The lawyers at Aaron Waxman & Associates are experienced with Disability, Personal Injury and Employment claims.
Every 5 years the Superintendent of Financial Services is obligated to to review the Auto Insurance Provisions of the Insurance Act.
Well, September 2010 brought enormous changes to the Statutory Accident Benefits Schedule (SABS) and that was the result of the most recent 5 year review. The Minister of Finance also asked the Superintendent to make recommendations with respect to the definition of catastrophic impairment.
Catastrophic Impairment is a term that is defined in the Insurance Act. If one has suffered from a catastrophic impairment, he or she is entitled to enhanced limits of coverage. The limit for medical and rehabilitation benefits increases from $50,000 over ten years to $1,000,000 over the insured’s lifetime. Access to attendant care benefits increases from $36,000 over two years to $1,000,000 over the insured’s lifetime. The insured person also has a right to a case manager and lifetime housekeeping benefits. An insured person has to be declared catastrophic by both his or her own doctors and the insurance company must believe that any requested benefit is reasonable and necessary before entitlement occurs.
This is the current definition of catastrophic according to the SABS:
For the purposes of this Regulation, a catastrophic impairment caused by an accident is,
(a) paraplegia or quadriplegia;
(b) the amputation of an arm or leg or another impairment causing the total and permanent loss of use of an arm or a leg;
(c) the total loss of vision in both eyes;
(d) subject to subsection (4), brain impairment that results in,
(i) a score of 9 or less on the Glasgow Coma Scale, 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, according to a test administered more than six months after the accident by a person trained for that purpose;
(e) subject to subsections (4), (5) and (6), 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
(f) subject to subsections (4), (5) and (6), 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. 34/10, s. 3 (2).
(3) Subsection (4) applies if an insured person is under the age of 16 years at the time of the accident and none of the Glasgow Coma Scale, the Glasgow Outcome Scale or the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, referred to in clause (2) (d), (e) or (f) can be applied by reason of the age of the insured person. O. Reg. 34/10, s. 3 (3).
(4) For the purposes of clauses (2) (d), (e) and (f), an impairment sustained in an accident by an insured person described in subsection (3) that can reasonably be believed to be a catastrophic impairment shall be deemed to be the impairment that is most analogous to the impairment referred to in clause (2) (d), (e) or (f), after taking into consideration the developmental implications of the impairment. O. Reg. 34/10, s. 3 (4).
(5) Clauses (2) (e) and (f) do not apply in respect of an insured person who sustains an impairment as a result of an accident unless,
(a) a physician or, in the case of an impairment that is only a brain impairment, either a physician or a neuropsychologist states in writing that the insured person’s condition is unlikely to cease to be a catastrophic impairment; or
(b) two years have elapsed since the accident. O. Reg. 289/10, s. 1 (2).
(6) For the purpose of clauses (2) (e) and (f), an impairment that is sustained by an insured person but is not listed in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 is deemed to be the impairment that is listed in that document and that is most analogous to the impairment sustained by the insured person. O. Reg. 34/10, s. 3 (6).
What are the proposed changes?
The Superintendent assembled a panel of medical experts to review the definition of catastrophic impairment. The report can be found here.
Sweeping changes were recommended. They recommended changes to almost every aspect of the current definition.
Glasgow Coma Scale Score of 9 or less to be eliminated as an entry point for CAT impairment: In the current SABS regime, if you sustain a brain injury that results in a GSC score of 9 or less (that is measured within a reasonable period of time after the accident), you are entitled to be designated as catastrophically impaired. The expert panel felt that a GCS score of 9 or less is not a reliable predictor and should not be grounds for obtaining CAT status.
Interim Catastrophic Impairment Status: A new status would be created, to allow an injured person an interim designation of catastrophically impaired with respect to physical injuries only, if at least 3 months after the accident the 55% Whole Person Impairment threshold is met. The interim status provides access to the standard catastrophic insurance limits described earlier in this blog post. Interim status would last until a final determination of Whole Person Impairment could be made, but not later than 2 years after the accident. This interim status, if approved, would improve access to medical and rehabilitation benefits and attendant care benefits. For many seriously non- catastrophic individuals, accident benefits limits could easily be exhausted in a few months.
Children under 18 years of age: The expert panel recommended convening another medical panel to further examine impairments in children and the applicability of the CAT definitions to them. When the report was initially released, it appeared the panel recommended keeping the current definitions in place with respect to children.
Combining Physical and Psychological Impairments to reach 55% Whole Person Impairment: This is a contentious issue and the expert panel expressed doubt that combining impairment ratings will be allowed. They said further study is needed. The panel stated that until a further study is completed, the combining of physical and psychological impairments should not be allowed.
Paraplegia and Tetraplegia: Accident victims who became paraplegic or tetraplegic should continue to be entitled to CAT status. The panel recommended abandoning the American Medical Association Guides and use a new standard, the ASIA Rating System to assess quadriplegia and tetraplegia. The panel further recommended that a tetraplegic or paraplegic would not be entitled to CAT status, unless as a result of the accident, he or she spent a period of time as an inpatient, at a public rehabilitation hospital specializing in spinal cord injuries.
Brain Injuries: Major definitions were recommended with respect to brain injuries. Instead of using the Glasgow Coma Scale, the Extended Glasgow Outcome Scale would be used. A person cannot obtain catastrophic impairments status from a brain injury unless he or she is admitted for a period of time as an inpatient at a recognized neurological rehabilitation centre.
Psychiatric Impairment: The only entry point for catastrophic impairment is under Section 2(f), where a person sustains either a Class IV or Class V (marked impairment or extreme impairment) due to a mental or behavioural disorder. The panel recommended rewriting this provision entirely. A diagnosis of accident related major depressive disorder, post-traumatic stress disorder or psychotic disorder is one of the acceptable diagnoses accepted by the panel. If you suffer from one of these disorders, the panel recommends yet another scoring system be applied, the Global Assessment of Function Scale (GAF). Only a score of 40 or less would qualify as a CAT impairment.
Severe Arm or Leg Impairments: Currently the SABS provides for catastrophic status for the amputation or complete loss of the use of one arm or leg or both arms and legs. The panel recommended that arm and leg impairments be treated differently. The panel recommended that for arm injuries or amputations, the AMA Guides, requiring 55% WPI be used. For leg impairments, they proposed a new definition that would include either the amputation of one leg above the knee, or leg impairments that result in a permanent inability to walk independently, requiring bilateral ambulatory assistive devices, along with a score between o to 3 on the “Spinal Cord Independence Measure.”
Blindness: The current definition requires a total loss of vision in both eyes to obtain catastrophic status. The medical panel did not recommend changes to this definition.
Aaron Waxman & Associates is a Toronto Personal Injury Law Firm that handles motor vehicle accident claims, and catastrophic claims.
* This blog is for informational purposes only and is not meant to substitute legal advice. Please read our disclaimer for further information.
* All of our lawyers are licensed by The Law Society of Upper Canada
* Office in Toronto and able to represent people in the province of Ontario
Disability & Personal Injury Blog