Law Times

PAGE 4 NEWS OctOber 27, 2008 • Law times he Divisional Court re- cently gave its stamp of approval to a decision permitting the combining of psy- chological and physical impair- ments when assessing catastrophic impairment, an issue the insur- ance bar has been debating since a 2004 Superior Court ruling. "It means there's some clarity in the law now that three judges have approved of including psy- chological impairment in this whole person impairment test," says plaintiff lawyer Troy Leh- man. "It means that when med- ical assessors or professionals are doing their calculation . . . they're going to have to include psychological impairments." Divisional Court Justice Jane Combining psychological and physical impairments approved T BY ROBERT TODD Law Times Ferguson last month dismissed a leave to appeal application from the defence in Arts v. State Farm Insurance Co. Superior Court Justice Robert MacKinnon ruled in May on the question of law raised by the statement of claim involving Nigel Arts. State Farm sought a ruling on whether it is "permissible to as- sign percentage ratings in respect CORRECTION NOTICE In the Sept. 29, 2008 Law Times Legal Suppliers Guide, an incor- rect address was printed. The correct address is: TitlePLUS 250 Yonge St. Suite 3101, P.O. Box 3 Toronto, ON • M5B 2L7 T: 1-800-410-1013 F: 1-800-286-7639 W: www.titleplus.ca of a person's psychological or psychiatric impairments and combine them with a percent- age ratings in respect of the person's physical impairments, for the purpose of determining whether the person's impair- ments meet the definition of catastrophic impairment as defined by . . . the Statutory Accident Benefits Schedule." In a 2001 application, asses- sors for Arts found that, under the American Medical Asso- ciation's Guides to the Evalua- tion of Permanent Impairment dealing with whole person impairment, Arts scored 23 per cent from neuromuscu- loskeletal injuries, and 40 per cent WPI in terms of mental and behavioural impairment, wrote MacKinnon. If both ratings were combined, his injuries would meet Ontario's definition of catastrophic im- pairment, the judge noted. He rejected State Farm's argument that the AMA guides prohibit the inclusion of psy- chological impairment. "The guides are intended to be interpreted liberally," he wrote. "They make it clear that physicians must use their clini- cal judgment to arrive at impair- ment 'estimates.'" MacKinnon's ruling was in line with the 2004 Superior Court decision in Desbiens v. Mordini, which asserts that "the guides clearly permit the use of clinical judgment to enable the assessor to assign percent- age ratings to psycho-emotional impairments for the purpose of calculating WPI," wrote MacK- innon. "The guides were clearly not designed by the AMA for the approved of the reasoning in Desbiens in a set of arbitration and appeal decisions. "FSCO decisions are gener- ally accorded court deference because of the commission's interpretive expertise. While in the case at bar I do not defer to FSCO reasoning, I find it correct, weighty, and helpful," wrote MacKinnon. 'It means there's some clarity in the law now that three judges have approved of including psychologi- cal impairment in this whole person impairment test,' says Troy Lehman. purpose directed by the Ontario legislature," the judge contin- ued. "They must be interpreted in a manner that is contextu- ally consistent with the lan- guage of the [Statutory Accident Benefits Schedule]." MacKinnon went on fur- ther, writing, "The legislature's definition of 'catastrophic im- pairment' is intended to foster fairness for victims of motor vehicle collisions by ensuring that accident victims with most health needs have access to ex- panded medical and rehabilita- tion benefits. That definition is intended to be remedial and inclusive, not restrictive." The judge also noted that the financial services commis- sion — whose decisions are not binding on a court — has . . . In my view the defendant's interpretation tends to discrimi- nate against persons who have a mental disability." Lehman, a Barrie lawyer who perior Court Justice Harvey Spiegel's comments on Charter issues in his Desbiens ruling. "In my view, to deprive inno- cent victims of motor vehicle ac- cidents the right to recover much needed health care expenses be- cause their psychological impair- ments cannot be combined with their physical impair- ments in considering their overall WPI is unjust," Spiegel is quoted in the decision. "Moreover, it is inconsis- tent with the principles and norms of s. 15 of the Charter The judge also