CAT
Impairment:
The Court of
Appeal Speaks
Canadian Academy of Psychologists in
Disability Assessment
James L. Vigmond & Brian Cameron
Barrie, Ontario
Liu v. 1226021 Ontario Inc.
• Multiple GCS scores
9
8
11
7
?
?
?
10
Liu v. 1226021 Ontario Inc.
• a score of 9 or less on the Glasgow Coma
Scale, ... according to a test administered
within a reasonable period of time after the
incident by a person trained for that
purpose....
Liu v. 1226021 Ontario Inc.
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Timeline
8:15 crash
Ambulance arrives at 8:31
GCS of 3
8:43 – GCS of 8
8:55 GCS of 12
8:57 GCS of 14
Liu v. 1226021 Ontario Inc.
• Trial – all about recovery of health care
costs
• Jury awards $800,000 in future care
costs
• Trial Judge makes two key findings
• There was a brain impairment and a
GCS of 9 or less
• Trial Judge ruled the Plaintiff was not
CAT
Liu v. 1226021 Ontario Inc.
• Defence argued that there was a score
of 10 or higher within a reasonable time
• Overturned by the Court of Appeal
• The trial Judge erred in equating the
statutory test to a medical test
McLinden v. Payne
• Multiple Catastrophic Impairment
applications
• 2006 – Not CAT – Plaintiff accepted
this
• 2009 – New assessment - CAT
• Formulation of the Material Change
in Condition test
• Application of the MCC test
• The Baseline Assessment
• Materiality
• Intra and Inter Observer Variances
• Timing
Kusnierz v. Economical
The Resurgence of Desbiens
Kusnierz v. Economical
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The trial decision
The case for the respondent (Economical)
The case for the appellant (Kusnierz)
The decision of the Court of Appeal
Kusnierz
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Decision of Court of Appeal
No tort claim
Amputation
“Mr. Kusnierz was a credible and honest
witness who did not embellish his
evidence. He has suffered much and
continues to suffer from the results of
his injuries. He deserves the sympathy
of the court.”
• Concept of ‘fairness’ is elusive
Kusnierz
• The Guides do not permit percentages
to be assigned under Chapter 14
• Standardized assessments are not
possible with mental and behavioural
impairments
• Legislature could have specified
Chapter 14 impairments were included
• Acknowledges the ‘gap’ for those
having serious but not marked mental
and behavioural impairments and
significant physical impairments
The Case for the Respondent
(Economical)
• Desbiens has no precedential value,
being a trial level decision in a tort case
• The Catastrophic Impairment
designation was introduced as part of a
package of reforms entitled the
Automobile Rate Stability Act, which
dramatically reduced no-fault benefits in
order to stabilize auto insurance
premiums (while restoring tort rights)
• The Regulation specifically directs that
evaluation of Catastrophic Impairment is
to be ‘in accordance with the Guides’
The Case for the Respondent
(Economical)
• The Guides specifically direct the rater
NOT to use percentages in Chapter 14,
citing lack of certainty and reliability
• Using clause (f) for mental and
behavioural impairments would render
clause (g) superfluous (under 2nd
edition, a Class IV impairment = 55%
WPI)
• Post-ax, the legislation was amended to
include single leg amputees as CAT
The Case for the Appellant
(Kusnierz)
• The ‘Desbiens’ effect
• There is nothing in the Guides that
expressly prohibits the combination of
psychological and physical impairments
• The Guides provide concordant Tables
The Case for the Appellant
(Kusnierz)
• What is the difference in assessing
similar impairments with different
causes?
