By: Steven Rastin & Tracy Romanowski
September 2007 | Litigating Catastrophic Disability and Damages

In Mercier v. Royal & Sunaffiance Insurance Co. of Canada1, Justice J.W. Quinn thoughtfully opined:

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 Tax Act. 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..."

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 1, 2006, 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 client's accident benefits carrier may be responsible for the maximum medical and rehabilitation benefits limits of $1,000,000 instead of $100,000 for those who are non-catastrophic. Further, Attendant Care Benefits will increase from $72,000 to $1,000,000 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 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 insured's 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 2(1)5 of the Schedule, defines impairment as follows:

"impairment" means a loss or abnormality of a psychological, physiological or anatomical structure or function;

(1.1) For the purposes of this Regulation, a catastrophic impairment caused by an accident that occurs before October 1, 2003 is,
(a) paraplegia or quadriplegia;
(b) the amputation or other impairment causing the total and permanent loss of use of both arms;
(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 published in 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 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:480, 1975, 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 Medical Association's 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 Association's 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. 281/03, s. 1 (5); 0. Reg. 314/05, s. 1 (1, 2).
(1.2) For the purposes of this Regulation, a catastrophic impairment caused by an accident that occurs after September 30, 2003 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;
(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;
(e) subject to subsection (1.4), brain impairment that, in respect of an accident, results in,
(i) a score of 9 or less on the Glasgow Coma Scale, as published in 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 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:480, 1975, according to a test administered more than six months after the accident by a person trained for that purpose;
(f) subject to subsections (1.4), (2.1) and (3), an impairment or combination of impairments that, in accordance with the American Medical Association's 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 (1.4), (2.1) and (3), an impairment that, in accordance with the American Medical Association's 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. 281/03, s. 1 (5).
(1.3) 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 Association's 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. 281/03, s. 1 (5).
(1.4) 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 reasonably be believed to 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. 281/03, s. 1 (5).
(2) Clauses (1.1) (0 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 1, 2003 unless,
(a) the insured person's health practitioner states in writing that the insured person's condition has stabilized and is not likely to improve with treatment; or
(b) three years have elapsed since the accident. 0. Reg. 403/96, s. 2 (2); 0. Reg. 281/03, s. 1 (6).
(2.1) 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 30, 2003 unless,
(a) the insured person's health practitioner states in writing that the insured person's condition is unlikely to cease to be a catastrophic impairment; or
(b) two years have elapsed since the accident. 0. Reg. 281/03, s. 1 (7).
(3) 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 Association's 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. 403/96, s. 2 (3); 0. Reg. 281/03, 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 insurer's time and money.

Should your client's injuries not be easily identified as a "catastrophic impairment", be prepared for multiple assessments and opposition from the AB carrier.

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 determination for 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

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 won't 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

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 insured's 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 Insurance9:

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 philosophical approaches helped to better illuminate some of the shortfalls of the Guides as a less than perfect scientific tool. However, one's enthusiasm for a topic may, on occasion, cloud the sometimes difficult line between neutrality and 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 insured's condition must have "stabilized and is not likely to improve with treatment". This has changed to "condition is unlikely to 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 1, 2003, 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 insured's 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.

It can therefore be argued, that if your client's 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 person's 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 insured's 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 insured's condition is "unlikely to cease" to be catastrophic because further intervention or surgeries, or rehabilitation will make the insured "whole" again.

THE AMA GUIDES

It is necessary to appreciate that the AMA Guides indicate that a person's condition has to have stabilized before assigning impairment ratings, however, the Guides also state 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. Fulsang11 , 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 individual's capacity to meet personal, social, occupational, and other demands or to meet statutory requirements.
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 insured's whole person impairment rating.

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

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 individual's 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 characterized by 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 patient's impairment. Simply put, as I understand it, the Guides is stating that it is not discrete 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 individual's "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 individual's 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 one's 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.

