Ontario Personal Injury Reforms and Catastrophic Update

Ontario Regulation 34/10 to the Insurance Act became effective on September 1, 2010, along with several other significant changes affecting personal injury and motor vehicle collision practice in Ontario.

The Law Society of Upper Canada and the Ontario Bar Association hosted a session to discuss these changes, The New Auto Insurance Regime – Practical Strategies for Radical Change, with John A. McLeish and Dale V. Orlando of McLeish Orlando LLP. A paper provided by Patrick Brown and Rikin Morzaria, also of McLeish Orlando LLP, outlined the changes.

Roger G. Oatley and James L. Vigmond of Oatley, Vigmond LLP provided an updated about catastrophic claims, accompanied by a paper by James L. Vigmond and Eve Rogers of Oatley, Vigmond LLP.

Both papers are loosely used to structure my notes and thoughts on the talk below.

Tort Claims

The most significant changes to tort claims was the elimination of a $15,000 deductible for Family Law Act (FLA) awards in fatal accidents. The new legislation also provides an option for purchasing an endorsement to reduce the deductible on on-pecuniary general damages from $30,000 to $20,000, and FLA deductible from $15,000 to $10,000.

Very few consumers actually purchase the optional benefit to reduce the deductible, so the impact of these changes are not expected to be significant. Brokers, however, may be exposed to greater liability if they fail to explain the implications of purchasing additional coverage.

SABS Claims

Most of the changes enacted this month deal more directly with the Statutory Accident Benefits Schedule (SABS) under O. Reg. 34/10, especially the introduction of a new category of “minor injuries” in s. 18 for which a $3,500 cap was introduced. Under s. 14, those with minor injuries are not entitled to s. 19 attendant care benefits.

The $3,500 cap may even apply to those who do not have a minor injury due to the wording of s. 18,

18. (1) The sum of the medical and rehabilitation benefits payable in respect of an insured person who sustains an impairment that is predominantly a minor injury shall not exceed $3,500 for any one accident, less the sum of all amounts paid in respect of the insured person in accordance with the Minor Injury Guideline [MIG]. [emphasis added]

Minor injuries are defined under s. 3,

“minor injury” means a sprain, strain, whiplash associated disorder [WAD], contusion, abrasion, laceration or subluxation and any clinically associated sequelae;
[emphasis added]

Each of the highlighted terms above are further defined under s. 3, indicating that partial tears to tendons, ligaments, and muscles are considered minor, as are WADs without neurological symptoms, fractures or dislocations of the spine.

S. 8 of the MIG provides for 3 different stages for treatment over a 12-week period, allowing for discharge by the health care practitioner at any of the 4 week-intervals if maximal recovery is achieved. If a patient requires further treatment beyond this period, an OCF-18 must be submitted directly to the insurer. Block fees through each of these stages steadily decreases. My take is that this may result in a greater emphasis on patient education in rehabilitation, as health care practitioners will have less access to funds over the 12-week period.

Exemption from the restrictive minor injury category is available under s. 18(2),

…the $3,500 limit… does not apply to an insured person if his or her health practitioner determines and provides compelling evidence that the insured person has a pre-existing medical condition that will prevent the insured person from achieving maximal recovery from the minor injury if the insured person is subject to the $3,500 limit or is limited to the goods and services authorized under the Minor Injury Guideline.
[emphasis added]

A likely point of contention between counsel will be the nature of compelling evidence for a pre-existing medical condition.

Medical rehabilitation benefits in non-catastrophic claims have also been reduced under s. 18(3)(a) from $100,000 to $50,000. Press secretary for Hon. Dwight Duncan, Andrew Chornenky, said,

It allows consumers to decide what best meets their needs and tailoring their auto insurance package to that. The $50,000 for medical and rehab is still the most generous across Canada for the non-public auto insurance provinces.

But perhaps not so generous.

Included in this amount are costs for assessments and examinations. Since assessment costs can directly reduce medical and rehabilitation costs, this may lead to potential conflicts of interest.

Brown and Morzaria note that there is no cap to the number of assessments, and an insured person may use a significant portion of the $50,000 in responding to multi-disciplinarian assessments by the insurer. This creates an uneven playing field, and as a result the insured may opt to forgo assessments and instead seek tort claims, where the assessment costs can be recouped as disbursements.

Assessment rates are capped in s. 25(5)(a) at $2,000 per examination for both parties. SABS claimants without tort claims will be severely restricted and forced to mediate and litigate SABS issues to attempt to have costs of reports included as disbursements. Defence counsel will likely have less medical examinations from SABS to rely upon in tort claims.

