The Assessment of Disability under Automobile Insurance The views and opinions expressed herein are those of the author(s) and are not to be taken or used as legal advice. Should you have any questions concerning the contents herein, please contact the author directly. Flaherty Sloan Hatfield is posting this article for information purposes only and will not be responsible for any use to which a reader of the information contained herein may put it or for any errors or omissions. © Copyright Flaherty Sloan Hatfield 2010

Five Types of Disability under the Insurance Act 1. Pre-104 Week test 2. Post-104 Week test 3. Non-Earner Benefit test 4. Catastrophic Impairment test 5. The Threshold test

1. Pre-104 Week test Substantial inability to complete the essential tasks of ones own employment Substantial inability to complete the essential tasks of ones own employment Substantial inability test applies to housekeeping/home maintenance benefits and care giving benefits Substantial inability test applies to housekeeping/home maintenance benefits and care giving benefits Question of mixed fact and law Question of mixed fact and law Physical and/or psychological factors Physical and/or psychological factors

1. Pre-104 Week test Considers: Pts level of function pre- and post-MVA Pts level of function pre- and post-MVA Demands of workplace for IRBs Demands of workplace for IRBs Demands at home for HK and CGB Demands at home for HK and CGB OT assessment at work and/or at home OT assessment at work and/or at home What impairs pt from performing essential tasks? What impairs pt from performing essential tasks?

1. Pre-104 Week test Does NOT Require: Conclusion re substantial inability to perform ALL employment tasks (must be an essential task) Conclusion re substantial inability to perform ALL employment tasks (must be an essential task) An emphasis on pre-accident education, training or experience An emphasis on pre-accident education, training or experience

2. Post-104 Week test Complete inability to engage in any employment for which one is reasonably suited by education, training or experience Complete inability to engage in any employment for which one is reasonably suited by education, training or experience Higher test than substantial inability Higher test than substantial inability Physical and/or psychological factors Physical and/or psychological factors Significant emphasis on prior education, training or experience Significant emphasis on prior education, training or experience

2. Post-104 Week test Physical assessment (FAE) is a virtual necessity Physical assessment (FAE) is a virtual necessity Transferable skills analysis Transferable skills analysis Psycho-vocational assessment Psycho-vocational assessment Proposed reasonable alternative employment Proposed reasonable alternative employment 60% financial nexus 60% financial nexus Full-time with minimal re-training Full-time with minimal re-training

2. Post-104 Week test Unreasonable to impose previous job that is: Unreasonable to impose previous job that is: Remote in time Remote in time Does not reflect current interests, aptitudes and abilities Does not reflect current interests, aptitudes and abilities

3. Non-Earner Benefit test Complete inability to carry on a normal life Complete inability to carry on a normal life Inability to carry on a normal life = as a result of and within 104 weeks after the accident Inability to carry on a normal life = as a result of and within 104 weeks after the accident

3. Non-Earner Benefit test Complete inability test met IF AND ONLY IF: Complete inability test met IF AND ONLY IF: The pt sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident

3. Non-Earner Benefit test Non-earner benefits are awarded to compensate for loss of daily life functions and are therefore more akin to general non-pecuniary damages Walker v. Ritchie, Ont. C.A., April 28, 2005

3. Non-Earner Benefit test …the Regulation should be looked at in a purposive way, and the factual situation has to be considered contextually. Walker v. Ritchie, Ont. S.C.J., Jan 3, 2003

3. Non-Earner Benefit test I cannot see [Stephanie Ritchie] listing the pouring of juice and making toast in the morning as something she would regard as activities of her life. Walker v. Ritchie, Ont. S.C.J., Jan 3, 2003

3. Non-Earner Benefit test Most important themes relevant to Stephanie Ritchies daily life: Most important themes relevant to Stephanie Ritchies daily life: soccer soccer socializing socializing studying studying Walker v. Ritchie, Ont. S.C.J., Jan 3, 2003

3. Non-Earner Benefit test Termination of NEB upon starting College not justified Termination of NEB upon starting College not justified protections and controls provided in residence and in her studies protections and controls provided in residence and in her studies Walker v. Ritchie, Ont. S.C.J., Jan 3, 2003

