Accident Benefit Reporter Volume 10, Issue 2

In this issue:

"Special Survivors Edition"

Injured people and their families are often devastated by a car accident.

Take the case of the Leitis family. Mother, daughter and grandson were standing on the sidewalk when things changed forever. Mother and grandson suffered severe orthopaedic injuries and severe traumatic brain injury. Daughter was killed. In the extremely difficult times that followed for the entire family, not only in coping and adjusting to their terrible losses, but also in navigating the challenging and complex insurance system. I am pleased that we were able to help the Leitis family access all of the services needed during the rehabilitation process and ultimately receive the compensation to which they were entitled. My best wishes to them.

Richard C. Halpern
Partner
Thomson, Rogers

Making a Difference in Home Health Care

By: Louise Paterson Sherwood

Imants Leitis, the founder of Q1 Care Management Group, Inc. (Q1 Home Health Care) remembers spending the most memorable Christmas with his family and also the most tragic.

Imants received a call December 30th, 1997, while at work informing him, that, he needed to get to the Hamilton General Hospital immediately, not knowing that his mother, sister of 12 and nephew of seven years of age were seriously injured and fighting for their lives. All three family members were hit by an automobile manipulating the traffic intersection and lights where they stood as pedestrians, as they waited to cross the street in downtown Hamilton, Ontario. Imants’ sister died at the scene while his mother and nephew sustained serious and catastrophic injuries. Imants’ mother and nephew’s lengthy hospitalization period were now approaching patient discharge home with significant cognitive and physical deficits as a result of the accident. Once home, Imants’ became aware of the many challenges and special needs created by this relocation. They ranged from around the clock home and attendant care, rehabilitation support to household modifications. Imants and his family were suddenly dealing with the unimaginable: Finding the best possible home health care for his mother and nephew. Imants and his family entrusted the welfare of his mother and nephew to home health care providers they believed would care for them when he was away working and unable to be there. Imants was distressed to realize the quality of care being paid for was not being delivered on a consistent basis. Imants says:

Here was my mother and nephew with what doctors had assessed as significant head and body injuries. I work miles away in another city, and I was totally dependent on home health care providers to help with their basic needs. I found out the care providers were not doing what they promised. In addition, I discovered the care providers were not adequately trained to work with such a serious form of injury, there was little accountability, and there was so much staff turnover it was difficult to have confidence that my relatives were receiving a consistent quality of care that would support them. It was then that I realized that my family and everyone else’s family deserves and needs quality home health care that they can trust, and it was difficult to find.

It is said that necessity is the mother of all invention. At the time of his family’s accident, Imants was not considering a career change. However, after a number of years of experiencing the repeated challenges with several care providers, Imants realized that something needed to be done. Driven to finding a solution, Imants drew upon, some of his past experiences in logistics, management, and military to create Q1. At the time Imants had only set out to better understand, and find a solution to improving the quality of home health care services. Initially it was all for his family, however upon recognizing that there were other families who had the same needs Imants began to branch outward. Imants created Q1 (Q1 Home Health Care) based in Stoney Creek, Ontario and continues to make positive changes to the way home health care is administered. Q1 has matured into a recognized care provider with a strong commitment towards service. Imants obtained additional education specifically from the Ontario Brain Injury Association and Canadian Association of Mental Health, and self study to further his understanding about clients and there challenges, and how best to care for this not very well known injury and specific group of individuals. Imants emphasizes:

I focus on learning what works well from the overall and clients’ perspective, especially what assists individuals and their family to feel more comfortable and does not contribute to the suffering. Q1 is a company I created to raise the bar, dedicated to providing superior home and community care to all individuals and families, simply because everyone deserves it. My own personal experience and what I knew our family needed was the catalyst for creating Q1 Home Health Care. Our mission and promise is to provide all our clients with compassionate care and support services while maintaining the highest professional standards. We measure our success by our ability to deliver consistent service with accountability, respect and compassionate attention to people’s needs.

Imants Leitis has researched and experienced the pain and difficulties of home health care: He gets it. Imants possesses a level of insight and caring for people which is expressed with ease when he speaks about his family, clients and staff:

I am blessed that my mom and nephew came through the accident and lived. I know that it is the care people receive during their time of need which contributes significantly to the emotional and physical health of the individual and family. I know that family members are not always able to provide the quality of care a loved one needs. Family is most important and it is a priority for Q1 to provide competent and reliable support to all families. It can be very stressful when a family member needs home care. Q1 seeks to reduce the amount of unnecessary and added stress experienced by families, working closely to help ease the burden for everyone. I find deep satisfaction in helping people, and emphasize the importance and value of this in our client care role to all supervisors and frontline staff. I know what would have made a difference for my mother and nephew, and I am intent on continuing to build a company that fulfills its mission.

