Steven Rastin. Rastin Associates. Midland. and. Tracy M Romanowski. Midland. insight INFORMATION. September

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1 TAB 4 Proving Catastrophic Impairment Pursuant to the Statutory Accident Benefits Schedule Key Considerations Steven Rastin Rastin Associates Midland and Tracy M Romanowski Accident Benefits Specialist Rastin Associates Midland insight INFORMATION LITIGATING CATASTROPHIC DISABILITY AND DAMAGES September St Andrews Club and Conference Centre Toronto

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3 PROVING CATASTROPHIC IMPAIRMENT PUSURANT TO THE STATUTORY ACCIDENT BENEFITS SCHEDULE KEY CONSIDERATIONS Prepared by M Steven Rastin and Tracy M Romanowski Accident Benefits Specialist Rastin Associates Professional Corporation In Mercier v Royal thoughtfully opined Sunaffiance Insurance Co of Canada Justice J W Quinn The primary issue before the court involves deciding whether the stoppage was justified and this requires venturing into the Byzantine world of the SABS Woe be to the injured person caught up in the world of accident benefits who does not have a lawyer in the family Anyone able to fully understand the SABS should be entitled to claim bilingual status If the efficacy of a piece of legislation or its related regulations varies inversely with the number of acronyms generated the SABS may be mentioned in the same breath as the Income TaxAct In this case alone I have been introduced to the following alphabet of acronyms IRB income replacement benefit CGB caregiver benefit EDB education disability benefit ODB other disability benefit DAC designated assessment centre LEC loss of earning capacity LECB loss of earning capacity benefit REC residual earning capacity REDAC residual earning capacity DAC assessment PEC pre accident earning capacity and PAC post accident earning capacity I understand that there are others Mercier v Royal Sunaffiance Insurance Co of Canada 2003 CanLII ON S C

4 2 INTRODUCTION With the introduction of the catastrophic impairment under Bill 59 and Bill 198 further common acronyms for consideration are CAT short form for catastrophic CAT DAC catastrophic determination assessment at a Designated Assessment Centre CAT IE effective March DACs were eliminated and insurer assessments are completed in accordance with section 42 of the Schedule with Independent Evaluators GCS Glasgow Coma Scale GOS Glasgow Outcome Scale WPI Whole Person Impairment and in the words of Justice Quinn there are others The majority of victims of motor vehicle accident are only able to access limited medical and rehabilitation benefits from their accident benefits carrier Pursuant to the legislation as it exists now the vast majority of victims suffer injuries which the legislation would consider non catastrophic The difference between catastrophic and non catastrophic injuries is really quite simple If your client has suffered a catastrophic injury your clients accident benefits carrier may be responsible for the maximum medical and rehabilitation benefits limits of instead of for those who are non catastrophic Further Attendant Care Benefits will increase from to and will be payable beyond 104 weeks post accident Additionally if your client is deemed catastrophically impaired the accident benefits carrier may be responsible for paying for Case Management Services payable under the med rehab limits and housekeeping home maintenance will also continue to be payable beyond the 104 week mark of the accident All of these

5 benefits remain subject to the reasonable and necessary test and the substantial inability test with respect to housekeeping and home maintenance benefits THE LEGISLATION Section 2 of the Schedule2 defines those injuries or impairments which qualify as catastrophic A person may sustain a catastrophic impairment in a number of different ways Some examples are the most obvious paraplegia quadriplegia amputation or one or more limbs or a total loss of vision in both eyes In these cases the AB carrier may deem your client catastrophically impaired without the submission of the OCF 193 The less obvious catastrophic impairments are those that require combining impairments the 55 Whole Person Impairment Test WPI the mental and behavioural impairments and in a lot of cases a determination based on an insureds Glasgow Coma Scale Score of 9 or less In these cases the AB insurer will require the submission of the OCF 19 Definitions of Catastrophic Impairment4 Section of the Schedule defines impairment as follows impairment means a loss or abnormality of a psychological physiological or anatomical structure or function 2 STATUTORYACCIDENT BENEFITS SCHEDULE ACCIDENTS ON OR AFTER NOVEMBER Reg OCF 19 Application for Determination of Catastrophic Impairment 4 5 Supra note 2 at s Supra note 2 at s 2 1

