[The Applicant] v. RSA Insurance, 2020 CanLII 14485

Citation: Applicant vs. RSA Insurance, 2020 ONLAT 19-000560/AABS

Tribunal File Number: 19-000560/AABS

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.

Between:

[The Applicant]

Applicant

and

RSA Insurance

Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR:

Sandeep Johal

APPEARANCES:

For the Applicant:

David J. Levy, Counsel

For the Respondent:

Sharla Bandoquillo, Counsel

Heard in writing on:

July 8, 2019

OVERVIEW

1The applicant was injured in an automobile accident on November 10, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

2The applicant applied for various medical benefits as well as an application to determine whether she sustained a catastrophic impairment, which were all denied by the respondent. The applicant disagreed with this decision and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for dispute resolution.

3At the case conference, this written hearing was set up solely on the issue of whether the applicant sustained a catastrophic impairment. The remaining issues in dispute are contingent on whether the applicant is designated as catastrophic under the Schedule and shall proceed to a case conference after the release of this decision in accordance with the Tribunal Order dated March 5, 2019.

ISSUES TO BE DECIDED

4The issue I must decide as per the Tribunal’s Order of March 5, 2019 is:

i. Did the applicant sustain a catastrophic impairment pursuant to s. 3.1(1)1(ii) B. of the Schedule?

RESULT

5Based on the totality of the evidence before me, I find that the applicant’s injuries meet the definition of a catastrophic impairment in accordance with the Schedule.

POSITION OF THE PARTIES

6The applicant submits that paragraph 1 of section 3.1(1) of the Schedule requires the applicant to have sustained a permanent grade on the ASIA (American Spinal Injury Association) Impairment Scale.² If the applicant’s score is a D, she must also have a score of 0-5 on the Spinal Cord Independence Measure, Version III, item 12 (mobility indoors), urological diversion/catheterization or a bowel routine. The applicant further submits that based on the medical assessment and opinion of Dr. McGillivray, Physiatrist with a sub-speciality in spinal rehabilitation, and Dr. Jha, Neurosurgeon and Spine Surgeon, her score on the ASIA Impairment Sale is a D and she scores a 4 on the Spinal Cord Independence Measure, Version III, thereby satisfying the definition under the Schedule.

7The respondent’s position is that a permanent grade on the ASIA Impairment Scale could not be obtained at the time the catastrophic impairment assessments were conducted. (emphasis in original). The respondent submits that the word “permanent” must be given effect when interpreting section 3.1 of the Schedule.

8The respondent relies upon the opinion of its insurer examination (“IE”) assessor, Dr. Farhadi, a Neurosurgeon, who opines that the nature of the spinal cord injuries the applicant has sustained have the potential to improve, particularly over the initial 18-24 month period and therefore she does not meet the definition of a catastrophic impairment under the Schedule.³

ANALYSIS

9It is well established by the jurisprudence that the test to determine whether an insured has sustained a catastrophic impairment under the Schedule is a legal test and not a medical one.⁴

10Based on the evidence presented, it is my finding that the applicant has met the definition of a catastrophic impairment in accordance with the Schedule for the following reasons.

11On December 14, 2016, Dr. McGillivray examined the applicant and made a diagnosis that the applicant’s neurological classification was T7 ASIA Impairment Scale C (motor incomplete non-functional paraplegia).⁵ Then on January 17, 2017, Dr. McGillivray examined the applicant again and this time noted that the applicant’s diagnosis had changed to a T7 ASIA Impairment Scale D (motor incomplete).⁶ She concluded that the applicant can be considered to have met criteria 1 under section 3.1(1) of the Schedule.

12The respondent’s IE assessor, Dr. Farhadi, assessed the applicant on June 2, 2017 and made a similar diagnosis as Dr. McGillivray that the applicant has met criteria 1 under section 3.1(1) of the Schedule as she sustained an incomplete motor functional paraplegia which scores as a C under the ASIA Impairment Scale and that has since improved to an ASIA Impairment Scale D.⁷

13Dr. Farhadi further opines that the applicant also meets the catastrophic impairment definition under criterion 2 (iii) and states the following:

[The applicant has a]…Severe permanent alternation (sic) of prior structure and function involving one or both legs as a result of which the insured person’s score on the Spinal Cord Independence Measure Version III, item 12 and applied over a distance of up to 10 metres on a even indoor surface is 0-5 with a score of 4.”⁸

14However, Dr. Farhadi concludes the applicant does not satisfy the definition of permanency. He goes onto state that the applicant “is less than 1 year post accident and spinal cord injuries of this nature have the potential to improve, particularly over the initial 18-24 month period.”⁹ His recommendation is that the applicant’s catastrophic eligibility be re-assessed at 24 months post accident.

