The Thomson Rogers Submission to the Financial Services Commission of Ontario

Posted May 17, 2011
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Submissions on Changes to the Definition of CAT Impairment

Thomson Rogers is one of Canada’s pre-eminent law firms representing injured people for the past 75 years. This experience has provided us with valuable insight into how Ontarians are affected by the protection they receive under their automobile policies when injured in an accident. In addition to representing our clients we have tirelessly and actively advocated for the rights of injured people.

As part of the Ontario Government’s 2010 Automobile Insurance Reform initiatives, the Financial Services Commission of Ontario (FSCO) established a Catastrophic Impairment Expert Panel (“the Panel”) to review and make recommendations on the definition of “catastrophic impairment” set out in the Statutory Accident Benefits Schedule (SABS). In addition to reviewing the definition of catastrophic impairment, the Panel was asked to make recommendations regarding the qualifications and experience requirements for health professionals who conduct catastrophic impairment assessments. The Panel released its recommendations on April 11, 2011.

For reasons expressed in this submission and the reasons contained in submissions from The Alliance of Community Medical and Rehabilitation Providers (the Alliance), the Ontario Trial Lawyers Association (OTLA), the Advocates’ Society and others, Thomson Rogers opposes any reforms based on the Panel’s Report.

The Panel has stated that one of its objectives is ensuring that the most seriously injured people continue to receive benefits. Given that the changes to the SABS implemented in September 2010 will see many seriously injured people getting fewer benefits, it is reasonable to consider easing the definition of catastrophic impairment in order to meet the objective to protect these victims. The Panel does not recommend this.

It is our submission that the Panel’s recommended changes to the definition of catastrophic impairment are overly restrictive and unfair and will result in the addition of significant complexity to the accident benefits system, increased burdens on health care costs and increased costs for the administration of justice.

As noted above, the Alliance, OTLA and the Advocates’ Society have addressed a number of concerns flowing from the Panel’s report, including unsupported subjective conclusions, incomplete findings, premature recommendations, the introduction of uncertainty and complexity into the system and panel bias. Thomson Rogers adopts the positions taken by these organizations and makes additional submissions on the following:

  1. The recommendation that physical and psychiatric impairments not be combined for the purpose of catastrophic determination.
  2. The recommendation that the Glascow Coma Scale (GCS) to establish a diagnosis of catastrophic injury be eliminated.
  3. The proposals of the Panel are discriminatory to Ontario consumers who have limited access to hospital and medical services.

 

  1. Physical and psychological impairments are not to be combined for the purpose of catastrophic determination.

The Panel supports the continued use of Chapters 3-13 of the AMA Guides 4th edition as a determination of catastrophic impairment but restricts its application to accident victims with physical impairments. The Panel also recognizes that psychological/psychiatric injuries suffered by accident victims may meet the determination for catastrophic impairment. Though the Panel also concludes that a psychiatric impairment added to a physical impairment would increase overall impairment, incredibly, the Panel rejects combining these impairments when applying the 55% whole person impairment threshold currently set out in section 2(e) of the SABS, pending further study.

The Panel’s rationale for prohibiting the combination of physical and mental impairments is based on three rationales. First, the Panel is concerned that the tools currently available are not readily identifiable. The second rationale arises from the Panel’s inability to understand how a combination of physical and mental or behavioural impairments could be equated to severe injury to the brain, spinal cord or to blindness. Finally, a methodology for determining whole body impairment taking both physical and psychological into consideration eludes the Panel, prompting the Panel to defer the matter.

In the meantime, the panel unjustifiably proposes leaving deserving injured people to their own devices, a position that is unnecessarily cruel and defies common sense. It is our submission it is inappropriate and unfair to “equate” one serious injury with other equally serious injuries or combination of injuries as this runs contrary to the purpose of the Statutory Accident Benefits Schedule.

The AMA Guides were not designed by the AMA for the purpose directed by the Ontario Legislature. Accordingly, the AMA Guides must be interpreted in a manner that is contextually consistent with the language of the SABS. The current SABS definition directs that a “combination of impairments” that results in a Whole Person Impairment (‘WPI”) of 55 percent meets the test for catastrophic impairment. The Schedule defines “impairment” to include psychological impairments. If percentage ratings can be used to categorize mental or behavioural impairments flowing from a brain injury (chapter 4 of the AMA Guides), there is no reason that they cannot also be used to categorize mental or behaviour impairments flowing from a psychological injury. To interpret the Schedule otherwise would produce an unreasonable outcome and result in seriously injured accident victims being unfairly denied access to the resources they require1. Even if our courts ultimately decide against combining, it is clear from the rationale of the Panel that it would be appropriate and, more importantly, fair to do so.

