plaintiff can sue for health care expenses and the damages assessment may increase dramatically.

Transcription

1 an accident occurring between November 1, 1996 and October 1, 2003, a catastrophically impaired edition, 1993, results in 55 per cent or more impairment of the whole person." This definition can a plaintiff was found to be catastrophically impaired on the basis of 55% whole person impairment. In Desbiens, Mr. Justice Harvey Spiegel addressed and resolved a number of issues regarding the meaning and scope of "catastrophic impairment". DESBIENS: CLARIFICATION OF "CATASTROPHIC IMPAIRMENT" I. OVERVIEW For personal injury lawyers, one of the most important issues to consider on each motor vehicle file is whether an injured person has sustained a "catastrophic impairment". In a tort action arising from plaintiff can sue for health care expenses and the damages assessment may increase dramatically. In an accident benefits matter, a catastrophically impaired person can access greatly increased benefits. "Catastrophic impairment" has a number of definitions. Some of these (such as total loss of vision in both eyes) are relatively easy to apply. In other cases, however, the lawyer must consider whether the injured person sustained "any impairment or combination of impairments that, in accordance with the American Medical Association's Guides to the Evaluation of Permanent Impairment, 4 th be very challenging to apply. Desbiens v. Mordini, [2004] O.J. No (S.C.J.), is apparently the first trial decision in which catastrophic impairment. Desbiens, which is not being pursued to appeal, therefore helps to clarify

2 Mr. Desbiens functioned very well considering that he was a paraplegic, and found that he was On November 8, 1999, Mr. Desbiens was struck by a car driven by Mr. Mordini. Mr. Desbiens was weak and lost consciousness. He was noted to be gray and non-responsive. He sustained a syncopal -2- Desbiens addresses a number of legal issues that may be of interest. This paper, however, considers only the catastrophic impairment issue. The paper is organized into the following parts: facts; Justice Spiegel's analysis; subsequent consideration of the case; key points arising from the case; and tips for handling catastrophic impairment files based on the result in Desbiens. II. FACTS In 1986, Mr. Phillipe Desbiens was rendered a paraplegic when he fell offa roof in the course of his employment. Mr. Desbiens did not return to work after that. Justice Spiegel nonetheless found that largely independent in his activities of daily living. wheeling his wheelchair on a sidewalk at the time. He was thrown approximately 8 to 15 feet from his chair. He was 56 years old at the time of the collision. Mr. Desbiens landed on his right side and right hand. He did not recall hitting his head or losing consciousness. He received treatment at Trillium Hospital. In the emergency department he felt episode. Mr. Desbiens suffered a fractured right femur. He also sustained significant soft tissue injuries. He reported a great deal of pain. He received treatment from a number of health care professionals. In

3 most of his activities of daily living. sustained a catastrophic impairment. Given that the plaintiffs were not alleging a loss of income, "non-catastrophic" damages such as housekeeping and home maintenance expenses. he met the definitions of catastrophic impairment in clauses 5(1) (f) and (g) of Ontario Regulation (1) For the purpose of s.267.5(4) of the Act, "catastrophic impairment" s.5 means, subject to subsections (2) and (3), any impairment or combination of (f) that, in accordance with the American Medical impairments -3- addition to significant physical impairments, Mr. Desbiens sustained psychological impairments due to the collision. Justice Spiegel found that Mr. Desbiens suffered a very dramatic loss of independence due to the injuries he sustained in the collision, and also found that he was dependent on others to carry out Mr. Desbiens commenced a tort action against Mr. Mordini and others. He alleged that he had the catastrophic impairment issue was particularly significant. If Mr. Desbiens was not catastrophically impaired, the p lainti ffs could only have recovered non-pecuniary damages and other One of the definitions of catastrophic impairment is "paraplegia," but Mr. Desbiens could not rely on this definition because he was paraplegic before the collision. Mr. Desbiens took the position that 461/96 ("the regulation"). The relevant portions ofs. 5 of the regulation read as follows: Guides to the Evaluation of Permanent Impairment, 4 th Association's 1993, results in 55% or more impairment of the whole edition, person, or

4 to subsections (2) and (3), any impairment that, in accordance subject the American Medical Association's Guides to the Evaluation of with Impairment, 4 th edition, 1993, results in a class 4 Permanent (marked impairment) or class 5 impairment (extreme impairment the person's health practitioner states in writing that the (a) condition has stabilized and is not likely to improve person's with treatment; or For the purpose of clauses (f) and (g) of the definition of (3) impairment" in subsection (1), an impairment that is "catastrophic by the person. -4- (g) impairment) due to mental or behavioural disorder. Clauses (f) and (g) of the definition of"catastrophic impairment" in (2) (1) do not apply in respect of a person unless, subsection (b) three years have elapsed since the incident. by a person but is not listed in the American Medical sustained Guides to the Evaluation of Permanent Impairment, 4 th Association's shall be deemed to be the impairment that is listed in edition,1993, document and that is most analogous to the impairment sustained that (4) In this section, means a loss or abnormality of a psychological, "impairment" or anatomical structure or function. physiological After a number of motions and adjournments, Desbiens proceeded to trial in February, By that time, the three year anniversary of the collision had passed and the issue of the stability of Mr. condition under subsection (2) did not need to be addressed. Desbiens'