15The disagreement between the parties centers on the meaning of the words that have been underlined from section 3.1(1)1(ii):

The insured person’s permanent grade on the ASIA Impairment Scale is or will be… (emphasis added)

16The respondent submits the word “permanent” in section 3.1 must be given effect and it is presumed that the legislature avoids superfluous or meaningless words, that it does not pointlessly repeat itself or speak in vain. Every word in a statute is presumed to make sense and to have a specific role to play in advancing the legislative purpose.¹⁰

17As a result, it is the respondent’s position that the applicant’s neurological recovery was not yet at a point where a permanent ASIA grade can be determined. The ASIA grade that was obtained at that time that could not be considered a permanent grade because the applicant’s condition was still changing.

18The applicant submits that the main objective of insurance law is consumer protection particularly in the field of automobile and home insurance ¹¹ and statutes should be interpreted in light of their purpose and interpretations that are consistent with or promote legislative purpose should be adopted, while interpretations that defeat or undermine legislative purpose should be avoided.¹² Furthermore, coverage provisions should be construed broadly and exclusions narrowly¹³ and that the drafters of the Schedule clearly intended the definition of “catastrophic impairment” to be inclusive rather than restrictive.¹⁴

19The applicant further submits that there is no fixed temporal element to the definition of catastrophic impairment under paragraph 1 of section 3.1(1). Other paragraphs in section 3.1(1) identify clear periods of time that must elapse before someone can be considered catastrophically impaired such as paragraph 4 (traumatic brain injury) which requires the applicant to be in a vegetative state one month or more after the accident, have an upper severe disability six months or more after the accident or have a lower moderate disability one year or more after the accident (emphasis in original). Furthermore, the applicant submits that paragraphs 6 and 7 of section 3.1(1), respectively, where a physical or combination of physical impairments and the mental or behavioural impairment in accordance with the AMA Guides¹⁵ results in 55 per cent or more impairment of the whole person, requires an assessment once two years have elapsed since the accident.

20As a result, it is the applicant’s submission that had the legislature intended for the test under the ASIA Scale to require a specific temporal element, it could have and would have done so. The fact that it did not do so is clear indication that one should not be read in. Furthermore, according to the applicant, the words “is or will be” in paragraph 1 of section 3.1(1) makes it clear that the intention of the legislature was not to tie a finding of catastrophic impairment to a grade on the ASIA Impairment Scale at any particular time.

21I agree with the applicant and with the case law that states the Schedule is remedial in nature and coverage provisions should be construed broadly and exclusions narrowly.¹⁶ The intended definition of a catastrophic impairment is to be inclusive rather than restrictive.¹⁷ This is meant to foster fairness for victims of automobile accidents by ensuring that insured persons with the most health needs have access to expanded medical and rehabilitation benefits. Keeping this in mind, I find that the applicant has met the definition of a catastrophic impairment in accordance with the Schedule.

22The applicant’s score on the ASIA Impairment Scale was able to be determined by all the assessors including the respondent’s IE assessor. All three of the assessors noted her score was a “C” which then improved to a “D” which is still within the definition of a catastrophic impairment under s. 3.1(1)1(ii) B. of the Schedule. I have not been pointed to any evidence to suggest the applicant’s score is or will improve from a “D” to take her outside of the definition of a catastrophic impairment. Dr. Farhadi’s opinion does not state that the applicant’s improvement will be of such a degree so as to remove her from the “D” classification into an “E” which is considered normal on the ASIA Impairment Scale.¹⁸ The fact that the wording from the Schedule uses the words “is or will be” in my opinion indicates that the scores on the ASIA Scale can change from an A, B, C or D and as long as her ASIA Impairment Scale score fits within the categories in section 3.1(1)1(ii), the applicant is considered to have a catastrophic impairment.

23Furthermore, I place less weight on Dr. Farhadi’s opinion that the applicant’s injuries have the potential to improve and therefore she is not considered to have permanent injuries because of the following.

