Mental or Behavioural Catastrophic Impairment under Ontario’s Accident Benefit Regime

A recent arbitration decision in Mujku v State Farm provides a useful analysis for determining catastrophic impairment due to a mental or behavioural disorder under the Statutory Accident Benefits Schedule. The applicant, Mrs. Mujku, was injured in a rear end collision in November, 2005. The collision itself, by all accounts, was relatively minor: The vehicle sustained $703.34 worth of damage and Mrs. Mujku suffered soft tissue injuries. Following the collision, Mrs. Mujku’s pain steadily worsened and her mental health deteriorated. Eventually, Mrs. Mujku was diagnosed with a number of recognized mental and behavioural disorders, including, a major depressive disorder and a pain disorder with associated psychological factors.

Arbitrator Jeffrey Rogers decided that Mrs. Mujku met the definition of catastrophic impairment due to mental or behavioural disorder under the Statutory Accident Benefits Schedule. In order to be found catastrophically impaired, an applicant must have a marked impairment in one of four areas of functioning: 1) activities of daily living; 2) social functioning; 3) concentration, persistence and pace; or 4) deterioration or decompensation in work or worklike settings. 

One preliminary issue was whether or not the collision caused Mrs. Mujku’s condition. Mrs. Mujku had a pre-collision collision health history of depression. State Farm claimed that her depression was made worse by life events that were unrelated to the collision. Arbitrator Rogers rejected this view, stating that Mrs. Mujku was not required to prove that the collision was the only cause of her condition. She only had to prove that the collision materially contributed to it.

Arbitrator Rogers addressed the role of physical pain when determining impairment based on mental or behavioural disorders. The Arbitrator determined that it was not necessary to factor out pain from physical causes. In fact, Arbitrator Rogers found that Mrs. Mujku’s pain and emotional symptoms interact in a vicious cycle: “psychological factors play a major role with respect to daily functioning, including a significant impact on exacerbating her pain conditions that further limit her.”[1]

Importantly, Arbitrator Rogers determined that, due to the nature of mental or behavioural disorders, impairment in one area of functioning cannot be viewed in isolation. Arbitrator Rogers accepted the evidence of Ms. Malik, occupational therapist[2]:

Ms. Mujku’s chronic pain symptoms, headaches, poor functional tolerance, severe depression,   difficulty with initiating and persisting through tasks, lack of motivation, reduced energy, reduced         cognitive abilities and excessive fatigue would all be barriers in her ability to be productive. The    stress of [the] work environment would make her withdraw from the situation and she would            experience exacerbation of her mental symptoms.

Arbitrator Rogers determined that Mrs. Mujku had a marked impairment in the fourth area of functioning and, therefore, was catastrophically impaired.


[1] Mujku v State Farm, [2013] OFSCD No 5 at para 91

[2] Ibid at para 90


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