5 Guides ("the Guides"). Justice Spiegel noted that the purpose of the Guides was to achieve a greater framework and method of analysis. Justice Spiegel noted the various definitions of "impairment" in the Guides. He noted that the editors stated that the Guides' definition of impairment closely evaluated in terms of how they affected the individual's activities of daily living. Justice Spiegel noted that Chapters 2 to 13 of the Guides each deal with a different organ system. impairments. Tables and figures are provided to assist in translating clinical findings into an impairment percentage. These impairments can ultimately be translated into a whole person -5- lii. JUSTICE SPIEGEL'S ANALYSIS 1. Discussion regarding Guides Justice Spiegel began his analysis of the catastrophic impairment issue by considering the AMA degree of objectivity in estimating the degree of permanent impairments by providing a standard parallelled the World Health Organization definition of"any loss or abnormality of psychological, physiological or anatomical structure or function". The definition of impairment in the regulation was virtually identical to WHO's definition. Justice Spiegel also noted that impairments were Justice Spiegel noted that the Guides clearly anticipated that a physician's judgment and discretion would play an important role in the assessment of a patient's impairment. This was consistent with the plaintiffs' position that the Guides should not be used as an objective "cookie cutter" to be applied without consideration of the particular reality of the individual who was being assessed. Chapter 3 deals with the musculoskeletal system. Chapter 14 deals with mental and behavioural disorders. Chapter 15 deals with pain. There are specific criteria for assessing different types of

6 impairment (WPI) percentage by using a Justice Spiegel noted that the evaluation criteria and permanent impairment percentages appeared were no specific instructions in the Guides about how to deal with a patient who, as a result ofa pre- He noted that, while the editors acknowledge that the Guides may be used in litigation, they cautioned against using impairment percentages to make direct financial awards. Justice Spiegel Desbiens suffered a 2. Marked Impairment under Clause (g) disorder. Mental or behavioural disorder is discussed in Chapter 14. The plaintiffs' principal expert on this issue was neuropsychologist Dr. Alan Finlayson. Dr. Finlayson saw Mr. Desbiens several -6- combined values chart. to be based on the assumption that the person being assessed was able-bodied. He noted that there existing impairment, carried out his or her activities of daily living differently than an able-bodied person. noted Justice Lax's comments in Snushall v. Fulsang, [2003] O.J. No (S.CoJ.), that the insurance legislation of Ontario appeared to require precisely what the Guides themselves discouraged (in Snushall, Justice Lax found that the injured plaintiff did not sustain a 55% impairment). Justice Spiegel went on to consider the plaintiffs' arguments in support of their position that Mr. catastrophic impairment in the collision. As noted, under clause (g) an impairment is catastrophic if, in accordance with the Guides, it results in a class 4 (marked impairment) or class 5 (extreme impairment) due to mental or behavioural times and determined that Mr. Desbiens met the DSM-IV criteria for an adjustment disorder with

7 Justice Spiegel noted that the evidence of other witnesses also supported and concentration was a class 3 (moderate) impairment in which the impairment level was within a in Chapter 14 for Mr. Desbiens to be catastrophically impaired under clause (g). -7- depressed mood as well as chronic pain disorder with psychological factors and general medical condition. Justice Spiegel agreed with Dr. Finlayson that Mr. Desbiens' impairments constituted Chapter 14 impairments. that conclusion. Justice Spiegel noted that, after identifying a Chapter 14 disorder, clinicians were directed to examine the following four areas of functioning to assess the severity of the impairment: activities of daily living, social functioning, concentration, and deterioration or decompensation in a work-like setting. For each area, five classes or levels of impairment are available: class 1, no impairment; class 2, mild impairment; class 3, moderate impairment; class 4, marked impairment; and class 5, severe impairment. He also noted it was possible to arrive at a global impairment classification that took all four areas of functioning into account. Dr. Finlayson found that Mr. Desbiens' impairment in activities of daily living, social functioning "compatible with some, but not all, useful functioning". Dr. Finlayson found that in the area of adaptation (deterioration or decompensation in a work-like setting), Mr. Desbiens' impairment fell class 4(marked) impairment range in which the impairment significantly impeded useful functioning. Justice Spiegel noted that it was not disputed that Mr. Desbiens only needed to establish that he had a marked or severe impairment in one of the four areas of functioning discussed

8 individual might withdraw or experience exacerbation of signs and symptoms of a mental disorder, making decisions, scheduling, completing tasks and interacting with supervisors and peers. Mr. Desbiens' activities in assisting his wife with her employment tasks and activities were on certain of these activities interaction, irritability and an inability to get around. He said that, assuming Mr. Desbiens was a difficulty adapting to his work-like setting. Justice Spiegel concluded that Mr. Desbiens' difficulty to his pain and loss of range of motion and strength rather than a mental disorder. He concluded that, impairment did not significantly impede useful functioning in a work-like setting so as to amount sustain a -8- Justice Spiegel noted that the focus of the analysis in the area of adaptation in Chapter 14 was on the psychological stress tolerance of the individual. The Guides noted that in such circumstances the decompensate and have difficulty maintaining activities of daily living, continuing social relationships and completing tasks. Stresses common to the work environment included attendance, Mr. Desbiens was not employed at the time of the collision. However, Dr. Finlayson concluded that analogous and could be considered. Dr. Finlayson indicated that Mr. Desbiens was not able to carry for reasons including problems with memory, concentration, social unable to drive his van independently as frequently as he did before the collision, this amounted to with driving did not stem from an inability to adapt to a psychologically stressful situation. Justice Spiegel concluded that any interference with Mr. Desbiens' ability to drive or to get around was due even if Mr. Desbiens' difficulty with driving was due to an inability to tolerate stress, his level of to a class 4(marked) impairment. Justice Spiegel therefore concluded that Mr. Desbiens did not catastrophic impairment under clause (g).