Imants recognized that in providing quality home health care it is essential to train, manage, support, and continuously mentor staff. Q1 support staff must be flexible in providing a broad range of services in a variety of settings. Q1 is focused on providing above average care. Q1’s commitment to clients and families ensures that each person receives compassionate care that works towards making a positive difference in difficult circumstances. Education is, of course, an on-going process as well as essential to understanding the clients’ injury and specific care needs. Q1 ensures that, all their staff, has a baseline certification and provide additional training for their specific roles, such as certified personal or community support worker, or registered nurse. Q1 and staff, specialize in supporting the physical, cognitive and emotional needs of the client.

Imants says:

I remind my staff, that the individual they are providing care for is not just a client; they are someone’s mother, father, brother or sister. Q1 has a caring team that is able to relate, and understand the challenges associated with maintaining appropriate boundaries and professionalism with clients. In the Q1 world we ensure that we maintain tracking forms that supports our need for client care awareness, their progress and changing needs. Our communication systems and concepts are one of several ways that we are kept informed weekly and ongoing communication with our Support Staff, and clients through regular use of our documentation and of any health or other related changes. We believe in adding value to client services, with the ability to respond in a proactive manner, using best practices, and maintaining quality control. Our staff appreciates the accountability, training and mentoring we provide, and the results show in their effectiveness, high client satisfaction and our high retention rate of staff.

Q1, Home Health Care, is all about caring for people 24/7. Q1 provides its clients with personal support workers for complex injury care needs, which include brain and spinal cord injuries. Also provided are rehabilitation support and assistance, home support, personalized and compassionate care for individuals including eldercare and respite. Imants says:

I am always seeking to enhance the value of Q1 services. Q1 is launching an online brain injury community forum in December 2008 for people who are involved in any stage of dealing with a brain injury, from outreach, to sharing strategies, or learning about home health care, and to have access to supportive advice. I am honoured to host this community that will help people communicate with ease and find answers to questions. There are a lot of emotions and issues that people experience and plenty of questions that people want to find answers for. This online community is created to help people connect, find answers to their questions, share their scenarios and challenges and present solutions and ideas for those that live with these challenges daily. I am very excited about how I know this online community will evolve. It’s easily accessible and there is no cost. The online forum is an excellent place to share with like-minded individuals. At Q1 we have a great capacity to care and we are compelled to do what we do as we continue innovating and improving the quality of our services along the way.

For more information about Q1 Home Health Care
Call toll free 1-877-318-1335
Visit on the Web- www.q1cmg.com

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Repairing the Catastrophic Impairment GCS Test

By: Darcy Merkur
Partner
Thomson, Rogers

No longer will head injury victims with depressed Glasgow Coma Scale (GCS) scores following a motor vehicle accident be denied access to the over $2,000,000 in accident benefits available to those suffering a ‘catastrophic impairment’.

In the recent decision in Liu v. 1226071 Ontario Inc., (2009) ONCA 571, the Ontario Court of Appeal made it absolutely clear that a single GCS reading of 9 or less taken within a reasonable time following a car accident will meet the legal test of whether a claimant has suffered a ‘catastrophic impairment’ so long as the depressed GCS reading is related to a brain impairment and is taken by someone trained to administer the test.

This pivotal decision by the Ontario Court of Appeal, released July 17, should put an end to an unfortunate trend of benefit denial and delay that developed following the lower court decision in Liu in April of 2007.

The issue of whether a claimant has suffered a ‘catastrophic impairment’ has for some time been the primary issue of contention in accident benefit claims in Ontario due to the enormous financial significance of the decision. Anyone suffering a ‘catastrophic impairment’ following a car accident is eligible for close to an additional $2,000,000 in accident benefits (specifically, an additional $928,000 in attendant care benefits, an additional $900,000 of medical and rehabilitation benefits, entitlement to housekeeping and home maintenance benefits of up to $5,200 per year for life as opposed to for two years only and enhanced visitor’s expenses). Furthermore, those suffering a ‘catastrophic impairment’ are entitled to immediately appoint a case manager to act as their rehabilitation quarterback and to help facilitate their timely recovery.

In Liu, the plaintiff was a pedestrian hit by a car back on April 9, 1999. The plaintiff struck the windshield of the vehicle and was thrown over the top of the car and into the road. The ambulance attendant on scene measure the plaintiff as having an initial GCS of 3 out of 15, then 8 of 15, but within 40 minutes of the accident, the plaintiff’s GCS reading was 12 and rising.

