Since November 1st, 1996 injured persons, their families, health care professionals, lawyers, arbitrators and courts have had to grapple with the appropriate interpretation and application of the term “catastrophic impairment“. DACs, arbitrators and Judges have considered issues relating to catastrophic impairment including the GCS and the impact of intubation, alcohol, medication and other extraneous factors.
Bill 198 implemented changes to both the definition of catastrophic impairment and the process for determination of catastrophic impairment. The elements of the catastrophic impairment definition will not be repeated here. However, you may refer to the chart which outlines the changes under Bill 198 on pages 6 and 7 of this newsletter.
Changes affecting persons under age sixteen (16)
The most significant changes to the definition implemented by Bill 198 concerns the method of applying the entitlement tests to children. SABS Sub-sections 1.4 and 1.3 contain the elements of the change.
The Bill 198 SABS Sub-section 1.4 reads:
(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 Sub-section (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.” O. Reg. 281\03, s.1 (5)
In essence, this change allows for the expansion of the catastrophic criteria as it relates to injured persons under 16 years who are being evaluated under the GCS, GOS, and/or AMA Guides impairment testing criteria.
Paraphrasing Section 1.4, if the assessing practitioner finds that none of the GCS, GOS, or AMA Guides testing criteria can be applied because of the age of the person, then the practitioner should consider the developmental implications of the impairment and use his/her clinical judgment to indicate whether the injured person can reasonably be believed to be catastrophically impaired. If the assessor reaches the conclusion that the injured person is catastrophically impaired, Section 1.4 deems the person to be catastrophically impaired under either the GCS, GOS or AMA Guides, whichever is most analogous.
This SABS amendment increases the opportunity for use of and reliance upon clinical judgment in determining entitlement. Directives supporting the use of clinical judgment in testing are familiar to Bill 59, the AMA Guides and the CAT DAC Guidelines.
For instance, Section 2 of the AMA Guides (page 8) provides that:
“If in spite of an observation or test result, the medical evidence does not appear to be of sufficient weight to verify that an impairment of a certain magnitude exists, the physician should modify the impairment estimates accordingly, describing the modification and explaining the reason in writing”.
In addition, the Catastrophic DAC Guidelines of April, 2002, require assessors to rely upon clinical judgment at numerous points during the assessment process. For instance, the introduction portion of the CAT DAC Guidelines provides:
“Although CAT DAC processes must conform to the SABS and the requirements of this guide, it is the responsibility of each clinician involved in the assessment to use his/her own clinical judgment in planning the assessment and interpreting the assessment outcome in our opinion”.
Further, in Section 1.5 of the Guidelines:
“This Guide will not provide interpretation of any SABS terminology, including the definition of catastrophic impairment. It is the responsibility of the CAT DAC assessor(s) to use his/her own clinical judgment in arriving at conclusions and to support these conclusions in a well-documented report.”
Also at Section 4.2:
“Interpretation of Catastrophic Impairment definitions (a) to (d) will not be provided in this Guide, as generally accepted interpretation exists. Clinicians should use their own clinical judgment and experience in establishing a claimant’s classification into one or more of the (a) to (d) categories.”
Last, under Section 4.7 – Pediatric Catastrophic Impairment Assessment Process, the April 2002 Guidelines indicate:
“Specific assessment protocols mandated in the SABS may not always be applicable to a pediatric population, specifically the GCS, GOS and the AMA’s Guides. …it is the responsibility of each clinician involved in the assessment to use his/her own clinical judgment in planning the assessment and interpreting the assessment outcomes. CAT DACs should conclude that a child meets the definition for catastrophic impairment if, in their opinion, any of the SABS (a) to (g) criteria are analogous to the impairment sustained by the child.”
The use of analogy in interpreting the AMA Guides is also incorporated into the SABS at Section 2 (3). When an impairment sustained by an insured person not listed in the AMA Guides:
“It shall be deemed to be the impairment that is listed in that document that is most analogous to the impairment sustained.”
Timing of the CAT DAC
Under Bill 59, one could not use the AMA Guides to evaluate the catastrophic impairment unless (a) the person’s condition had “stabilized and was unlikely to improve with treatment”, or (b) three years had elapsed since the accident.
Under Bill 198, the AMA Guides may be used to evaluate catastrophic impairments so long as the insured person’s health practitioner states in writing that (a) the insured person’s “condition is unlikely to cease to be catastrophic”, or (b) two years have elapsed since the accident.
Effect of Alcohol on GCS
In June, 2004 Holland v. Pilot Insurance Company was decided. In that case, Justice Keenan had to determine whether a 15 year old boy with GCS readings of 7/15, 8/15 and 4/15 should be denied catastrophic impairment status because he was known to have consumed alcohol so that his blood alcohol level was above the legal limit and because he had probably smoked marijuana. The CAT DAC had set aside the GCS scores as “confounded”. The Defendant, Pilot argued that the GCS scores should not be considered and had been set aside by the CAT DAC because the “presence of alcohol would make the GCS reading unreliable.”
Justice Keenan rejected this argument and the CAT DAC’s approach and found that the DAC misread the legislation by trying to impose limitations on the reliability of the GCS when those limitations were not clearly set out in the legislation itself. He accepted the GCS scores on their face and found the Plaintiff catastrophically impaired using the GCS criteria. In doing so he echoed the comments of the Ontario Court of Appeal in July v. Neal:
“…if there is doubt in the legislation establishing and governing the cover, and there are two possible interpretations of any aspect of the cover, the one more favourable to the insured should govern.”
What is a Reasonable Period of Time for GCS Testing?
In the arbitral decision of Young and Liberty, decided November, 2003, Arbitrator Allen determined that the question of whether or not the period of time during which the person maintained a GCS score of 9 or less was a reasonable period of time “must be determined in the context of the particular circumstances of each case”.
In Young despite evidence from Liberty to support the conclusion that intubation, seizures and the administration of paralyzing drugs were confounding factors that would invalidate the GCS readings, Arbitrator Allen found the applicant catastrophically impaired based on 3 GCS readings taken within 1 hour of the accident.
In the unreported arbitral decision of Unifund Assurance Company and Fletcher, the arbitrator found that the reasonable length of time for maintenance of a GCS of 9 or less “could be as short as 20 minutes” in order for the injured person to have met the criteria for catastrophic impairment.
AMA Guides – Mental and Behavioural Disorders
Catastrophic impairment designation is available to those who have been determined to have a “marked” impairment or an “extreme” impairment. Four domains are assessed to make a determination: a) limitations in activities of daily living, b) social functioning, c) concentration, and d) persistence and pace and deterioration or decompensation in work or work-like settings.
The editor of the Fifth Edition of the AMA Guides has confirmed in writing that if a person is considered to have a marked impairment in two or more of the four domains and the other domains have a less severe impairment, (eg. none, mild or moderate) then the overall impairment is classified as “marked” ie. Class IV.
For example, if a person’s mental and behavioural impairment levels significantly impede social functions and ability to adapt in work or work-like settings because there has been no impairment upon a person’s activities of daily living or concentration, the person is considered to have a “marked” impairment and should be deemed catastrophically impaired under the AMA Guides.
Copies of the referenced decisions and letter are available from the author on request.