9 3. Impairment under Clause (f) her specific clinical findings. She concluded that, on both occasions, Mr. Desbiens sustained a The defendants' principal expert was physiatrist -9- Most of the evidence and time at trial on the catastrophic issue related to the clause (f) or 55% impairment analysis. The plaintiffs primary expert was physiatrist Dr. Gail Delaney. She assessed Mr. Desbiens in 2001 and catastrophic impairment as defined in clause (f). Dr. Arthur Ameis, who conducted an assessment in Justice Spiegel found that Dr. Ameis largely critiqued Dr. Delaney's use of the Guides rather than Except as specifically noted otherwise in his reasons, Justice Spiegel accepted the accuracy and reliability of Dr. Delaney's clinical findings where they differed from those of Dr. Ameis. Justice Spiegel then considered Mr. Desbiens' Chapter 3 impairments with respect to the cervical spine, lumbar spine, right upper extremity, lept upper extremity and right lower extremity. There was debate about how Mr. Desbiens' fractured right lower extremity could be factored into the percentage impairment. Justice Spiegel noted that the Guides stated that limits in range of motion should be evaluated based on active range of motion. The Guides did not consider the scenario of a paraplegic like Mr. Desbiens, who of course had no active range of motion because of his paraplegia. Dr. Delaney opted to work with passive range of motion and compared the restrictions in the uninjured left lower extremity versus the injured right lower extremity. Dr. Ameis did not agree that passive range of motion could be used. Justice Spiegel concluded that the absence

10 of a specific direction in the Guides permitting the use of passive range of motion did not justify ignoring an obvious impairment in the lower extremity of a paraplegic simply because he was incapable of being measured for active range of motion. Justice Spiegel therefore found that it was reasonable to use measurements based on passive range of motion and he included a percentage musculoskeletal impairments (without taking into consideration pre-existing impairment): right Justice Spiegel then considered the plaintiffs' argument that Mr. Desbiens sustained an impairment under Chapter 4 (the Nervous System) that could be combined with the Chapter 3 impairment. There was no doubt that Chapter 3 and Chapter 4 impairments could be combined to yield a -10- impairment for the right lower extremity. Justice Spiegel accepted some of Dr. Delaney's findings regarding musculoskeletal impairment, and reduced certain of the other findings based on all of the evidence and his analysis of the Guides. Ultimately, Justice Spiegel found that Mr. Desbiens sustained the following Chapter 3 upper extremity 23%; right lower extremity 8%; left upper extremity 7%; cervical spine 5%; lumbar spine 5%; total (combined, not added) 40%. percentage. Dr. Delaney assigned a 9% figure for sleep disturbance under Chapter 4, on two grounds. The first was that Mr. Desbiens had probably suffered a brain injury as a result of hypoxia during the hypotensive episode. This resulted in a sleep or arousal disorder. The plaintiffs' position was that the severity of the brain injury was not relevant to the issue of whether an impairment arising from

11 4. Dr. Delaney felt that Chapter 15 permitted a doctor to quantify the pain related impairment by Based on Mr. Desbiens' history, she felt that his pain accept that Chapter 15 permitted the assessor to assign a separate impairment rating in this case. Justice Spiegel found that Chapter 15 explained how to evaluate pain but did not provide that pain was a separate impairment for the purpose of arriving at whole person impairment percentage. impairments found in the musculoskeletal system and could not be rated as a purposes of subsection (f). He did not consider the 25% figure raised by Dr. Finlayson as a Chapter 4 impairment, although he did consider this figure later in his reasons the injury could be considered under Chapter 4. Dr. Delaney's second reason for including sleep disturbance under Chapter 4 was that Mr. Desbiens was suffering from pain that interfered with his sleep and that this was an impairment that could be captured first in Chapter 15 and then in Chapter looking at the daily activity affected by pain. interfered with his sleep. She then determined that the chapter of the Guides that best dealt with sleep interference was Chapter 4. Dr. Delaney felt that Mr. Desbiens' pain was neuropathic pain, resulting from dysfunction of his spinal cord nerve roots and peripheral nerves, which also placed it within Chapter 4. Justice Spiegel concluded that Mr. Desbiens had not suffered a brain injury. Justice Spiegel also noted that there was insufficient evidence to establish that Mr. Desbiens' sleep problems fell within the necessary category of impairment, namely reduced daytime alertness. Justice Spiegel did not Justice Spiegel noted that, if pain interfered with Mr. Desbiens' sleep, it was already included in the separate impairment. Justice Spiegel therefore was not prepared to include 9% for sleep or arousal disorder for the

12 Justice Spiegel concluded that, without taking into account Mr. Desbiens' preexisting paraplegia or psychological impairment, Mr. Desbiens had sustained a in the context of his preexisting paraplegia. 4. Impairment under clause (f), superimposed on pre-existing paraplegia. overall WPI would be reduced to 40%. However, she felt that an overall WPI of 60% more said that a -12- combination of impairments resulting in a 40% impairment of the whole person. Justice Spiegel then addressed whether Mr. Desbiens suffered a catastrophic impairment as defined in clause (f) when these impairments were considered Justice Spiegel noted that Drs. Delaney and Ameis both felt that the Guides permitted and anticipated that the assessor would exercise discretion where the initial impairment percentage did not accurately reflect the real functional impairment sustained by the injured person. Justice Spiegel noted that Dr. Delaney had used a "functional approach" in 2001, by which she arrived at an overall WPI of 60% which included a right lower extremity impairment rating of 40%. She acknowledged that if she took into account the restricted range of motion in the right lower extremity due to preexisting paraplegia, then the impairment would be reduced to 11% and the accurately reflected the actual functional impairment sustained by Mr. Desbiens in the collision. She WPI of 40% when superimposed on Mr. Desbiens' paraplegia had grave consequences for his ability to function that were not adequately reflected by a WPI of 40%. In her 2004 analysis, Dr. Delaney initially arrived at a WPI of 55% before considering Mr. Desbiens' pre-existing impairment. Dr. Delaney felt that when Mr. Desbiens' impairment was considered in

