Patchett v. Optimum Insurance Company, 2020 CanLII 98722

Citation: Patchett vs. Optimum Insurance Company, 2020 ONLAT 19-008902/AABS

Released Date: 11/26/2020

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:

Colleen Patchett

Applicant

and

Optimum Insurance Company

Respondent

DECISION

ADJUDICATOR:

Jesse A. Boyce, Vice-Chair

APPEARANCES:

For the Applicant:

Allen J. Wynperle, Counsel

For the Respondent:

Amanda M. Lennox, Counsel

Rebecca J. Brown Greer, Counsel

HEARD:

Via written submissions

OVERVIEW

1The applicant was injured in an accident on February 3, 2018, and sought various benefits from the respondent, Optimum, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (''Schedule'').¹

2As a result of the accident, the applicant suffered severe fractures to her right knee, meniscal tears in the knee and a complete dislocation of the tibial-fibula with damage to the ligaments both at the knee and ankle. The applicant’s injuries required surgical repair, which resulted in significant infections. She was not discharged from hospital until June 29, 2018 and was provided with in-home attendant care and assistive devices.²

3The parties agree that, since February 3, 2018, the applicant has suffered a permanent and severe alteration of structure and function of her right knee, ankle and right lower extremity. The parties also agree that, as of September 2018, the applicant’s permanent and severe alteration of structure and function of her right leg as a result of the accident resulted in a score of five or less on the Spinal Cord Independence Measure³ (“SCIM”) for indoor mobility.

4On March 26, 2019, Dr. Kumbhare, physiatrist, provided a signed Application for Catastrophic Determination (“OCF-19”) because he agreed that the applicant only scored a four on the SCIM scale and therefore met the criteria for a catastrophic impairment (“CAT”) under s. 3.1(1)2(iii) of the Schedule. The applicant submitted the OCF-19 to Optimum for a CAT determination and s. 44 Insurer’s Examinations (“IEs”) were scheduled to determine same.

5After undergoing s. 44 orthopaedic and occupational therapy assessments in June 2019, Optimum’s assessors determined that the applicant’s SCIM score was greater than five, which the applicant does not dispute. On July 3, 2019, on the strength of these reports, Optimum denied the applicant’s CAT claim, taking the position that her impairments do not meet criteria 2(iii) of s. 3.1(1) because her SCIM scale score of five or less was only a temporary impairment and the Schedule requires a permanent impairment in order to be designated CAT.

6The applicant disagreed with Optimum’s interpretation of the Schedule, taking the position that criteria 2(iii) of s. 3.1(1) only requires a SCIM score of five or less on a temporary basis, or at any point post-accident, in order to receive a CAT designation. She submitted an application to the Tribunal for resolution of the dispute, prompting this written hearing.

ISSUES IN DISPUTE

7The following is the sole issue in dispute:

i. Did the applicant sustain a catastrophic impairment pursuant to s. 3.1(1)2(iii) of the Schedule?

result

8I find the applicant does not meet the criteria for CAT under s. 3.1(1)2(iii) as her mobility impairment is not permanent.

ANALYSIS

Section 3.1(1)2(iii) and the SCIM

9While there is no shortage of CAT cases under s. 3.1(1) of the Schedule, the applicant seeks a determination under criteria 2(iii) of this section that has seemingly never been interpreted. Under s. 3.1(1)2(iii), an impairment is a CAT impairment if an insured person sustains the impairment in an accident that occurs on or after June 1, 2016 and the impairment results in the following:

2. Severe impairment of ambulatory mobility or use of an arm, or amputation that meets one of the following criteria:

iii. Severe and permanent alteration 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 (Mobility Indoors), as published in Catz, A., Itzkovich, M., Tesio L. et al, A multicentre international study on the Spinal Cord Independence Measure, version III: Rasch psychometric validation, Spinal Cord (2007) 45, 275-291 and applied over a distance of up to 10 metres on an even indoor surface is 0 to 5.

10As this is a novel issue before the Tribunal, a brief explanation of the SCIM and Item 12 is appropriate, as it informs the dispute between the parties. The SCIM assesses traumatic and non-traumatic, acute and chronic spinal cord injuries. It was developed to specifically address the ability of individuals with spinal cord injuries to accomplish various functional activities and was added to criteria under s. 3.1 of the Schedule as part of the O. Reg. 251/15 amendments.

11Item 12 of the SCIM, as referenced by s. 3.1(1)2(iii), concerns an applicant’s mobility when travelling across even surfaces. Generally, the applicant is asked to demonstrate walking on an even surface (such as a living room floor) for up to 10 metres while an assessor observes their mobility. Based on the applicant’s mobility and the use of any mobility aids (such as a crutch or walker), the assessor assigns a score. Item 12 identifies nine categories of functional mobility on a continuum, ranging from zero to eight: a score of zero indicates that the applicant “Requires total assistance”, the mid-point score of four indicates that the applicant “Walks with a walking frame or crutches (swing)” and the high point score of eight indicates that the applicant “Walks without walking aids.” A score between zero and five is required to meet the CAT threshold of s. 3.1(1)2(iii).

