June 12, 2012, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
The Ministry of Finance has just released the report from the Superintendent of the Financial Services Commission of Ontario on the Definition of Catastrophic Impairment in the Statutory Accident Benefits Schedule. The first thing you will note is that the just released report is dated December 15, 2011. Unfortunately, there have only been some minor changes made to the previously released Phase I report originally released on April 8, 2011.
A copy of the report is attached.
In the Superintendant’s summary he notes that:
“I accept the Expert Panel’s recommendations regarding the use of new measurement tools to improve the accuracy, relevance, clarity, validity, reliability and predictive ability of catastrophic impairment determinations. Specifically, the Panel recommends that the following clinical tools be used to assist with the determination of 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 “
FSCO is also recommending an automatic designation of CAT impairment for children who are suffering from serious brain injury. In addition, FSCO is recommending the introduction of interim benefits for injured parties who unequivocally require intensive and prolonged rehabilitation, but capped at $50,000.00, until a CAT impairment assessment can be undertaken once the “natural course” of the condition has unfolded.
There have been some amendments to the original Phase I report. Of note is the removal of the recommendation that the injured victim participate in or complete an in-patient spinal cord injury rehabilitation in a public rehabilitation hospital.
However, they still leave in place a system that will no doubt reduce the number of accident victims deemed Catastrophically impaired or considerably delay the designation for many accident victims, while only providing improved assistance for a very few.
They are continuing to propose the elimination of the Glasgow Coma Scale (GCS) as a measurement tool for catastrophic impairment. The elimination of the GCS represents a failure to recognize that while one may be deemed catastrophically impaired, the injured party is still only entitled to medical and rehabilitation benefits that are “reasonable and necessary”.
In addition, the FSCO report recommends that physical and psychological impairments NOT be combined. Pain would not be quantified as a separate impairment. It is viewed that pain is already accounted for in the impairment ratings provided in the American Medical Association Guidelines (AMA Guides) and to rate pain separately would be “double counting”.
The FSCO report does not support the combining of physical and psychological impairments for the assessment of 55% or more whole person impairment. It would restrict the assessment to physical complaints only.
It is not clear what the next steps will be in this process.
It is suspected that the government was forced to release the report now as the Ontario Trial Lawyers Association (OTLA), in conjunction with the Ontario Safety League and the Alliance of Community Medical & Rehabilitation Providers were to hold a press conference at Queen’s Park today to discuss the proposed changes from the previous Phase I report.
The OTLA is recommending that the Ontario Government take other more important steps at this time including issue of fraud in auto insurance, the unwieldy FSCO mediation and arbitration backlog that can hold up a dispute with an insurer over a treatment plan for 2 years. Further, there should be a complete review of the September 2010 changes before the Ontario Government makes any further changes.