Access to Catastrophic Benefits under the SABS: ONtario Personal Injury Law
Working with several injured accident victims who suffer life-altering changes as a result of traumatic events in their lives is both daunting and rewarding. The injured victim and their families require immediate insurance coverage for a multitude of expenses for medical costs and attendant needs that are not available through the public health care system.
In the context of motor vehicle liability insurance, the Ontario Government has recognized over the years and since 1990 the need for an expense recovery system outside of the traditional tort system so that the injured party does not have to await the outcome of litigation against an at-fault party before getting reimbursed for their expenses. Since 1990, the Statutory Accident Benefit Schedule (“SABS”) has provided up-front medical, rehabilitation, attendant care, income benefit and other expenses to injured accident victims regardless of fault (i.e. No-Fault Benefits). Since 1996, the SABS have provided a two-tiered delivery of medical, rehabilitation, attendant care and housekeeping coverage depending on the classification of the injury.
The term “Catastrophic” is defined in the SABS and is used as a division for the most serious and permanently injured to access increased benefits past the fixed periods assigned for the “non-Catastrophic” claimants.
This paper will examine some of the legislative changes that have emerged since the introduction of Catastrophic Impairment in the SABS and the jurisprudence that has resulted from the most contentious clauses of the definition.
1. Legislative Framework
Sections 2(1.2)(e) through (g) of the current version of the SABS define “Catastrophic Impairment” as follows:
(1.2) For the purposes of this Regulation, a catastrophic impairment caused by an accident that occurs after September 30, 2003 is,
(a) paraplegia or quadriplegia;
(b) the amputation or other impairment causing the total and permanent loss of use of both arms or both legs;
(c) the amputation or other impairment causing the total and permanent loss of use of one or both arms and one or both legs;
(d) the total loss of vision in both eyes;
(e) subject to subsection (1.4), brain impairment that, in respect of an accident, results in,
(i) a score of 9 or less on the Glasgow Coma Scale, as published in Jennett, B. and Teasdale, G., Management of Head Injuries, Contemporary Neurology Series, Volume 20, F.A. Davis Company, Philadelphia, 1981, according to a test administered within a reasonable period of time after the accident by a person trained for that purpose, or
(ii) a score of 2 (vegetative) or 3 (severe disability) on the Glasgow Outcome Scale, as published in Jennett, B. and Bond, M., Assessment of Outcome After Severe Brain Damage, Lancet i:480, 1975, according to a test administered more than six months after the accident by a person trained for that purpose;
(f) subject to subsections (1.4), (2.1) and (3), an impairment or combination of impairments that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in 55 per cent or more impairment of the whole person; or
(g) subject to subsections (1.4), (2.1) and (3), 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. O. Reg. 281/03, s. 1 (5).
If an individual meets any of the above criteria they are deemed to have sustained a catastrophic injury.
How does the determination affect the level of benefits?
Under the current version of the SABS, the following coverage is expanded if an individual is “Catastrophic”:
1. Medical and rehabilitation limits are increased from $100,000 available for 10 years, to a lifetime maximum of $1,000,000;
2. Attendant care coverage is increased from a maximum of $3,000 per month for two years to $6,000 per month, to a lifetime maximum of $1,000,000;
3. Housekeeping coverage extends for life; and
4. Case management services are covered.
Changes under Bill 198
In 2003, the Ontario Government made some changes to the definition of Catastrophic Impairment under Bill 198 that applies to accidents that occur after September 30, 2003. One of the significant changes can be found in the re-wording of clauses (b) and (c) which included the loss of both arms and both legs, whereas the initial regulations did not include this in the definition.
Another considerable change was made to section 2(2) of the SABS (now 2(2.1) for accidents that occur after September 30, 2003), which focuses on the point in time in which an individual’s injuries can be deemed catastrophic. The old regulation stated that the insured person’s condition had to have stabilized and was not likely to improve, but the definition is reworded to say that the “insured person’s condition is unlikely to cease to be a catastrophic impairment”. Moreover, section 2(2) has also been amended to require only two years to have elapsed since the accident as opposed to the three years in the previous version before a catastrophic determination can be made.
The severely injured and their families have extensive needs and whether one qualifies for “Catastrophic” under the SABS plays a dramatic role in one’s ability to obtain timely and necessary care. The likelihood of a severely injured accident victim pursuing maximum recovery to independence will in part depend on the level of services one can obtain. It is surprising that given what is at stake in obtaining higher level SABS coverage, that there has not been a litany of jurisprudence to interpret widely how the definition should be interpreted.