13 the context of his pre-existing paraplegia it was clear that he sustained a catastrophic impairment. reflect the functional impact of such impairments on a paraplegic. that Mr. Desbiens had "almost completely lost the ability to be independent". Dr. Delaney also suggested an alternative "residual capacity" approach. This approach would require determine the level of residual function the injured person had just before the car accident and then to consider the impact of the subsequent impairment. For example, if it was concluded that the injured person was left with only 45% residual function just before the car accident, then any impairment over 25% would be equivalent to a addressed in both approaches. In the functional approach, it is considered at the end of the analysis -13- She noted that paraplegics rely on their upper extremities and that upper extremity injuries affect mobility and transfers for paraplegics. She noted that because the upper extremity impairment percentages in the Guides were developed with able bodied people in mind, they did not adequately Dr. Delaney stated that she had no hesitation in finding that an initial WPI of 40% easily pushed Mr. Desbiens over 55%. She noted that, in 2001, she felt that 60% reflected Mr. Desbiens' functional impairment more accurately than 40%, and that his overall impairment level was worse in 2004 then in She conceded that it was very difficult to come up with a precise number to reflect the increased impact of his impairments but said that, if pushed, she would go up to about 70% WPI. She testified the assessor to 55% impairment for that person. This approach was similar to Dr. Delaney's functional approach. The pre-existing impairment is

14 at the beginning of the analysis by reducing the person's function level to reflect the pre-existing Justice Spiegel noted that Dr. Ameis testified that he would first arrive at an overall WPI percentage arrived at a total impairment of approximately 40% WPI after taking into account Mr. Desbiens' pre- Dr. Ameis discussed two main approaches he used to arrive at this figure. His first approach was the ability to transfer similar to that of Mr. Desbiens. He then combined this percentage with a -14- by increasing the percentages obtained, whereas in the residual capacity approach it is considered impairment. and then consider whether that figure was plausible in terms of the real impact on the individual's activities of daily living. If not, he would modify it upward or downward. Justice Spiegel found that Dr. Ameis' testimony was that, if he was assessing Mr. Desbiens at a CAT-DAC, he would have existing paraplegia. an "analogous loss of function" approach. He took an impairment rating associated with a hernia in the abdominal wall, reasoning that a person with such an injury would experience a decrease in percentage for dysesthesia due to disturbance of the femoral nerve, a percentage for excessive sweating and a percentage for an ankylosed (fused) hip. When he combined these with a right shoulder impairment and cervical impairment he arrived at 41% which he rounded to 40%. Dr. Ameis also discussed an "activities of daily living equivalent" approach. He likened Mr. Desbiens' functioning after the accident to that of a quadriplegic. He used a 35% WPI for this condition and combined it with the right shoulder impairment and amved at 40%. He did not

15 spirit and intent. Justice Spiegel noted that if the examiner determined that an estimate for an and detail assessing further impairments. impairment rating. Justice Spiegel noted that it would be preferable for assessors to provide a found that he sustained a more than -15- combine the cervical impairment under this approach because he felt this was already captured in the 35%. Justice Spiegel felt that the approaches of Dr. Delaney and Dr. Ameis at trial were similar in their anatomic impairment did not sufficiently reflect the severity of the patient's condition, the examiner could increase the impairment percentage and explain the reason for the increase in writing. Both experts agreed that once they reached the 55% WPI mark they did not generally spend as much time Justice Spiegel found that Dr. Delaney did explain in writing her reasons for increasing her initial complete analysis and quantification of all impairments even after 55% was reached. This was to permit a judge or tribunal to determine if the assessor would still have found a patient to be catastrophically impaired if the judge or tribunal rejected part of the assessor's impairment rating. Justice Spiegel noted that Dr. Delaney felt Mr. Desbiens' WPI could now be raised to 70%, and that, even if her initial impairment rating was reduced as low as 38%, she would still have catastrophic impairment in the context of his paraplegia. Justice Spiegel considered Dr. Delaney's suggested residual capacity approach. He noted that Dr. Delaney did not say that the Guides sustained such an approach. He stated that, on the record before

16 perspective on the inadequacy of the Guides in assessing the impairment of persons with serious pre- in his report to the Guides. Justice Spiegel noted that Dr. Berry had vast experience in writing medical-legal reports and that if defence counsel felt that Dr. Berry had misunderstood an issue a Desbiens had suffered a -16- him, it was impossible to decide that such an approach was in accordance with the Guides. He noted that there was a certain "common sense attractiveness" to the concept and that it provided a useful existing impairment. Justice Spiegel did not accept Dr. Ameis' approaches to capturing the impact of Mr. Desbiens' impairment on his pre-existing paraplegia. With respect to Dr. Ameis' analogous loss of function approach, Justice Spiegel agreed with Dr. Delaney and did not accept the suggestion that a hernia to the abdominal wall would cause an analogous loss of function. With respect to Dr. Ameis' activities of daily living equivalent approach, Justice Spiegel agreed with Dr. Delaney that the 35% WPI arrived at by Dr. Ameis did not adequately take into account the impact of Mr. Desbiens' impairment superimposed on his pre-existing paraplegia. In determining the impact of Mr. Desbiens' pre-existing impairment on his motor vehicle impairment, Justice Spiegel also considered the defence report of neurologist Dr. Henry Berry. Dr. Berry found that Mr. Desbiens had suffered a catastrophic impairment as a result of the collision. The defence submitted that Dr. Berry's findings should be discounted because he made no reference follow-up report could have been requested. Justice Spiegel found that Dr. Berry was using the term "catastrophic impairment" as it was defined in the regulation when he expressed the opinion that Mr. catastrophic impairment.

