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Rehab First Responds to the Expert Panel’s Review of the Catastrophic Definition

May 17, 2011

Catastrophic Definition ResponseLate last month, the Catastrophic Impairment Expert Panel released a 154-page report outlining its recommendations for changes to the definition of “catastrophic impairment.”  In the auto-insurance industry, the term refers to a high-level of disability a person suffers as a result of a motor-vehicle collision which entitles them to a significantly larger benefit entitlement for medical and rehabilitation and attendant care costs.  For some time there has been debate in the legal, insurance and healthcare communities about the validity of the definition of “catastrophic impairment” and the way that it was determined under the Statutory Accident Benefits Schedule (SABS).  The Catastrophic Impairment Expert Panel was tasked with revising the definition of catastrophic impairment with the aim of ensuring “the most seriously injured accident victims are treated appropriately.” 

The panel has made suggestions for a major overhaul of the definition including the introduction of an interim catastrophic impairment designation and changes to the scales and assessments used. They have also suggested changes to the definition with respect to the whole person impairment, traumatic brain injury in children, and psychiatric disorders.  

Rehab First had significant concerns that these changes will add a new level of complexity which will be difficult to navigate, and more notably, that the changes seem to constrict the definition further so that fewer complex and severely injured people will have access to a high level of funding and care that they require. 

Below is the response that Rehab First’s President, Jamie Campbell, submitted to FSCO expressing our concerns.

May 13, 2011

Dear Ms. Raz,

I would like to take the opportunity to express concern with the Expert Panel’s Recommendations for Changes to the Definition of Catastrophic Impairment. The Expert Panel was tasked with revising the definition of catastrophic impairment with the aim of ensuring “the most seriously injured accident victims are treated appropriately.”  Unfortunately, this aim was not fulfilled with the recommendations put forward by the Expert Panel. 

The proposed definition does not improve the accuracy of identifying which accident victims need access to medical, rehabilitation, attendant care, case management, housekeeping and home maintenance goods and services,  or the length of time that injured accident victims will need these services.   The definition put forward by the Expert Panel will only help to narrow the definition so that fewer people have access to the level of care that they might need, and will shorten the duration of time that people can access funding for care. 

The proposed definition will further limit access to care that was already inadequate for many innocent accident victims even before the harsh reductions to benefit levels were made to the Statutory Accident Benefit Schedule on September 1, 2010. 

In my opinion, the catastrophic definition needs to be broadened rather than narrowed, so that more people with disabilities as a result of motor vehicle injuries are provided access to the goods and services that they require.  In the current system, there are many people who have been injured in car accidents who do not meet the catastrophic definition, but who have significant functional impairment in their lives as a result of a motor vehicle accident.  Many of these people with serious and catastrophic injuries are unable to access treatment and care as a result of the limited benefit caps that already exist in the current automobile insurance system.

Background

I have been providing case management, educational and vocational rehabilitation counselling and life care planning services to those who have been injured in motor vehicle collisions since 1981.  I currently work as the Director of Rehabilitation Services for Rehab First Inc., which I own and operate with my partner,Joanne Gram.  Rehab First is a multidisciplinary community-based rehabilitation agency that employs over 75 professional staff who provide health and rehabilitation services to people throughout Southern Ontario.  Our professional staff is comprised of nurses, occupational therapists, speech language pathologists, rehabilitation therapists, social workers, counselors, case managers and a physician.    We have experience working with people that have sustained  brain injury, spinal cord injury, amputation, significant physical or psychological trauma, and chronic pain as a result of motor vehicle accidents. 

I write to you today as an experienced person, who has provided rehabilitation assessment and treatment services for almost 30 years, to thousands of people who have been injured in motor vehicle accidents. I have worked with people who were injured and insured under various automobile insurance legislations, including the Standard Automobile Policy; the Ontario Motorist Protection Plan (1990); Bill 164 (1994), Bill 59 (1996) and Bill 198/5 (2003). I have worked in rehabilitation field since before the Catastrophic Designation existed, and have worked under the constraint of the Catastrophic Designation now for many years.  We accept referrals from insurance adjusters, lawyers, physicians, psychologists, discharge planners, and health care professionals.  People who have been injured can self refer, and family members of people that have been injured also make referrals.