The definition is clear with respect to interpreting 2(1.1)(a) through (d) as these are objectively determined. However with respect to 2(1.1)(e) through (g), the assessors must use subjective criteria to make the determination. This is the area where litigation is most often seen.
Clause (e)(i): Determination by Glasgow Coma Scale “GCS”
Under this clause of the definition an individual may be deemed under the SABS to have met the “Catastrophic Definition” if they have received a score of nine (9) or less on the GCS, according to a “test administered within a reasonable period of time after the accident and that the test is performed by a person trained for that purpose”.
The GCS measures brain impairment by evaluating the best response of an individual in three areas, being eye response, verbal response and motor response. A rating is then given on a scale in each category as to whether there was no response to a full response. This test is useful in determining the level of brain functioning that a person has at a given time. Whether or not the individual has ultimately sustained a serious or permanent brain injury is not determined by the GCS alone and it does not play a role under subsection (e)(i). Therefore, although the GCS score could indicate future brain impairment it may very well be that a person who has early low GCS scales will not be permanently impaired and can be perfectly independent.
This definition of Catastrophic Impairment is highly contentious as the GCS can be unreliable, particularly under the following conditions:
1. Influence of alcohol or narcotics on the GCS score;
2. Ability to speak English;
3. Emergency Intubation;
4. Pre-existing Disability (such as hearing impairment);
5. Facial injury; and
6. Other medical factors (such as diabetic, administration of drugs during treatment).
The timing of the reading is also important as set out in the SABS. The SABS indicate the reading must be “administered within a reasonable period of time after the accident” to be valid. Some injuries may result in a transient loss of consciousness for a matter of minutes after an accident followed by a full recovery. Other injuries may provide for a high GCS reading followed by a gradual deterioration which later is determined to reflect a severe brain injury.
In a 2000 private arbitration decision, Unifund v. Fletcher , Arbitrator Robinson concluded that the claimant did not suffer a catastrophic impairment thereby overturning the decision of the assessors who previously found the claimant to be catastrophic. In Fletcher, GCS scores of 6, 8 and 9 were taken within the first half hour of the accident. However, the GCS score never fell below 9 after the first half hour following the accident. The assessors relied only on the first GCS scores of 6 and 8 taken just minutes earlier than the above-9 GCS scores, and the Arbitrator concluded that this approach was incorrect.
Another decision on the issue of GCS is the Financial Services Commission of Ontario (“FSCO”) case of Young v. Liberty Mutua1 . In this case, Arbitrator Allen was required to review an assessment by a Designated Assessment Centre which determined that the claimant was not catastrophically impaired. The claimant’s GCS scores were below 9 in the initial 28 minutes of care post-accident before the claimant was intubated. Arbitrator Allen held that there is no set time for what exactly constitutes a reasonable period of time but that it “must be determined in the context of the particular circumstances of each case”.
Additionally, in the Young case it was noted that the intubation did not occur until well after the initial GCS scores were taken and that the time prior to intubation was a reasonable period of time to make a determination of catastrophic impairment based on the recorded GCS scores. The arbitrator’s decision in Young was upheld on judicial review .
In Holland v. Pilot , Keenan, J. delivered a judgment in the Superior Court on similar issues involving a 15-year-old pedestrian struck by a motor vehicle. In this case the plaintiff had ingested both alcohol and marijuana and the main point of contention was whether or not the drugs and alcohol in the plaintiff’s system could have had an adverse affect on the GCS scores therefore rendering them invalid.
While the parties’ experts differed on the influence of drugs and alcohol on the GCS reading, Keenan, J. found in favour of the insured and in doing so he demonstrated a reluctance to deviate from the legislative intent and to rely upon the GCS scores. He ultimately made the finding that the injured individual met the catastrophic impairment requirement.
In Tournay v. Dominion , the only issue in dispute was whether or not a GCS score recorded on an intubated patient was, in law, a “valid” GCS score. In this case, during the four hours of her post-accident treatment where GCS scores were conducted, there were a number of GCS scores of less than 9 during both the times she was intubated and while she was not. There was evidence presented that Ms. Tournay’s daughter recalled that she attempted to wake her mother up “by grabbing her arm and shaking her for approximately 10 minutes”. Since she did not respond to her attempts, Ms. Tournay’s daughter feared that she had died.