Where tort claims are still pending alternative arrangements for medical rehabilitation should be considered given the limited medical rehabilitation benefits available, including deferred payment agreements with service providers, alternative finance arrangements, and advance payment options. Reduced benefit amounts within SABS may allow those with a strong tort claim to argue that limited use of medical rehabilitation benefits within SABS indicates a lack of future care costs.

Although additional medical rehabilitation benefits can be purchased within SABS, the same issue raised above regarding broker liability is relevant here. Cyclists, pedestrians, and those on public transit without access to automobile insurance will not have access to these additional benefits.

In non-catastrophic cases with no additional options, housekeeping and caregiver SABS benefits will be eliminated under ss. 13 and 23, but may be claimed in tort as special damages. Catastrophic claims may still access housekeeping benefits under s.23.

Attendant care benefits without a buy-up are reduced to $36,000 under s. 19(3)(2))(ii) for the maximum two-year period specified under s. 20(2), or double up their payment for $3,000 per month over a 1-year period under s. 19(3)(1). Under s. 42(1)(b), the “Assessment of Attendant Care Needs” form must now be submitted to the insurer only by occupational therapists or registered nurses. Brown and Morzaria claim that those deemed catastrophically impaired under the 55% Whole Person Impairment (WPI) two years post-collision will be significantly impacted, and may not have the care needed for proper recovery.

Claimants for attendant care, caregiver, or housekeeping benefits all must establish that the benefit was “incurred,” using a more restrictive definition in s. 3(7)(e) that will impact both catastrophic and non-catastrophic claims. An “economic loss” must be demonstrated as a result of providing care or services, discouraging family members who provide such care without direct billings. Transportation expenses and failure to enter the workforce, however, may be appropriately considered an economic loss. Where the insurer has unreasonably withheld or delayed a benefit later determined by a court or arbitrator, s. 3(8) states that the need to demonstrate an expense was “incurred” is not required.

Brown and Morzaria claim that since SABS rates for attendant care are well below market rates, an injured person will not be able to get the care they require by forcing them to obtain professional care instead of family assistance. A re-election for a caregiver can be made under s. 35 once a catastrophic determination has been made.

Catastrophic Claims

Because catastrophic claimants have the greatest need for medical and rehabilitation benefits they use them up faster than other applicants, and if the $50,000 is used before the two-year period there will not be any remaining amount for a catastrophic assessment. The $2,000 limit per examination mentioned in s. 25(5)(a) above likely applies to each examination in a multi-assessment process in determining a catastrophic injury, meaning that a catastrophic assessment could erode the $50,000 amount significantly for these claimants.

The definition of catastrophic injuries has been expanded under s. 3(2)(b) to include single limb amputees.

In defining catastrophic injuries, Vigmond and Rogers begin by pointing to Arts v. State Farm Insurance Company,

[14] The legislature’s definition of “catastrophic impairment” is intended to foster fairness for victims of motor vehicle collisions by ensuring that accident victims with most health needs have access to expanded medical and rehabilitation benefits. That definition is intended to be remedial and inclusive, not restrictive…

Combining Physical and Psychological Claims

One point of contention in personal injury litigation is whether physical and psychological injuries may be combined to achieve the definition of catastrophic.

All of the definitions of catastrophic injuries under this section identify specific impairments that can result in substantial care needs, with the exception of s. 3(2)(e),

(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.

[emphasis added]

Tanya Zigomanis of Zarek Taylor Grossman Hanrahan LLP states,

Arts v. State Farm Insurance Company strongly supports the controversial decision in Desbiens v. Mordini (2004) O.J. No. 4735 which determined that the Schedule requires consideration of all impairments, however caused, and that they be totalled together in arriving at whole person impairment (WPI)…

… the plain language of the Schedule which would permit combining physical and psychological impairments; the AMA Guides do not prohibit the inclusion of a psychological impairment; the purpose of the Schedule being remedial and consumer protecting to reduce the hardship of automobile accident victims; and the FSCO [Financial Services Commission of Ontario] arbitrators and adjudicators expressed approval of the Desbiens analysis in their decisions.

This decision confirms that insurers will be faced with an uphill battle if choosing not to apply percentage ratings for a person’s psycho-emotional impairments and further in deciding against the combination of percentage ratings for physical impairments to determine catastrophic impairment.