Because this tort action was governed by the older Bill 59 Ontario automobile legislation, the plaintiff was only eligible to sue the at-fault driver for his future care costs, and collect the jury award of $865,000 for future care costs, if he had suffered a ‘catastrophic impairment’. In the lower court decision, Justice Blenus Wright of the Ontario Superior Court of Justice considered whether or not the plaintiff suffered a "catastrophic impairment" by virtue of his initial GCS reading, pursuant to the materially unchanged definition in what is now section 1.2(e)(i) of the Statutory Accident Benefit Schedule.

The test set out in s.1.2(e)(i) is whether the person suffered a, "…brain impairment that, in respect of an accident, results in, a score of 9 or less on the Glasgow Coma Scale…according to a test administered within a reasonable period of time after the accident by a person trained for that purpose."

In deciding that the plaintiff did not suffer a ‘catastrophic impairment’, Justice Wright recognized that the plaintiff suffered a brain impairment but focused on the fact that the plaintiff’s GCS level had improved to above 9 within 40 minutes post accident and that the plaintiff had made a good recovery. Justice Wright even noted that a psychologist report mentioned that the plaintiff was capable of making complex decisions, including making all of his travel arrangements for two trips to China.

As a result of the lower court decision in Liu, insurers were empowered to challenge the ‘catastrophic impairment’ designation based on GCS readings by arguing that the claimant’s GCS levels had improved quickly post accident and/or that the claimant was on the road to a good recovery. As a result, numerous disputes arose over the ‘catastrophic impairment’ designation and, in the interim, head injury claimants often faced uncertainty in their rehabilitation options, were denied case management services and were denied access to the enhanced $6,000 per month in attendant care benefits.

In Liu, the Ontario Court of Appeal clarified that the GCS test for ‘catastrophic impairment’ is a legal definition, not a medical test, and that the victim’s recovery is irrelevant to the analysis. Justice Jean MacFarland of the Ontario Court of Appeal wrote, "Provided there is a brain impairment, all that is required is one GCS score of 9 or less within a reasonable time following the accident."

In Liu, the Ontario Court of Appeal repairs one hole in what the court describes as the patchwork Ontario automobile legislation.

Darcy Merkur is a partner at Thomson, Rogers in Toronto practicing plaintiff’s personal injury litigation. Darcy has been certified as a specialist in Civil Litigation by the Law Society of Upper Canada and is the creator of the Personal Injury Damages Calculator.

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Vehicle Modification And Purchase

By: David Tenszen
Partner
Thomson Rogers

Pursuant to the Statutory Accident Benefits Schedule, people who sustain an impairment as a result of an accident may be entitled to claim rehabilitation expenses for the costs associated with modifying or purchasing a vehicle to accommodate their mobility needs caused by their impairment.

Pursuant to sub-section 15 (5)(j) of the SABS, the rehabilitation benefit shall pay for all:

"Vehicle modifications to accommodate the needs of the insured person, or the purchase of a new vehicle if it is more reasonable to purchase a new vehicle to accommodate the needs of the insured person than to modify an existing vehicle."

Pursuant to sub-sections 15 (9) and (10) of the SABS, such expenses cannot be incurred more frequently than every five years. Also, the amount to be paid for purchasing a new vehicle shall not exceed the cost of the new vehicle less the trade-in value of the insured persons’ existing vehicle.

Usually, vehicle modification or purchase becomes an issue in catastrophic cases (paraplegia, quadriplegia, etc.). However, even in non-catastrophic cases expenses can be incurred and benefits claimed for vehicle modifications. Non catastrophic neck or back injuries could result in a need for modifications such as special mirrors to allow for a full range of vision where motion is restricted. Alternatively, special seats may be required to allow for comfort or pain relief while driving. Such claims may be rather modest in value. However, in catastrophic cases, the cost of purchasing a fully accessible wheelchair van can be quite significant and these claims can well exceed a value of $50,000.00.

With such significant amounts at issue, insurers have attempted to argue that the purchase of a motor vehicle represents a wind-fall or capital gain to the insured. Therefore, ownership of the vehicle should remain with the insurer (see Plows v Jevco Insurance [1992] O.I.C.D. No.1). However, as with other expenses incurred (for example, for crutches, wheelchairs, home modifications or home purchase) it was held by the Arbitrator that the insured person does receive title to the asset. Given that the amounts paid for such benefits reduce the limits available for other similar benefits this does make some good sense. Also, it does give the insured person control over the repair or sale of the asset in the future.

As with other rehabilitation benefits, an application for benefits for vehicle modification, or purchase, should be made through the use of a Treatment Plan. As a result, medical support for incurring the expense is required. Most often, the assessment of the need is performed by an Occupation Therapist and the plan is certified by another Health Care Practitioner. Once a Treatment Plan is submitted it is subject to the usual approval process, including being subjected to an Insurer Examination.