17 when Mr. Desbiens' impairments were considered in the context of his pre-existing paraplegia, Mr. Desbiens sustained a The plaintiffs also argued that Mr. Desbiens' physical impairments and psychological impairments could be combined under clause (f) to determine whether Mr. Desbiens' whole person impairment was greater than 55%. Justice Spiegel noted the plaintiffs' position that the definition of impairment in the regulation included both psychological and physiological impairments and that, since clause (f) referred to a combination of"impairments" and not a Ministry got involved in the case when the plaintiffs decided to raise a The plaintiffs -17- Justice Spiegel ultimately preferred Dr. Delaney's opinion to Dr. Ameis' opinion. He concluded that, catastrophic impairment in the collision as defined in clause (f). under clause (f), combining physical impairments with psychological Impairment impairments. combination of"physiological impairments," both types of impairments could be included. The plaintiffs submitted that the apparent absence of percentage ratings under Chapter 14 did not preclude an impairment percentage being assigned. also relied on subsection 5(3) of the regulation, which provided that an impairment that was not listed in the Guides should be deemed to be the impairment that is listed in the Guides and that is most analogous to the impairment the person sustained. Justice Spiegel noted the submissions of the Ministry of the Attorney General on this issue. The constitutional issue in their pleading. The plaintiffs alleged that if the legislation was interpreted in a manner that excluded Mr.

18 Justice Spiegel noted that the Ministry of the Attorney General generally agreed with the plaintiffs interpretation was adopted then no constitutional question arose. Guides and impairments that were identified but not assigned any percentage (as in Chapter 14). considered as "not listed" and therefore the Guides permitted the assessor to consider the impairment combine them with percentage impairment from other chapters. The defence submitted that only determining whether an individual sustained a -18- Desbiens from the catastrophic impairment designation then this would violate s.15 of the Charter and its guarantee of equality and prohibition of discrimination on enumerated grounds including disability. The plaintiffs raised the Charter argument because many of the issues raised in Desbiens appeared to be matters of first impression. It may well not be necessary to make such allegations in future catastrophic actions due to the findings in Desbiens. One should also consider the increased length and costs of the action associated with naming the Ministry. regarding the interpretation of the regulation, and that the Ministry took the position that if this The Attorney General submitted that the words "not listed" in s. 5(3) encompassed both impairments that were not identified in the Since the psychological impairments in Chapter 14 were not assigned percentages they should be percentage associated with the most analogous impairment. Justice Spiegel noted the defence position that, since psychological impairments were described qualitatively in Chapter 14 rather than with percentages, there was no mechanism in the Guides to psychological impairments that resulted in a rating mentioned in clause (g) could be considered, and that psychological impairments were irrelevant in catastrophic impairment as defined by clause (f).

19 Justice Spiegel considered how to interpret the applicable legislation. He felt that he should apply Justice Spiegel then considered the history and purpose of the legislation along with the legislative interpreted in a manner that would not deprive an innocent victim of much needed health care rehabilitation benefits available on a definition of impairment was extremely broad and that it would be difficult to conceive of a more -19- the principle that legislation should be presumed to have been enacted in conformity with Charter norms, in this case s.15. Justice Spiegel also noted that the Guides were incorporated into a regulation by reference and therefore they were considered part of the regulation. debates. He assumed that the government intended that the catastrophic impairment test would be expenses. He determined that one of the intentions of the legislation was to restore fairness to the system for innocent victims of motor vehicle accidents. He determined that a major purpose of the legislation was to ensure that innocent victims who were in the most need would be able to recover health care expenses, perhaps at the expense of those who had less need. Justice Spiegel noted that one purpose of the legislation was to control insurance premiums but that, as far as health care expenses were concerned, this was to be achieved by the drastic reduction in the level of medical and no-fault basis. Justice Spiegel concluded that the text of the regulation indicated that the drafters clearly intended the definition of catastrophic impairment to be inclusive rather than restrictive. He noted that the inclusive definition.

20 He also concluded that clause (f) ensured that persons who had not suffered any of the specific or combination of impairments that was severe, should be found to be among those with the greatest need for health care expenses and should be able to recover those expenses. Justice Spiegel concluded that the legislature intended clause (f) to be a who were likely in the greatest need of health care. Justice Spiegel also concluded that, to ensure that no impairments were overlooked in determining and psychological impairments could not be added. He noted that clause (f) mentioned "any" or moderate psychological impairments, there was nothing in Justice Spiegel then considered whether an assignment of percentages to psychological impairments was in accordance with the Guides injuries described in the other clauses ors. 5 of the regulation, but nonetheless had an impairment catch-all provision for the benefit of those whether clauses (f) and (g) were met, the analogous impairment provision ofs. 5(3) was included. Finally, Justice Spiegel noted that there was nothing in the regulation to suggest that physiological combination of impairments. He noted that, while the definition of clause (g) did not include mild the regulation that prohibited such impairments from being considered under clause (f). He noted that, if the legislature intended to exclude psychological impairments from clause (f), it could have easily inserted the word "physiological" before the word "impairments". Justice Spiegel noted that the second edition of the Guides had provided ranges of percentages for estimating psychological impairments. These were referenced in the 4 th edition as follows: normal, 0% to 5%; mild impairment, 10% to 20%; moderate

21 impairment, 25% to 50%; moderately severe impairment, 55% to 75%; and severe impairment, more that there were some valid reasons to use ranges of percentages for psychological impairments do so. indicated the interrelationships between neurology and psychiatry and that such disturbances may -21 than 75%. Ability to carry out daily activities was estimated as follows: class 1, self-sufficient; class 2, needs minor help; class 3, needs regular help; class 4, needs major help; class 5, quite helpless. Prom estimates of the individual's functioning, a whole person impairment estimate could be made. Justice Spiegel noted Dr. l inlayson's testimony that, while the 4 h edition of the Guides did not provide ranges of percentages for the psychological impairments set out in Chapter 14, it did recognize that a numerical ordinal scale might be of use in certain circumstances. It also provided general information as to how a clinician might determine what percentage is appropriate. Dr. Finlayson felt that the 4 th edition included the percentages from the 2 nd edition so that they would be available to clinicians for reference. He did not think that clinicians had stopped using percentage impairments under Chapter 14 and that they would use the impairment percentages from the 2 n edition to make their own estimates. Justice Spiegel noted that the authors of the Guides indicated although they ultimately chose not to Justice Spiegel noted Dr. Finlayson's testimony that there was overlap between Chapters 4 and 14 and that the only essential difference between them was the cause of the impairment. He noted statements from the Guides that emotional and behavioural disturbances referenced in Chapter 4 be the result of neurological impairments but may have psychiatric features as well. He also noted that the Guides stated that the criteria under Chapter 4 for evaluating emotional and behavioural

