STACEY TAYLOR v. PEMBRIDGE INSURANCE COMPANY OF CANADA FSCO A12-004886 June 11 2014

Facts

Ms. Stacey Taylor was injured in a motor accident in on September 10, 2009. After the accident, she applied for statutory accident benefits from Pembridge Insurance Company of Canada, and she received this benefits, but after she exhausted all the medical and rehabilitation benefits available under her automobile insurance policy she applied for a determination that she sustained a catastrophic impairment. The insurance company denied her application and considered that she did not suffer a catastrophic impairment as a result of this accident.

Issue:

The issue is whether or not, the Applicant, Stacey Taylor, sustain a catastrophic impairment as a result of the accident as defined in clauses 2(1.2)(f) and (g) of the Ontario Statutory Accident Benefits Schedule (SABS).

Analysis:

  • Ms. Taylor testified that at the time of the accident she was working for Parks Canada as an archaeologist and that her job involved looking for sites, hiking, clearing trails, clearing areas for infrastructure, artifact analysis, report writing, and site reports. She described how was her life before the accident, and how much her day to day life was change since the accident, and how the accident affect her abilities to work and to develop a normal family life with her common law partner due to the rehabilitation process, the continuous pain, and the psychological consequences of the accident, as anxiety, difficulty to sleep and short-term memory issues which causes a lot of frustration and depression on her. The Arbitrator accepted all this declaration.
  •  In this case, the expert opinions are important to determine if there is an actual catastrophic impairment, due to that, the Commission received the opinion from various Doctors who treated and evaluated Ms. Taylor.
  •  The arbitrator remark that the burden of proof rests with Ms. Taylor, and that she must prove on the balance of probabilities that, as a result of the accident, she sustained a catastrophic impairment.
  • The arbitrator also stated that the determination of catastrophic impairment is ultimately an adjudicative, not a medical determination and that the role of the assessor is to provide a clinical opinion as to the level of an individual’s impairment.
  •  The decision maker use the expert opinion of Dr. Harold Becker, who is a medical doctor and the Medical Director of Omega Medical Associates. He was qualified as an expert in the use of the AMA Guides to the Evaluation of Permanent Impairment. Dr. Harold Becker testified as to the use of the Guides and his combination of the impairment ratings in Ms. Taylor`s case. He provided evidence as to the proper method of determining and scoring particular impairments as part of the process of establishing impairment ratings. He oversaw the work of Dr. Lisa Becker and Dr. Jeremy Frank. He concluded that when physical impairments and mental and behavioural impairments are combined, Ms. Taylor rated 31-60% Whole Person Impairment (“WPI”).
  • This means that this range has a dual meaning, one part of the range (37 to 54% WPI) means that Ms. Taylor does not meet the catastrophic threshold for physical impairments, and the other part (55 to 62% WPI), means that Ms. Taylor meets or exceeds the catastrophic threshold.
  •  For the arbitrator there is not a final answer about if Ms. Taylor meet the 55% WPI threshold for physical impairments under the Ontario Statutory Accident Benefits Schedule and the evidence supports different findings on this critical issue, and it is evenly weighted. In the absence of any other evidence, the arbitrator considered that the issue must be determined in a manner that favours Pembridge.
  •  When the physical impairment rating of 26% is combined with the mental and behavioural impairment rating of 11%, this results in a WPI of 34%. 34%, rounded to the nearest value ending in 0 or 5, as permitted by the Guides, yields 35%, which is insufficient to meet the criteria of the Ontario Statutory Accident Benefits Schedule.

Decision
Based on the evidence, the arbitrator conclude that Ms. Taylor did not sustain a catastrophic impairment as a result of the accident as defined in clauses 2(1.2)(f) and (g) of the Ontario Statutory Accident Benefits Schedule.

Carlos Vera is a Paralegal student at Centennial College in Toronto studying professional communications with Omar Ha-Redeye.

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