1 part marked impairment + consideration of 3 domains of function = Catastrophic Impairment

The criteria required to meet the statutory definition of catastrophic impairment remains unsettled.  The Court of Appeal is set to hear the appeals in Pastore v. Aviva and in Kusnierz v. The Economical Mutual (rejecting the combination of physical and psychological impairments to achieve 55% WPI) later this year.

On October 23, 2011, FSCO released its first decision with respect to meeting the statutory definition of catastrophic impairment under then section 21(2)(g) of theSABS following the Divisional Court’s reversal of the arbitration decision in Pastore v. Aviva in May 2011.

In Pastore, Director’s Delegate Blackman found that 1 marked or extreme impairment in 1 of the 4 domains of function set out in section 21(2)(g) of theSABS is sufficient to find a person catastrophically impaired.  Section 21(2)(g) of the SABS states:

The four domains of function as identified by the American Medical Associations Guides are:

• Activities of Daily Living;
• Social Functioning;
• Work Adaptation;
• Concentration, Persistence and Pace.

In Mr. C v. Coachman, Mr. C was injured in a car accident on December 1, 2006.  Mr. C was diagnosed with a small disc herniation at L4-5 impinging on the left L5 nerve root and L5-S1 with moderate spinal stenosis, major depressive disorder (severe intensity), chronic pain and driving phobia.  Mr. C was employed as a stucco plasterer.  He was unable to return to work after the accident.

Mr. C subsequently applied for catastrophic impairment.  The OCF-19 was completed by Dr. Henry Rosenblatt, psychiatrist, who rated Mr. C as follows:

• Activities of Daily Living – moderate impairment;
• Social Functioning – moderate to marked impairment;
• Work Adaptation – marked impairment;
• Concentration, Persistence and Pace – moderate impairment.

Based on the foregoing, counsel for Mr. C took the position that he met the definition of catastrophic impairment based on being found to have a marked impairment in 1 of the 4 domains of function.

Coachman hired Dr. Judy Wilkins, psychiatrist and Dr. Kerry Lawson, psychologist to rebut Dr. Rosenblat’s findings.  Dr. Wilkins concluded that Mr. C. was moderately impaired in all 4 domains of function.  Dr. Lawson concluded Mr. C. was mildly impaired in the domains of concentration, persistence and pace and activities of daily living and moderately impaired in social functioning and adaptation.

Arbitrator Miller was highly critical of Dr. Wilkins and Dr. Lawson’s conclusions and found them to be “poor examples of an expert witness” and “strong advocates” for Coachman.  As a result their evidence was rejected in totality.

Coachman argued that in keeping with the Divisional Court ruling Pastore¸ Mr. C. must be found to have a marked or extreme impairment in more than 1 of the four domains of function if he is to be deemed catastrophically impaired.

Arbitrator Miller rejected the insurer’s argument and stated as follows with respect to the applicability of Pastore:

Although Arbitrator Miller followed the ruling in Pastore, based on the evidence of Mr. C’s treatment team and family, he elevated Mr. C‘s rating in Social Functioning to a marked impairment.  This resulted in Mr. C having meeting the statutory definition of catastrophic impairment by having a marked impairment in 2 of the 4 domains of function.

Given FSCO’s interpretation of Pastore, it arguable that 1 marked impairment is sufficient to meet the definition of catastrophic impairment provided consideration is given to the remaining 3 domains.