A summary of proposed changes to the definition of Catastrophic Impairment

Anyone injured in an auto accident is entitled to claim accident benefits to help pay for expensive therapies, rehab, personal care, and related treatments. The ability to advance a claim depends entirely on the severity of the injury. Right now there are three levels of coverage – minor injury, serious injury, and catastrophic injury. Future postings will deal with the first two categories, but this post is intended to discuss catastrophic impairments and the changes that have recently been recommended by Phil Howell, the CEO and Superintendent of the Financial Services Commission of Ontario (which I’ll simply call the FSCO report), to the Minister of Finance, the provincial politician who is responsible for overseeing auto insurance in Ontario

On June 12, 2012 the Minister of Finance, under great pressure to do so, finally released the FSCO report, something that had sat on his desk since December. The FSCO report recommends changes to the definition of catastrophic impairment. These changes, if adopted, will make it more difficult to receive the enhanced level of accident benefits that are meant to help those with the most serious of auto accident injuries. The FSCO report is detailed and lengthy, but several of the most important proposals that would restrict coverage are outlined below.

Paraplegia and quadriplegia

The FSCO report recommends use of the American Spinal Injury Association (ASIA) classification system. This is not part of the current test. There are numerous new criteria that have been suggested, described as “an autonomous screening system” that an injured person would have to meet in order to qualify for catastrophic status, no matter what the diagnosis or the extent of the injury to qualify. The test will be more complicated, more restrictive, and less able to deliver needed benefits to injured spinal cord victims.

Brain Injury

Right now there is an easy test used by every paramedic, trauma nurse, and doctor to assess the brain function of patients. It is called the Glasgow Coma Scale (GCS). A fully alert and normal person would register a score of 15/15. When someone suffers a brain injury their GSC declines. The lowest GCS that is possible is a score of 3/15 (after that it is death).

The current test provides that a reading of 9 (when conducted within a reasonable time following a crash, and recorded by a person appropriately trained to administer the test) automatically qualifies the accident victim as having a catastrophic impairment. This has been the test for more than 15 years. Courts, including the Court of Appeal, have interpreted the meaning and application of this test. The rules are now well understood. It is a quick, effective, and appropriate way to immediately determine whether someone qualifies for the enhanced level of benefits available to the most seriously brain injured claimants.

The FSCO report recommends that use of the GCS be eliminated. In its place, it is suggested that a more complex tool, known as the Extended Glasgow Outcome Scale (GOS-E), be used. The timeline recommended by the FSCO report would create a minimum delay in using the GOS-E ranging from one month (if the person is in a vegetative state) to one year (moderate disability). No longer would the simple and immediate GCS test apply.

Impairments related to 55% of the whole person

Currently there is a catch-all category that can be applied when no other specific category establishes that a person has a catastrophic impairment. If an individual has a combination of impairments that, according to well understood testing protocols, results in that person having 55% impairment of his whole person, the test for catastrophic impairment will be met. Courts, including the Court of Appeal, have established that it is fair and appropriate to look at not only all the physical impairments that the person has, but also all the psychological or emotional problems, in combination with the physical – in that fashion, the “whole person” can be assessed.

The FSCO report makes several troubling recommendations. First, it says that a claimant should not be allowed to combine his physical impairment with his psychological impairment – he must be impaired to 55% of his whole person based on his physical impairments alone. Second, it is recommended that pain be excluded from the rating system (which is currently allowed) so that people with severe, intractable, chronic pain must establish other areas of disability. Third, it is proposed that the whole category of disabilities known as chronic pain syndromes, fibromyalgia, and chronic fatigue be essentially excluded from consideration.

Psychiatric impairments

The FSCO report recommends dramatic changes to the way that people who suffer from a psychological or psychiatric impairment would be assessed.

The proposed changes outline a series of diagnoses a person would have to meet, failing which they could not be classified as catastrophically impaired. The current system has no such requirement and instead focusses on functional capacity, rather than diagnostic labels. The recommendation creates much room for debate, discussion, and denial, in the psychological realm of injury.

The FSCO report also proposes the use of the GAF (Global Assessment of Function). This is a subjective test which scores individuals on a scale from 1 to 100, with 100 being perfectly normal psychological functioning. A GAF score of 40 is very low but would be the target score in order to meet the test for psychiatric impairment. It is low enough that it would be much more difficult to meet the new test than is currently the case.

The language used in these proposed changes is complicated, wordy, and unworkable. It will not help to streamline applications or ensure that needy claimants meet the test. It is unlikely the average policyholder or even broker would understand the language in the test or what is required.

What to do?

None of these changes has been enacted into law. Consider speaking to your MPP to express your concern about the proposals. Consider writing your own letter of concern to your local newspaper. Circulate this blog to your friends and family, to make them aware. Send a letter to the Minister of Finance, Dwight Duncan, demanding him not to implement the FSCO report changes.

Andrew Murray is a personal injury lawyer at the London, Ontario law firm, Lerners LLP and practices plaintiff personal injury litigation. Andrew’s personal injury practice includes assisting people injured in motor vehicle accidents, accident benefits cases, catastrophic injuries, orthopaedic injuries, brain injuries, spinal cord injuries, and other injury cases. See Andrew’s professional biography for more information about his work in the area of plaintiff personal injury law or contact him at 519-640-6313 or by e-mail at amurray@lerners.ca.

The content contained in this blog is intended to provide information about the subject matter and is not intended as legal advice. If you would like further information or advice please contact the author.

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