Justice Spiegelin in Desbiens held that since (what is now) s. 3(2)(e) allowed for emotional and behavioural impairments for brain injury, emotional or behavioural impairments arising from psychological impairments under (what is now) s. 3(2)(f) (the previous subsections were (f) and (g)) should also be allowed given the similarity of descriptors in AMA Guides tables in Chapter 4. He did this by treating the Guides as an integral part of the Schedule, relying on R. v. Collins,

[19] Material other than statutes may also be incorporated by reference. Examples of such material are international conventions or rules, industrial standards of construction or safety, statistical information from Statistics Canada (Calder v. Canada (M.E.I.), [1980] 1 F.C. 842 (F.C.A.) at 852), and generally accepted accounting principles recommended in the Handbook of the Canadian Institute of Chartered Accountants (Re Denison Mines Ltd. and Ontario Securities Commission, (1981), 122 D.L.R. (3d) 98 (Ont. G.D.)).

[20] When material is incorporated by reference into a statute or regulation it becomes an integral part of the incorporating instrument as if reproduced therein…

Vigmond and Rogers claim that all judicial decisions following Desbiens have consistently followed it. Justice MacKinnon in Arts also stated,

(b) The AMA Guides do not prohibit inclusion of psychological impairment.

[10] The Guides are intended to be interpreted liberally. They make it clear that physicians must use their clinical judgment to arrive at impairment “estimates”. When one considers not only pages 301-2 but rather pages 141-2 and the entirety of the AMA Guides which provide no absolute prohibition on the use of percentage ratings for psycho-emotional impairments, it is clear that those Guides recognize it may be necessary to arrive at percentage ratings in appropriate cases in order to provide physicians with informed guidance. The combined values table at pages 322-324 of the Guides specifically permits physicians to combine impairment ratings from different chapters to arrive at a compound impairment rate.

[12] The Guides were clearly not designed by the AMA for the purpose directed by the Ontario Legislature. They must be interpreted in a manner that is contextually consistent with the language of the SABS. The Schedule directs that a “combination of impairments” that results in a WPI of 55 percent meets the test for catastrophic impairment. The Schedule defines “impairment” to include psychological impairments. If percentage ratings can be used to categorize mental or behavioural impairments flowing from a brain injury (chapter 4 of the AMA Guides), there is no reason that they cannot also be used to categorize mental or behaviour impairments flowing from a psychological injury. To interpret the Schedule otherwise would produce an unreasonable outcome.
[emphasis added]

Vigmond and Rogers note that the issue of combining physical and psychological scores has been submitted for judicial review in the FSCO decision Augello v. Economical Mutual Insurance Company, [2009] O.F.S.C.D. No. 142.

Impairments Due to Mental and Behavioural Disorders

Aspects of functioning are also relevant for the purposes of assessing the definition of catastrophic impairments under s. 3(2)(f), and include:

  1. Activities of Daily Living (ADLs)
  2. Social functioning
  3. Concentration
  4. Adaptation

An important point in interpreting these functions is that according to the AMA Guides these are qualitative assessors, and not quantitative.

In Pastore v. Aviva Canada Inc., [2009] O.F.S.C.D. No. 24 Arbitrator Nastasi did not find a catastrophic injury due to a 55% WPI, but did find a catastrophic impairment due to a Class 4 Marked Impairment.

The insurer appealed, [2009] O.F.S.C.D. No. 163, arguing 2 errors in law over the definition:

  1. physical impairments should not be combined with mental or behavioural
  2. the definition required an overall marked impairment in all 4 assessment areas

Arbitrator Lawrence Blackman upheld the decision on the basis of Desbiens, H v. Lombard General Insurance Company of Canada, [2007] O.F.S.C.D. No. 193, and McMichael and Belair Insurance Company Inc., [2005] O.F.S.C.D. No. 34, stating,

24 The Guides do not state anywhere that one must look at all four spheres of functioning together. Nor, submits the Respondent, do they provide any guidance on how one should combine all four spheres to arrive at an overall rating…

But Arbitrator Blackman also rejected using the American regime for interpreting the Guidelines,

46 I am not persuaded that the Social Security Administration Guidelines that prevail in the United States, as advocated by medical witnesses, provide any interpretive assistance regarding the specific Ontario test and the legislative purpose, as set out in by Mackinnon J. in Arts v. State Farm, 91 O.R. (3d) 394, leave to appeal denied in Arts (Litigation Guardian of) v. State Farm Insurance Co., [2008] O.J. No. 5740, “that accident victims with greatest needs obtain enhanced benefits.”