Additionally, considering the Panel found further investigation is needed in order to determine a valid and reliable method of combining physical and mental and behavioural impairments highlights the fact that any change to this branch of the statutory test is premature. It is simply unacceptable to implement change when these and other limitations are acknowledged. Even an imperfect test is preferable to eliminating proper treatment for a whole class of injured victims.

In short, when it comes to the Panel’s treatment of the issue of combined physical and psychiatric injuries, the Panel failed to focus on its own objective of delivering benefits to the most seriously injured auto insurance consumers in Ontario.

Further, the Panel ignores the fact that being designated catastrophic does not entitle a claimant to a payment. Once designated catastrophic, each claimant must still prove both reasonableness and need. This is a self-regulating mechanism which is built into the system.

The fundamental problem with the Panel’s report is that the wrong questions were being asked. Where the line should be drawn depends entirely on what the system can afford. At the moment there is no reason to believe that the claimants now qualifying under the current definition are a financial burden on the system. In fact, all of the available financial data, combined with the substantial savings to be realized under the recent and drastic reduction in non-catastrophic benefits, supports the conclusion that the catastrophic definition ought to be expanded so that truly seriously impaired consumers are not hurt by the recent reduction in Statutory Accident Benefits available to the non-catastrophically impaired.

  1. The elimination of the Glascow Coma Scale as a tool to diagnose catastrophic impairment.

The Panel proposes to eliminate section 2(d)(i) of the SABS definition which identifies a catastrophic impairment where the accident victim has “a score of 9 or less on the Glasgow Coma Scale” (GCS). This is based on the Panel’s concern that the GCS is a poor predictor of outcome.

First, the Panel erred in equating the statutory test set out in section 2( d) of the Statutory Accident Benefits Schedule to a medical test. This approach was specifically rejected by the Ontario Court of Appeal in Liu v. 1226071 Ontario Inc. el al2. The Court confirmed that the use of the GCS as a statutory test for catastrophic impairment creates a bright line rule that is relatively easy to apply. While the GCS adds an element of predictability ,which will facilitate earlier settlement of claims, a GCS score of 9 or less does not automatically equate to entitlement. The ultimate burden remains on the injured person to prove entitlement to those benefits based on reasonableness and need. That proof must be supported by persuasive medical evidence. Insurers have considerable power to challenge those claims.

Second, the GCS has been widely used by medical professionals since it was created in 1981. The GCS itself has been subjected to many studies concerning its application in many different disciplines. These studies have shown consistency in the application of the GCS with accurate intra-observer results. While there are other tools to measure brain injury and severity of insult; there is no other tool which is currently in such wide use by Health Care Professionals to identify brain injury. It is easy to apply and accurate in the vast majority of cases.

Third, the GCS allows Health Care Professionals to identify claimants with catastrophic injuries earlier. This identification cannot be accomplished unless Health Care Professionals can rely upon a tool that can easily identify the presence of brain injury. The Glasgow Coma Scale is this tool. This is critical in avoiding a gap in coverage for brain injured people who may have their catastrophic designation delayed two years in the event the GCS no longer applies. This gap in coverage creates incredible hardship for many of these victims, particularly in view of the reduced coverage following the September 2010 reforms. Eliminating the GCS will delay catastrophic determination and potentially deprive these seriously injured people of essential treatment pending assessment at the two year mark.

As the matter stands now, there are instances where ambulance attendants or emergency room staff neglect to perform the GCS on injured people who would clearly qualify for a score of 9 or less. This often occurs more in rural or remote settings3. As a result, individuals who would have met the statutory test for catastrophic impairment had the GCS been applied properly or at all are denied access to enhanced benefits. In the 2001 Report to Minister from the Advisory Panel on Catastrophic Impairment, that Panel recommended the following alternate definition be included as part of section 2( d)(ii):

an episode of unconsciousness that is equivalent to a score of 9 or less on the Glasgow Coma Scale as set out in paragraph (i) herein, that is observed by a person trained/or that purpose and is recorded in the insured person’s medical record

Essentially an individual meets this alternate statutory test if there is an observed period of unconsciousness by, for example, a paramedic or doctor in the hospital, and this observation is recorded in the medical record. The medical members of the 2001 Panel were satisfied that a determination as to whether the person would have met the GCS test could be determined from the available clinical evidence. Expanding the definition would be the only way to ensure fairness.

