BRAIN INJURY SERVICES

1. BRAIN INJURY SERVICES CATASTROPHIC INJURIES: IMPORTANT HEALTH CARE AND REHABILITATION ISSUES Robert B. Munroe & Anandi D. Naipaul

2. Catastrophic Impairment and Statutory Accident Benefits PersonalInjury Group

3. What is Catastrophic Impairment? Accidents from November 1, 1996- September 30, 2003: • 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 PersonalInjury Group

4. The Expanded Definition For Accidents on or after October 1, 2003: • 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 PersonalInjury Group

5. Analogous Impairment • 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 PersonalInjury Group

6. What you need to know • 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 PersonalInjury Group

7. SABS Available to a Catastrophically Impaired Person • 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” PersonalInjury Group

8. Issues in Interpretation and Proof of Catastrophic Impairment • 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 PersonalInjury Group

9. Time of GCS Reading • 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. PersonalInjury Group

10. Alcohol readings and GCS score • Holland v Pilot Insurance Company • Evidence of medical expert that ingestion of alcohol would have no effect on the GCS was accepted. PersonalInjury Group

11. Incomplete Quadriplegia meets the test • DiMartini v ING Insurance Co. of Canada • Medical expert’s opinion that an insured diagnosed as an incomplete quadriplegic is catastrophically impaired was accepted. PersonalInjury Group

12. Psychological Impairment and Guidelines • 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 PersonalInjury Group

13. 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: • 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 PersonalInjury Group

14. Criticism of AMA Guidelines • 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 PersonalInjury Group

15. Special Considerations in Analyzing Medical Records: • 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 PersonalInjury Group

16. Procedural Considerations • 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 PersonalInjury Group

17. S24 of the SABS • Insurers are not obligated to pay for s.24 assessments unless: • Pre-approval of the insurer is obtained • 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 PersonalInjury Group

18. S42 Insurer Examinations of CAT claims • 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 PersonalInjury Group

19. 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 PersonalInjury Group

20. CAT issues and tort claims PersonalInjury Group

21. Exception to General Damages Deductible • On or after October 1, 2003: • 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) PersonalInjury Group

22. Amendments • Definition revoked in Automobile Tort Claims for injury on or after October 1, 2003 • 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 PersonalInjury Group

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