1 part marked impairment + consideration of 3 domains of function = Catastrophic Impairment

Stacey Stevens's picture
Submitted by Stacey Stevens on October 26, 2011

The criteria required to meet the statutory definition of catastrophic impairment remains unsettled.  The Court of Appeal is set to hear the appeals in Pastore v. Aviva and in Kusnierz v. The Economical Mutual (rejecting the combination of physical and psychological impairments to achieve 55% WPI) later this year. 

On October 23, 2011, FSCO released its first decision with respect to meeting the statutory definition of catastrophic impairment under then section 21(2)(g) of the SABS following the Divisional Court’s reversal of the arbitration decision in Pastore v. Aviva in May 2011. 

In Pastore, Director’s Delegate Blackman found that 1 marked or extreme impairment in 1 of the 4 domains of function set out in section 21(2)(g) of the SABS is sufficient to find a person catastrophically impaired.  Section 21(2)(g) of the SABS states:

(2)  For the purposes of this Regulation, a catastrophic impairment caused by an accident is,

 (f)  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.

The four domains of function as identified by the American Medical Associations Guides are:

  • Activities of Daily Living;
  • Social Functioning;
  • Work Adaptation;
  • Concentration, Persistence and Pace.

In Mr. C v. Coachman, Mr. C was injured in a car accident on December 1, 2006.  Mr. C was diagnosed with a small disc herniation at L4-5 impinging on the left L5 nerve root and L5-S1 with moderate spinal stenosis, major depressive disorder (severe intensity), chronic pain and driving phobia.  Mr. C was employed as a stucco plasterer.  He was unable to return to work after the accident.

Mr. C subsequently applied for catastrophic impairment.  The OCF-19 was completed by Dr. Henry Rosenblatt, psychiatrist, who rated Mr. C as follows:

  • Activities of Daily Living – moderate impairment;
  • Social Functioning – moderate to marked impairment;
  • Work Adaptation – marked impairment;
  • Concentration, Persistence and Pace – moderate impairment.

Based on the foregoing, counsel for Mr. C took the position that he met the definition of catastrophic impairment based on being found to have a marked impairment in 1 of the 4 domains of function.

Coachman hired Dr. Judy Wilkins, psychiatrist and Dr. Kerry Lawson, psychologist to rebut Dr. Rosenblat’s findings.  Dr. Wilkins concluded that Mr. C. was moderately impaired in all 4 domains of function.  Dr. Lawson concluded Mr. C. was mildly impaired in the domains of concentration, persistence and pace and activities of daily living and moderately impaired in social functioning and adaptation.

Arbitrator Miller was highly critical of Dr. Wilkins and Dr. Lawson’s conclusions and found them to be "poor examples of an expert witness" and "strong advocates" for Coachman.  As a result their evidence was rejected in totality.

Coachman argued that in keeping with the Divisional Court ruling Pastore¸ Mr. C. must be found to have a marked or extreme impairment in more than 1 of the four domains of function if he is to be deemed catastrophically impaired.

Arbitrator Miller rejected the insurer’s argument and stated as follows with respect to the applicability of Pastore:

In coming to my decision that Mr. C is catastrophically impaired, I am guided by paragraph 61 of the Judicial Review decision in Aviva v. Pastore.  That is, I am not relying solely on the one marked impairment noted in Dr. Rosenblat’s report dated November 2, 2009.  I am following the direction of the majority decision having found that one marked impairment without considering the other areas of function, is insufficient for finding of catastrophic impairment.

Although Arbitrator Miller followed the ruling in Pastore, based on the evidence of Mr. C’s treatment team and family, he elevated Mr. C‘s rating in Social Functioning to a marked impairment.  This resulted in Mr. C having meeting the statutory definition of catastrophic impairment by having a marked impairment in 2 of the 4 domains of function.

Given FSCO’s interpretation of Pastore, it arguable that 1 marked impairment is sufficient to meet the definition of catastrophic impairment provided consideration is given to the remaining 3 domains.

