to assign percentage ratings in respect of the person's psycho-emotional impairments and to combine them with percentage ratings in respect of the person's physical impairments for the purpose of determining whether the person is catastrophically impaired.
This case was digested by Shanti Davies of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact her directly at sdavies@harpergrey.com or 604.895.2877.