Glasgow Coma Scale Scores for Brain Injury

Vigmond and Rogers discussed the Glasgow Coma Scale (GCS) ratings, used in s. 3(2) to define catastrophic injury,

For the purposes of this Regulation, a catastrophic impairment caused by an accident is…

(d) …brain impairment that results in,

(i) a score of 9 or less on the Glasgow Coma Scale, as published in Jennett, B. and Teasdale, G., Management of Head Injuries, Contemporary Neurology Series, Volume 20, F.A. Davis Company, Philadelphia, 1981, 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, as published in Jennett, B. and Bond, M., Assessment of Outcome After Severe Brain Damage, Lancet i:480, 1975, according to a test administered more than six months after the accident by a person trained for that purpose;

Vigmond and Rogers posed three questions:

  1. What happens when there are multiple GCS readings, at least one of which is nine or less, and at least one of which is above nine?
  2. What happens in the presence of confounding factors such as alcohol, drugs, and/or intubation that might affect the GCS score?
  3. What happens with unrecorded GCS scores?

Using multiple GCS scores was resolved in Liu v. 1226071 Ontario Inc. (Canadian Zhorong Trading Ltd.), where the Ontario Court of Appeal overturned the trial judge’s decision that other GCS scores higher than 9 within a reasonable time did not compromise the catastrophic definition,

[27] In my view the answer to the respondents’ objection is the plain language of the legislation. Provided there is a brain impairment, all that is required is one GCS score of 9 or less within a reasonable time following the accident. It is a legal definition to be met by a claimant and not a medical test.

[29] In my view the trial judge fell into error in equating the statutory test to a medical one. It is not.

[30] Any notion of catastrophic injury, other than the specific meaning ascribed to that term by the legislation must be discarded when considering whether a claimant meets the statutory test. The statutory scheme creates a bright line rule which is relatively easy to apply. This enhances the ability of those looking to the definition to know what injuries will and will not be considered catastrophic. Having the same definition for both no fault and third party liability claims avoids inconsistency. The ease with which the rule can be applied adds an element of predictability which will facilitate the settlement of claims.
[emphasis added]

Confounding factors was addressed in three decisions, all of which found that the insured person sustained a catastrophic impairment despite the possible influence of confounding factors.

In Holland v. Pilot the plaintiff had been involved in substance abuse at the time of the accident. Justice Keenan invoked July v. Neal to provide a more favourable interpretation for the insured, stating that a restrictive meaning could only be used if spelled out in the statute,

[24] The definition of “catastrophic impairment” in the Statutory Accident Benefits Schedule is a creature of the legislature. This type of regulation is adopted by the legislature after extensive consultation with interested parties, including insurers. If restrictive meaning is to be assigned to the regulation it should be clearly recited in the regulation itself.
[emphasis added]

Two FSCO decisions also support this point. In Tournay v. Dominion of Canada General Insurance Company the patient had a GCS higher than 9, which dropped when she was intubated. Arbitrator Robert Kominar rejected on pp. 17-18 the notion that “there is a special “SABS interpretation” of GCS scores” that would use a medical definition of applying GCS,

…the Schedule does not speak anywhere of exceptions to the validity of GCS tests administered by a qualified person on an intubated patient.

Kominar also discussed the text used in the Schedule to define catastrophic injuries,

Dr. Jennett and Dr. Teasdale, do not anywhere in The Management of Head Injuries, refer to [defence witness’] preferred method of recording the GCS score for intubated patients. The GCS score is the standard numerical score out of 15 only. But, even more importantly, Jennett and Teasdale make it clear that one of the explicit purposes for developing the GCS was to prevent neurological function from being described in terms of only one domain of response. All three aspects of behavioral response were to be assessed independently. They also explicitly recognize in their original 1974 article that the three domains of responses were needed, because one type of response, for various reasons, might be untestable. Yet notwithstanding this proviso, that there may be occasions when you can’t test one of the domains, they continue to describe the GCS test and its usefulness without ever suggesting that it would be “confounded” or “invalid” in some cases. Jennett and Teasdale, in The Management of Head Injuries, specifically recognize the challenges associated with conducting a GSC test on an intubated patient…

In the other FSCO case, Young v. Liberty, [2003] O.F.S.C.D. No. 157, Arbitrator Beth Allen considered the case where the injuries were directly to the face, where the majority of GCS scoring is obtained from. She refused to add the words “valid and reliable” as modifiers of the GCS score as requested by the insurer,

82 Perhaps, understandably, Liberty Mutual is attempting to address some of the inherent frailties of the GCS score through its desire to import the adjectives valid and reliable. I accept Dr. Becker’s opinion that GCS scores are not intended to be used to diagnose a condition or prognosticate on an injured person’s future medical status, but rather is intended as a tool of communication between medical practitioners about a person’s state of consciousness after trauma. Although, as Dr. Becker stated, the use of GCS scores is an attempt to quantify levels of consciousness to improve on the previous use of descriptors, there is still a subjective element to arriving at a GCS score. Different medical practitioners may interpret the objective indicators differently. Adding to this, as both parties acknowledge, is the fact that certain factors such as the injuries themselves and certain emergency medical procedures can confound the scores. It stands to reason that the more severe a head injury, the more likely that aspects of the injury might affect the scores, and the more likely that emergency procedures would be administered that might also complicate the medical picture.