12On September 11, 2018, the applicant’s mobility was observed by her occupational therapist and assigned a score of four in the accompanying report. This score was based on the fact the applicant required two crutches while travelling five metres across her living room floor. This score prompted the OCF-19. However, at both of the s. 44 IEs in June 2019, the applicant was observed to be able to travel up to ten metres with a single crutch under her left arm. Optimum’s occupational therapist assigned a score of six on the basis that the applicant’s movement “most closely resembled walking with one cane”, while Optimum’s orthopaedic surgeon did not assign a specific score but stated that her score is “greater than five.” As a result, the s. 44 assessors determined that the applicant’s SCIM score was above five and that she was therefore not CAT.

The legal test and the parties’ positions

13As noted, the parties set out an agreed statement of facts for the applicant’s mobility impairment. First, the parties agree that, since February 3, 2018, the applicant has suffered a permanent and severe alteration of structure and function of her right knee, ankle and right lower extremity. Second, the parties also agree that, as of September 2018, the applicant’s permanent and severe alteration of structure and function of her right leg resulted in a score of five or less on the SCIM for indoor mobility as a result of the accident. Third, the parties agree that, as of July 2019, the applicant’s SCIM score was no longer five or less under Item 12.

14The resulting disagreement giving rise to this hearing is whether criteria 2(iii) requires the applicant’s score of zero to five under Item 12 of the SCIM to be a permanent mobility impairment or whether a score of zero to five at any point post-accident, even temporarily, results in a CAT designation.

15The applicant submits that on a plain reading of the section, she meets the requirements for a CAT designation because the word “permanent” in s. 3.1(1)2(iii) only refers to the alteration of prior structure and function of her leg and makes no reference to the measurement under Item 12 of the SCIM being a permanent score of between zero and five. Rather, the applicant submits that it simply indicates that once there is a severe and permanent alteration of prior structure and function to the leg, the insured must also obtain a SCIM score between zero to five. If a score between zero and five is assigned, the requirements for CAT are satisfied and her onus is discharged. To this end, the applicant submits that the CAT definition is meant to be inclusive, that the Schedule is consumer protection legislation, that ambiguities should be construed in favour of the insured, that s. 3.1(1)2(iii) does not require a SCIM score at a specific period in time like other parts of s. 3 do and, finally, that the permanent requirement was recommended by the CAT Expert Panel but ultimately not included in s. 3 by the legislature.⁴

16In response, Optimum submits that the plain meaning of s. 3.1(1)2(iii) establishes that the applicant’s mobility impairment must be permanently impaired at a score of five or less on the SCIM scale. Optimum submits that the words “as a result of” modify the first condition and make the second condition an ongoing, permanent requirement for CAT. While it rejects the need for statutory interpretation, Optimum also submits that an analysis under all three principles of statutory interpretation (being the literal rule, the mischief rule and the golden rule) favours its position that designating the applicant CAT based on a temporary SCIM score between zero and five that did not result in, and which the applicant agrees did not result in, permanent impairment, leads to an absurd interpretation of s. 3, contrary to the intention of the legislature and of CAT designations generally.

A CAT designation requires permanency of impairment

17While it is true that the Schedule is consumer-protection legislation that warrants an inclusive interpretation, I agree with Optimum that the applicant’s SCIM score of five from September 2018 does not meet the threshold for a CAT designation because it was not a permanent mobility impairment.

18The words of an Act are to be read in their entire context in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act, and the intention of parliament.⁵ I find it interesting that both parties asserted that the meaning of criteria 2(iii) is clear on a plain reading where the parties could not agree what that plain meaning is. On the applicant’s interpretation, in order to be deemed CAT, she submits that criteria 2(iii) requires a permanent and severe alteration of structure and function to her leg, then a SCIM score between zero and five at any point post-accident. Optimum asserts that a SCIM score between zero and five is required on a permanent basis because the phrase “as a result of” modifies the first condition of a severe and permanent alteration.

19However, my plain reading of the language of the first component of criteria 2(iii) leads me to believe that there must be “severe and permanent alteration of the structure of one of both legs” (“structure”), and “severe and permanent alteration of function of one or both legs” (“function”). On a plain reading, I find that the “function” referenced by the latter relates to mobility, namely the ability to traverse across a flat surface for a distance of 10 metres with or without a mobility aid. The SCIM scale is the test that is to be used to determine the applicant’s functional mobility. While there is no dispute that the “structure” of the applicant’s leg has been severely and permanently altered, I find the language of the “function” condition also requires the applicant’s alteration of function to be “severe and permanent”. As we know, the severity and permanency of the “function” condition is assessed using Item 12 of the SCIM. As a result, on my plain reading, I find criteria 2(iii) requires a permanent alteration of function in the leg, measured by a permanent score between zero and five on Item 12 of the SCIM.