22 disturbances related to the criteria for mental and behavioural impairments. similar and outlined them as limitation of some but not Moderate social and interpersonal daily all limitation impeding useful Severe in almost all social and action limitation of all daily Severe requiring total functions dependence on another person 14" Mental and Behavioural Chapter Disorders impairment: Impairment levels Mild compatible with most useful are impairment: Impairment Moderate are compatible with some, but levels not all, useful functioning impairment: impairment Marked significantly impede useful levels impairment: impairment Extreme preclude useful functioning levels 22- Justice Spiegel noted that the impairment descriptions under Chapter 4 and Chapter 14 were quite follows: Chapter 4" Emotional and Behavioural Disturbances" (;lass Impairment Description Impairment Description limitation of daily social and Mild functioning interpersonal 0-14 functioning living functions functioning interpersonal functions Justice Spiegel noted that Dr. Finlayson felt that psychological impairment should be combined with physical impairments to reach an overall percentage. Dr. Finlayson stated that if psychological impairments were left out of the whole person impairment calculation then the individual did not get a fair representation of his whole person impairment. In addition to considering Dr. Finlayson's evidence, Justice Spiegel considered the defence Justice Spiegel noted that, although Dr. Berry did not make neurological report of Dr. Henry Berry.

23 combination of physical and psychological impairments in determining catastrophic impairments. He noted Dr. Berry's conclusion that Mr. Desbiens appeared to qualify for the catastrophic consider whether the outcome produced was reasonable and just. care benefits under the accident benefits schedule to those not catastrophically impaired. He said clauses (t") and (g). impairment caused by dysfunction of the brain or nervous system could be included in whole person -23- specific reference to the Guides, he appeared to be of the view that it was appropriate to look at the impairment level arising out of"...the combination of the post-traumatic emotional disturbance and the physical limitations which have now been super-imposed on his pre-accident paraplegic state" Justice Spiegel concluded that, on the basis of Dr. Finlayson's evidence, Dr. Berry's evidence, and his own interpretation of the Guides, it was in accordance with the Guides to assign percentages to Mr. Desbiens' psychological impairments and to combine them with his physical impairments to determine whether he met the definition of catastrophic impairment under clause (f). He felt this did not offend the legislative text and gave effect to the purpose of the legislation. He went on to Justice Spiegel reiterated that under Bill 59 the restoration of the rights of an innocent person who was catastrophically impaired to sue for health care expenses was balanced by reducing the health there was no balancing involved in determining what constitutes catastrophic impairment under Spiegel noted that page 301 of the Guides made it clear that psychological impairments could Justice seriously impede virtually every area of a person's functioning. He noted that, if a mental

24 impairment but a similar psychological impairment in Chapter 14 was excluded, then some people health care expenses because their psychological impairments could not be combined with physical a mental disability. He said that it was trite to state that an outcome that is inconsistent with Charter -24- with psychological impairments would be denied much needed benefits not because they were less seriously impaired but because their impairment was attributable to a different cause. He felt that this would be an unreasonable outcome. He also noted that to deprive innocent victims of motor vehicle accidents to recover much needed impairments in considering their overall WPI would be unjust. He also noted that it would be inconsistent with the principles and norms of s. 15 of the Charter. Justice Spiegel noted that the defendants' interpretation tended to discriminate against persons with principles and norms could not be considered just. Justice Spiegel noted that he had not engaged in a full s. 15 analysis and was not commenting on the constitutionality of the regulation since it was not necessary to do so on the interpretation that he had accepted. Justice Spiegel then went on to consider the submissions regarding the proper interpretation of s.5(3), in the event he was wrong in concluding that assigning percentages to psychological impairments was in accordance with the Guides. Justice Spiegel concluded that the purpose of s.5(3) was to ensure that all impairments as defined in the regulation should be included in determining whether clauses (f) and (g) were met. Justice

25 The next question was whether the evidence supported the conclusion that the most analogous conclusion and therefore concluded that a percentage could be combined to the impairment. Justice Spiegel went on to -25- Spiegel concluded the words "not listed" in s. 5(3) should be interpreted as encompassing both impairments that are not identified and impairments that are identified (as in Chapter 14) but not assigned any percentage. impairment to Mr. Desbiens' psychological impairment was the emotional or behavioural impairments listed in Chapter 4. Justice Spiegel felt that Dr. Finlayson's evidence supported this consider whether Mr. Desbiens' combined psychological and physical impailrnents met the definition of catastrophic impairment in clause (f'). Justice Spiegel noted Dr. Finlayson's evidence supported the conclusion that Mr. Desbiens' psychological impairment fell within the category of moderate impairment. Dr. Finlayson testified that, if he was assessing Mr. Desbiens' impairments under Chapter 4, they would have fallen within the description of"moderate limitation of some but not all social and interpersonal daily living functions" which permitted a WPI range from 15% to 29%. Dr. Finlayson assigned a 25% WPI. He also testified that the percentages from the 2 nd edition could provide guidance for the appropriate percentage quantification of these impairments and that 25% WPI fell within the percentage range attached to the moderate category in the 2 nd edition. Justice Spiegel concluded that the essence of Dr. Finlayson's evidence was that the analysis under Chapter 4 and Chapter 14 yielded the same result. Justice Spiegel therefore found that the