Arbitrator Kominar heard arguments from the insurer that GCS scores while intubated were valid for medical purposes; they were not valid under the SABS. Arbitrator Kominar did not believe that the GCS scores should be interpreted differently under the SABS and noted “If the scores, as recorded, were perfectly valid for medical purposes, then they are perfectly valid for purposes of the Schedule”. As a result, Ms. Tournay was deemed to be catastrophically impaired.
Similarly, in the case of Michalski (Litigation Guardian of) v. Wawanesa Mutual Insurance Co. , FSCO Arbitrator Alves noted that the insured person’s GCS scores as recorded by the paramedics and later by the hospital as 3 and 9 respectively. She ruled that there is a presumption for treating the injured claimant as catastrophic unless there are arguments about whether the test was administered within a reasonable time or by qualified personnel. A special award was also ruled as against Wawanesa for their failure to recognize the seriousness of the injuries almost two years after the accident.
The most recent Court interpretation on the GCS is the decision of Liu v. 1226071 . In this case the plaintiff had GCS scores of less than 9 in less than 40 minutes of time, before they rose to 12 and 14 in the 40 and 42 minutes following the accident, respectively. Wright, J. determined that less than 40 minutes was a reasonable amount of time, however, he felt that the DAC Assessment finding the plaintiff Catastrophically Impaired was in error. Wright J. felt that since 2003 Mr. Liu (four years after his accident) was able to manage his property, care for himself in terms of nutrition, healthcare, shelter, clothing and hygiene, was capable of making complex decisions and traveled to China twice making his own arrangements, did not suggest to him that he was a Catastrophically Impaired person. The jury award of $865,000 for future care costs. Wright J. ordered that since the plaintiff was not “Catastrophic” the future care was not payable. The case was decided under Bill 59 (accidents from November 1, 1996 until September 30 2003). Under Bill 59 an individual had to be “Catastrophically Impaired” in order to be able to claim medical expenses.
Jurisprudence shows a trend that a GCS score of 9 or less will continue to favour the designation of catastrophic impairment. With the exception of Liu and Unifund, insurers have had little success challenging the validity of GCS scores.
Clause (f): 55% or more Whole Body Impairment
Clause (g): Class 4 or 5 Impairment due to Mental or Behavioural Disorder
Can Clauses (f) and (g) be combined?
The first case to thoroughly examine the definition of clauses (f) and (g) was Desbiens v. Mordini in 2004. In this case Speigal, J. was asked to interpret 2(1.1)(f) of the SABS. Desbiens was the first trial decision in which a plaintiff was found to be Catastrophically Impaired on the basis of one of the definitions of Catastrophic Impairment outlined in the applicable statutes and regulations. Prior to his accident, Mr. Desbiens was a paraplegic as a result of falling off a roof while in the course of his employment. Despite his paraplegia, Mr. Desbiens claimed that he was quite independent as he still had the ability to move around in his manual wheelchair and drive his altered vehicle. He was also able to take care of himself with little assistance. In fact, very few accommodations were required to his home to facilitate his independence in that regard.
After the motor vehicle accident, Mr. Desbiens claimed to have lost the independence he once had as the new injuries he sustained did not permit him to perform some of the essential tasks he was once able to perform on his own.
The decision states that the AMA Guides clearly anticipate that a given physician’s judgment and discretion will play a role in the assessment of the impairment. Spiegel J. opined that the AMA Guides should not be applied without consideration of the particular reality of the individual being assessed.
One debate in the Desbiens decision revolved around the fact that based on his physical impairments resulting from the accident, Mr. Desbiens did not meet the requirements of clause (f), 55% WPI. However, the most contentious part of the Desbiens decision is Spiegel J.’s analysis concerning the combination of physical and psychological impairments to arrive at the 55% WPI. Essentially, it was argued by plaintiff’s counsel that Mr. Desbiens’ physical and psychological impairments could be combined under clause (f) to determine whether he had a WPI rating that was greater than 55%.
It was Mr. Desbiens’ position that the definition of impairment in the regulations included both psychological and physical impairments and that since clause (f) referred to a combination of impairments and not a combination of just ‘physical’ impairments, both physical and psychological impairments ought to be included in evaluating WPI.
The conclusion of Spiegel J. was that clause (f) was intended to be a ‘catch-all’ provision for the benefit of those who are in the greatest need of health care. Spiegel J. concluded there was nothing in the legislation to indicate that physical and psychological impairments could not be added. As he saw it, clause (f) used the wording ‘any’ combination of impairments. While the definition in clause (g) did not include classes 1-3 psychological impairments, Spiegel J. found that there was nothing to prohibit those mild to moderate classes of psychological impairments from being considered in clause (f) for the purposes of the calculation of 55% WPI rating. Spiegel J. believed that if the drafters had intended to exclude psychological impairments from clause (f), it could have easily specified that only physical impairments be included.
