Further to our April 5 blog, the panel making recommendations on changes to the definition of catastrophic impairment has released their final report.  You can find the 154 page report here.

As anticipated, there are significant changes being proposed to the catastrophic impairment definition, including:

• The Panel recommends various changes, explaining their retionale as follows:

4. PROPOSED REVISIONS to the SABS – CATASTROPHIC IMPAIRMENT DEFINITIONS

In the initial stage of its deliberations, the Panel discussed the meaning of “catastrophic impairment.” In summary, the Panel agreed that a catastrophic impairment is an extremely serious impairment or combination of impairments that is expected to be permanent and which severely impacts an individual's ability to function independently. It was the opinion of the Panel that catastrophic impairment is not a medical entity; rather, it is a legal entity which defines a point along the medical spectrum of impairment severity (Appendix 1, Survey 1).

The Panel agreed that, except for 2 (d) i, all current SABS definitions required significant revisions. The Panel voted to eliminate 2 (d) i: brain impairment that results in “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” (Appendix 2, Survey 2).51 It is the opinion of the Panel that this definition ought to be eliminated because of the questionable ability of the GCS to predict the long term outcomes associated with respect to catastrophic impairment.

• the Panel recommends striking a further expert Panel for a Paediatric Working Group to come up with recommendations for CAT impairment for children 17 years and younger; and

• the Panel recommends an “interim catastrophic impairment” status be created.

 

CAT Designation Proposed Revisions to the Definition

The proposed revised definitions by the Panel include:

2(a) paraplegia or tetraplegia that meets the following criteria i and ii, and either iii or iv:

i. The Insured Person is currently participating in, or has completed a period of, in-patient spinal cord injury rehabilitation in a public rehabilitation hospital; and

ii. The neurological recovery is such that the permanent ASIA Grade can be determined with reasonable medical certainty according to the American Spinal Injury Association Standards (Marino RJ et al. ASIA Neurological Standards Committee 2002. International standards for neurological classification of spinal cord injury. J Spinal Cord Med 2003; 26(Suppl 1): S50–S56)62 and

iii. The permanent ASIA Grade is A, B, or C or,

iv. The permanent ASIA Grade is or will be D provided that the insured has a permanent inability to walk independently as defined by scores 0–3 on the Spinal Cord Independence Measure item 12 (indoor mobility, ability to walk <10 m) (Catz A, Itzkovich M, Tesio L, et al. A multicenter international study on the spinal cord independence measure, version III: Rasch psychometric validation. Spinal Cord 2007; 45: 275–91) and/or requires urological surgical diversion, an implanted device, or intermittent or constant catheterization in order to manage the residual neuro-urological impairment.12

2 (b) Severe impairment of ambulatory mobility, as determined in accordance with the following criteria:

i. Trans-tibial or higher amputation of one limb, or

ii. Severe and permanent alteration of prior structure and function involving one or both lower limbs as a result of which:<.em>

a. The Insured Person is currently participating in, or has completed a period of inpatient rehabilitation in a public rehabilitation facility, and

b. It can be reasonably determined that the Insured Person has or will have a permanent inability to walk independently and instead requires at least bilateral ambulatory assistive devices [mobility impairment equivalent to that defined by scores 0–3 on the Spinal Cord Independence Measure item 12 (indoor mobility, ability to walk <10 m) (Catz A, Itzkovich M, Tesio L, et al. A multicenter international study on the spinal cord independence measure, version III: Rasch psychometric validation. Spinal Cord 2007; 45: 275–91).12

2 (c). Legal blindness in both eyes due to structural damage to the visual system. Non-organic visual loss (hysterical blindness) is excluded from this definition.

If Interim Catastrophic Impairment Status is Approved

2 (d): Traumatic Brain Injury in Adults (18 years of age or older):

i. An Insured is granted an interim catastrophic impairment status when accepted for admission to a program of inpatient neurological rehabilitation at a recognized neurological rehabilitation center (List of facilities to be published in a Superintendent Guideline).

ii. Catastrophic impairment, based upon an evaluation that has been in accordance with published guidelines for a structured GOS-E assessment (Jennett, B. and Bond, M., Assessment of Outcome After Severe Brain Damage, Lancet i:480, 1975)49, to be:

a) Vegetative (VS) after 3 months or

b) Severe Disability Upper (SD+) or Severe Disability Lower (SD -) after 6 months, or Moderate Disability Lower (MD-) after one year due to documented brain impairment, provided that the determination has been preceded by a period of inpatient neurological rehabilitation in a recognized rehabilitation center (List of facilities to be published in a Superintendent Guideline).

If Interim Catastrophic Impairment Status is not Approved

2 (d): Traumatic Brain Injury in Adults (18 years of age or older): The impairment is deemed to be catastrophic, when determined in accordance with published guidelines for a structured GOS-E assessment (Jennett, B. and Bond, M., Assessment of Outcome After Severe Brain Damage, Lancet i:480, 1975)49, is:

i. Vegetative (VS) after 3 months, or

ii. Severe Disability Upper (SD+) or Severe Disability Lower (SD-) after 6 months, or

iii. Moderate Disability Lower (MD-) after 1 year, provided that the determination has been preceded by a period of inpatient neurological rehabilitation in a recognized rehabilitation center (List of facilities to be published in a Superintendent Guideline)

2 (e): A physical impairment or combination of physical impairments that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition 1993, (GEPI-4), results in a physical impairment rating of 55 per cent whole person impairment (WPI).