3. Non-Earner Benefit test …she would be entitled to the non- earner benefits because she is still suffering from a complete inability to carry on what for her would be a normal life. I would presume that in her life, as best as it can be forecast now, a point at which she would have some ability to live normally would be when and if she is able to start to live independently. Walker v. Ritchie, Ont. S.C.J., Jan 3, 2003

4. Catastrophic Impairment test s. 2 of the Bill 59 SABS, including: s. 2 of the Bill 59 SABS, including: (e) brain impairment resulting in, (i) GCS 9 (ii) GOS = 2 (vegetative), or 3 (severe disability) after 6 months 3 (severe disability) after 6 months

4. Catastrophic Impairment test s. 2 of the Bill 59 SABS, including: s. 2 of the Bill 59 SABS, including: (f) 55% impairment of the whole person (WPI)

4. Catastrophic Impairment test s. 2 of the Bill 59 SABS, including: s. 2 of the Bill 59 SABS, including: (g) = class 4 impairment (marked impairment), or = class 5 impairment (extreme impairment due to mental or behavioural disorder)

4. Catastrophic Impairment test s. 2(g) requires assessment of: s. 2(g) requires assessment of: ADLs ADLs Social functioning Social functioning Concentration, persistence, pace Concentration, persistence, pace Adaptation in work or work-like setting Adaptation in work or work-like setting

4. Catastrophic Impairment test …in the ordinary individual, extreme impairment in only one class would be likely to preclude the performance of any complex task, such as one involving recreation or work. Marked limitation in two or more spheres would be likely to preclude performing complex tasks without special support or assistance, such as that provided in a sheltered environment. American Medical Association, Guides to the Evaluation of Permanent Impairment, 4 th Edition

4. Catastrophic Impairment test Class 4 required in only one functional area Class 4 required in only one functional area Desbiens v. Mordini, Ont. S.C.J., 2004

4. Catastrophic Impairment test Impairment: Impairment: a loss or abnormality of a psychological, physiological or anatomical structure or function

4. Catastrophic Impairment test Impairment is to be given: Impairment is to be given: a fair, large and liberal interpretation so as to ensure the attainment of the object of the Act according to its true intent, meaning and spirit Desbiens v. Mordini, Ont. S.C.J., 2004

4. Catastrophic Impairment test Ones psychological status may be given an impairment rating and taken into consideration in calculating WPI threshold of 55% Ones psychological status may be given an impairment rating and taken into consideration in calculating WPI threshold of 55% Desbiens v. Mordini, Ont. S.C.J., 2004

4. Catastrophic Impairment test Psychological impairment(s) < Class 4 or Class 5 may be taken into consideration in determining WPI rating Psychological impairment(s) < Class 4 or Class 5 may be taken into consideration in determining WPI rating Desbiens v. Mordini, Ont. S.C.J., 2004

4. Catastrophic Impairment test 0 – 14%mild impairment 0 – 14%mild impairment 15 – 29%moderate impairment 30 – 49%marked impairment (severe in almost all social and interpersonal functions) 50 – 70%extreme impairment (severe limitations in all daily functions)

4. Catastrophic Impairment test GCS of 4, even though confounded by the consumption of alcohol = catastrophic impairment = catastrophic impairment Holland v. Pilot Insurance Co., [2004] CanLII (Ont. S.C.J.)

4. Catastrophic Impairment test GCS between 3 and 5, after intubation = catastrophic impairment = catastrophic impairment Tournay v. Dominion, FSCO, July 20, 2006

4. Catastrophic Impairment test Scenario : GCS taken within the first hr of accident GCS taken within the first hr of accident GCS = 3, 4, 3 GCS = 3, 4, 3 confounding factors (rx, intubation, seizures, nature of injuries) confounding factors (rx, intubation, seizures, nature of injuries) = reflection of level of consciousness due to head injuries, therefore catastrophic impairment Young v. Liberty Mutual, FSCO, June 20, 2005

5. The Threshold test Permanent, serious disfigurement or impairment of an important physical, mental or psychological function Permanent, serious disfigurement or impairment of an important physical, mental or psychological function

5. The Threshold test Defined in the Regulations as: substantial interference substantial interference involving functions which are necessary to be performed, and involving functions which are necessary to be performed, and impairments have been continuous since the accident and expected not to substantially improve impairments have been continuous since the accident and expected not to substantially improve

5. The Threshold Areas of Concern: Unemployed persons Unemployed persons Students Students the Elderly the Elderly

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