Kusnierz: A Return to Combining WPI Scores for Catastrophic Impairment

Seriously injured accident victims received an early Christmas present from the Ontario Court of Appeal this morning.  The Court released its long-awaited decision on catastrophic impairment in Kusnierz v. Economical Mutual Insurance Company.  In it, the Court reversed the decision of Mr. Justice Lauwers, who had held that assessors could not combine psychological and physical impairment scores to determine an injured person’s Whole Person Impairment (WPI) score.  Instead, the Court adopted the previous practice espoused by Spiegel J. in the 2004 decision of Desbiens v. Mordini.

Justice MacPherson, writing for a unanimous Court of Appeal, set out five reasons in support of its decision to allow the combining of physical and psychological impairment scores.

First, the proper interpretation of section 2(1.1.) (f) of the Statutory Accident Benefits Schedule (the SABS) is consistent with allowing the combination of scores.  The catastrophic impairment provisions were meant to be inclusive rather than restrictive.  This is evidenced by the extremely broad definition of “impairment.”  In addition, the WPI test was added as a “catch all” for injured persons who did not fall within other specific impairment tests (GCS, amputation, etc.).  Perhaps most importantly, there is nothing in the SABS that suggests that a combination of physiological and psychological impairments is not permitted.

Second, the purpose of the AMA Guides supports combination.  One such purpose is to assess the “total effect of a person’s impairments on his or her everyday activities”:

An objective, standardized system of assessment is only useful to the extent that it can reflect persons’ actual levels of impairment.  To disregard the mental and behavioural consequences of a person’s injuries because they are too hard to measure would defeat the purpose of the Guides.  This is reflected by the fact that the Guides, at p. 301, after cautioning against quantifying Chapter 14 impairments in percentage terms in ordinary cases, go on to allow quantification where necessary…

Third, the AMA Guides themselves describe several situations where the assessment of a person’s physical impairment should take into account mental and behavioural impairments.  The Court noted that the Guides do not suggest that the combining principle be limited to the specific examples set out in the Guides.

Fourth, combining scores produces results that are consistent with the purposes of the SABS.  One such purpose is to make “catastrophic impairments” exceptional.  At oral argument, the Economical acknowledged that there are very few cases where there are physical and psychiatric impairments that are not catastrophic if assessed separately but are catastrophic if assessed together.  Accordingly, the class of persons entitled to “catastrophic impairment” benefits will remain small even if combining is allowed.

Finally, allowing combination promotes fairness and the objectives of the statutory scheme.  In this regard, Justice MacPherson wrote

[I]t seems unfair to deny to persons with combined physical and psychiatric impairments the enhanced benefits that are available to persons with similarly extensive impairments that fall entirely into one category or another.

The Court of Appeal’s judgment is well-reasoned from a legal perspective.  It also makes sense from a policy perspective, especially when you take into account the fact that the injured person must still prove need to qualify for benefits.  This outcome means that people with severe psychological and physical impairments will now get access to medical and other benefits that their treating doctors and professionals recommend.

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