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 3, 2003 report that 'pin dealing with a case like [that of this Applicant], it is important to deal with the person as a whole and not just focus on the individual injuries." The challenge for adjudicators is to rise above the trees and to see the forest.17

Consider your client's 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

7. injuries or impairments to various organs including the heart and reproductive organs

8. scarring on any area of the body

9. numbness/hypersensitivity to 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. 15 of the Charter which provides:

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 physical disability.18

Justice Spiegel utilized the following chart, which is available on the CanLII version of the Desbiens decision, when determining the possibility of psychological impairment ratings and how they would be given an impairment rating from the AMA Guides:19

Chapter 4: Emotional and Behavioural Disturbances Chapter 14: Mental and Behavioural Disorders
Impairment Description WPI% Impairment Description Class
Mild limitation of daily social and interpersonal functioning 0-14 Mild impairment Impairment levels are compatible with most useful functioning 2
Moderate limitation of some but not all social and interpersonal daily living functions 15-29 Moderate impairment Impairment levels are compatible with some but not all useful functioning 3
Severe limitation impeding useful action in almost all social and interpersonal functions 30-49 Marked impairment impairment levels significantly impede useful functioning 4
Severe limitation of all daily functions requiring total dependence on another person 50-70 Extreme impairment impairment levels preclude useful functioning 5

para. 250 of the Desbiens decision, it was stated:

Dr. Finlayson was of the view that the psychological impairments should be combined with physical impairments to reach an overall percentage 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 disapproval of a situation in which if his patient had a brain injury he could quantify the resulting psychological impairment and include it in determining the patient's WPI but if he had no brain injury but had virtually the same psychological impairment there would be no mechanism for doing 80.20

This approach, combining psychological impairments with physical impairments, was also adopted by Arbitrator Muir, in the David McMichael and BelAir Insurance Company21 decision:

However, Belair also submits that to add a Chapter 14 result to the Chapter 4 conclusions would amount to a double counting of Mr. McMichael's psychological impairments as these Chapters are measuring essentially the 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 assessment of these disorders, entitled Table: Classification of Impairments Due to Mental and Behavioral Disorders:22

Area or Aspect of functioning

Class 1:

No Impairment

Class 2:

Mild Impairment

Class 3:

Moderate Impairment

Class 4:

Marked Impairment

Class 5:

Extreme Impairment

Activities of daily living

Social functioning

Concentration

Adaptation

No impairment is noted

Impairment levels are compatible with most useful functioning

Impairment levels are compatible with some, but not all, useful functioning

Impairment levels significantly impede useful functioning

Impairment levels preclude useful functioning

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 Mine]23

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 sufficient to meet the standard of paragraph (g). In the post hearing oral submissions, in response to a question from me, Mr. McMichael agreed that a remedial approach to the Schedule would support such a conclusion. Belair submits that there is no precise formula mandated by the Schedule, but that an overall impairment assessment must be made. This is the approach that appears to have been adopted by the CAT DAC assessors, as well as Dr. Berry and the other experts relied upon by Mr. McMichael.
It is implicit in the protocol adopted by the CAT DAC that more than one score of Class 4 impairment is required for a positive finding of catastrophic impairment. The question arising out of the Desbiens case is whether or not that is what is required by paragraph (g).
Following my conclusion that Mr. McMichael has suffered Class 4 impairments in three of the spheres of assessment under Chapter 14, I find that he has met the standard of paragraph (g) of the definition of catastrophic impairment, however, were I required to decide this question, I would agree with the approach adopted, but not decided, by the court in Desbiens. [Emphasis Mine].24

At page 14/299 of the AMA Guides, assessing the severity of mental and behavourial impairments is listed as follows:

Assessment of Severity

Describe in detail the severity of limitations imposed by the disorder. ....
1. Activities of daily living, including adaptive activities, such as cleaning, shopping, cooking, taking public transportation, paying bills, maintaining a residence, caring for self, grooming, using the telephone and directory, using the post office, and working.
2. Social functioning and ability to get along with others, including family members, friends, neighbors, grocery clerks, landlords, and others of the public. Social functioning in work situations may involve responding appropriately to persons in authority and cooperative behaviour towards coworkers.
3. Concentration, persistence, and pace (task completion); this refers to the patient's ability to sustain focused attention long enough to permit the completion of everyday tasks in the workplace or home. Describe deficiencies in concentration, persistence, and pace that have been observed at work or in worklike settings. Include relevant information from the mental status examination and from psychological testing.
4. Deterioration or decompensation in worklike settings; describe failures to adapt to stressful circumstances that cause the individual either to withdraw from the situation or to experience signs and symptoms and difficulties with activities of daily living, social relationships, and concentration, persistence, and pace. Describe any decompensation at work, which might involve decisions, attendance, schedules, completing tasks, interactions with supervisors, and interactions with peers.25

It is suggested then, that if your client is suffering from a mental and behavioural disorder, the "catastrophic bar" is not nearly as high as may have been originally thought.