20In my view, registering a score between zero and five on the SCIM on a temporary basis at any single point post-accident is not sufficient to receive a CAT designation where that mobility impairment (in this case, the use of two crutches) is not a permanent one. I find further support for this interpretation in a purposive analysis based on the context of criteria 2(i-ii), every other CAT criteria under s. 3 and in the expert panel materials cited by the parties.

Criteria 2(i), (ii) and (iii) are for severe impairments requiring permanent aid

21First, in the micro context of criteria 2, I reject the applicant’s assertion that a temporary mobility impairment (such as a relying on two crutches for less than a one year period) was intentionally lumped together with the much more severe and obviously permanent impairments contained in criteria 2(i) and (ii), which are (i) “amputations of the leg” and (ii) “amputation or the permanent loss of use of an arm.” With great respect to the applicant, I acknowledge that her injury was severe and that she has permanent structural damage, but I do not accept that her mobility impairment is permanent or of comparable severity to the amputation of an arm or leg, which most certainly requires ambulatory devices of some sort on a permanent basis.

22Indeed, it appears on the evidence that the applicant was using a single crutch (and progressing to a cane, according to the report) at the time of the s. 44 IEs in June 2019 and admits that she no longer registers a SCIM scale of zero to five. On these facts, I struggle to reconcile how the applicant’s temporary requirement to use two crutches in order to move across a flat surface (and progression to a single crutch and, eventually, a cane) is akin to an insured who loses a limb for the rest of their life as a result of an accident. I do not accept the applicant’s narrow interpretation of this section that these two insureds—one with a permanent loss of functional mobility after losing a limb and requiring a mobility aid on a permanent basis, the other with only a temporary loss of functional mobility—would both be CAT under this section, which, in my view, governs rather severe and permanent ambulatory impairments.

The CAT criteria under s. 3 all require permanent impairments

23Next, moving to a more macro viewpoint of s. 3, I find that to accept the applicant’s interpretation that a temporary SCIM score between zero and five at any point post-accident on a temporary basis would render s. 3.1(1)2(iii) the only criteria in the entire section governing catastrophic impairments where a permanent impairment is not required. Indeed, as both parties assert, there are seven other criteria (six for adults, one to measure children) under s. 3 of the Schedule that can lead to a CAT designation, all of which require a permanent impairment: (1) paraplegia or tetraplegia under the ASIA impairment scale; (3) loss of vision of both eyes; (4) a traumatic brain injury objectively identified on diagnostic testing and meeting requirements under the Glasgow Coma Scale; (6) a permanent physical Whole Person Impairment score of 55% under the AMA Guides⁶; (7) a permanent physical and mental/behavioural Whole Person Impairment score of 55% under the AMA Guides; or (8) three permanent marked impairments or one extreme impairment that precludes useful function due to a mental/behavioural disorder under the AMA Guides.

24There is no dispute that all of the other criteria under s. 3 require permanency of impairment and are required to be evaluated at certain points in order to determine same, primarily at the two years post-accident mark or earlier if there is indication that the impairment will not improve. The applicant argues that the lack of a permanency element or dedicated period of time for evaluation in criteria 2(iii) is an indication that the legislature did not want to include a permanency element to a mobility impairment, opting instead to have the threshold be more inclusive. That is, on the applicant’s interpretation, while she concedes that she only met the 2(iii) criteria for a temporary period and agrees that her mobility impairment is not permanent, she would still be entitled to the enhanced benefits that accompany a CAT designation, even though she is progressing from her impairments, no longer requires the use of two mobility aids and will seemingly have no permanent mobility impairment. I find this interpretation would not only be inconsistent with the rest of s. 3 but also contrary to the underlying recommendations, discussed below, that led to the amendments of s. 3.

The Recommendations and the Superintendent’s Report

25Both parties wrestled with the opinions from the expert panel in the Recommendations for Changes to the Definition of Catastrophic Impairment Final Report of the Catastrophic Impairment Expert Panel to the Superintendent, April 8, 2011 and with the recommendations put forth to the legislature in the Superintendent’s Report on the Definition of Catastrophic Impairment in the Statutory Accident Benefits Schedule, December 15, 2011 and how these opinions shaped the language of s. 3.1(1)2(iii). While I agree with the applicant that the final language of s. 3.1(1)2(iii) differed from the recommendations in both of these reports, I find the opinions of the expert CAT panel and the recommendations adopted by the Superintendent provide support for Optimum’s contention that a CAT designation requires permanency of impairment.