26 interpretation of the regulation, he was left with a of 55% which satisfied clause (f). of the applicable section]. 26- appropriate quantification of Mr. Desbiens' psychological impairments was 25% WPI. Justice Spiegel noted that, if he had erred in accepting Dr. Delaney's evidence that Mr. Desbiens' impairments when superimposed upon his pre-existing paraplegia resulted in a catastrophic impairment as defined in clause (f), but was correct in his conclusion with respect to his 40% WPI associated with the musculoskeletal system and 25% WPI for psychological impairments. When combined this resulted in an overall WPI IV. SUBSEQUENT CONSIDERATION OF DESBIENS Desbiens was considered by Arbitrator David Muir in David McMichael and Belair Insurance Company Inc. (FSCO A , Reasons for Decision dated March 2, 2005). Among other things, Arbitrator Muir considered whether Mr. McMichael had sustained a catastrophic impairment under the applicable statutory accident benefits schedule as a result of a June 14, 1998 motor vehicle accident. The two definitions at issue were the marked or extreme impairment definition [paragraph (g) of the applicable section of the accident benefits schedule] and the 55% definition [paragraph (f) Arbitrator Muir first considered marked or extreme impairment due to mental or behavioural disorder. He concluded that Mr. McMichael sustained a class 4 (marked) impairment in 3 of the 4 areas of functioning considered under Chapter 14.

27 Arbitrator Muir considered the impact of Desbiens. He noted that in Desbiens it was not disputed 3 of the 4 spheres of assessment under Chapter 14, Mr. McMichael met the test under paragraph (g). He indicated, however, that if he were required to decide whether one marked impairment was at least 2 scores of marked or extreme impairment for an injured person to fit within the language the approach taken by the Court in Desbiens was incorrect. He noted that paragraph (g) was should be scored as class 4 in 3 of the 4 areas of assessment or only 1 (consistent with Desbiens), marked impairment. behavioural impairments of 29% to 31%. Assuming the accuracy of the orthopaedic finding, -27- that a class 4 marked impairment in any one area of functioning was sufficient to establish catastrophic impairment. He noted that, since he had concluded that Mr. McMichael suffered class 4 marked impairments in sufficient to establish catastrophic impairment, he would agree with the approach adopted by the Court in Desbiens. He noted that he could not find support for the proposition that there had to be of paragraph (g). He found that there was nothing in the language of paragraph (g) to suggest that ambiguous and that the ambiguity ought to be resolved, in the absence of anything pointing elsewhere, in a liberal manner having regard to the ultimate remedial purpose of the legislation. Arbitrator Muir concluded that, whether as a consequence of his conclusion that Mr. McMichael Mr. McMichael satisfied the definition of catastrophic impairment because he scored a class 4 Arbitrator Muir also considered whether Mr. McMichael met the 55% definition of catastrophic impairment. A CAT-DAC had found orthopaedic impairments of 8% and neuro-cognitive and

28 Arbitrator Muir concluded that Mr. McMichael did not meet the 55% test based on his orthopaedic Mr. McMichael submitted that, if his psychological impairments were given a to his physical findings, he exceeded the 5 5 % requirement. Arbitrator Muir noted Belair's argument there was insufficient evidence upon which to derive a WPI score. 28- Arbitrator Muir noted that Mr. McMichael would have to obtain a score of at least 51% for his Chapter 4 neurological impairments to arrive at a 55% designation. and neurological impairments. He therefore considered the issue of combining physical and psychological impairments as was done in Desbiens. Mr. McMichael submitted that if the Arbitrator disagreed with the approach to this issue taken in Desbiens then the constitutional issue raised in Desbiens might have to be dealt with by the Arbitrator. Arbitrator Muir found that, in light of his findings, there was no need to consider the constitutional issue. percentage and added that, in Desbiens, the Court had Dr. Finlayson's opinion evidence regarding translation of Chapter 14 findings into a WPI rating. Belair submitted that there was no such opinion evidence in Mr. McMichael's case, and that there was no evidence as to what the appropriate WPI score might be. Arbitrator Muir disagreed with Belair's argument that he required an expert's evidence to determine whether or not it was appropriate to add psychological and physical impairments. He said this question involved the interpretation of the Schedule. Arbitrator Muir also was not persuaded that

29 Arbitrator Muir agreed with Mr. McMichael that, practical difficulties aside, the Schedule required The Desbiens case clarifies a number of key points relevant to catastrophic impairment, including the following: 1. Given the history and purpose of the applicable insurance legislation, and applying 29- the addition of all impairments to arrive at the appropriate WPI. He adopted the analysis in Desbiens on this point. He found that in Mr. McMichael's case, however, there was no evidentiary basis to distinguish between the Chapter 14 impairments and those considered under Chapter 4. He accepted Belair's argument that, on the evidence that had been adduced, there was some risk of double- counting if the impairments were combined. Therefore, he did not assign a percentage score to Mr. McMichael's psychological impairments and add it to his physical impairments to determine whether Mr. McMichael sustained a whole person impairment greater than 55%. The facts in Desbiens and McMichael are quite different. Nonetheless, Arbitrator Muir appears to have followed Justice Spiegel's reasoning in Desbiens, to the extent it was applicable to the facts in McMichael. V. KEY POINTS ARISING FROM DESBIENS appropriate principles of statutory interpretation, "catastrophic impairment" should be interpreted inclusively rather than restrictively, in a manner that will not deprive injured persons of much needed health care expenses.

30 3. With respect to the mental or behavioural disorder definition in part (g), it is only necessary 4. Motor vehicle related impairments may be considered in the context of pre-existing Desbiens this point was particularly important given the severity of Mr. Desbiens' pre- The assessor has considerable discretion in deciding 5. Physical impairments and psychological impairments can be combined to determine if an individual has sustained a 55% or more impairment under part (f). Furthermore, The medical assessor can and should exercise judgment, discretion and common sense when applying the Guides. to establish a marked impairment or extreme impairment in one of the four areas of functioning considered in the Guides. It is not necessary to find an overall marked impairment or extreme impairment. This interpretation is consistent with the definition in part (g), which mentions "a" marked impairment or extreme impairment, and was not disputed during the Desbiens trial. impairments to determine if an injured person sustained a catastrophic impairment arising from a motor vehicle collision. The assessor may increase the initial percentage impairment rating if it does not appear to accurately reflect the individual's level of functioning. In existing impairment. Nonetheless, the principle applies to any case where there is significant pre-existing impairment. how to take pre-existing impairment into account. psychological impairments can be given percentage ratings.