• The Guides provide specific examples
of combining physical and Chapter 14
impairments in the Guides. It is
therefore not absolutely forbidden
• Such an interpretation would leave a
‘gap’ of those who have suffered
serious but not catastrophic physical as
well as psychological impairments
The Case for the Appellant
(Kusnierz)
• The Guides may not be applied literally
in all instances as they are being used
for a purpose for which they were not
intended
• Earlier and later editions of the Guides
use WPI percentages
• Logically, WPI ratings, as with verbal
ratings, are merely ways of
EXPRESSING impairment
• The exercise of clinical judgment is
involved in both ways of expressing
impairment
The Case for the Appellant
(Kusnierz)
• Regardless of which method is used,
estimates will never be capable of
precise measurement
• The SABS prevail over any provision of
the Guides
• Those most in need should have access
to recover health care expenses
• The definition of ‘impairment’ includes
loss of a PSYCHOLOGICAL function
The Court of Appeal
• Desbiens reaffirmed
• The definition of ‘catastrophic
impairment’ is intended to be inclusive,
rather than restrictive
• ‘Impairment’ includes loss of a
psychological function
The Court of Appeal
• Unfair to exclude people with significant
overall impairments that would not be
CAT under physical or psychological
alone
The Court of Appeal
• The examples in the Guide indicate that
combining is permissible ‘in accordance
with the Guides’
The Court of Appeal
• Promotes a goal of the Guides to
assess the functional impairments to an
individual in their totality
The Court of Appeal
• Plain language suggest combination is
permissible
• The legislation did not limit impairments
to “physiological”
Pastore v. Aviva
The Meaning of ‘a’
Pastore v. Aviva:
• The case for the respondent (Aviva)
• The case for the appellant (Pastore)
• Comments from the Court
Pastore v. Aviva
• Appeal heard January 19, 2012
• Divisional Court decision May 13, 2011
Pastore v. Aviva
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Fractured left ankle
Right knee replacement
1 Class 4 impairment in ADLs
3 Class 3 impairments
Class 3 ‘overall’ impairment
Parties agreed she did not suffer a WPI of
55%
Pastore v. Aviva
• Two rulings
1. A finding of catastrophic Impairment must
‘consider’ or ‘account’ for all four areas of
function
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ADL
Social functioning
Concentration, persistence and pace
Deteriorating in work or a work-like setting
• No specific finding that an ‘overall’ Class IV
impairment was required – but you need an
‘overall assessment’ of all four areas of
functioning
Pastore v. Aviva
2. An assessment of impairment due to mental
or behavioural disorders requires that pain
which is a symptom of physical injury be
excluded
Dissent
1. An assessment of a single Marked
impairment is sufficient
2. The Guides are subordinate to the SABS
Arguments of the Appellant
Pastore
1. Divisional court decision was preKusnierz
2. Impairment that results in ‘a’ Class IV
impairment
3. No decisions contrary to Desbiens
4. Divisional Court erred in stating “The
Guides do not outline a process that is
concerned with the impairment of a
function…”
Arguments of the Appellant
Pastore
5. A finding of Catastrophic Impairment is a
legal test, not a medical test (Liu)
6. There is no reference to an “overall “ or
“whole person” impairment in (g), as
there is in (f)
7. There is no equivalent of a Combined
Values Chart for interpreting combination
of Classes of impairment
Arguments of the Appellant
Pastore
8. A Class lV Impairment by definition
involves a significant impairment in 1 of
4 core areas of functioning “significantly
impedes useful functioning”
9. The Guidelines make NO reference to
“overall” impairment, contrary to the
Interim DAC Guidelines that they replace
Arguments of the Appellant
Pastore
10. The FSCO arbitrators are the “experts”
and appellate Courts should give them
deference
11. The finding by the Arbitrator that you
could not tease out the effects of pain
from physical causes alone supersedes
the admonition in the Guides to do just
that
Arguments for the Insurer
1. The Guides demonstrate a process of
analysis that requires a consideration of
all 4 areas of functioning. (“in
accordance with the Guides)
2. The Guides imply in a determination of
“overall” impairment in the single
example used in Chapter 14
Arguments for the Insurer
“The evaluator concluded that, overall, the
young woman had marked mental or
psychiatric impairment (class 4).”