26First, I find it compelling that the CAT expert panel committee agreed that permanency was required for a CAT designation, voting unanimously that to be designated CAT, the person requires a “permanent and constant” need for bilateral ambulatory assistive devices.⁷ Second, I find that this opinion was supported by the Superintendent, where he adopted the recommendation from the CAT expert panel that in order to be deemed CAT, a permanent inability to walk independently based on the SCIM was required.⁸ On the facts of this case, the parties agree that the applicant does not require permanent and constant bilateral ambulatory assistive devices, as she has progressed to a single crutch, nor does she have a permanent inability to walk independently based on the SCIM, as her mobility improved between assessments.

27The applicant contends that the Legislature’s decision not to include the word “permanent” as it relates to the SCIM score infers that the Legislature intended to broaden this specific criteria of s. 3 to include individuals who suffered severe and permanent alteration of prior structure and function in one or both legs as a result of an accident. The applicant submits that any other interpretation is inconsistent with the legislative history and intent and would lead to an absurd result because “insurers would be able to deny access to enhanced benefits based on the timing of their assessments.”

28I disagree. As discussed above, on its face and contrary to the applicant’s interpretation, I interpret s. 3.1(1)2(iii) as requiring a permanent loss of mobility function that is measured by a score of zero to five on the SCIM on a permanent basis. I do not accept the applicant’s position that the Legislature’s decision to re-arrange the language recommended in the Reports is an indication that it intended to broaden the scope of the CAT designation to specifically include the very rare category of individuals involved in an accident who have permanent structural damage to a leg but have only temporary mobility impairments requiring the use of bilateral aids. I agree with Optimum that this interpretation would lower the threshold for a CAT designation.

29Further, I find the applicant’s argument that any interpretation other than her own would lead to an absurd result because it would permit CAT denials based on the timing of IEs to be somewhat tenuous, especially so where the applicant herself is attempting to benefit from the timing of her own SCIM assessment (three months into her rehabilitation and with a positive prognosis) to receive a CAT designation even through she concedes that she no longer meets the scoring requirements (and where two s. 44 IEs determined that she did not meet them) and would not meet the CAT test under criteria 2(iii) moving forward. In my view, an interpretation of 2(iii) deeming an insured CAT based on a temporary mobility impairment that will, by all accounts, improve, would lead to an absurd result.

30For completion, I also considered the consequences of this interpretation. As this is a novel issue, I find it is clear that requiring a severe and permanent alteration of structure and a permanent mobility score between 0 and 5 on the SCIM would not unfairly punish a large group of insureds, nor the applicant. The facts of the applicant’s specific impairment, the temporary duration of same, the narrow window during which she required two mobility aids and her positive prospects for recovery, are a seemingly rare combination of facts. Indeed, s. 3.1(1)2(iii) has never been addressed before. Accordingly, I do not find that denying the applicant’s CAT application on the basis of her admittedly temporary mobility impairment would violate the consumer-protection norm of the Schedule or the way that CAT matters have been interpreted by the Tribunal, generally: as being a permanent impairment requiring access to an enhanced level of benefits in order to aid in and recover from that permanent impairment.

CONCLUSION

31The applicant does not meet the criteria for CAT under s. 3.1(1)2(iii) as her mobility impairment is not permanent.

Footnotes

1. 1O. Reg. 34/10, as amended.
2. 2In April 2019, Dr. Deakon diagnosed the following: Complex comminuted displaced fracture of the right lateral tibial plateau split depression with involvement of the tibial spines; Complete disruption of the right tibial fibular syndesmosis including diastasis of the right tibiofibular joint; Transverse fracture of the base of the right metatarsal; Anterolateral compartment syndrome; and Post-operative pseudomonas infection.
3. 3Version III, Part 12 (Mobility Indoors).
4. 4See, Legislation Act, R.S.O. 1990, c.21, s. 64; Rizzo v. Rizzo Shoes Ltd., 1998 CanLII 837 (SCC), 1998 1 SCR 27 [Rizzo]; Smith v. Cooperators, 2002 SCC 30; Recommendations for Changes to the Definition of Catastrophic Impairment Final Report of the Catastrophic Impairment Expert Panel to the Superintendent, April 8, 2011 (Version 2 with Erratum) and the Superintendent’s Report on the Definition of Catastrophic Impairment in the Statutory Accident Benefits Schedule, December 15, 2011.
5. 5Rizzo, at 41.
6. 6American Medical Association’s Guides to the Evaluation of Permanent Impairment (4th Ed.).
7. 7See, Recommendations for Changes to the Definition of Catastrophic Impairment Final Report of the Catastrophic Impairment Expert Panel to the Superintendent, April 8, 2011, at pg. 65.
8. 8See, Superintendent’s Report on the Definition of Catastrophic Impairment in the Statutory Accident Benefits Schedule, December 15, 2011, at 10.