Law Times

Law TiMes • May 2, 2011 FOCUS PAGE 9 Report raises bar for catastrophic harm BY JUDY VAN RHIJN For Law Times R ecent court cases have seen the bright line of what constitutes cata- strophic impairment shifting around and caused great anxiety for claimants and their counsel. But now a medical panel has released a report recommend- ing revisions to the definition of catastrophic impairment in the statutory accident benefits schedule that will substantially change the current approach. On April 15, the catastroph- ic impairment expert panel presented its first report to the Financial Services Commis- sion of Ontario. Its goal was to pinpoint ambiguities and gaps in the current definition in order to reflect emerging scientific knowledge as well as recommend changes that will assist clinicians with identify- ing claimants with catastrophic injuries earlier and with greater objectivity. The report acknowledges that catastrophic impairment is a legal term that defines a point along the spectrum of impair- ment severity, but the review was purely scientific in nature. It redefines the various injuries that qualify a patient for the catastrophic impairment rat- ing to include the clinical tests used to assess the condition. FSCO advises that the recom- mended tests have a high level of consistency, certainty, and predictive value. "In summary, the panel recommended tests that are used in current clini- cal practice that will minimize the risk of error in the determi- nation of catastrophic impair- ment," it noted. The Insurance Bureau of Canada is canvassing its mem- bers for their responses and says it's not yet ready to comment. But Dale Orlando, president of the Ontario Trial Lawyers Association, isn't so reticent. He says the changes incorpo- rate more stringent tests that will make it much more diffi- cult to meet the threshold. "I can't look at it any other way but that it raises the bar. The proposal introduces three new criteria that all add additional layers of complexity. The new terms do not have the benefit of the past 15 years of judicial scrutiny." "They have removed the Glasgow Coma Scale that has allowed an immediate designa- tion of catastrophic impairment at no cost," Orlando adds. "It is a test that is routinely done to record the level of conscious- ness at any traumatic event by ambulance attendants and emergency room physicians and nurses. You get the hospi- tal records and the ambulance call report, then you file your application. They've taken the most cost-effective method of assessment and recommended to remove it." Others lawyers echo the opinion that the definition is more restrictive. "In my personal opinion, they are restricting the classification to the most severe cases," says Brian Mathers, an insurance and casualty specialist who works with Greg Monfor- ton and Partners in Windsor, Ont. "They are trying to equate all other injuries to the level of paraplegia or total blindness. It may look like they're trying to ex- pand the definition but they are restricting the amount of people who make the threshold." Statistics provided by re- cent auto insurance reviews show that most motor accident claims fall within the minor injury classification. A further 20 per cent of injuries are seri- ous, and only three per cent are deemed catastrophic. "The vast majority of injured parties are not even close to catastrophi- cally impaired," Orlando notes. "The cost savings of lift- ing the thresholds will not be that great, but the people who are affected will be very, very significantly affected and may lose the opportunity to return to a normal life." Orlando is perplexed by references in the report to eliminating false positives. He believes it's a mistake to think that people who are deemed catastrophically impaired go on to have a good recovery while getting a bonanza of benefits. "This goes to the heart of the flaw in the methodology. For a false positive, there has to be a two-step process. Yes, you need to be deemed catastrophically impaired. That gives you a no- tional entitlement to expanded benefits. But then you have to submit your treatment plan and attendant care plan and still prove that they are reason- able and necessary." As a result, there's no bonan- za, he adds. "You can't claim the expenses are reasonable and necessary if there's been a fantastic recovery. If insurers are doing their jobs, the claims will be adjusted." One proposal that's receiv- ing some enthusiasm from the E.V. Litigation & Financial Services Inc. Elaine G.Vegotsky, CMA, CFE, CFI Assisting you in Litigation & Forensic Accounting, Financial Investigations Suit e 900 4 5 Sheppar d Avenu e East, Willowdale, Ontario M2N 5W9 Telephon e o r Fax (416 ) 930-1370 (905) 731-5812 evlitigation@rogers.com Untitled-1 1www.lawtimesnews.com Vlit_LT_Mar17_08.indd 1 3/13/08 11:55:47 AM 4/28/11 10:29:53 AM plaintiff's bar is the creation of an interim status of catastroph- ic impairment. It will apply to those patients who meet the test of 55-per-cent whole-person impairment after three months of treatment or are accepted into a program at an in-patient neurological rehabilitation cen- tre where their condition isn't yet permanent. It will last until there's an unambiguous prog- nosis or until two years after they need it most. This measure is aimed at filling in that gap." Orlando calls the proposal for interim status "one silver lin- ing in a significantly dark cloud for injured people." "It says, 'Let's give them the best opportunity so they are not deemed catastrophically impaired in the long term.' It's better for that person and bet- ter for the insurer. It might pre- vent a lifetime of dependency." measures for combining physi- cal and psychological impair- ments and didn't find any. It was aware of judicial decisions on the subject but found they weren't based on medical and scientific evidence and pro- vided no methodology that it could validate. "The report does recognize that people with significant physical and significant psy- chological impairments are The report does recognize that people with significant physical and significant psychological impairments are worse off but says there's no scientific way of determining it, so let's do away with that entirely. the injury, whichever is sooner. The panel identified the goal of instituting interim status as promoting maximum medi- cal recovery for patients at a high risk of permanent cata- strophic impairment. Accord- ing to Mathers, this is a positive development. "The legislation currently says that even if you are over 55 per cent, you cannot make a claim for two years. The two years has nothing to do with your treatment or injury. It is an arbitrary time limit. A lot of peo- ple are denied treatment when But Orlando remains con- cerned that the panel is still fo- cusing on physical injuries. The panel didn't find a valid and re- liable assessment tool for men- tal or behavioural impairment ratings and recommended hav- ing an independent group of experts develop a comprehen- sive list of disorders. It also sug- gested not combining physical injury with psychological and behavioural impairments. FSCO notes the panel re- viewed medical literature to identify valid and reliable worse off but says there's no scientific way of determining it, so let's do away with that entirely," Orlando says. "It proposes there be more study but as an interim mea- sure to not recognize it at all," he adds. FSCO will conduct a public consultation on the issues until May 13, and people involved in the industry are promising a vigorous debate on the propos- als. "We are quite a ways from seeing a new definition yet," says Mathers. TRUST you're putting your reputation on the line. It's all about trust well placed. STACEY STEVENS | DAVID MACDONALD | MICHAEL BENNETT Since 1936 Thomson, Rogers has built a strong, trusting, and collegial relationship with hundreds of lawyers across the province. As a law firm specializing in civil litigation, we have a record of accomplishment second to none. With a group of 30 litigators and a support staff of over 100 people, we have the resources to achieve the best possible result for your client. Moreover, we are exceptionally fair when it comes to referral fees. We welcome the chance to speak or meet with you about any potential referral. We look forward to creating a solid relationship with you that will benefit the clients we serve. YOUR ADVANTAGE, in and out of the courtroom. TF: 1.888.223.0448 T: 416.868.3100 W: www.thomsonrogers.com Digital LT.indd 9 4/29/11 11:28:52 AM

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