A good OT will be of great assistance in assessing the insured's ability to function in the four different spheres. It has also been suggested to determine an insured's deterioration or decompensation in work-like settings, an actual return to work trial should be completed. Additionally, an assessment of activities of daily living, should include 1 -2 full days of actual activities - laundry, cleaning, grocery shopping etc. It is only full, real-world assessments that will give you the true picture of the severity of the mental and/or behavioural impairment(s).

GLASGOW COMA SCALE SCORES

On a plain reading, it would appear that if a GCS score is noted "within a reasonable period of time, by a person trained for that purpose", the insured would easily be deemed "catastrophically impaired. Not so. As noted previously, The relevant section of the legislation is as follows:

(1.2) For the purposes of this Regulation, a catastrophic impairment caused by an accident that occurs after September 30, 2003 is,

i) a score of 9 or less on the Glasgow Coma Scale, as published in 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 reasonable period of time after the accident by a person trained for that purpose26

There are a few cases that have analyzed the above definition.27 CAT Experts have attempted to qualify all of the above mentioned terms including the phrase "reasonable amount of time", and have used the words "valid and reliable" as modifiers of GCS scores. These attempts have been consistently rejected by Arbitrators and the Director's Delegate. CAT experts have also tried to indicate that GCS scores were not valid and reliable because they may have been "confounded" by other factors such as intubation, paralyzing drugs, raccoon eyes, seizures etc.

Director's Delegate Evans noted

I agree with the arbitrator. Again, to return to the definition, "catastrophic impairment" means brain impairment that, in respect of an accident, results in a score of 9 or less on the Glasgow Coma Scale. None of the other provisions of the definition require a forecast of the insured's future condition, so it is unclear why a forecast should be part of the GCS test.

The definition on its face requires that the low scores result from a brain impairment, and accordingly the "reasonable period of time" requirement focuses on that point and not on a forecast. The matter would be different if, for instance, catastrophic brain impairment meant brain impairment resulting from GCS scores of 9 or less taken after a reasonable period of time. However, that would then start to resemble the GOS [subclause e(ii)] test, which does indeed look at the outcome of the insured after six months.28

With respect to the issue of reasonable period of time:

Furthermore, the facts in Fletcher were very different from those in this case. First, the applicant in that case recovered very quickly. As Keenan J. put it in Holland: "In Fletcher the issue was the consideration of a GCS score higher than 9 six minutes after a score lower than 9. That is not the case here. I also note that Mr. Young continued to have low scores after the first hour, but the arbitrator did not rely on them because of problems with the record and the additional complexities in interpretation that she referred to. Second, the arbitrator in Fletcher found that "a reasonable period of time" was in a half hour of the accident. Here, the arbitrator considered that an hour was a reasonable period. Third, the arbitrator relied on a CAT DAC manual that had been revised to instruct assessors to apply their judgment in determining and setting out in their report what constituted "a reasonable period of time after the accident by a person trained for that purpose." However, the current manual simply states that the CAT DAC should formulate an opinion on the claimant's catastrophic status based on this file review in accordance with the SABS definition. For all these reasons, I find Fletcher distinguishable.29

Fletcher v. Unifund (unreported), Holland and the Young decisions all tried to determine "reasonable period of time" and dealt with "confounding" issues related to the GCS scores. They also discussed the "valid and reliable" issue, of whether alcohol and other issues would make GCS scores invalid for the purposes of determining a catastrophic impairment30.

The most recent FSCO decision that discusses GCS scores, is the Tournay decision. Arbitrator Kominar is the first trier of fact to review the Graham Teasdale and Bryan Jennet, "Assessment of Coma and Impaired Consciousness,"31 and Bryan Jennett, "Development of Glasgow Coma and Outcome Scales"32.

Aribtrator Kominar notes:

The Schedule, in specifying the criterion for a catastrophic impairment determination under section 2.(1.1)(e)(0, explicitly indexes the interpretation of the GCS score to the medical use of the test, as it is described in The Management of Head Injuries, by Dr. Jennett and Dr. Teasdale (Contemporary Neurology Series, Volume 20, F.A. Davis Company, Philadelphia, 1981 ) . There is no distinct "legal" or "insurance," or "forensic" interpretation of the GCS apart from its articulation in this text. It is not intended to be administered in the manner of an insurer's examination by someone retained to give the insurance company an independent opinion on neurological function. The GCS is a clinical test pure and simple. Thus, if a medically appropriate GCS test registers a score of "9 or less" within a reasonable time after the accident, where the brain impairment as a result of the accident is not contested, then, in my view, that must be taken as satisfying section 2(1.1)(e)(0. of the Schedule. There is simply no further legal filter which the test needs to pass through to validate its results [Emphasis Mine].