83 I find one must be able to assume the legislature was aware of these features of the GCS score when it chose it as a means to assess catastrophic brain impairment. Surely the legislature would not have intended to provide the GCS score as a measure of catastrophic impairment under circumstances where the very characteristics of this tool would rule it out as an appropriate measure. It cannot be intended by the legislature that the most seriously injured might not have the enhanced benefits available to them soon after the accident because their GCS scores were confounded by the severity of their injury. In the end, however, the GCS score is a tool medical assessors and adjudicators must work with in assessing catastrophic brain impairment.
[emphasis added]

On appeal, [2005] O.F.S.C.D. No. 76, Arbitrator D. Evans affirmed Arbitrator Allen’s decision and stated,

98 I agree with the sentiments of the arbitrator and the court. It is not necessary to read the terms “valid and reliable” into the legislation. The definition is already strict. Adding in those words would raise the bar to an impossible level. The definition already requires the test to be administered by a person trained for it, so as I have already said, the assumption should be from the beginning that the score is valid. Reading in those terms would validate MDAC’s approach to the question, which essentially was to ignore a score if it was affected in any way by possible confounding factors.

The final question related to GCS scores are where the health care practitioner fails to record a GCS score as in Windsor v. Motor Vehicle Accident Claims Fund, [2010] O.F.S.C.D. No. 63. Arbitrator Jeffery Roberts rejected the evidence of the paramedics that the unrecorded GCS score was 3,

24 Mr. Lowe and Mr. Moschini agree that their responsibilities at the scene of the accident were governed by Basic Life Support and Patient Care Standards, Version 1.1, dated September 1999, developed by the Ontario Ministry of Health (BLS). Section 3, Paragraph 7(i) on page 91 of the BLS, sets out the responsibility of a triage unit for a patient found with an altered level of consciousness. It states as follows:

Use the mnemonic AVPU to gauge level of consciousness – Alert, responds to Voice, responds to Pain, Unresponsive. If level of consciousness is reduced, transfer and secure the patient to a long backboard or scoop and prepare to “load and go”. Ensure that the airway is patent and ventilation is adequate.

The BLS does not require the triage unit to administer a GCS test. The fact that BLS does not require Mr. Lowe and Mr. Moschini to administer a GCS test makes it less likely that they did so. That probability is heightened by their testimony that shows that they otherwise followed the BLS. The BLS requires three steps: assess the patient, secure to a backboard, ensure that the airway is patent. They testified that, after their initial assessment, they secured Mr. Windsor to a backboard and, because he had a compromised airway, they inserted a nasal airway.

Even though the AVPU provides similar information as the GCS, Arbitrator Roberts held that it was not sufficient for a catastrophic determination as it does not provide for specific information required by the statute in a GCS assessment. Without the GCS score the patient could not have experienced a catastrophic injury as defined in the Schedule.

Comments

  1. Brij Goberdhan FIIC ACII RIB

    Omar,
    An extremely well written article. Very professional, thoroughly researched and presented in a very organized manner. You are to be commended.

    As brokers we receive the “slaps and kicks” from the public who remain the seaweed in this insane floatsam of SABS and all things Auto insurance. Hence I could not but wince, no fault of yours, at your comment that “brokers may be held to greater liability if they fail to explain.” Professional liability et al, you should as part of your research accompany some brokers or listen in when brokers try to explain legal niceties, rights and offer better cover or recommend optional cover. What hurts is no matter what, a broker is always wrong when it ends up in court. I wish we could just get away with writing academic articles like this but alas.. Anyway, if a referendum is held as to whether AB should be eliminated totally from the OAP1 and allow the insured 100% choice what do you think the result would be.

  2. Nice job, Omar.

    I just got my auto insurance policy renewal materials this week, so your very timely piece helped me navigate the maze of the changes to SABS and better understand precisely what’s changing and to consider what supplemental insurance I should consider. Much appreciated.

    Cheers.

  3. Very interesting and informative page. It took me about 30 minutes to go through it all, but wow.. a lot has changed in the law regarding personal injury in Ontario.

    Thanks for the informative piece!

  4. Actually it has just proved to me what I always suspected thay 1) the adjusters do not always actually read the reports; 2) they do not have medical background and understand peoples most basic needs and function – injury relationships.