On April 15, 2011, the Financial Services Commission of Ontario (FSCO) released its expert report on catastrophic impairment definition review. The recommendations are considered significant as they reflect a departure from the long-standing position of jurisprudence in Ontario for the definition of catastrophic impairment under the Statutory Accident Benefits Schedule, including the approach used in Desbiens v. Mordini.
The panel recommended the creation of an interim catastrophic impairment to ensure access to rehabilitation services while a final determination of catastrophic status is being determined. The panel was split on whether Glasgow Coma Scale (GCS) score of 9 was a useful measure of catastrophic impairment for brain injury. The report includes a literature review on inter-rater reliability and face validity of GCS.
Probably the most significant recommendation of the panel was to prevent the combining of physical and psychological impairments, an important finding following the Kusnierz v. The Economical Mutual Insurance Company decision,
The Expert Panel did not find that combining physical and mental/behavioural conditions can be achieved in a valid and reliable way with the currently available methods of impairment crossrating. Moreover, the Expert Panel did not find sufficient evidence that combined impairment ratings are more clinically meaningful than using separate criteria. While 55% physical impairment establishes paraplegia as a prime example of catastrophic impairment, we did not find evidence for an equivalent threshold when physical and mental/behavioral impairments are combined. The Panel had difficulty understanding how combinations of physical impairments and psychological conditions that independently do not meet the criteria outlined in the revised version of 2(e) and 2(f) could be equated to a severe injury to the brain or, spinal cord or to blindness. Further investigation of this area is needed. Specifically defining a clinically comparable combined psycho-physical whole person impairment threshold that corresponds to the currently accepted physical threshold is needed. Therefore, until further scientific evidence is gained, we recommend that separate criteria and methods of evaluation be used for the determination of catastrophic impairment and that physical and psychiatric impairments not be combined for the purpose of catastrophic determination.
The Ontario Trial Lawyers Association, the largest organization of plaintiff-side lawyers in the Province, issued a newsletter for MPPs in anticipation of this report. They are expected to respond to the FSCO report in full shortly.
I have a question about FSCO's oversight of Ontario auto insurance. My understanding is that in theory FSCO is a neutral regulator standing between auto insurers and auto insurance consumers. FSCO's Arbitration Unit is said to be a neutral (speedier than the courts) alternative to resolve auto accident injury cases. So why has FSCO chosen a highly partisan, pro-inurer doctor and a doctor whose track record at FSCO's Arbitration Unit is dubious at best – to sit on its panel of "impartial & scientific" experts? In Augello the former was described by the trier of fact as a member of a "dissident group" seeking to overturn settled law on catastrophic impairment. In Fisher the latter was found to have done a catastrophic assessment so completely flawed that it amounted to no assessment at all. Weren't there any medical experts available to FSCO who haven't been rebuked by FSCO Arbitrators as a "dissident" (the opposite of impartial)? Weren't there any who (after saying he is "only as good as his last report") has been rebuked by FSCO Arbitrators in most of his most recent catastrophic assessments? Why would FSCO ignore its own Arbitrators when selecting a panel of experts on catastrophic impairment? Their Arbitrators wade through the work product of these experts almost daily. Their decisions are binding on litigants. Doesn't it follow that their (adverse) comments regarding the quality of the catastrophic work product of medicolegal experts ought to be binding on whoever (cherry)picked FSCO's panel of experts on catastraphic impairment calaculation?