... The only plausible and reasonable inference to draw here is that Ms. Toumay was in a period of rapid neurological decline after this accident which resulted in her acknowledged brain injury and impairment. I find that the GCS scores registered here were "valid", in that I have nothing before me that would persuade me to agree with Dr. Becker that all of the medical professionals in Hamilton were incorrect in how they recorded GCS scores. And this conclusion is further supported by Dr. Becker's own evidence that the GCS scores were "perfectly valid" for medical purposes. If the scores, as recorded, were perfectly valid for medical purposes, then they are perfectly valid for purposes of the Schedule. [Emphasis Mine].33

This can reasonably lead to the conclusion that one should not attempt to "fit" other issues into GCS scores (such as intubation, alcohol intake, raccoon eyes etc. ) with respect to GCS scores that have been taken within a "reasonable period of time". If the insured's GCS scores were "valid for medical purposes", and occurred as a result of brain impairment that resulted in a GCS score of 9 or less, and were taken within a "reasonable period of time", the insured should be deemed catastrophically impaired.

DATE OF CATASTROPHIC IMPAIRMENT

There are only two decisions that speak to this particular issue. One is the Lee34 decision, and the other is the Michalski35 decision.

Arbitrator Ashby found that the date of the appropriate doctor's note was the date that Ms. Lee was deemed catastrophically impaired

"...Therefore, I find his note of January 5, 2003 does not meet the test set out in subsection 2(2)(a) of the Schedule..."

Dr. Wallani, in his report of April 1, 2003, states: "...probably it is going to be a very long time before she is able to return to any normal semblance of life in coping, if it ever happens." I interpret this written statement as meaning that Mrs. Lee's condition has stabilized and is not likely to improve with treatment prior to the third anniversary of the accident, August 21, 2000. I therefore find that Mrs. Lee is deemed to have been catastrophically impaired from April 1, 2003 onward.36

Arbitrator Alves came to a different conclusion in the Michalski decision.

In my view, absent disputes as to whether the scores were administered within a reasonable period of time post-accident, or as to whether the person or persons who administered the test were trained for that purpose, Mrs. Michalski's catastrophic impairment was immediately apparent.

Wawanesa did not raise either dispute or offer evidence to the contrary at the arbitration, or at the CAT DAC. I infer that Wawanesa has no evidence to the contrary. I find that on the day of the accident, Mrs. Michalski met the definition of catastrophic impairment as a result of brain impairment pursuant to subsection 2(1)(e)(i) of the Schedule.

I find Wawanesa knew Mrs. Michalski was catastrophically impaired at the outset and acted on that knowledge, in some respects. I find Wawanesa acted on the basis that Mrs. Michalski was catastrophically impaired when it hired Ms. B. Whittingham as case manager on or about October 30, 2001, because under section 17 of this Schedule, only persons who sustain a catastrophic impairment are entitled to such services.37

Declaring from the outset of the file, that the insured takes the position they are catastrophically impaired, may save controversy over this issue at a later time. Further, the insurer's actions (as in Michalski) may also present a solid foundation for claiming a specific date in time for when one is actually catastrophically impaired.

CASE MANAGEMENT SERVICES

Having a case manager on a file that is potentially or most likely a catastrophic file, is a gift. A good case manager will "take the bull by the horns", and basically take the accident benefits portion of the file out of your hands, implement the rehab team, and provide you with all necessary updates and recommendations for the treatment. Further, the Case Manage will schedule team meetings or family conferences. These meetings give you an up to date status of your client's condition, progress, and problems they are encountering. Further, a good case manager can and will assist in obtaining necessary medical information and updates, and further, assisting your client with expenses and facilitating the completion of treatment plans.

Requesting a case manager at the beginning of a file will indicate to the AB insurer that the file is most likely a catastrophic file.

CONCLUSION

An early determination is necessary as to whether the insured's file is CAT or non-CAT. Implementation of a good rehab team is necessary for the insured to obtain maximum medical recovery.