Although the GCS may, from the medical perspective, be a poor predictor of outcome, its application in the context of automobile insurance has demonstrated that it is indeed appropriate. Having to prove need and reasonableness ensures that only those accident victims with truly bad outcomes receive benefits. Use of the GCS also ensures that accident victims with serious brain injuries obtain needed service before two years after the accident and before it is too late to restore maximal recovery. Expanding the GCS definition to allow a score of 9 or less to be inferred from reliable clinical data would ensure fairness for some brain injured people. The Panel’s objective of ensuring that the most seriously injured victims receive compensation is in fact best met by preserving the GCS criteria.

  1. The requirement that accident victims participate in an in-patient rehabiltation program and/or community based services is discriminatory to those Ontario consumers who have limited access to hospital and medical services.

The Panel recommends that the criteria for a catastrophic impairment designation include the requirement for hospitalization in a recognized neurological rehabilitation centre, participation in an in-patient spinal cord injury rehabilitation program, in-patient rehabilitation in an approved public hospital, admission to a Level 1 trauma centre, monthly in-person psychiatric follow-up and regular and frequent supervision by community-based mental health services using community funded mental health professionals.

The qualifying criteria imposed by the Panel are based on services that are not available to all Ontario consumers. When benefit entitlement is linked to length of hospitalization, inpatient admissions in specialized programs and availability of public funded mental health services, those Ontario consumers with limited access to scarce medical and hospital services are discriminated against. This is especially troubling to consumers who live outside of major urban centers or who live in cities and towns where medical services are already overburdened.

As set out in the submissions put forward by the Alliance of Community Medical and Rehabiltation Providers (“Alliance”), there are only 109 in-patient ABI rehab beds available across the province. The breakdown is as follows:

Kingston8
Ottawa12
Thunder Bay5
London10
Sudbury10
Toronto38
Hamilton26 (l3 regional and 13 provincial)
TOTAL109

On average, over 2,000 people sustain a traumatic brain injury in automobile accidents and require hospital treatment each year. The average wait times (measured by date of referral to date of admission) in the regions with the largest number of ABl rehab beds (i.e., Hamilton and Toronto) range from 23.5 to 77 days. Trauma centres face similar challenges. As a result patients are often discharged from an acute care facility to home while they wait for inpatient rehab to become available. Those persons would not meet the proposed qualifying criteria for catastrophic impairment according to the Panel recommendations.

As pointed out in the Alliance submission, there are many patients who are not accepted to inpatient rehab – not because they are too high functioning, but because they are too impaired and too medically complex for a rehab bed or there is a lack of resources, other situational challenges such as family dynamics or the injured person’s complete lack of insight into their deficits and need for inpatient rehabilitation.

Ironically, the proposed criteria for a catastrophic designation means that some patients, who are among the most severely injured and impaired will not be deemed to have a suffered a catastrophic injury and will be denied access to enhanced benefits, not because of their inability to establish need and reasonableness or lack of compliance, but because of limited resources in our health care system. This gap can only be remedied by a very significant increase in health care spending, particularly in rural and more remote areas. As this is not a realistic expectation, tying catastrophic designation to in-hospital care is entirely unworkable and ultimately discriminatory.

Conclusion

An attempt has been made to highlight some of the more glaring shortcomings of the Panel’s report and recommendations. There is much more to say but little time now to do so. It is clear from the Panel’s report that it is premature to make any reforms to the catastrophic definition. From a medical perspective, many aspects of the Panel’s report are incomplete, with some very important work deferred to yet to be selected panels, which will be differently constituted. From a policy perspective, the Panel has substituted its view of how far insurance coverage should extend based on its interpretation of what catastrophic should mean a matter clearly beyond its mandate, expertise and perhaps reflecting a degree of bias, having regard to the relationship between many panel members and the insurance industry which benefits from any restriction in benefits. From the legal perspective, the recommendations made by the Panel increase complexity, increase costs for claimants and insurers and will increase the burden on the administration of justice in our courts and for FSCO. From the perspective of the insurance industry, these recommendations will introduce a new source of instability into the system at a time when it appears stability has been substantially restored. For consumers, the medical, policy, legal and insurance industry implications make the Panel’s recommendations contrary to the public interest.

Thomson Rogers looks forward to making further contributions to this important matter.

1 Desbiens v. Mordini (2004) O.J. No. 4735
2 Liu v. 1226071 Ontario Inc. et 812009 ONCA 571 (CanLlI) at para. 29
3 2001 Report to Minister from the Advisory Panel on Catastrophic Impairment