From a 1% Whole Person Impairment CAT DAC to a 79% Whole Person Impairment at Arbitration

H. v. Lombard General Insurance [2007] F.S.C.O. File #A06- 000209 (released October 4, 2007)

In order to obtain access to enhanced no-fault benefits, including up to $1,000,000.00 in attendant care benefits and $1,000,000.00 in medical and rehabilitation benefits, a person injured in a motor vehicle accident must be deemed to be “catastrophically impaired”.

A common issue in determining if someone is catastrophically impaired is whether they have a Whole Person Impairment of 55% or more in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th Edition 1993 (“Guides”).

Recently, Thomson Rogers on behalf of a new client applied to an insurer with supporting medical documentation for an acknowledgment that she was catastrophically impaired as a result of a Whole Person Impairment of 55%.

The insurer denied the application and the issue was referred to a Designated Assessment Centre, which declared our client to not be catastrophically impaired with a Whole Person Impairment as a result of her injuries suffered in a motor vehicle accident of only 1%.

Thomson Rogers retained leading experts in the use of the American Medical Association’s Guides and the Statutory Accident Benefits Schedule and appeared before an Arbitrator at the Financial Services Commission of Ontario to dispute the 1% finding of the D.A.C.

After a lengthy hearing, the Arbitrator ruled that our client was catastrophically impaired with a 79% Whole Person Impairment. A 78% “mistake” by the Designated Assessment Centre.

Since March 1, 2006, persons injured in a motor vehicle accident are no longer referred to a Designated Assessment Centre when an insurer has denied a benefit. Now the insurer can send the claimant to a group of physicians chosen and paid for by the insurer to provide an opinion. In short, the “mistakes” are now likely to be even more frequent than with the D.A.C. system.

Some of the more significant legal issues that arose or were affirmed in this decision were the following:

1. In calculating the Whole Person Impairment, it is proper and correct to assign a percentage impairment to a medical impairment which has not yet occurred, i.e., future arthritis.
2. Significant pre-existing injuries and impairments are not a bar to a finding of catastrophic impairment when those injuries and impairments are significantly exacerbated in a motor vehicle accident.
3. Every impairment, no matter how small, whether referenced in the Guides or not, is to be rated.
4. A finding of a marked impairment due to a mental or behavioral disorder in one of the four domains set out in the Guides satisfies the criteria for catastrophic impairment.
5. If there is an impairment due to a mental or behavioral disorder that is not automatically deemed catastrophic due to it not being a “marked impairment”, the impairment is still to be assigned a Whole Person Impairment percentage and incorporated into the 55% calculation.
6. Notwithstanding the individual suffered from the same impairment, both before and after the accident from other causes, it is only necessary to show the motor vehicle accident made a significant contribution to the impairment in order to include the impairment in the 55% calculation.
7. It is imperative for an injured claimant to have his or her friends, associates, family, colleagues, co-workers and employers all provide evidence of who the injured claimant was before the accident and after. The Arbitrator made it clear that the evidence of the lay witnesses was “consistent and persuasive”.
8. Draft reports prepared by physicians in regard to a claimant are producible. In this decision, the Arbitrator ordered a D.A.C. draft medical report produced. This “draft” opinion was prepared by the only D.A.C. doctor who ever physically examined the claimant and concluded she was “close to catastrophic”. From there, the opinion went to “editors” who managed to take this opinion and declare that the insured was not close to catastrophic (55% Whole Person Impairment) but rather a mere 1% Whole Person Impairment.

That case illustrates how important it is for claimants to have access to lawyers who will vigorously advocate at an Arbitration or trial for their rights.

As usual, behind the scenes in this case were the health care service providers advocating for the rights of their injured victim. Without their initiative and assistance, the client would never have known to retain counsel and stay the course through to victory.

I cannot state strongly enough that it is the health care providers who we, as lawyers, count on to urge their patients to ensure they are getting the no fault assessments and benefits they deserve.