i.  Unless covered by specific rating guidelines within relevant Sections of Chapters 3-13 of GEPI-4, all impairments relatable to non-psychiatric symptoms syndromes (e.g. functional somatic syndromes, chronic pain syndromes, chronic fatigue syndromes, fibromyalgia Syndrome, etc.) that arise from the accident are to be understood to have been incorporated into the weighting of the GEPI-4 physical impairment ratings set out in Chapters 3 – 13.5

ii.  With the exception of traumatic brain injury impairments, mental and/or behavioural impairments are excluded from the rating of physical impairments.

iii.  Definition 2(e), including subsections I and II, cannot be used for a determination of catastrophic impairment until two years after the accident, unless at least three months after the accident, there is a traumatic physical impairment rating of at least 55% WPI and there is no reasonable expectation of improvement to less than 55% WPI.

2(f) psychiatric impairment that meets the following criteria:

i.   The post-traumatic psychiatric impairment(s) must arise as a direct result of one or more of the following disorders, when diagnosed in accordance with DSM IV TR criteria: (a) Major Depressive Disorder, (b) Post Traumatic Stress Disorder, (c) a Psychotic Disorder, or (d) such other disorder(s) as may be published within a Superintendent Guideline.

ii.  Impairments due to pain are excluded other than with respect to the extent to which they prolong or contribute to the duration or severity of the psychiatric disorders which may be considered under Criterion (i).

iii.  Any impairment or impairments arising from traumatic brain injury must be evaluated using Section 2(d) or 2(e) rather than this Section.

iv.  Severe impairment(s) are consistent with a Global Assessment of Function (GAF) score of 40 or less, after exclusion of all physical and environmental limitations.1

v.  For the purposes of determining whether the impairment is sufficiently severe as to be consistent to Criterion (iv) - a GAF score of 40 or less - at minimum there must be demonstrable and persuasive evidence that the impairment(s) very seriously compromise independence and psychosocial functioning, such that the Insured Person clearly requires substantial mental health care and support services. In determining the demonstrability and persuasiveness of the evidence, the following generally recognized indicia are relevant:

a. Institutionalization;

b. Repeated hospitalizations, where the goal and duration are directly related to the provision of treatment of severe psychiatric impairment;

c. Appropriate interventions and/or psychopharmacological medications such as:

ECT, mood stabilizer medication, neuroleptic medications and/or such other medications that are primarily indicated for the treatment of severe psychiatric disorders;

d. Determination of loss of competence to manage finances and property, or Treatment Decisions, or for the care of dependents;

e. Monitoring through scheduled in-person psychiatric follow-up reviews at a frequency equivalent to at least once per month.

f. Regular and frequent supervision and direction by community-based mental health services, using community funded mental health professionals to ensure proper hygiene, nutrition, compliance with prescribed medication and/or other forms of psychiatric therapeutic interventions, and safety for self or others.

3. Paediatric Traumatic Brain Injury (prior to age 18)a

i. A child who sustains a traumatic brain injury is automatically deemed to have sustained a catastrophic impairment automatically provided that either one of the following criteria (a or b) is met on the basis of traumatic brain injury sustained in the accident in question:

a. In-patient admission to a Level I trauma centre with positive findings on CT/MRI scan indicating intracranial pathology that is the result of the accident, including but not limited to intracranial contusions or haemorrhages, diffuse axonal injury, cerebral edema, midline shift, or pneumocephaly; or

b. Inpatient admission to a publically funded rehabilitation facility (i.e. an Ontario Association of Children Rehabilitation Facility or equivalent) for a program of brain injury rehabilitation or Ontario Association of Children Rehab Facilities);

Paediatric catastrophic impairment on the basis of traumatic brain injury is any one of the following criteria:

ii. At any time after the first 3 months, the child’s level of neurological function does not exceed the KOSCHI Category of Vegetative (Crouchman M et al., A practical outcome scale for paediatric head injury. Archives of Disease in Childhood. 2001; 84:1204)18: The child is breathing spontaneously and may have sleep/wake cycles. He may have non-purposeful or reflex movements of limbs or eyes. There is no evidence of ability to communicate verbally or non-verbally or to respond to commands.

iii. At any time after the first 6 months, the child’s level of function does not exceed the KOSCHI Category of Severe (Crouchman M et al., A practical outcome scale for paediatric head injury. Archives of Disease in Childhood. 2001; 84:1204)18: (1) The child is at least intermittently able to move part of the body/eyes to command or make purposeful spontaneous movements; for example, a confused child pulling at nasogastric tube, lashing out at caregivers, or rolling over in bed. (2) May be fully conscious and able to communicate but not yet able to carry out any self care activities such as feeding. (3) Severe Impairment implies a continuing high level of dependency, but the child can assist in daily activities; for example, can feed self or walk with assistance or help to place items of clothing. (4) Such a child is fully conscious but may still have a degree of post-traumatic amnesia.

iv. At any time after the first 9 monthsb, the child’s level of function remains seriously altered such that the child is for the most part not age appropriately independent and requires supervision/actual help for physical, cognitive and/or behavioural impairments for the majority of his/her waking day.

The Superintendent will take this report and make recommendations to the Government, subject to an information session held for three hours on April 28, 2011, along with accepting written submissions by May 13, 2011.

Gregory Chang
Toronto Insurance Lawyer