Desbiens has been followed in subsequent decisions and continues to be the leading Court decision on the issue of calculating WPI.
Another case to consider this issue was McMichael and Belair Insurance . In McMichael, Arbitrator Muir was faced with the issue of whether or not the claimant had suffered a Catastrophic Impairment pursuant to clauses (f) and (g) of section 2(1) of the SABS. Arbitrator Muir first analyzed the application of clause (g), impairment due to mental and behavioural disorders. He considered the impact of Desbiens and noted that Desbiens had established that “class 4” impairment in any one of the four areas of functioning was sufficient to establish Catastrophic Impairment. He concluded McMichael had sustained “class 4” impairment and was therefore Catastrophically Impaired under clause (g).
Arbitrator Muir also considered whether McMichael met the catastrophic definition in clause (f), being whether he had a WPI of 55% or more. On the basis of his physical impairments alone, Arbitrator Muir found that the claimant did not meet the 55% WPI threshold, but he then considered the issue of combining both physical and psychological impairments to reach the 55% WPI rating as set out in Desbiens.
Belair raised the argument that in Desbiens the Court had expert opinion evidence before it to comment on the translation of qualitative psychological impairment ratings into a WPI rating which was not the case in McMichael. Arbitrator Muir rejected Belair’s argument and found that the plaintiff did not need an expert’s evidence to determine whether or not it was appropriate to add psychological and physical impairments. He determined that this was a question involving the interpretation of the SABS. Arbitrator Muir agreed with the claimant that the SABS required the addition of all impairments to arrive at the appropriate WPI and adopted the Desbiens analysis. However, he did conclude that there would be some risk of double counting if the claimant’s psychological and physical impairments were added in this case and he therefore did not continue to assign a percentage to the psychological impairments. While the facts giving rise to the circumstances in Desbiens and McMichael are very different, Arbitrator Muir appeared to have followed the reasoning in Desbiens.
The appeal of McMichael was heard by Director’s Delegate Makepeace on the issue of the method of assessing Catastrophic Impairment under the SABS and Arbitrator Muir’s decision was ultimately upheld on appeal. Director’s Delegate Makepeace adopted the statements in Desbiens that the AMA Guides are to be given a “fair, large and liberal” interpretation. Director’s Delegate noted that ‘impairment’ is defined very broadly under the SABS thereby ensuring that the most seriously impaired claimants may qualify for enhanced benefits, whatever the nature of their impairments. According to Director’s Delegate Makepeace, the drafters of the legislation created alternative ways of satisfying the Catastrophic Impairment definition to avoid under-inclusiveness and ensure that impairments of equal seriousness are treated equally under the SABS. The appeal, however, did not consider the issue of combining physical and psychological impairments to arrive at a WPI rating.
In G. v. Pilot Insurance Co the issue was whether the claimant had sustained a Catastrophic Impairment as per clauses (f) and (g) of the definition in the SABS. Arbitrator Blackman adopted and followed the reasoning in Desbiens. The Arbitrator noted that there are arguments to be made that psychological impairments should not be included in a WPI rating but then he rejected each one, stating that clauses (f) and (g) are separated by the word “or” which means that the clauses were meant to be mutually exclusive. However, Arbitrator Blackman found that this was not the intent of the drafters of the legislation because this would mean that clauses (a) to (g) were mutually exclusive.
The second argument he rejected was the idea that a percentage could not be assigned to psychological impairments. According to Arbitrator Blackman, he was in agreement with the decisions in McMichael and Desbiens that despite the practical difficulties, all impairments however caused must be included in the WPI. Arbitrator Blackman stated that an insured person should not be penalized just because medical science lacks an objective means of rating psychological impairments via percentages.
Arbitrator Blackman also noted that the Guides deliberately did not use percentages to estimate mental impairment because of their subjective nature, the dilemma being that clause (f) requires a percentage analysis. Arbitrator Blackman stated that the SABS provide that if an impairment, or by implication an impairment rating, is not provided, one must then look to a listed impairment most analogous to the impairment sustained.