31 6. An assessor is not limited to identifying and quantifying only impairments that are expressly comparison purposes. TIPS FOR HANDLING CATASTROPHIC IMPAIRMENT FILES BASED ON VI. IN DESBIENS RESULT The result in Desbiens suggests some tips that may assist you in handling your catastrophic clinical medical experience. 31- discussed in the Guides. If an injured person has an impairment that is not discussed in the Guides, the assessor should consider the most analogous impairment under the Guides for impairment files. 1. You must carefully choose your principal expert on the catastrophic impairment issue. The expert obviously should be very familiar with the Guides but should also have substantial 2. Your expert should keep the following in mind when he or she conducts an assessment and prepares a report: (a) the expert should be encouraged to conduct a detailed examination. (b) the expert should record his or her calculations in detail so that they can be easily understood by the trier of fact. This will also help to minimize crucial mathematical errors.

32 the plaintiff's expert should explore every possible area of percentage impairment initial percentage impairment rating. suffering from any other restrictions that might be considered impairments and, if so, -32- (c) and recommend whatever additional assessments are required to "work-up" that impairment. You cannot predict how many of your experts' conclusions will be accepted by the trier of fact. Therefore, you should present an impairment rating at trial that is as high as it can reasonably be. (d) the expert should provide a detailed written explanation if he or she increases the (e) the expert should understand that the definition of impairment is very broad. The expert's analysis should not end simply because an impairment does not appear to be discussed in the Guides. The expert should consider whether the injured person is should consider analogous impairments under the Guides. (f) the expert should consider whether each impairment he or she identifies is causally related to the motor vehicle collision. 3. If it appears that the injured person suffers from a psychological impairment, this should obviously be considered by experts under clause (g). From the plaintiff's perspective, even if an impairment appears to meet the criteria in clause (g), the plaintiff may also wish to

33 consider it as a percentage impairment in clause (f) if there is a significant physical recent edition should be considered. The motion was dismissed although the motions j udge Desbiens' impairments under both the 4 th edition and the 5 th edition in her final report prior 5 th edition was filed with Justice Spiegel. 33- impairment as well. The expert who is analysing the psychological impairment should explain how he or she arrives at a percentage for the psychological impairment. You should consider whether it is appropriate to have the injured person assessed using the most recent version of the Guides in addition to the 4 th edition. This is because there is a potential inconsistency between the legislation and the Guides. The legislation suggests that catastrophic impairments under clauses (f) and (g) should be determined in accordance with the 4 th edition of the Guides. When one reads the 4 th edition of the Guides, however, one is directed to use the most recent edition of the Guides. Therefore, an argument can be made that catastrophic impairment should be analysed using the most recent version of the Guides in addition to the 4 th edition. The plaintiffs in Kanally v. State Farm, (Court File No.: 01- GD CM, endorsements of Justice Ducharme dated September 16, 2003 and September 30, 2003) made this argument on a motion for a determination that the most noted that the issue could be raised at trial. In Desbiens, Dr. Delaney considered Mr. to trial. There was little difference in the result under the 4 th edition and the result under the 5 h edition. Therefore, the parties worked from the 4 t edition at trial although a copy of the

34 the plaintiff in some cases. on motion prior to trial, as permitted by s.267.5(11) of the Insurance Act, or left to the trial concluded that it would be appropriate in this case to adjourn the issue to the trial judge. Justice Campbell's reasons are reported at (2003), 63 O.R. (3d) 796 (S.C.J.). In retrospect, There is, however, no hard and fast rule as on motion or at trial. The factors that should be considered include fairness to the parties, You should consider how to deal effectively with the catastrophic impairment issue when it arises in both the accident benefits claim and tort action (in Bill 59 cases). In Desbiens, the past and plaintiff and the accident benefits insurer resolved Mr. Desbiens' entitlement to future accident benefits without a CAT-DAC. The plaintiffs then proceeded with the catastrophic impairment argument in the tort action. This approach may be preferable for On the other hand, there are obvious advantages to the plaintiff if he or she is found to be catastrophically impaired by a CAT-DAC. There are no hard and fast rules for dealing with the catastrophic impairment issue when it arises in both the accident benefits claim and the tort action. Appropriate handling of this issue will depend on the specific facts of each case. 6. In a tort action, you should consider whether catastrophic impairment should be determined judge. In Desbiens, the defendants moved for an order that the catastrophic impairment issue be determined on motion prior to trial. Justice Colin Campbell heard this motion and it is difficult to imagine how the catastrophic impairment issue in Desbiens could have been resolved fairly and cost-effectively prior to trial. to whether it will be preferable to your client for catastrophic impairment to be determined costs of the motion, risk of appeal from the motion, imminence of the trial date, number and

35 specific facts of each case. catastrophic impairment is in issue. The comments are, however, also applicable to your current files. The final "tip" arising from Desbiens, therefore, is that you review your Your assessment of damages may well increase dramatically on some of those files in light of the result in Desbiens. You may well want to review the offers Adelaide Street Suite complexity of issues in dispute, the extent to which credibility is in issue, and whether the action is to be tried by a jury. Appropriate handling of this issue will again depend on the 7. Hopefully, the comments in this paper will assist you with the next file you open where current motor vehicle files. to settle on those files, and then promptly revoke the offers (if you act for the plaintiff) or accept the offers (if you act for the defence). 19, Neil P. Wheeler May LLP Lerners Toronto, Ontario M5H 3P5 Tel: (416) Direct Fax: (416) Direct