quoted Su- for his client, Lehman says MacK- innon's decision is instructive to the insurance bar, particularly with much squabbling regarding the correctness of the Desbiens decision. He adds that many law- yers facing similar issues contacted him to find out when the leave to appeal would be heard. But Ian Kirby of Gilbert Wright & Kirby LLP, who represented State Farm, says uncertainty remains. "With the greatest of respect, I think [MacKinnon] is wrong," says Kirby. He asserts that the legislation specifically requires the fourth edition of the AMA guides to be consulted, and that book says per- centage rating should not be used for psychological impairment. "The judges seemed to have overlooked that," he says. Kirby said that while the Arts represented Arts in the case, says the matter has since been settled out of court. Arts is now eligible to receive medical and rehabili- tation benefits for the rest of his life up to a limit of $1 million, says Lehman. He would have received $100,000 in benefits over 10 years if not deemed cata- strophically impaired, says Leh- man. Attendant care also is dra- matically increased if catastrophic impairment exists, he says. But on top of garnering results case didn't meet the Divisional Court's two-part test for leave to appeal, the issue could still end up being taken up by the Divisional Court. He says an unhappy party whose matter was dealt with by the financial services commission has a right for application for judicial review to the Divisional Court, which doesn't require a leave to appeal motion. "So it's going to get there even- tually," says Kirby. "I guess it's just going to take a little longer." Lehman says Arts' treatment was largely on hold before the decision, as his $100,000 in non- catastrophic care benefits ran out. "It's of great significance to him, because he can now get the care that he needs," says Lehman. LT Measures unveiled to address Goudge report October Specials Debt Litigation Michael G. Tweedie Proceedings Christopher Wirth Interlocutory BY ROBERT TODD Law Times opposition MP says more bureaucracy is not the solution. "Commissioner [Stephen] Goudge gave us the roadmap to a stronger T he Ontario government last week unveiled proposed legislation that aims to reform the province's coroners system following a scathing report on forensic pathology in the province, but an more accountable death investigation system," said Community Safety and Correctional Services Minister Rick Bartolucci in a release. "This legislation takes us a long way down that road. If passed, it would ensure we have the checks and balances in place to prevent a simi- lar tragedy in the future," he said. The proposed measures — which the government said deals with all the legislative changes Justice Stephen Goudge called for in his Septem- ber report on pediatric forensic pathology in the province — include amendments to the Coroners Act. The government said it plans to bring together experts from the medical, legal, and government sectors to steer a new death investigation oversight council. It said the group would keep an eye on the work of the chief coroner and chief forensic pathologist. The plan would also see the creation of the Ontario Forensic Pathol- from the Bench The Honourable Justice R.F. Reid and The Honourable R.E. Holland Advocacy: Views A Lawyer's Guide to Managing the Media Mary Jollimore ogy Service. The new service would "centralize forensic pathology under the chief forensic pathologist, ensuring consistent, high-quality standards for forensic pathology across the province," said the government. The province also plans to introduce a registry of pathologists ap- proved to conduct autopsies in Ontario, strengthen the complaints sys- tem through the new oversight council, and improve services in remote and First Nations communities. New Democrat MPP and justice critic Peter Kormos tells Law Times that the proposed measures fail to address "cultural issues" within the office of the coroner, which he suggests contributed to the actions of discredited pathologist Dr. Charles Smith, who was found to have made questionable conclusions in 20 of 45 child-death cases. "Nobody's accepted responsibility yet for a rogue pathologist, who's responsible for the conviction of countless innocent people," says Kor- mos. "I find that very, very troublesome, because if we don't have some clear accountability established, that means it could recur notwithstand- ing all of the bureaucratic levels of oversight." LT www.lawtimesnews.com 10/22/08 10:01:11 AM

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