As in Desbiens, Arbitrator Blackman notes that the 4th edition of the AMA Guides refer to the 2nd edition which provides ranges of percentages that can be applied to the classes of psychological impairments. He not only assigned percentages to the claimant’s psychological impairments and added them to his physical impairments as in Desbiens, but also added a number of physical impairment ratings that had not been included in the CAT DAC in order to find that the claimant did meet the 55% WPI threshold set out in clause (f) of the Catastrophic Impairment definition. Director’s Delegate Makepeace on appeal confirmed the decision.
In P. (B.) v. Primmum the applicant was involved in a motorcycle accident. The damage to his right leg was so severe, that his leg was not salvageable and the amputation of his right leg from the knee down was required. At issue in this case was whether the claimant was Catastrophically Impaired under clause (f) as a result of the amputation of his right leg.
One of the experts in this case relied on his own interpretation of Desbiens and stressed that the AMA Guides are not a complete guide and that an assessor should exercise clinical judgment to adjust a score upwards. He found that the claimant met the 55% threshold with an upwards final adjustment. Additionally, it was argued that discretion lies with the decision maker to make a finding of Catastrophic Impairment in cases where the cost of future treatment exceeded the non-catastrophic limits. In this case, the cost for future prosthesis and care were well beyond the non-catastrophic limits. In his reasons, Arbitrator Blackman rejected this approach to the determination of Catastrophic Impairment and stated that:
“I am not persuaded by the … argument that I have discretion to make a finding of catastrophic impairment where the cost of future treatment exceeds the non-catastrophic limits under the Schedule. That in my view, simply defeats the intent of the legislation that a requisite designation of impairment, in addition to reasonable and necessary need, determines entitlement at a certain monetary level.”
Fundamentally, Arbitrator Blackman did not agree with the opinion of Dr. Ameis that a final adjustment is warranted when examining the wording of the legislation and the AMA Guides.
Ultimately, Arbitrator Blackman followed Desbiens and his own judgment in G. v. Pilot and considered the various experts reports and based on a review of them and the AMA Guides, he attributed various WPI designations to both physical and psychological impairments which exceeded the 55% WPI threshold, therefore determining that the claimant was Catastrophically Impaired.
3. Conclusion: Will the Cat stay in the Hat?
The “Catastrophic” definition has been in use for over 10 years and has only received a few minor changes by the legislature. It is predicted that the areas that have been litigated that were highlighted in this paper are likely to face reform in the near future.
Currently, the Ontario Government is undertaking a five-year review on Auto Insurance. Submissions from various stakeholders can be viewed on their website address: http://www.fsco.gov.on.ca/english/insurance/auto/5yr-review/default.asp .
The Insurance Bureau of Canada (“IBC”) has published their submissions which indicate that they have a working group of scientists who have collaborated to review the current evidence used to classify brain injury. It seems clear that the IBC has targeted the elimination of Clause (e) as it relates to the use of the GCS scale score of 9 for entitlement. By excluding the GCS score from the “Catastrophic Definition” the government will need to find a substitute measure in its place. Alternative measures that have been considered reveal evaluations of post traumatic amnesia coupled with a lower score such as 5 or less on the GCS will be required to meet the proposed new definition. Such strict and subjective measurements are certain to increase litigation costs and raise the uncertainty for entitlement for a much needed group of accident victims. It is likely that the number of brain-injured accident victims who qualify for Catastrophic Injury under the SABS will drop significantly if such reform is allowed.
While legislative changes to the Catastrophic Definition are likely in the next few years, the issue of interpretation will remain clouded requiring ongoing litigation. Jurisprudence to date has favoured a trend of fairness allowing mostly the injured accident victim to succeed. Insurers have argued to the government that the Courts have broadened the definition which has increased costs to insurers. These comments do not reflect the reality of the benefit approval process embedded in the SABS. Ultimately, if an injured accident victim requires medical or attendant care services; the individual is required to submit treatment plans and requests for reimbursement that are subject to the SABS requirement of approval and medical requirement. The insurers routinely deny various treatment and attendant care request for Catastrophic and Non-Catastrophic claimants alike and thus the designation of Catastrophic does not designate the entitlement without satisfying the needs based test. Benefits are only paid if they are deemed to be “reasonable and necessary”. Thus, insurers are misguided by demanding tighter legislation to allow fewer claimants to be declared Catastrophic.
Auto Insurance under the SABS continues to be the subject of reform as we enter the 5th such reform since 1990. Despite the insurance industry and government trying to strike a balance for a profitable industry and fair reparation system, it is clear that the most seriously injured accident victims needs should be fully indemnified without compromise. For more information visit http://www.gluckstein.com
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