M.D. v. Aviva Canada Inc., FSCO A10-001381

*Important excerpts from the case.

FACTS

  • The Applicant, M.D., was injured in a motor vehicle accident on June 4, 2004.
  • The accident occurred while the Applicant was a passenger in a car. His injuries included loss of vision in his left eye, a skull fracture, multiple facial fractures, headaches, a concussion and emotional difficulties.
  • The parties agree that the Applicant’s physical injuries result in a 34% Whole Person Impairment (WPI) within the meaning of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th Edition (the “Guides”).
  • An assessment at an Insurer’s Examination determined that the Applicant did not sustain a catastrophic impairment.
  • They (Respondents) disagree on the degree to which his panic disorder impairs him.
  • The parties were unable to resolve their disputes through mediation, and the Applicant applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended
  • M.D. has nightly suicidal thoughts and daily sadness
  • Step-father’s relationship with M.D. is like “night and day” after the accident
  • M.D. has anxiety problems and avoids his children’s extra-curricular activities at school
  • M.D. is fearful of being in any work setting

HISTORY

  • According to Pastore v. Aviva Canada Inc., one marked impairment is sufficient for a catastrophic impairment designation
  • In Desbiens v. Mordini and Arts (Litigation guardian of) v. State Farm Mutual Automobile Insurance Company, it was found that an assessor could assign a WPI to a mental impairment and combine it with a physical WPI.
  • In the decision of Pilot Insurance Company and Ms. G., the Director’s Delegate agreed that it was appropriate to assign a percentage WPI to an impairment based on a mental or behavioral disorder and combine that with a percentage WPI due to a physical impairment.

ISSUE

  • The issue in this case is whether mental and behavioural impairment ratings assigned by the Applicant’s catastrophic impairment assessors are overstated. According to the Applicant, his mental and behavioural impairment rating warrants a catastrophic impairment rating designation. According to Aviva, the Applicant’s mental and behavioural impairment rating does not warrant a catastrophic impairment rating designation.
  • Did the Applicant sustain a catastrophic impairment within the meaning of clause 2(1.2)(f) of the Schedule?
  • Did the Applicant sustain a catastrophic impairment within the meaning of clause 2(1.2)(g) of the Schedule?
  • Is either party entitled to expenses of the arbitration proceeding pursuant to section 282(11) of the Insurance Act?

RULE

  • Insurance Act, R.S.O. 1990, c.I.8, s. 282
  • Statutory Accident Benefits Schedule – Accidents on or After November 1, 1996, O Reg 403/96
  • American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993
  • Dispute Resolution Practice Code – Fourth Edition, Rule 79
  • Mental and Behavioural Impairments Assessment Guideline

ANALYSIS

  • Aviva argued that the Applicant did not suffer a marked impairment in any of the four areas of functioning and does not meet the catastrophic designation. In addition, the Applicant’s life changes do not represent a marked departure from his pre-accident life
  • The Guides deal with the assessment of mental and behavioral impairment in Chapter 14 and assign a Class of impairment to four areas of functioning, namely: (1) activities of daily living; (2) social functioning; (3) concentration, persistence and pace; and (4) deterioration or decompensation in work or work-like settings.
  • 2007: M.D.’s doctors diagnosed him was diagnosed with agoraphobia (a fear of being in open or public places) with panic attacks and major depression.
  • 2009: M.D.’s doctors diagnosed him with a panic disorder with agoraphobia and a major depressive disorder
  • I (Adjudicator) prefer his (M.D.’s doctor, Dr. Levitt) assessment to that of Dr. Salmon’s assessment because Dr. Levitt recognized when rating someone, it is important that they not be rated within their simplified life, but rather, to assess the impact of their mental state on functioning.

CONCLUSION

  • The burden of proof rests with the Applicant. He must prove on a balance of probabilities that, as a result of the accident, he is catastrophically impaired. He provided reliable and credible evidence that he sustained a catastrophic impairment
  • I find that this Mental and Behavioural Impairments Assessment Guideline is not applicable to this proceeding because it does not apply to non-DAC matters. This is in response to the insurer’s statement that a situational assessment is required when performing a CAT assessment.
  • The Applicant sustained a catastrophic impairment within the meaning of clause 2(1.2)(f) of the Schedule.
  • The Applicant sustained a catastrophic impairment within the meaning of clause 2(1.2) (g) of the Schedule.
  • If the parties cannot agree on the issue of entitlement to or amount of the expenses of this Arbitration proceeding, they may request a determination of these issues in accordance with Rule 79 of the Dispute Resolution Practice Code – Fourth Edition.

Ho Cheung Chan is a Paralegal student at Centennial College in Toronto studying professional communications with Omar Ha-Redeye.

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