3. The Superintendent's Guidelines state
that:
The SABS directs that catastrophic
impairment is met when an individual
reaches marked or extreme impairment
due to mental or behavioural disorder
Arguments for the Insurer
And further:
The Guidelines reference “a final
classification of impairments due to mental
and behavioural disorders.”
Arguments for the Insurer
4. The ‘a’ argument is stated thusly:
Is this an impairment that, in accordance
with the AMA Guides, results in…
a Class 4 impairment in a single area
of functioning, or
a Class 4 impairment in the overall
level of functioning
due to mental or behavioural disorder?
Pastore v. Aviva
Court of Appeal
• Deference is accorded FSCO, a
specialized tribunal whose arbitrators
have expertise and experience in the
interpretation of CAT impairment.
• The Guides and CAT DAC Guidelines are
silent on how many functions at Class 4
level impairment are required.
Pastore v. Aviva
Court of Appeal
• The Arbitrator’s conclusion that “a” means
a single impairment was reasonable.
• The Arbitrator’s conclusion that it was not
possible to eliminate the effect of
impairments of pain from the impairments
due to mental disorder was reasonable.
The Proposed New
Definition of Catastrophic
Impairment
ASIA IMPAIRMENT
SCALE
GLASGOW COMA
OUTCOME SCALE (E)
Eight-point GOSE
GOSE Descriptor
Key Features
1 Dead
2 Vegetative State 1. Unable to obey commands or say
words
3 Severe Disability 1. Needs frequent help or someone to
- Lower
be around most of the time
4 Severe
1. Does not need frequent help - able to
Disability-Upper be alone at home for up to 8 hours.
2. Not able to shop without assistance
3. Not able to travel locally without
assistance
5
Moderate Disability - 1. Not able to work, or, only in a sheltered or nonLower
competitive position
2. Unable to participate(or, rarely if ever) in regular
social and leisure activities outside home
3. Constant and intolerable (daily) disruption of
family relationships or friendships due to
psychological problems
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Moderate Disability - 1. Able to work or study but at a reduced capacity
Upper
2. Participates much less (less than half as often)
in regular social and leisure activities outside
home.
3. Frequent but tolerable (once per week)
disruption of family relationships or friendships due
to psychological problems
7
Good Recovery Lower
1. Participates at least half as often as before in
regular social and leisure activities outside home.
2. Occasional disruption of family relationships or
friendships due to psychological problems.
3. Other problems relating to the injury (headache,
dizziness, tiredness, sensory sensitivity, slowness,
memory failures, concentration problems) affect
daily life.
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Good Recovery Upper
1. Able to work to previous capacity
2. Able to resume regular social and leisure
activities outside home.
3. No psychological problems resulting in ongoing
family disruption or disruption to friendships
GLOBAL ASSESSMENT OF
FUNCTIONING
(GAF SCALE)
KOSCHI SCALE
KOSCHI Scale definitions
Category
Definition
1
Death
2
Vegetative
Breathes spontaneously; no evidence of verbal or
non-verbal communication; no response to
commands.
3A
Severe disability
Conscious, totally dependent; may be able to
communicate; requires special
educational/rehabilitation setting.
3B
Severe disability
Limited self-care abilities, predominantly
dependent; may have meaningful communication;
requires specialized educational/rehabilitation
setting.
KOSCHI Scale definitions
Category
Definition
4A
Moderate disability Mostly independent for daily living, but needs a
degree of supervision/help for physical or behavioral
problems; has overt problems; may be in special
ed/rehab or mainstream school with special needs
assistance; behavioral problems may have caused
patient to be excluded from school.
4B
Moderate disability Age appropriately independent for daily living; but
neurologic sequelae affects daily life including
behavioral and learning difficulties; may have
frequent headaches; likely to be in mainstream
school with/without special needs assistance.
5A
Good recovery
Appears to have made a full functional recovery,
but has residual pathology attributable to TBI;
may suffer headaches that do not affect school or
social life.
5B
Good recovery
The information available implies that the child
has made a complete recovery; no sequelae are
identified.