Since the SABS speak of "vehicle modifications" and not "motor vehicle modifications" it is important to remember that, in appropriate circumstances, vehicles other than motor vehicles may be the subject of modification or purchase. In the case of Welsh v Economical Mutual [2003] O.F.S.C.I.D. No.148 the Director of Arbitrations approved an Arbitrator’s award for the purchase of a new boat and snowmobile for an insured at a cost of approximately $75,000.00 (less the trade-in value of his existing boat and snowmobile). In this case, the insured resided on an island in Lake Muskoka and had suffered a serious back injury. Evidence was led that his existing boat and snowmobile did not provide sufficient shock absorption. The purchase of a new boat and snowmobile with better suspension/shock absorption would provide for his comfort and minimize pain exacerbation while travelling. The expenses incurred were reasonable because they would allow the insured to enjoy the mobility that he had prior to his accident. Similar claims could also be made with respect to farm tractors, ATVs and even bicycles (which are "vehicles" under the Highway Traffic Act).

In every case it is important to ensure that experienced professionals are involved in the process, including the company who will perform the modifications or provide the newly modified vehicle. Referrals to appropriate companies can be obtained through associations such as the Canadian Paraplegic Association or the March of Dimes. Many Ontario companies are also members of the National Mobility Equipment Dealers Association which provides a useful listing of its members on its website (http://www.nmeda.org).

A motor vehicle accident need not result in an accident victim being imprisoned in their own home. By accessing the benefits available for "vehicle" modification or purchase through the SABS an accident victim can enjoy the same freedom of mobility that they enjoyed before the accident.

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About Attendant Care:
With Martha Binstock B.Sc.P.T. CLCP of REHABilitation Planning Inc.

This is a continuation of the article published in the November 2008 Accident Benefits Reporter entitled Part 1: History of the Form 1 (SABS) – Bill 164. In response I received several enquires and am developing a list of topics to discuss, with legal input, in subsequent articles, after I have completed the History of the Form 1 series.

In keeping with the theme of this issue being "survivors", the highlighting of attendant care as an important topic takes into account the importance of family members in the recovery process for our clients. Acknowledging that an injury to a family member affect everyone involved.

Part 2: HISTORY OF THE FORM 1 (SABS) – Bill 59

November 1, 1996, Bill 59 came into effect and while there were many changes, the need to use the Form 1 to express attendant care remained consistent. There was no longer a maximum of $10,000, only $3,000 for noncat cases and $6,000 for cat cases. There was an overall limit of $1,000,000.

The Form 1 itself did not change from the Bill 164 Form,
however the values in Part 1, 2 and 3 did change. They were: Part 1: $9.00 | Part 2: $7.00 | Part 3: $15.00

These were also subject to indexation. The FSCO website under Property and Casual – Auto Bulletins. A-07/07: 2008 Indexation Percentage under Bill 59/198, 2008 Indexation Percentage and Revised Deductibles/ Monetary Amounts under Bill 164 provides the following:

The indexation percentage for Bill 59 and Bill 164 claims reflects the yearover- year "Consumer Price Index for Canada (All Items)" from September 2006 to September 2007, as published by Statistics Canada.

Indexation under Bill 59/198

The 2008 indexation percentage is 2.5 per cent. It is applied in accordance with the "Optional Indexation Benefit Guideline" dated October 28, 1996. Under Bill 59/198, indexation applies to named insureds, spouses of named insureds, dependants of any of these and specified drivers, if the optional indexation benefit was purchased.

I think that means as clinicians, if an accident occurred between November 1, 1996 and October 1, 2003 we are to fill out the appropriate Form 1 always using the above rates regardless of what year it is. The insurer/lawyer will figure out if the amount should be indexed and do the necessary calculations.

If you have any questions regarding the above or would like to make a comment which can be considered for further articles, please contact me at rehabplan@rogers.com.

Next Article: Part 3: HISTORY OF THE FORM 1 (SABS) – BILL 198

If you have any questions regarding the above or would like to make a comment that can be considered for further articles, please contact me at rehabplan@rogers.com.

The material in this newsletter is provided for the information of our readers and is not intended nor should it be considered legal advice. For additional copies or information about "Accident Benefit Reporter", please contact Thomson, Rogers.

If you have any questions regarding the articles in this issue of the Accident Benefit Reporter, please contact the following authors:

Richard C. Halpern
rhalpern@thomsonrogers.com

Darcy R. Merkur
dmerkur@thomsonrogers.com

David R. Tenszen
dtenszen@thomsonrogers.com

Martha Binstock
rehabplan@rogers.com

"Accident Benefit Reporter" is a publication of Thomson, Rogers, Barristers and Solicitors

Suite 3100
390 Bay Street
Toronto, Ontario M5H 1W2

Tel 416-868-3100
Toll Free 1-888-223-0448
Fax 416-868-3134

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Posted: November 1, 2009