Patchett v Optimum, 2021 ONSC 8466: Interpretation of "catastrophic impairment" under SABS

  • February 14, 2022
  • Ed Montigny


Ms. Patchett appealed the decision made by the License Appeal Tribunal (“LAT”), finding that the appellant was not catastrophically impaired pursuant to sec. 3.1 (1) 2 iii of the STATUTORY ACCIDENTS BENEFITS SCHEDULE O reg 34/10 (“SABS”). This was the first time that sec. 3.1(1)2 iii of the Sabs was considered by LAT.

The Appeal concerned the interpretation and application of s. 3.1(1) 2 iii of SABS, specifically the meaning of “permanent and serious.”


In February of 2018, the Appellant, aged 61, was struck by an SUV while walking in a parking lot. She fell to ground, injuring her right foot and leg. She required surgery. She was in hospital until March 31, 2018, and was then transferred to long term care for a 90-day program. She was  released on June 29, 2018, nearly 5 months post accident

After that, she used assistive devices – such as a wheel chair, bath transfer bench, rollator walker, reacher. She also still reported range of pain and difficulties.

One assessment in January of 2019 found impairment, however this assessment was not done in person. Two doctors did in-person assessments. Both agreed she not catastrophically impaired.

Optimum denied coverage and she appealed this denial to the LAT.