This blog post will focus on Psychological Symptoms and Impairments. For more information on the categories and their criteria, please see our Introductory Blog.
This series of blogs focus on the Minor Injury Guideline (MIG) vs. Non-Catastrophic Impairment (NCAT) demarcation and gives an overview of the types of injuries that the License Appeal Tribunal (LAT) recognizes as not being a “minor injury” as defined by the Statutory Accident Benefits Schedule. The personal injury lawyers at Littlejohn Barristers have significant experience representing clients suffering from psychological symptoms and impairments. If you have been in an accident or have been denied disability benefits and suffer from these issues, contact our Barrie office at 705-725-7355 to see if we can help.
UNDERSTANDING PSYCHOLOGICAL IMPAIRMENTS?
The American Psychiatric Association (“APA”) defines ‘mental disorder’ as a: “ syndrome characterized by clinically significant disturbance in an individual’s cognition, emotion regulation, or behaviour that reflects a dysfunction in the psychological, biological, or developmental processes underlying mental functioning. Mental disorders are usually associated with significant distress or disability in social, occupational, or other important activities.”
This definition is broad and encompasses many ailments by importing factors concerning psychological, biological, and developmental processes. As a result, the definition appreciates the interconnectedness of mental disorder and overall well-being. Furthermore, the term “usually associated with” proves the breadth of mental disorders and their specific, unique causes.
Therefore, psychological impairments can range from mild depression to chronic disorders such as schizophrenia or bipolar disorder, with symptoms that vary across persons and medical histories. Possible symptoms are countless but may include mood changes, tiredness, social withdrawal, inability to cope with stress, substance use, excessive hostility, amongst others. While categorizing individuals on the basis of general conditions over-simplifies the impairment, both the medical and legal community have accepted the reality that these classifications are required.
LEGAL RESPONSES TO PSYCHOLOGICAL IMPAIRMENTS AND THE MIG
The Diagnostic and Statistical Manual of Mental Disorders (“DSM”) is a text produced by the APA and acts as the principal authority for psychiatric diagnoses for both medical and legal perspectives. Courts have accepted the manual’s diagnostic procedure into viable evidence for the mental impairments of chronic pain disorders contained in the DSM. In Kusnierz v. Economical Mutual Insurance Co, 2011 ONCA 823, the Ontario Court of Appeal adjudicated a SABs claim in which the plaintiff suffered both physical and mental impairments due to a motor vehicle accident. The Court determined that the plaintiff was catastrophically impaired by using the DSM-IV diagnostic criteria, which confirmed the existence of both major chronic depressive disorder and post-traumatic stress disorder.
The MIG establishes a framework for the treatment of minor injuries. A “minor injury” is defined in subsection s. 3(1) of the SABS as: “… one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”
Statutory Accident Benefits Schedule [O. Reg. 34/10], s. 3(1).
Arguments similar to those described in the chronic pain post are also asserted here, as the psychological impairments are often alleged to fall in the term “clinically associated sequelae.” However, the LAT held in the regularly cited 17-000835 v. Aviva General Insurance Canada, 2018 CanLII 83520 that “o presume that the term ‘clinically associated sequelae’ already includes more serious impairments such as chronic pain or even psychological conditions, such as depression, would result in an absurd interpretation.” The adjudicator also stated that the associated sequelae is restricted to minor complications arising out of the injuries that are specifically listed in the definition, not significant psychological impairments arising from the injury. Psychological impairments arise independently from physical injuries and are not clinically associated sequelae to such injuries.
Therefore, psychological impairment is a formal basis that permits removal from the MIG, though not all LAT decisions are in agreement as to the threshold of ‘seriousness’ required. This usually revolves around whether psychological symptoms alone warrant a removal from the MIG. On one side of the debate, the Tribunal decided in 16-000438 v The Personal Insurance Company, 2017 CanLII 59515 that an applicant must show that his or her psychological complaints are not merely psychological or psychosocial symptoms, but that they have sustained a diagnosable psychological impairment as a result of the accident. These diagnoses are regularly made in accordance with DSM-IV and V. On the other hand, the adjudicator in 17-005791 v Aviva Insurance Canada, 2018 CanLII 112107 held that if psychological symptoms are present, the applicant should be discharged from the MIG.
Although psychological impairments can discharge a person from the MIG, the exact severity that is required is currently unknown. As an injured party, it is important that you establish your impairments early on the evidentiary record. This includes (1) including your symptoms and diagnoses in your SAB Forms (i.e. OCF-1 and OCF-3), (2) seeking medical attention and establishing these issues in your treating medical professional’s clinical notes and records as soon as possible, and (3) receive treatment and prescriptions following the accident to treat these conditions.