What are your thoughts?  Is it appropriate for a person to be deemed catastrophically impaired with only 1 marked impairment provided consideration is given to the impairments in remaining domains?

Please post your comments or share your experiences with this on my blogI look forward to discussing this further with you


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Comments [4]

CAT status

My experience in this area has been very frustrating. I have no idea how the courts expect anyone to separate physical problems from psychological problems. They are so inter-related and inter-dependent that it is impossible to separate them completely.
As far as the Marked Impairment issue is concerned, it is at least a bit of a boon to know that 1 marked impairment combined with 3 moderately severe impairments can tip the scales, but how long will this last? The insurers are doing everything they can to punish the victims by denying their claims and forcing things to an ADR system that is so far behind, it may never catch up. No one is suffering here more than the victims and the insurers don't care at all. I have had a number of clients losing their homes, living on welfare and/or having to completely stop their rehab due to lack of funds due to these delays. What started as a system of benefits to help accident victims has degraded to an adversarial system that is worse than what was in place 21 years ago when No-Fault first started.

CAT status

Hi Sandy

Thank you very much for your comment. I am sad to say that your frustration is shared by many. I agree that the physical and psychological impairments are inter-related that it is impossible to fairly separate the two for the purposes of a catastrophic rating. The appeal is being heard in November. The Ontario Trial Lawyers Assoc. has been granted Intervenor status so there will be a good fight put forward. I will be watching the case carefully and will be sending out an update as soon as I have one. If you ever have any questions, please feel free to email or call me.

Take care,

information

Excellent information, Thank you!

Re: Catastropic Impairment.