Use the Schedule to your advantage. Have the appropriate health care practitioner complete an OCF-19, and submit it to the insurer. The insurer should then arrange all of the necessary assessments. It is important to take note of your client's injuries and impairments and ensure that the assessors are reviewing all impairments. If your client's heart condition deteriorated after the accident, ensure they are being assessed by an expert in cardiology or respirology, and that the expert has knowledge of the AMA Guides. If your client has dental injuries or dietary impairments as a result of the accident, ensure the insurer has a arranged a nutritional assessment with the proper assessor, as well as a dental assessment with a dentist, orthodontist, or maxillofacial surgeon. Failure to raise these issues will make it difficult for your own CAT assessors to comment on these impairments when they complete their rebuttals.

It is important to simply submit the OCF-19 and let the insurer have their assessments first. You can therefore retain whoever you want to complete the CAT determination rebuttal under section 42.1 of the Schedule. Without a ceiling on the costs of the rebuttal, the insured's CAT expert team will be able to obtain just as many necessary assessments for their own assessment.

It is important that an insured's whole person be evaluated. It is important to be inclusive rather than restrictive when evaluating the whole person.

In again recalling what I find to be the most compelling evidence before me, Dr. J. McCall's words that "it is important to deal with the person as a whole and not just focus on the individual injuries," I conclude that this young woman has, as a result of the August 1998 accident, unfortunately indeed sustained a catastrophic impairment as defined by paragraph 2(1)(0 of the Schedule.38

NOTES

3 OCF-19 - Application for Determination of Catastrophic Impairment.

4 Supra, note 2, at s.2.(1.1) - (3).

5 Supra, note 2, at s.2(1).

6 Insurance Act, 1990, R.S.O. C.I.8., see s.267.5(3).

7 Superintendent's Guideline No. 03/07 - Professional Services Guideline, June 2007.

8 AMA Guides to the Evaluation of Permanent Impairment 4th ed. [AMA Guides]

9 Ms. G. and Pilot Insurance, FSCO A04-000406, March 16, 2006, Arbitrator Blackman. Currently under Appeal. Appeal heard January 5, 2007 before Director's Delegate Makepeace, decision not yet released. [Ms. G.]

10 Ibid.

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]

14 B.P. and Primmum Insurance Co., FSCO A05-001608, December 31, 2006, Arbitrator Blackman.

15 Ibid.

16 Supra, note 9.

17 Supra, note 9.

18 Supra, note 13, para. 258.

19 Supra, note 13, para. 249.

20 Supra, note 13, at para 250.

21 David McMichael and Be/Air Insurance Company Inc FSCO A02-001081, March 2, 2005, Arbitrator Muir [McMichael].

22 Ibid.

23 Supra, note 13, at para. 129

24 Supra, note 21.

25 Supra, note 8, at page 14/299.

26 Supra, note 4.

27 Howard Young and Liberty Mutual Insurance Company, FSCO A02-000695, November 14, 2003, Arbitrator Allen. Upheld on Appeal, FSCO P03-00043, June 20, 2005, Director's Delegate Evans [Young]. See also Holland v. Pilot Insurance Co., 2004 CanLII 13787 (ON S.C.), /Holland]. Veronica Toumay v. Dominion of Canada General Insurance Coampny, FSCO A05-000507, July 20, 2006, Arbitrator Kominar [Tournay].

28 Ibid - Young.

29 Supr, note 27, Young.

30 See also Effect of Alcohol on Glasgow Coma Scale in Head-Injured Patients, Annals of Surgery, Volume 245, Number 4, April 2007, Dr. Lance Struke, MD et al.

31 Graham Teasdale and Bryan Jennet, "Assessment of Coma and Impaired Consciousness," The Lancet, July 13, 1974.

32 Bryan Jennett, "Development of Glasgow Coma and Outcome Scales" 2 Nepal Journal of Neuroscience (2005).

33Supra, note 27, Toumay

34 Rozana Lee and State Farm Mutual Automobile Insurance Company, FSCO A03-000181, February 3, 2006, Arbitrator Ashby. Decision currently under appeal.

35 Maria Michalski and Wawanesa Mutual Insurance Company, FSCO A03-001363, December 13, 2005, Arbitrator Alves. Decision currently under appeal.

36 Supra, note 34.

37 Supra, note 35.

38 Supra, note 9.