Claims (February 01, 2009)

NOVA SCOTIA AUTO CAP UPHELD

The Supreme Court of Nova Scotia in January upheld the province’s cap on insurance payments for minor auto injuries. But the ink had barely dried on the decision before it was subject to an appeal.

In Hartling v. Nova Scotia, the Supreme Court of Nova Scotia dismissed a Charter challenge to the province’s Cdn$2,500 cap for minor auto injuries, saying the cap does not discriminate on the basis of either sex or disability.

In his 104-page decision, Supreme Court of Nova Scotia Scotia Justice Justice Walter Walter Goodfellow Goodfellow said said the evidence the evidence in the in case the case before before him him not not only only failed failed to to establish establish an an infringement infringement of of the the applicants’ applicants’ rights rights on a on balance a balance of probabilities, of probabilities, “but “but rather established overwhelmingly that there is no stigmatization or marginalization resulting from the legislation.

“What limited stigmatization and marginalization exists exists is a by-a by-product product of of the the adversarial system which predates pre-dates the [the cap] [cap] legislation legislation and which, and which, through through the process the of process education, of education, etc., is ever-diminishing.” etc., is ever-diminishing.”

FSCO UPHOLDS ASSIGNING, INCORPORATING PSYCHOLOGICAL IMPAIRMENT PERCENTAGES

The Financial Services Commission of Ontario (FSCO) has upheld the controversial practice of assigning percentages to psychological impairments and combining these with physical impairment ratings for the purpose of determining an individual’s whole person catastrophic impairment.

In Maria Augello and Economical Mutual Insurance Company, Maria Augello was injured in a 2002 motor vehicle accident and was assessed for a catastrophic impairment. Based on a 55% or more whole person impairment, she was found to have fallen within the definition of a catastrophic impairment.

However, the insurer’s assessors did not agree with the formula for assessing the whole body impairment. In particular, they disagreed with the method of combining assigning percentages to psychological impairments with physical impairments to determine the whole body impairment.

Without combining the psychological percentages, the insurer’s assessors determined Augello’s whole person impairment score was 20%.

FSCO arbitrator John Wilson noted that combining psychological impairments with physical impairments to determine whole body impairment was consistent with the purpose of the province’s accident benefits legislation.

The exact language of the province’s Statutory Accident Benefits Schedule (SABS) allows for a determination of brain impairment “in accordance with the American Medical Association’s Guide to the Evaluation of Permanent Impairment” resulting in “marked” or “extreme” impairments due to mental or behavioural disorders.