How many OCF 19's has been completed by Dr. H. Rosenblat in the past? If Mr. C. is determined cat. b/c of Major Depressive Episode, as Dr. Rosenblat stated and of course social functioning would also be impaired, as well as concentration, etc. Therefore 3 of the 4 areas could be combined into 1 area. If the Major Depressive Episode is treated by a Psychiatrist, in a Mood Disorders Clinic, the depression could improve, as well as social functioning, concentration,etc. Dr. Rosenblat does not only see patients with Mood Disorders, but is a general Psychiatrist. Had this man been depressed or treated for depression pre-MVA? Marked impairment with regards to ADL's? Does Mr. C have to have PSW's to bathe him, to dress him, to toilet him, or does he require an attends for his bladder and bowel?? That is marked impairment. Some doctors have only completed 1 or 2 OCF's in the lifetime of their career and if other collegues of his have completed totally different opinions as that of Dr. Rosenblat, then further opinions are required. Even in Dr. Rosenblat's assessment, he only states moderate impairment in 3 out of 4 areas. other opinions went so far as saying mild impairment. I don't see without further assessment, evaluation, etc. from different Psychiatrist and other health care professionals ie: Occupational Therapists, Physiotherapist, Social Work, Rehab Therapist. The use of other health care providers may answer the questions as to Mr. C.'s ADL's , social functioning, etc. It would be shameful to determine Mr. C as catastrophic if in fact anti-depressants, OT (to aid in his ADL's) PT (to aid in his therapy of the back injury and provide pain relief) and Psychiatry/Social Work to also aid in Ind./Fam./Group counseling. The latter should be done only in a Mood Disorders Clinic whereas their training in Mood Disorders is usually superior to a General Psychiatrist who is in a small private practice and has patients that meet any number of psychiatric diagnosis'. If Dr. Rosenblat felt Mr. C. had a Major Depressive Episode, who wouldn't, if they have been in a MVA and of course Mr. C is going to state he is now afraid to drive, well I wouldn't doubt that someone has diagnosed PTSD. Fortunately, he is well enough to drive. That now further astounds me that he is trying for cat. determination. His ADL's cannot be that restricted. Bottom line: Is the Major Depression treatable? If Mr.C is from the area the Clarke Institute would be ideal. If his depression improved, would his concentration, social function, etc. improve? If he does not require PSW's to help in his ADL's but may need some assistance from family or it takes him longer, but it is manageable, is this moderate?? in severity. He drives, but if his depression, concentration, etc., is major or severe, as Dr. Rosenblat stated (not exact words), should he even be driving? He admits himself that he is afraid when he is driving!!! The man has had a MVA. This is unfortunate. But, does that warrant a CAT determination? Yes, he would receive six thousand dollars/month or seventy-two thousand, tax free, every year. Maybe that might help him snap out of his depression. On top of that, would he be able to receive CPP Disability? Disability Tax Credit? It's endless. I would imagine he has been or will receive wage earner's loss benefit for four years. What happens if and when his depression improves. As far as I know, the litigant, will receive the yearly $72,000 dollars a year and then some, without having to prove continuous disability. Unlike, CPP where you do have to provide ongoing medical reports. I believe, once you have been determined CAT, there is no monitoring system as to continuous impairment. I obviously, have not read Mr. C's files or reports and may seem bias. There are too many unanswered questions. I would really like to know how many OCF 19's have been completed by Dr. Rosenblat and is he registered. The latter concern is that some unregistered doctors have completed these forms. If in his lifetime as a Psychiatrist, maybe 32 plus years, and he has only completed less than 5, I would question the expertise in the whole procedure. There is also such a wide gap as to the opinions from the other doctors where Mr. C is described as being mildly to moderately impaired. C's most significant impairment in the Mental Health area. This area of impairment is treatable with medication, thearapy and other therapeutic modalities, as well as a combination of both/all. If improvement occurs, which is a fair assumption, that it is highly possible, than other areas would improve. If he is determined CAT, is he going to come forth and say to the lawyers or Insurance Co. "Hey I am improved, therefore, I don't need that $72,000/yr. I doubt it. I know it takes time before a determination is made, but not because of the impairment, but because it takes time for the Insurance Co., the Lawyers, the Consultants, the Courts(if it has to go that way) and the meetings. If Mr. C's MVA occurred in 2009 and it is almost 2014, that in itself is a big red light. It is in its fifth year and if he wins he will also be pursuing retroactive to the date of the first OCF 19 being completed or he may even try for retro right back to the date of the accident. If a person is CAT, it is usually more obvious and a determination shouldn't take 4-5 years. However, with $72,000/yr. plus. dangling as the door prize, malingering, esp. in the mental health area would not be uncommon. I am not saying Mr.C. would stoop to such levels of abuse and fraud, but some people would push it to the max. The Insurance Co. as well as Mr. C.'s lawyers should have Mr. C. re-evaluated by a Psychiatrist with ample experience who is licensed to complete the OCF 19. Of course, the Insurance Co. should have their Psychiatrists also re-evaluate him. If this man injured his C4-5, why is there no mention of a Physiatrist's report(s). A Physiatrist is trained in this area of Mr. C.'s apparent injury. (the depression apparently was post MVA). The Physiatrist is far more important in assessing Mr. C. injuries and provide a treatment plan and prognosis. There is also no mention of any