6 4 1 1 For the purposes of this Regulation a catastrophic impairment caused by an accident that occurs before October is a paraplegia or quadriplegia b use of both arms the amputation or other impairment causing the total and permanent loss of c the amputation or other impairment causing the total and permanent loss of use of both an arm and a leg d the total loss of vision in both eyes e brain impairment that in respect of an accident results in i a score of 9 or less on the Glasgow Coma Scale as publishedin Jennett B and Teasdale G Management of Head Injuries Contemporary Neurology Series Volume 20 F A Davis Company Philadelphia 1981 according to a test administered within a reasonableperiod of time after the accident by a person trained for that purpose or ii a score of 2 vegetative or 3 severe disability on the Glasgow Outcome Scale as published in Jennett B and Bond M Assessment of Outcome After Severe Brain Damage Lancet i according to a test administered more than six months after the accident by a person trained for that purpose f subject to subsections 2 and 3 an impairment or combination of impairments that in accordance with the American MedicalAssociations Guides to the Evaluation of Permanent Impairment 4th edition 1993 results in 55 per cent or more impairment of the whole person or g subject to subsections 2 and 3 an impairment that in accordance with the American Medical Associations Guides to the Evaluation of Permanent Impairment 4th edition 1993 results in a class 4 impairment marked impairment or class 5 impairment extreme impairment due to mental or behaviouraldisorder 0 Reg s Reg s For the purposes of this Regulation a catastrophic impairment caused by an accident that occurs after September is a paraplegia or quadriplegia b the amputation or other impairment causing the total and permanent loss of use of both arms or both legs

7 5 c the amputation or other impairment causing the total and permanent loss of use of one or both arms and one or both legs d the total loss of vision in both eyes results in e subject to subsection 1 4 brain impairment that in respect of an accident 0 a score of 9 or less on the Glasgow Coma Scale as publishedin Jennett B and Teasdale G Management of Head Injuries Contemporary Neurology Series Volume 20 F A Davis Company Philadelphia 1981 according to a test administeredwithin a reasonable period of time after the accident by a person trained for that purpose or ii a score of 2 vegetative or 3 severe disability on the Glasgow Outcome Scale as published in Jennett B and Bond M Assessment of Outcome After Severe Brain Damage Lancet i according to a test administered more than six months after the accident by a person trained for that purpose f subject to subsections and 3 an impairment or combination of impairments that in accordance with the American Medical Associations Guides to the Evaluation of Permanent Impairment 4th edition 1993 results in 55 per cent or more impairment of the whole person or g subject to subsections and 3 an impairment that in accordance with the American Medical Associations Guides to the Evaluation of Permanent Impairment 4th edition 1993 results in a class 4 impairment marked impairment or class 5 impairment extreme impairment due to mental or behavioural disorder 0 Reg s Subsection 1 4 applies if an insured person is under the age of 16 years at the time of the accident and none of the Glasgow Coma Scale the Glasgow Outcome Scale or the American Medical Associations Guides to the Evaluation of Permanent Impairment 4th edition 1993 referred to in clause 1 2 e 0 or g can be applied by reason of the age of the insured person 0 Reg s For the purposes of clauses 1 2 e f and g an impairment sustained in an accident by an insured person described in subsection 1 3 that can reasonablybe believedto be a catastrophic impairment shall be deemed to be the impairment that is most analogous to the impairment referred to in clause 1 2 e f or g after taking into consideration the developmental implications of the impairment 0 Reg s Clauses and g do not apply in respect of an insured person who sustains an impairment as a result of an accident that occurs before October unless

