Getting to CAT for the Non-Brain Injured Client

1. Getting to CAT for the Non-Brain Injured Client Claire Wilkinson Wilkinson Hooper

2. CAT Determinations: Section 2(1.2): • paraplegia or quadriplegia; • the amputation or other impairment causing the total and permanent loss of use both arms or both legs; • the amputation or other impairment causing the total and permanent loss of use of one or both arms and one or both legs; • the total loss of vision in both eyes; • brain impairment as defined in section 2(1.2)(e); • 55% whole body impairment; • marked or extreme mental or behavioural disorder.

3. Benefits of a CAT designation: • attendant care paid beyond 2 years; • housekeeping paid beyond two years; • case management services funded; • medical and rehabilitation benefits available up to $1 000 000.00; • medical and rehabilitation benefits paid for life;

4. Bill 198: Change in Definition: • CAT application can be considered after two years instead of three years – avoids gap in housekeeping and attendant care; • Change in language from condition must be “stabilized” to condition is “unlikely to cease to be catastrophic” – allows claims to be assessed for catastrophic impairment earlier. • allows for earlier involvement of case manager;

5. Section 2 (1.2) (g) – marked or extreme impairment: Four spheres of function: 1. Activities of daily living; 2. Social functioning; 3. Concentration; 4. Adaptation.

6. Section 2 (1.2) (g) – marked or extreme impairment: Class 1: No impairment:No impairment is noted in activities of daily living, social functioning, concentration, and adaptation. Class 2:Mild impairment: Impairment levels are compatible with most useful functioning regarding activities of daily living, social functioning, concentration, and adaptation. Class 3: Moderate impairment: Impairment levels are compatible with some, but not all, useful functioning regarding activities of daily living, social functioning, concentration, and adaptation. Class 4: Marked impairment: Impairment levels significantly impede useful functioning regarding activities of daily living, social functioning, concentration, and adaptation. Class 5: Extreme impairment: Impairment levels preclude useful functioning in activities of daily living, social functioning, concentration, and adaptation.

7. Marked Impairment: section 2(1.2)(g): The American Medical Association Guide states at page 300: Taken alone, a “marked” impairment would not completely preclude functioning, but together with marked limitation in another class, it might limit useful functioning. “Extreme” means that the impairment or limitation is not compatible with useful function.

8. Section 2 (1.2)(g): Extreme impairment: • complete dependency on another person for care • social functioning - the individual engages in no meaningful social contact, as with a patient in a withdrawn, catatonic state. • concentration limitation - the individual cannot attend to conversation or any productive task at all eg. a person in an acute confusional state, or with a complete loss of short-term memory. • adaptation - a person who cannot tolerate any change at all in routines or in the environment, or one who cannot function and who decompensates when schedules change in an otherwise structured - eg. psychotic episodes result if a meal is not served on time.

9. Combining physical and psychological impairments: • Desbiens v. Mordini, (2004) O.J. No. 4735 (Ont. S.C.J.). Justice Spiegel: it is only necessary to find a Class 4 or Class 5 impairment in one of the four spheres(activities of daily living, social functioning, concentration, and adaptation) to make a determination of catastrophic impairment. • Justice Spiegel: “It is not disputed that it is sufficient for Mr. Desbiens to establish that his impairment in any one of the areas of functioning meets the requirements of clause (g)”. • Justice Spiegel: psychological impairments should be combined with physical impairments to reach an overall percentage of whole person impairment.

10. Combining physical and psychological impairments: Desbiens v. Mordini: Chapter 4: Emotional and Behavioural Disturbances Chapter 14: Mental and Behavioural Disorders Mild impairment: limitation of daily social and interpersonal functioning: 0-14 % Moderate limitation of some but not all social and interpersonal daily living functions: 15-29% Severe limitation impeding useful action in almost all social and interpersonal functions: 30-49% Severe limitation of all daily functions requiring total dependence on another person: 50-70 %

11. Combining physical and psychological impairments: McMichael v. Belair Insurance Company, FSCO (2005), Director’s Delegate (2006) Leave to appeal the decision to the Divisional Court was dismissed. Arbitrator Muir agreed with the approach adopted in the Desbiens case - only one of the four spheres of impairment would need to be classified as a marked or extreme impairment to lead to a finding of catastrophic impairment.

12. Combining physical and psychological impairments: H. v. Lombard General Insurance Company of Canada: Arbitrator Renahan found that the Applicant was determined to be catastrophically impaired in both the (g) and (f) (55% whole body impairment) criterion, as he stated: “It was appropriate to assign a percentage WPI to an impairment based on a mental or behavioural disorder and combine that with a percentage WPI due to a physical impairment.”

13. Combining physical and psychological impairments: Augello v. Economical Mutual Insurance Company, (2007): there are not serious and substantial reasons to question the correctness of the Desbiens ruling that physical and psychological impairments can be combined when considering entitlement to a catastrophic impairment designation. Director’s Delegate Draper stated : This is not a situation where FSCO jurisprudence is either internally inconsistent or out of step with judicial decisions. 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). As a result, insurers are not facing inconsistent decisions that make it impossible to determine how to adjust claims involving both physical and psychological impairments. The real issue is that Economical disagrees with the analysis in these cases. Its remedy is to pursue its arguments at arbitration and, if it chooses, through appeal and perhaps judicial review. • Director’s Delegate Draper further noted that the insurers that had been subject to the decisions allowing the combining of physical and psychological impairments have not pursued the issue to higher courts.

14. How to get your client deemed catastrophically impaired: • Don’t hesitate to make the suggestion to the lawyer that you believe the client may be catastrophically impaired; • Be willing to make suggestions to the lawyer as to what specialists you think the client will require in order to obtain sufficient medical reports to establishment catastrophic impairment • Don’t overlook the potential for a catastrophic impairment in chronic pain cases – combine physical and psychological components of the injury.