OT, PT, Rehab Therapist and Social Work assessment. These people will go into the home and assess the home, family, support systems, and any type of devices that may make his ADL's easier. I am sure this has been done, but for this discussion, it would have been helpful to read their reports. I could not imagine that this CAT determination is solely reliant on the Psychiatric reports. If he is determined CAT based on that mostly alone, than this person should definitely not be licensed to drive. If he is so severely depressed and afraid when on the roads, as mentioned earlier, he should not be on the streets. He is a danger to himself and/or others. Would of his "severe depression" caused suicidal ideation and he decides to try and take his life at the wheel of the vehicle, and other motorists are in his way? As Dr. Rosenblat says his concentration is moderate in severity. Is he able to concentrate, however, when he is driving?? Is his depression and concentration therefore, 'selective'?? I hope Mr. C. receives what he is entitled to, only. I am not convinced whatsoever as him being, hands down, CAT. However, there is little info. to base a more intellectual opinion. This determination has been in the process for quite sometime and therefore it has been questionable from the beginning. I hope there are more experienced opinions received or pending. A Psychiatric report(s) is not sufficient and is post-morbid and therefore the other specialists that I referred to, are much more important in making this determination. They have the expertise to determine from a more scientific knowledge base, as to his prognosis re: mobility and abilities to a greater extent. A Psychiatrist cannot give a scientific prognosis on Mr. C. They usually go on what's happening in the here and now. Sure, he's depressed, he had a MVA which affected his C4-5. Hence, a report from a Physiatrist(often referred to as PT docs b/c at first glance it looks like Psychiatrist) PT and OT is essential in making any determination. As mentioned, the depression can be treated with a number of treatment modalities. However, significant cognitive impairment cannot be treated and in this case a person is impaired whereas conversation is non-sensical, tangential, with severe memory loss. Mr. C. does not fall anywhere near this sort of impairment. In fact he is able to carry a conversation, but the pace and concentration is compromised??? Wow, let's determine him CAT. There is also no mention of Mr. C.'s pre-MVA. His history as a person. Did he ever seek psychiatric treatment or was he ever on any medication for anxiety, sleep, mood disorder, pain etc. This too, would be helpful to know. This comment is not meant for Mr. C., however, many people feel that when they are in a MVA it is some sort of entitlement to 'cashing in' on the Insurance Co.'s, especially, if it is not their fault. Many people work with a C4-5 fx. Many people have obstacles due to an illness(s),etc., and they require some additional time to do things or some help in their ADL's and are able to function and work like a totally 'able' person. Many people work who are successfully being treated for Mood Disorders, Schizophrenia, Personality Disorders, and a host of other psychiatric illnesses. Most, are working at regular jobs. However, that's why it is so frustrating when some people are malingerers, fraudulent, or have the sense of entitlement to abuse the system. The Insurance Co. should put into place that people that are determined CAT would have to submit (at there own cost)medical updates as often as the Insurance Co. requests. I have the feeling that many people would not continue to be determined CAT. However, an interesting area to research, however, there would be no research, as of yet. In summary, I would have been able to make a more intellectual comment(s) if other reports were submitted. Based on the Psychiatric information, which also was not detailed, I cannot, in my own opinion, entertain the idea that Mr. C. falls into the CAT Impairment. I have questions as to Dr. Henry Rosenblat's experience in filing an OCF 19. If someone said he has completed at least forty in his 30 plus years of practice, than his experience would not be of question. If he has completed 4 or 5, I would be requesting another opinion. Does he have a license with the Board to complete these forms? Many doctors do not, but complete them anyways. I am also uncomfortable for a Psychiatric evaluation, by him, especially if it was done in one visit, to diagnose a Major Depressive Disorder(I believe he said "severe"). Again, if a determination is being based on Dr. Rosenblat's evaluation, does he also mention in his report the various treatment modalities that can be utilized to improve Mr. C.' depression? Also, if a CAT determination is based on a Major Depression, does Dr. Rosenblat's report suggests that this can most definitely be curable and a temporary illness? I would personally be more interested in the reports from the other medical doctors such as the Physiatrist, Orthopedic, Neurology as well as the highly skilled professionals in Occupational Therapy, Social Work, Physiotherapist, Rehab Therapist, etc. Their reports may be more geared to scientific evaluations based on tests that a person cannot deceive, such as MRI, CT scan X-Rays, etc. As well the above therapist and MD's deal with people who have injury to the spine and therefore better able to develop a treatment plan geared to his actual injury caused by the MVA. Please, provide me with more information and I would be pleased to review it in detail. Suffice it to say, that the information provided, would lead me away from Mr. C. being determined Catastropic Impairment. Just for your information, I do not work or represent any Insurance Co's, Lawyers, or anyone else. I do work in the medical profession, but I am not a M.D. I am only expressing my opinion without the input of anyone else. I do know Dr. Rosenblat, but I have no verbal/physical contact with him and have not spoken with him since approx. 2002. I provided my opinion because I am interested in this area. With kindest regards, Susan Gilman.