BRAIN INJURY SERVICES
CATASTROPHIC INJURIES:
IMPORTANT HEALTH CARE AND
REHABILITATION ISSUES
Robert B. Munroe & Anandi D. Naipaul
Catastrophic Impairment
and Statutory Accident Benefits
Personal Injury Group
What is Catastrophic Impairment?
Accidents from November 1, 1996- September 30, 2003:
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Paraplegia or quadriplegia
Total and permanent loss of use of both arms
Total and permanent loss of use of both an arm and a leg
Total loss of vision of both eyes
Glasgow Coma Scale score of 9 or less
Glasgow Outcome Scale score of 2 or 3 taken more than 6 months
after the accident
55% or more impairment of whole person
Class 4 Marked Impairment or Class 5 Extreme Impairment due to
mental or behavioral disorder
Personal Injury Group
The Expanded Definition
For Accidents on or after October 1, 2003:
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Total and permanent loss of use of both legs
Child under 16 may be catastrophic taking into account developmental
implications
55% total body impairment time line reduced from 3 years to 2 years
Total and permanent loss of use of one or both arms and one or both
legs
Personal Injury Group
Analogous Impairment
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Continues to apply to expanded definition
Impairment is deemed to be the one most analogous to the impairment
that is listed in the AMA Guidelines for the purposes of establishing the
55% whole person impairment rating
As indicated above, a child under 16 may be catastrophic taking into
account developmental implications for accidents on or after October 1,
2003
Personal Injury Group
What you need to know
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Availability of more generous no-fault benefits
Entitlement to SABS despite not having a tort claim
Valid SABS claim can provide evidence to prove damages in tort claim
Funding for reports through SABS
Personal Injury Group
SABS Available to a Catastrophically
Impaired Person
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Medical/Rehabilitation up to $1,000,000
Attendant Care up to $6,000/mth to maximum of $1,000,000
Housekeeping and Home Maintenance up to $100 per week
Case Management - included in Med/Rehab cap
Expenses of Visitors - all reasonable and necessary expenses
Transportation allowances: more generous : ss 14(6)(b);
15(12)(b);24(4)(b)
Note: some people have purchased higher “Optional benefits”
Personal Injury Group
Issues in Interpretation and Proof of
Catastrophic Impairment
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Timing of GCS Reading
Effects of Drugs and Alcohol on GCS Reading
Incomplete Paraplegia/Quadriplegia
Psychological Impairment and the AMA Guidelines
Which edition of Guidelines to use
Criticism of the AMA Guidelines
Personal Injury Group
Time of GCS Reading
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What is the meaning of “reasonable period of time” for the GCS
reading?
Young v Liberty Mutual Insurance
 There is no precise time limit. Reasonableness will depend upon the particular
circumstances of each case.
Personal Injury Group
Alcohol readings and GCS score
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Holland v Pilot Insurance Company
 Evidence of medical expert that ingestion of alcohol would have no effect on
the GCS was accepted.
Personal Injury Group
Incomplete Quadriplegia meets the test
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DiMartini v ING Insurance Co. of Canada
 Medical expert’s opinion that an insured diagnosed as an incomplete
quadriplegic is catastrophically impaired was accepted.
Personal Injury Group
Psychological Impairment and Guidelines
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Class 4 Marked Impairment or Class 5 Extreme Impairment due to
mental or behavioral disorder
Desbiens v. Mordini
 acceptable to assign percentages to psychological impairments and
to combine them with physical impairments to determine if 55%
WPI
“The recent court and FSCO decisions have carefully considered the
definition of catastrophic impairment and have consistently concluded
that mental and behavioural impairments can be considered under
clause (g).” – Augello v. Economical Insurance (December, 2007)
The process for evaluation of the psychological impairment using the
AMA Guidelines and the calculation of the percentage of impairment
assigned to the impairment requires detailed knowledge of the
Guidelines and relevant case law
Personal Injury Group
Which edition of the
AMA Guidelines do you use?
Arguments of Martin Wunder in Kannally v State Farm Mutual to use
subsequent editions of the Guidelines:
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AMA 4th edition refers users to most recent edition
AMA 4th edition is superseded by 5th edition which includes methods
of pain assessment
Application of obsolete medicine leads to absurdity, lack of common
sense and breach of reasonable expectations of an insured
Use of 5th edition is consistent with sound principles of statutory &
contractual interpretation
Comment: this approach has not been approved by courts or at FSCO
and SABS clearly require use of the AMA 4th edition
Personal Injury Group
Criticism of AMA Guidelines
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Snushall v Fulsang - obiter
 Guidelines were developed in the US to adjudicate Worker’s
Compensation Claims
 Laws regarding disability determination are different from work
related disability
 Guidelines are 10 years out of date
 4th edition of Guide is no longer in print and difficult to obtain
 Guide does not take into account possibility of future deterioration
leading to 55% impairment
Personal Injury Group
Special Considerations in Analyzing
Medical Records:
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Look for evidence of catastrophic impairment
Engage medical experts to determine if readings such as GCS score
are correct
Evidence of cerebral swelling, bruising, and haemorrhaging may
indicate whether GCS score was properly measured
Personal Injury Group
Procedural Considerations
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Set out in s. 40 of the Regulation
Submit Application for Determination of Catastrophic Impairment to the
insurer
Consider whether expert opinion is needed
Within 30 days of submission, insurer will respond with either approval
or referral to CAT IE
If insured fails to attend assessment insurer may decide insured not
CAT and may stop payment of any CAT benefits
If insured attends and insurer fails to give report to insured then insurer
must pay CAT benefits until report delivered
Insurer must continue attendant care benefits at an amount which
assumes CAT until a determination is made by the insurer
Personal Injury Group
S24 of the SABS
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Insurers are not obligated to pay for s.24 assessments unless:
 Pre-approval of the insurer is obtained
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Exceptions include where:
 An immediate risk of harm to insured makes pre- approval
impractical
 Assessment is for attendant care needs
 Determining if Catastrophic impairment if insured is hospitalized or
in a long term care facility at time of assessment
 Preparation of disability certificate if does not exceed $200
Personal Injury Group
S42 Insurer Examinations of CAT claims
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Examination only relating to GCS score begins with a “paper” review
If examination is “paper” review then report must be completed and
given to insured within 10 business days of Notice of Examination
If examination required attendance of insured then examination must
be completed within 30 business days of Notice of Examination
If examination required attendance of insured then report must be given
to insured not later than 10 business days after examination completed
Insurer must pay for rebuttal report if rebuttal report given to insurer
within 80 business days after determination by insurer
More generous fee structure for rebuttal reports relating to CAT
determination
Personal Injury Group
Case Manager must be client Focused
Insured has the right to:
 A case manager who is client focused
 If insurer has already appointed case manager, to interview case
manager to ensure best interest of client is in mind
 Be aware of all communications between insurer and case
manager
 Ensure that medical services recommended by case manager are
client focused
 To review recommendations of case manager and have input into
them
Personal Injury Group
CAT issues and tort claims
Personal Injury Group
Exception to General Damages
Deductible
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On or after October 1, 2003:
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If general damages award for pain and suffering is less than $100,000,
the deduction is $30,000
If the award is greater than $100,000, there is NO deduction
Insurance Act section 267.5(8) - (8.2)
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Personal Injury Group
Amendments
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Definition revoked in Automobile Tort Claims for injury on or after
October 1, 2003
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Plaintiffs can now sue for health care benefits regardless of whether
their injuries are “catastrophic” provided they meet the threshold in
s.267.5(5) of the Insurance Act
Personal Injury Group
Personal Injury Group