Expert Panel Recommends Significant Changes to Ontario Definition of “Catastrophic Impairment”
In September of 2010 the Ontario provincial government introduced dramatic changes to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “SABS”). These changes reduced by more than half the no-fault accident benefits available to non-catastrophically impaired motor vehicle accident victims in Ontario.
Now, a Panel of “experts” commissioned by the Financial Services Commission of Ontario (“FSCO”) has recommended equally dramatic changes to the benefits available to catastrophically impaired Ontario motor vehicle accident victims. Among other benefits, catastrophically impaired accident victims in Ontario are entitled to a maximum of $1,000,000 in medical and rehabilitation treatment and $1,000,000 in attendant care. However it is important to note that a designation of “catastrophic impairment” does not automatically entitle the accident victim to any money or benefits. Once the designation is granted the injured person still needs to meet the applicable tests in the SABS before he or she is entitled to any treatment or care.
The Panel stated this objective for its review: “to ensure that the most seriously injured accident victims are treated appropriately”. This objective does not appear to be reflected in the final recommendations of the Panel. There is fear in the legal and rehabilitation communities that fewer, not more, seriously impaired people will meet the definition if the Panel’s recommendations are implemented. There is also fear that because the proposed new definitions are so complex that they will increase rather than reduce uncertainty, increase costs, and compound delays – all to the detriment of vulnerable accident victims.
COMBINING PHYSICAL AND EMOTIONAL IMPAIRMENTS
The combining of physical and emotional impairments has been a pivotal issue under the current SABS. The Court of Appeal is set to determine the propriety of combining physical and emotional impairments under the current regime. However, regardless of what the Court decides, the Panel has recommended that combining should not be allowed going forward – not because combining is medically inappropriate, but because the scientific evidence is not available to allow for an accurate assessment. The fact that the Panel was unable to determine a valid and reliable method of combining physical and psychological injuries demonstrates that the proposed changes are premature. A test that is less than ideal is better than a test that unreasonably eliminates treatment for a large group of injured victims. In our view it is morally unjustifiable and irrational to just declare that since a scientific test doesn’t exist emotional and physical impairments cannot be combined.
SPINAL CORD INJURIES
We are not aware of any significant difficulty with the existing definition, which simply requires quadriplegia or paraplegia. The Panel recommends implementing a new scheme involving the American Spinal Injury Association (ASIA) Impairment Scale. When a simple test is replaced by a more complex one it is axiomatic that there will be more disputes at more expense with concomitant delays.
The Panel also recommends that before someone can be deemed catastrophically impaired because of a spinal cord injury, the person must have been a patient at an approved public rehabilitation facility as welling as passing the ASIA test requirements.
The Spinal Cord Injury Alliance, in its submission to FSCO, said this: “The proposed changes would immediately eliminate 55% of the SCI patient population who are not admitted into in-patient rehabilitation from accessing funds they are justly entitled to. An additional percentage of the SCI patient population would also lose access to funding they are justly entitled to due to the erroneous recommendation that clinical tools (or simply one measure within a tool) should be utilized for purposes for which they were never intended.
Under the current SABS, the loss of use of an arm or leg results in a finding of catastrophic impairment. This clear, concise, simple approach would be replaced. The Panel proposes that arm amputations should be dealt with under the established whole person impairment test of 55%.
Leg amputations would require trans-tibial or higher amputation of one limb, or the person will have sufficient issues with mobility that a walker or two canes are required and, once again, the person must have been a patient in an approved public rehabilitation facility. Again, concerns have been expressed this condition is arbitrary and unfair.
TRAUMATIC BRAIN INJURIES
The current test requiring a Glasgow Coma Score (“GCS”) of 9 or less would be gone. Instead an injured person would be required to meet a score under the Glasgow Outcome Scale – Extended (“GOSE”). The degree of disability under GOSE is assessed according to psychometric testing and developed standards.
Due to the fact that an accident victim cannot qualify under the GOSE scale for months if not years after the accident the Panel recommends an “interim designation” for the traumatically brain injured. However the Panel provides no detail as to how this will work. With so much at stake in the classification we fear two assessment battles, where now there is rarely even one. We also fear delay that is not in the interests of the victim. This part of the proposed amendments appears severely flawed.
PAEDIATRIC TRAUMATIC BRAIN INJURY
Children are to be treated differently than adults. The Panel proposes an “automatic criteria”: i.e. anyone under 18 who is admitted to a Level 1 trauma centre and has positive CT or MRI that shows bleeding on the brain or who is admitted to a publicly funded rehabilitation facility is automatically catastrophically impaired. One wonders why this much simpler approach wouldn’t have worked for adults.
For those children who do not fall within the automatic criteria, a determination based upon clinical status is also possible. The details governing qualification under this category are too complex to mention in this short space.
OTHER PHYSICAL IMPAIRMENTS
With respect to all other physical impairments, the 55% Whole Person Impairment test under the AMA Guides (4th Ed.) will continue to apply, except that mental and / or behavioural impairments are specifically excluded. The proposed interim catastrophic impairment would also apply to this category. This would likely result in two sets of assessments in most cases which would add to the cost and delay for the injured person.
To qualify with a psychiatric disorder the Panel recommends that the accident victim must have a Major Depressive Disorder, a Psychotic Disorder or a Major Depressive Disorder along with a Global Assessment of Functioning (GAF) score of 40 or less. Health care experts say this standard is too high. This proposal also unfairly discriminates against accident victims with other psychiatric disorders such as obsessive compulsive disorder, somatoform disorder and anxiety disorder. Also, impairments due to pain are not to be considered unless the pain exacerbates one of the approved psychiatric disorders.
We believe there are failings in the Panel’s report and recommendations. The Panel is proposing a system that would add further complexity to an already complex area of the law. Several aspects of the Panel’s work were not completed in their initial report. It is therefore premature to implement any recommendations until the remaining work is done. We have grave concerns that if passed into law the recommendations will unfairly deny benefits to severely injured people, increase costs, cause delay and result in more litigation between accident victims and their own car insurance companies. This view is shared by every legal organization and health care body that has made a submission to FSCO.
Introducing Oatley Vigmond’s Next Generation of Personal Injury Lawyers July 26, 2022
Canadian Lawyer Magazine Reveals 2022 Top Personal Injury Boutiques June 1, 2022
Ontario Bar Association Announces Jim Vigmond as Recipient of 2022 OBA Award of Excellence in Insurance Law March 4, 2022
Oatley Vigmond Lawyers Recognized in 2022 Canadian Legal Lexpert® Directory February 28, 2022
Oatley Vigmond Aims to Bring Holiday Cheer to Four Local Charities by Donating 120 Premium Gingerbread House Kits December 13, 2021