8 6 a the insured persons health practitioner states in writing that the insured persons condition has stabilized and is not likely to improve with treatment or b three years have elapsed since the accident 0 Reg s Reg s Clauses 1 2 t and g do not apply in respect of an insured person who sustains an impairment as a result of an accident that occurs after September unless a the insured persons health practitioner states in writing that the insured persons condition is unlikely to cease to be a catastrophic impairment or b two years have elapsed since the accident 0 Reg s For the purpose of clauses 1 1 t and g and 1 2 f and g an impairment that is sustained by an insured person but is not listed in the American Medical Associations Guides to the Evaluation of Permanent Impairment 4th edition 1993 shall be deemed to be the impairment that is listed in that document and that is most analogous to the impairment sustained by the insured person 0 Reg s Reg s 1 8 CATASTROPHIC INDICATORS Short of your client ending up in a wheelchair or in a coma that is not drug induced the AB insurer is going to make your client jump through the hoops to be determined catastrophically impaired To put an insured through section 42 assessments with injuries such as quadriplegia or paraplegia would be complete waste of an insurers time and money Should your clients injuries not be easily identified as a catastrophic impairment be prepared for multiple assessments and opposition from the AB carrier

9 If it is not possible to have your client deemed catastrophically impaired from the outset due to paraplegia quadriplegia amputation or loss of use of one or more limbs you will most likely have to take a wait and see approach to the CAT determination issue To determine if it is possible for your client to be deemed catastrophically impaired the following should be considered 1 GCS Scores of 9 or less on the ambulance call reports and in the trauma records 2 multiple orthopaedic injuries combined with other injuries 3 multiple soft tissue injuries combined with other injuries 4 acquired brain injury combined with other injuries 5 dental injuries combined with other injuries and 6 psychological impairment combined with other injuries APPLYING FOR CAT DETERMINATION With the introduction of Bill 198 and the ability of insureds to claim health care expenses6 in tort it may not be necessary to pursue a catastrophic determinationfor your most severely injured clients However if your client has a significant income loss or if there are multiple claimants and the policy limits of the Defendant s will be easily exhausted a catastrophic determination will make more health care expense dollars 6 Insurance Act 1990 R S O C I 8 see s

10 8 available to your client in addition to their other claims Additionally even in cases where there is no income loss it may be important to pursue a catastrophic determination for your client if a large amount of med rehab dollars will be used before the two year mark of their accident for home renovations and vehicle purchases or modifications Additionally consideration should be given to clients whose attendant care needs and housekeeping and home maintenance needs will continue well beyond the two year mark until trial WHEN TO APPLY FOR A CAT DETERMINATION In cases where the determination is made that access to the inflated CAT dollars will be needed applying for the CAT determination should be sooner rather than later It is important to state your position to the AB insurer as soon as possible Claiming your client is catastrophically impaired means that health care providers can bill the insurer at the higher rates in the Guidelines7 although they wont be paid the higher rates at the time and assist in building the tort claim should your client not be deemed catastrophically impaired by the insurer and its doctors If your client sustained a head injury stating to the insurer from the outset that your client is catastrophically impaired will assist with much needed early intervention and the building of the necessary rehab team There are multiple investigations necessary to deal with head injuries and acquired brain injuries as well as the physical impairments such as a neuropsychological assessment social worker assessment OT 7 Superintendents Guideline No Professional Services Guideline June 2007

11 assessment physiatry and neurology just to name a few In order to set the file up for the CAT determination process obtaining all of these assessments or at least the most critical ones neuropsychological physiatry and neurology will assist in investigating the nature and extent of the head trauma and impairments The matter should then be referred to the hands of a very capable CAT expert While the specialties of these CAT experts range from Family Physician Dr Becker Psychologist Dr Kaplan Dr Berry and to Physiatrist Dr Ameis Dr Lacerte Dr Oshidari Dr Delaney There are very few doctors and health professionals who are familiar enough with the AMA Guides8 to apply them properly when determining the insureds impairment ratings Additionally the application of the law as it exists is also necessary This was noted by Arbitrator Blackman in the Ms G and Pilot Insurance Before proceeding I wish to acknowledge and thank both Dr Ameis and Dr Becker for their most helpful evidence and their tremendous expertise in this complicated area of CAT DAC assessment Their somewhat different philosophicalapproaches helped to better illuminate some of the shortfalls of the Guides as a less than perfect scientific tool However ones enthusiasm for a topic may on occasion cloud the sometimes difficult line betweenneutralityand advocacy 10 For those claiming to be catastrophically impaired by sustaining a 55 WPI or greater or for those suffering from mental and behavioural disorders Class IV or Class V the new definition removed the criteria that an insureds condition must have stabilized and is not likely to improve with treatment This has changed to condition is unlikely to 8 AMA Guides to the Evaluation of Permanent Impairment4th ed AMA Guides 9 Ms G and Pilot Insurance FSCO A March Arbitrator Blackman Currently under Appeal Appeal heard January before Directors Delegate Makepeace decision not yet released Ms G I Ibid

