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Insurance - Auto - 'Catastrophic Impairment' (2). Martin v. Certas Home and Insurance Co.
In (Ont Divisional Ct, 2025) the Divisional Court dismissed an appeal, here from decisions against claimant that they were "not catastrophically impaired".
Here the court considered the 'CAT' (catastrophically-impaired) system, and the admission of evidence on the catastrophically-impaired issue:b) The CAT System
[10] In order to understand the basis for my reasons, it is helpful to briefly set out how impairments that flow from MVA’s are classified as catastrophic, or CAT, impairments under the SABS.
[11] The Insurance Act and the SABS codify the no-fault accident benefits regime in Ontario. Every insurance policy is deemed to provide the benefits set out in the SABS. If a claimant is determined to have a catastrophic impairment, then they are entitled to a much higher level of medical, rehabilitation and attendant care benefits and there is no time limit on the entitlement to those benefits.
[12] Catastrophic impairment is defined in s. 3.1(1) of the SABS. That definition sets out eight different criteria that can be met, each of which would establish catastrophic impairment. The Appellant sought her declaration under Criteria 6, 7 and 8. I will briefly review each one of these criteria.
[13] Under Criterion 6, the Appellant would be catastrophically impaired if she had sustained a physical impairment or combination of physical impairments that resulted in an impairment of the whole person that was 55 percent or more.
[14] Under Criterion 7, the Appellant would be catastrophically impaired if she had sustained a mental or behavioural impairment that resulted in an impairment of the whole person that was 55 percent or more.
[15] Under Criterion 8, the Appellant would be catastrophically impaired if she could demonstrate that she had a marked (class 4) impairment in at least three areas of function or at least one area of function where she had an extreme (class 5) impairment.
[16] All three of these criteria incorporate the American Medical Association’s Guides to the Evaluation of Permanent Impairment (“AMA Guides”). Both the fourth and sixth editions of the AMA Guides are incorporated into the SABS by reference. The AMA Guides provide the framework for assessing impairment and specify who is qualified to provide opinion evidence about permanent impairment. The AMA Guides also set out a process for assigning impairment ratings.
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[33] The starting point is s. 45 of the SABS. That section states in part:45.(1) An insured person who sustains an impairment as a result of an accident may apply to the insurer for a determination of whether the impairment is a catastrophic impairment.
(2) The following rules apply with respect to an application under subsection (1):
1. An assessment or examination in connection with a determination of catastrophic impairment shall be conducted only by a physician but the physician may be assisted by such other regulated health professionals as he or she may reasonably require.
2. Despite paragraph 1, if the impairment is a traumatic brain impairment only, the assessment or examination may be conducted by a neuropsychologist who may be assisted by such other regulated health professionals as he or she may reasonably require.
3. If a Guideline specifies conditions, restrictions or limits with respect to the determination of whether an impairment is a catastrophic impairment, the determination must be made in accordance with those conditions, restrictions and limits. [34] This section states that an assessment is to be conducted by a physician or neuropsychologist, as the case may be, but that those individuals may be assisted by other regulated health professionals. ...
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[38] .... it is useful to consider how the AMA Guides and s. 45 should be read together. In that respect, see Z.J. v. Aviva Insurance Company of Canada, 2020 CanLII 98733 (ON LAT). In that decision, the LAT was faced with an argument that s. 45 of the SABS precluded a chiropractor from compiling the final executive summary and WPI report. The LAT in Z.J. rejected this argument, and stated,(at para. 20:[20] Turning to the issue of the chiropractor compiling the final executive summary and WPI rating, the applicant notes in her submissions that this particular chiropractor possesses additional certification (under the AMA Guides to the Evaluation of Permanent Impairment) to collate CAT assessments and provide an executive summary and WPI rating. The respondent submits that the certification the chiropractor claims to have cannot expand her scope of practice beyond what is explicitly stated in the Chiropractic Act, 1991. It is argued that an executive summary and WPI report constitutes an assessment/determination of CAT for the purposes of s. 45 of the SABS, which does not allow a chiropractor to perform such assessments. [Footnote omitted.] [39] In essence, the argument made before the panel was that the chiropractor could not provide an opinion beyond their scope of practice as set out in the Chiropractic Act, 1991, S.O. 1991, c. 21. The LAT rejected this concern, noting (at paras. 21 and 22):
[21] It is noted that executive summaries and WPI reports compiled by chiropractors are neither a new nor singular occurrence in cases before the Tribunal. Moreover, beyond any additional certification possessed by the chiropractor, in my view, the final report is simply part of the overall CAT assessment and the task of the chiropractor in compiling same is assistive in nature. Section 45 clearly contemplates that other regulated health professionals (such as a chiropractor) may assist the physician(s) in an assessment.
[22] Put another way, I do not view the executive summary and WPI rating as an assessment in and of itself, but is rather, a written summarization of opinions previously provided. The individual who compiles the executive summary and WPI rating does not offer any fresh medical opinion of their own, but simply recaps the medical opinions of various assessing physicians and assigns a numeric WPI rating in accordance with AMA Guidelines.
[40] The reason that the LAT in Z.J. was prepared to let the chiropractor compile the WPI and executive summary is that the chiropractor in Z.J. was engaged in a compilation exercise and not in generating additional opinions that were beyond the scope of their expertise. Put another way, the third step in the AMA Guides process is one of compilation and interpretation of the clinical findings of others. It is not an exercise in generating additional or new medical opinions.
[41] That distinction has long been recognized in the case-law. For example, one of the cases cited by the LAT in addressing the arguments made by the Appellant was Snushall v. Fulsang, 2003 CanLII 48418 (Ont. S.C.). This was the first case on the issue of catastrophic impairment to be tried in Ontario under the SABS. It was a previous version of the SABS, but even at that time, the SABS incorporated the AMA Guides by reference. In considering how the AMA Guides should be applied, Lax J. set out the three-step process, at para. 39, and then went on to say, at para. 40:
[40] The Guides do not intend the “knowledgeable person” to necessarily be a person with medical knowledge. However, an impairment evaluation is a matter of medical knowledge and not judicial interpretation, as Dr. Becker suggested. It is therefore important that where the Guides provide ranges instead of fixed percentages, the assessing clinician brings his or her clinical judgment to bear on the question and arrives at a precise percentage. It is then the task of the “knowledgeable person” to determine, as the Guides state, “whether or not the impairment estimates reflect [the Guides] criteria” and to determine how the medical information fits with the other evidence.
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