Ontario Moves Closer To CAT Injury Definition

Ontario’s insurance regulator recently released its long-awaited report on catastrophic injury definition, holding that physical impairments should not be combined with psychiatric or mental/behavioural impairments for the purpose of determining a catastrophic injury.

The Financial Services Commission of Ontario’s (FSCO) review of catastrophic impairment, submitted to the Finance Minister in June, was part of the government’s auto insurance reform package implemented in 2010. In its recommendations, FSCO generally agreed with the suggestions of an expert panel struck by the commission to examine the definition of catastrophic injury.

The superintendent recommended that a combination of requirements should be used to determine a psychiatric catastrophic impairment. However, psychiatric and physical impairments should not be combined for the purpose of determining a catastrophic impairment of the whole person, according to the Superintendent’s Report on the Definition of Catastrophic Impairment in the Statutory Accident Benefits Schedule.

“The panel had trouble understanding how combinations of physical and psychiatric conditions that independently do not meet the criteria for catastrophic impairment could be equated to a severe injury to the brain or spinal cord or to blindness,” the superintendent wrote. “I agree with the expert panel’s position that arriving at a designation of catastrophic impairment is not a simple additive process. I therefore accept the expert panel’s recommendation that the combining of physical and psychiatric impairments not be permitted.”

The superintendent also found that the catastrophic impairment definition should not allow pain to be quantified as a separate impairment.

“If the panel recommendations are implemented as stated in its report, psychological and behavioural impairments would no longer be included in the definition of catastrophic impairment,” the report notes. “These conditions include chronic pain and fibromyalgia. However, a claimant with one of these conditions may be able to meet the criteria for catastrophic impairment on psychiatric grounds.”

While restricting some parts of the definition of a catastrophic impairment, FSCO’s superintendent is also calling for automatic designation of catastrophic impairment for children (claimants under 18) and interim benefits for claimants “who unequivocally require intensive and prolonged rehabilitation.”

Interim benefits should be capped at $50,000, the superintendent recommends.

“A final determination of catastrophic impairment would be deferred until the natural course of the condition has unfolded,” the report says. “For example, an adult who sustains a very severe brain injury would be able to access interim benefits for six months, at which point an assessment would be conducted to make a final determination.”

The panel has also called for the following clinical tools to be used in determining a catastrophic impairment:

• American Spinal Injury Association (ASIA) classification for spinal cord injury.

• Extended Glasgow Outcome Scale (GOS-E) for traumatic brain injury in adults.

• Spinal Cord Independence Measure for severe difficulty with walking.

• Global Assessment of Function (GAF) for psychiatric disorders.

The ASIA classification for a spinal cord injury is a new addition to the definition of catastrophic impairment. The panel qualified the use of the ASIA scale, however, so that “participation in, or completion of, an in-patient spinal cord injury rehabilitation in a public rehabilitation hospital is not necessary in addition to the other requirements.”

The recommended definition of a catastrophic impairment replaces the Glasgow Coma Scale, which, the panel notes, “has proven a poor tool for predicting the long-term outcomes of traumatic brain injury,” and replaces it GOS-E.

It is now up to the Ontario government whether or not to adopt FSCO’s recommendations on catastrophic injury.

The Ontario Trial Lawyers Association (OTLA) and Alliance of Community Medical and Rehabilitation Providers quickly launched a media campaign against proposed changes to the definition of a catastrophic impairment for victims injured in car accidents. It featured full-page ads in daily newspapers featuring victims severely injured in auto accidents.

Currently, accident victims who are deemed to have suffered a catastrophic (CAT) injury are eligible for basic medical and rehabilitation benefits of up to $1 million. But the OTLA and rehab alliance group argue that if the province accepts the recommendations of the expert panel, the CAT threshold will be raised significantly.

“We estimate that the number of cases deemed catastrophic will be reduced by half if these changes are implemented,” says OTLA president Andrew Murray.

“If the government goes ahead with this, it will hurt a lot of very vulnerable people,” says Nick Gurevich, president of the Alliance of Community Medical and Rehabilitation Providers.

Insurance Bureau of Canada (IBC) accused critics of the proposed catastrophic injury definition of “fear-mongering.”

“This is false, misleading, singularly irresponsible and is nothing more than self-serving fear-mongering,” IBC’s vice president for Ontario, Ralph Palumbo, responded.

“It is part of a campaign by people who make money from auto collisions and want to maintain the status quo. They’re worried that more money will go to treatment instead of their legal fees. Ontarians should listen to the advice of the medical experts and not lawyers.”

IBC adds that the superintendent’s recommendations followed on the advice of an expert medical panel established by FSCO. In addition, the government has promised a public consultation in the 2012 budget.

“The panel of experts was of the view that the current system leads to inconsistent catastrophic impairment determinations and frequently gets the diagnosis wrong,” IBC notes. “The proposed changes would make the process more accurate, consistent and objective and would incorporate leading edge science-based evidence into CAT determinations.”

IBC also stated in a recent submission to a provincial government committee studying auto insurance that between 2004 and 2010, the number of no-fault injury claims rose 28%, while the count for large claims has more than doubled. Hospitalizations from motor vehicle accidents are down 12%, yet auto insurers are being presented with many more catastrophic injury claims, according to IBC figures.

An expert panel commissioned by the Financial Services Commission of Ontario (SCO) issued its report on catastrophic impairment definition in April 2011. That report made several recommendations, including not combining physical and psychological injuries in determining catastrophic impairment, requiring medical doctors or qualified neuropsychologists to be the lead evaluators in catastrophic injury assessment and establishing an interim status for people with traumatic brain injuries and major physical impairments to get quick access to rehabilitation services.

Lawyers continue to disagree with proposed recommendations to change the definition of catastrophic injury for accident victims.

A group of prominent personal injury lawyers, who include Richard Halpern, partner at Thomson Rogers, Roger Oatley of Oatley Vigmond Personal Injury Lawyers LLP, Nigel Gilby, partner at Lerners LLP and Stephen Firestone of Lackman Firestone, resigned from an informal FSCO legal committee because their recommendations on catastrophic impairment were ignored. _

With files from Angela Stelmakovich and David Gambrill