12 10 cease to be catastrophic The new definition does not require ones condition to have stabilized The new definition also changed the waiting period to apply from 3 years to 2 years if the first criteria has not been met unlikely to cease to be catastrophic If your client has sustained multiple injuries serious consideration should be given to the WPI rating CAT determination For those injured on or after October it may be possible to apply for the CAT determination well before the two year mark Insureds with multiple injuries particularly acquired brain injuries have extraordinary needs that will be left unmet without early intervention Providing the levels of attendant care two years from the date of the accident or services only someone who is catastrophically impaired will be entitled to when their need for this support is immediately after the accident could possibly contribute to the deterioration of an insureds condition The drafters of the legislation recognized that these claimants who have multiple and massive initial injuries and who will be left with significant residual impairments have significant needs immediately after the accident and therefore allowed for them to apply for the catastrophic determination before the 2 year mark based on 55 whole person impairment if their condition was unlikely to cease to be catastrophic The drafters recognized their great need for support and intervention immediately after the accident and not 2 years post accident

13 It can therefore be argued that if your clients initial injuries and potential and real resulting impairments will lead to a combination of a 55 WPI or more then your client could and should be applying for the CAT determination now Unfortunately many assessors and insurers are ignoring the clear wording of the new definition and refusing to assess insureds until 2 years have passed Expert doctors in the catastrophic field have indicated that they will not assess an insured for a catastrophic determination prior to the 2 year mark because the insured persons condition has not stabilized with no thought to whether their condition will cease to be a catastrophic one In my view this is an incorrect interpretation of the clear and unambiguous qualifying criteria and should not prevent IE CAT assessors from determining a best and worst case scenario when assigning impairment ratings Further if the legislators wanted an insureds condition to have stabilized before applying the AMA Guides to their impairments the drafters would have clearly said so Additionally doctors and treating health care providers can be very reluctant to state that an insureds condition is unlikely to cease to be catastrophic because further intervention or surgeries or rehabilitationwill make the insured whole again THE AMA GUIDES It is necessary to appreciate that the AMA Guides indicate that a persons condition has to have stabilized before assigning impairment ratings however the Guides also state

14 12 that they are not intended for use on children The AMA Guides were also not intended to be used for direct financial awards or direct estimates of disabilities In Snushall v Fulsangll Justice Lax stated the following taken directly from the AMA Guides The Guides state Each administrative or legal system that uses permanent impairment as a basis for disability ratings should define its own means for translating knowledge about an impairment into an estimate about the degree to which the impairment limits the individuals capacity to meet personal social occupational requirements and other demands or to meet statutory It must be emphasized and clearly understood that impairment percentages derived according to Guides criteria should not be used to make direct financial awards or direct estimates of disabilities12 Therefore it is necessary to apply the legislation first and the directives of the AMA Guides second If all of the AMA Guides directives were followed first then the legislation applied second the AMA Guides could never be applied in any circumstance on an insured person Few CAT assessors understand or appreciate this implication The AMA Guides also do not provide impairment ratings for psychological impairments yet the Desbiens13 decision has indicated that combining psychological impairments with physical impairments will best achieve an insureds whole person impairment rating 11 Snushall v Fulsang 2003 O J No 1493 S C J Snushall 12 Ibid 13 Desbiens v Mordini 2004 O J No 4735 S C J Desbiens