24Dr. Jha opines that, at thirteen months post accident, the applicant reported not experiencing any long-term improvements from her current treatments and not seeing any significant improvement.¹⁹

25The AMA Guide²⁰ defines “permanent impairment” as, an impairment that is unlikely to change substantially and by more than 3% in the next year with or without medication.

26According to the applicant, the definition of “permanent” from the Merriam-Webster.com website is: continuing or enduring without fundamental or marked change.²¹

27I agree with the definition from the AMA Guide that a permanent impairment is something that is unlikely to change substantially or by more than 3 per cent. I would add that an impairment can be considered permanent if it will continue without a fundamental or a marked change.

28I do not view Dr. Farhadi’s conclusion of the applicant’s “potential to improve” to mean that she is likely to improve substantially or by more than 3 per cent in accordance with the AMA Guide or that her condition will have a fundamental or marked change so that she is no longer considered to have a permanent grade on the ASIA Impairment Scale.

29Dr. Farhadi goes on to suggest that the applicant should be reassessed at the 24 month mark. I place less weight on the conclusions Dr. Farhadi reaches based on the fact that there is no time requirement to conduct an assessment in paragraph 1 of section 3.1(1) as there are in the other paragraphs of this section. Furthermore, Dr. Farhadi is attempting to go beyond his role as a medical assessor. His role is to provide a medical diagnosis of the applicant, not to provide his opinion on the interpretation of the Schedule. That role falls to this Tribunal for the purpose of assessing whether the applicant sustained a catastrophic impairment.

30If the drafters of the legislation intended for there to be a minimum amount of time before an applicant can be determined to qualify as catastrophically impaired under paragraph 1, they would have used wording to that effect as they did in the other paragraphs of section 3.1(1). In my opinion, requiring the applicant to wait 24 months for an assessment under paragraph 1 goes beyond the wording and the requirements of that paragraph.

31Based on the above, I find that Dr. Farhadi’s opinion of the applicant having the “potential to improve” does not mean the applicant’s permanent grade on the ASIA Impairment Scale cannot be determined. Furthermore, I find that there is no requirement to wait 24 months before conducting an assessment under paragraph 1 of section 3.1(1).

CONCLUSION

32I find that the applicant meets the definition of a catastrophic impairment in accordance with the Schedule.

33In accordance with the Tribunal Order dated March 5, 2019, the parties shall contact the Tribunal within two weeks of the release of this decision to schedule a case conference resumption to discuss the remaining issues in dispute.

Released: February 10, 2020

___________________________

Sandeep Johal

Adjudicator

Footnotes

1. 1O. Reg. 34/10.
2. 2As published in Marino, R.J. et al, International Standards for Neurological Classification of Spinal Cord Injury, Journal of Spinal Cord Medicine, Volume 26, Supplement 1, Spring 2003.
3. 3Appeal Submissions of the Insurer, Tab 1 at page 7.
4. 4Liu v. 1226071 Ontario Inc. (Canadian Zhorong Trading Ltd.), 2009 ONCA 571 at paras. 29-30.
5. 5Written Submissions of the Applicant, Tab 1 at page 2.
6. 6Ibid at page 3.
7. 7Appeal Submissions of the Insurer, Tab 1 at page 7.
8. 8Ibid at page 8.
9. 9Ibid.
10. 10Simison (Litigation Guardian of) v. Catlyn, 2004 ONCA OJ No. 3608. at para. 22.
11. 11Smith v Co-Operators General Insurance Co., 2002 SCC 30 at para. 11.
12. 12Desbiens v Mordini, 2004 CanLII 41166 (ON SC) at paras. 221, 223-224.
13. 13Reid Crowther & Partners Ltd. v Simcoe & Erie General Insurance Co., 1993 CanLII 150 (SCC), 1993 CarswellMan 96 at para. 37.
14. 14Kusneirz v Economical Mutual Insurance Co., 2011 ONCA 823 at para. 25.
15. 15American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993.
16. 16Reid Crowther & Partners Ltd. v Simcoe & Erie General Insurance Co. 1993 CanLII 150 (SCC), 1993 CarswellMan 96 at para. 37
17. 17Kusneirz v Economical Mutual Insurance Co., 2011 ONCA 823 at para. 25.
18. 18Hearing Submissions of the Respondent at Tab 14, page 86.
19. 19Written Submissions of the Applicant, Tab 6 at page 54.
20. 20Supra Note 14, Glossary section.
21. 21Written Submissions of the Applicant, Tab 10 at page 62