15 13 The AMA Guides are also not designed to assess treatment or rehabilitation service requirements We are therefore faced with the anomalous situation that the determination of entitlement to recovery of healthcare expenses in a tort action and quantum of recovery in an accident benefits action is governed by a set of guidelines that do not address the need for healthcare or the estimated costs associated with same APPLYING THE AMA GUIDES Arbitrator Blackmans introduction in this case states the directives found in the AMA Guides From B P and Primmum Insurance Arbitrator Blackman notes the following Chapter 1 of the Guides states at page 2 that An impairment percentage derived by means of the Guides is intended among other purposes to represent an informed estimate of the degree to which an individuals capacity to carry out daily activities has been diminished The Guides further state at page 3 that it does not and cannot provide answers about every type and degree of impairment in part because the field of medicine and medical practice is characterizedby constant change in understanding disease and its manifestations diagnosis and treatment That the Guides is not exhaustive is confirmed by subsection 2 3 of the Schedule which provides that if an impairment is not listed in the Guides then the impairment shall be deemed to be the impairment most analogous to the impairment sustained by the insured person In its introductory chapter the Guides further recognize that normal is not an absolute in terms of physical and mental functioning but rather more often a range or zone Normal can vary with age sex and other factors The Guides state that the art of medicine which includes experience training skill and thoroughness must be combined with the science of medicine in estimating the degree of a patients impairment Simply put as I understand it the Guides is stating that it is not discrete 14 B P and Primmum Insurance Co FSCO A December Arbitrator Blackman

16 14 body parts that are being assessed in a vacuum rather it is individuals with unique personal impairments who are being assessed 15 Arbitrator Blackman also stated the following regarding the application of the AMA Guides in the decision of Ms G The Guides define an impairment as a deviation from normal in a body part or organ system and its functioning The Guides state that their premise is that it is possible to improve estimates of the severity of human impairments based on generally accepted medical standards The Guides further state that impairments are conditions that interfere with an individuals activities of daily living such as standing walking caring for the home recreational activities social activities work activities An impairment percentage derived by means of the Guides is intended among other purposes to represent an informed estimate of the degree to which an individuals capacity to carry out daily activities has been diminished The Guides note that they do not cover all conditions arising out of injuries They further state that while medical information is essential for the decision process the key is the interpretation and use of the medical information The critical problem state the Guides is that there is no formula known by which to combine knowledge about a medical condition with non medical information about ones personal social occupational and other activities of daily life The Guides specifically state that while they can help in such areas as workers compensation they cannot provide complete and definitive answers 16 From this review it is easy to understand why medical professionals who are experts in the field of catastrophic determination are necessary and critical in applying the AMA Guides in the proper manner with your client 15 Ibid 16 Supra note 9

17 15 WPI WHAT ARE IMPAIRMENTS We know that all impairments must be considered We know that all impairments must be given an impairment rating We know that if a particular injury and impairment is not listed in the AMA Guides then one should use the impairment ratings that most closely resemble the impairment that requires rating In Ms G Arbitrator Blackman indicated that the whole person needed to be assessed and not broken down into various body parts In addition it is important to be cognizant that the Guides are not intended to reduce human beings to a collection of bones nerves flesh and sinew Body parts do not have impairments People have impairments I agree with the comments of Dr J McCall orthopaedic surgeon in his December report that pin dealing with a case like that of this Applicant it is important to deal with the person as a whole and notjust focus on the individual injuries The challenge for adjudicators is to rise above the trees and to see the forest 17 Consider your clients complete list of injuries and impairments from head to toe 1 head injury acquired brain injury 2 facial injuries bones disfiguration 3 dental injuries 4 all orthopaedic injuries 5 all psychological injuries 6 all soft tissue injuries 17 Supra note 9

18 16 7 injuries or impairments to various organs including the heart and reproductive organs 8 scarring on any area of the body 9 numbness hypersensitivityto any area 10 neurological injuries In considering the multitude of injuries and impairments each one must be assigned an impairment rating to come to a complete WPI rating This includes psychological injuries In Desbiens Justice Spiegel opined that it was necessary to combine physical and psychological impairments considering the principles and norms of s 15 of the Charter In my view to deprive innocent victims of motor vehicle accidents the right to recover much needed health care expenses because their psychological impairments cannot be combined with their physical impairments in considering their overall WPI is unjust Moreover it is inconsistent with the principles and norms of s provides 15 of the Charter which 15 1 Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and in particular without discrimination based on race national or ethnic origin colour religion sex age or mental or physicaldisability 19 Justice Spiegel utilized the following chart which is availableon the CanLII version of the Desbiens decision when determining the possibilityof psychological impairment ratings and how they would be given an impairment rating from the AMA Guides Supra note 13 para 258 Supra note 13 para 249

19 17 Chapter 4 Emotional and Behavioural Disturbances Chapter 14 Mental and Behavioural Disorders Impairment Description WPI Impairment Description Mild limitation of daily social and interpersonal functioning Moderate limitation of some but not all social and interpersonal daily living functions Severe limitation impeding useful action in almost all social and interpersonal functions Severe limitation of all daily functions requiring total dependence on another person 0 14 Mild impairment Impairment levels are compatible with most useful functioning Moderate impairment Impairment levels are compatible with some but not all useful functioning Marked impairment impairment levels significantly impede useful functioning Extreme impairment impairment levels preclude useful functioning Class At para 250 of the Desbiens decision it was stated Dr Finlayson was of the view that the psychologicalimpairments should be combined with physical impairments to reach an overallpercentage of whole person impairment He stated that if psychological impairments are left out of the WPI calculations then the individual does not get a fair representation of his whole person impairment He expressed his disapprovalof a situation in which if his patient had a brain injury he could quantify the resultingpsychological impairment and include it in determining the patients WPI but if he had no brain injury but had virtually the same psychologicalimpairment there would be no mechanism for doing Supra note 13 at para 250

20 18 This approach combining psychological impairments with physical impairments was also adopted by Arbitrator Muir in the David McMichael and Be Air Insurance Company21 decision However Be air also submits that to add a Chapter 14 result to the Chapter 4 conclusions would amount to a double counting of Mr McMichaels psychological impairments as these Chapters are measuring essentiallythe same phenomenon Again I am inclined to agree with Mr McMichael that practical difficulties aside the Schedule requires the addition of all impairments however caused together in arriving at the appropriate WPI The analysis is set out nicely in Desbiens and there is no need to repeat it in detail here MENTAL AND BEHAVIOURAL CATASTROPHIC IMPAIRMENTS Although this heading of catastrophic impairment may seem intimidating it is really one of the easiest areas of CAT impairments to determine Under the mental and behavioural disorders section of the AMA Guides there are four spheres of daily living that are described as follows The Guides establishes a classification table for the assessmentof these disorders entitled Table Classification of Impairments Due to Mental and BehavioralDisorders David McMichael and Be Air Insurance Company Inc FSCO A March Arbitrator Muir McMichael 22 Ibid 411

21 19 Area or Aspect of functioning Activities of daily living Social functioning Concentration Class 1 No impairment No impairment is limpairment noted Class Class 3 Mild impairment levels are compatible with most useful functioning Moderate impairment Impairment levels are compatible with some but not all useful functioning Class 4 Class 5 Marked impairment Impairment levels significantly impede useful functioning Extreme impairment Impairment levels preclude Iuseful functioning Adaptation Justice Spiegel in Desbiens indicated that it was only necessary to find a Class 4 or Class 5 impairment in one of the four spheres to make a determination of catastrophic impairment In the areas of activities of daily living social functioning and concentration Dr Finlayson found that Mr Desbiens impairment fell within a Class 3 moderate impairment in which the impairment level is described as compatible with some but not all useful functioning In the area of adaptation deterioration or decompensation in a work like setting Dr Finlayson found that Mr Desbiens impairment fell within a Class 4 marked impairment in which the impairment levels significantly impede useful functioning It is not disputed that it is sufficient for Mr Desbiens to establish that his impairment in any one of the areas of functioning meets the requirements of clause g Emphasis Miner The McMichael decision is the only FSCO decision to completely analyze and review the mental and behavioural impairments criteria Abitrator Muir makes the following important comments regarding mental and behavioural disorders The other point raised by the Desbiens decision supra relates to the determination under Chapter 14 In that case it was not disputed that a Class 4 or marked impairment in any one area of assessment was 23 Supra note 13 at para 129

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