I trust that you will find my experience and perspective helpful in providing some insight on the newly proposed recommendations.

Whole Person Impairment

I have several concerns with the panel’s proposed definition, and the first is the separation of psychiatric and physical impairments with respect to the Whole Person Impairment (WPI) rating.

Currently under the SABS, the severity of physical impairments is determined according to the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th Edition. A person must sustain a rating of at least 55% WPI in order to be considered catastrophically impaired. Under the current system, both physical and psychological impairments can be combined to result in a 55% rating.  The panel suggests in its report that the psychiatric and physical ratings be separated, stating that “the impairment rating systems for physical and mental/behavioural impairment are not compatible and cannot be combined.” 

The scientific evidence to support this claim is not outlined in the report and, “the Panel did not have the resources to conduct a comprehensive literature review to determine whether a valid and reliable method of combining physical and psychological impairments exists.”  If the panel is going to make such an important and far reaching recommendation, then they should at least take the time necessary to study the matter thoroughly.

Unfortunately, the panel also ignored 16 years of case law and jurisprudence that says that physical and mental/behavioural impairments are compatible and can be combined. Over the last decade, there have been several cases, beginning with Desbiens v. Mordini and more recently with the Fournie decision,  where arbitrators and judges have determined that it was fair and proper to assign a percentage rating to an accident victim’s psychological impairments and combine them with his/her physical impairments for the purpose of determining whether the combined impairments meet the catastrophic definition of 55% WPI.  Evidence in these cases was accepted from various well qualified medical experts and is being totally disregarded in this recommendation.

It is unacceptable to make an arbitrary decision to separate the two based on little to no scientific evidence, and to ignore what has been determined be fair and reasonable by the courts over the last 16 years.  I have seen many cases in my personal experience as a case manager where physical impairments inherently affect psychological functioning and vice versa, and to separate the two is unreasonable and unjust. 

Interim Catastrophic Impairment

One of the recommendations is the introduction of an interim catastrophic impairment status.  Under the current system, the two-year or more waiting period before an injured person can be designated under the catastrophic definition creates a period of stagnation and frustration for the injured person,their family and their treatment providers.  The panel suggests that providing interim catastrophic impairment status would help “to balance access to higher level of funding necessary for early rehabilitation with the need to minimize the risk of patients being permanently designated as catastrophically impaired when there is a reasonable chance they will cease to be catastrophically impaired.”

While  I am in support of providing injured accident victims access to the goods and services they require more quickly , I have concern with the interim status with respect to the notion that, “there is a reasonable chance they will cease to be catastrophically impaired.”  This poses problems for several reasons. For example, what testing or method will determine whether or not a person “ceases to be catastrophically impaired?” At the point that someone is determined to cease to be catastrophically impaired, will the benefits utilized during the interim period reduce their medical and rehabilitation benefit coverage cap as a “severely injured” person?  If a person in the interim category receives a heightened level of care because of the severity of their injuries, the likelihood that the remainder of the $50,000 medical and rehabilitation benefit  will sustain treatment and care through the rest of their rehabilitation is highly unlikely.  How does an innocent accident victim who is severely injured and having difficulty functioning at home and in their community, find the funds and resources to challenge or appeal a far reaching reversal of catastrophic determination made by a well intended, but occasionally mistaken, automobile insurance adjuster who has access to the vast resources of an insurance company?

Scales & Testing

My last concern with the report is the complete overhaul of the methods for determining the level of severity of injury for effectively every injury classified under the catastrophic definition.  The panel has included the use of the American Spinal Injury Association (ASIA) system of classification, the Kings Outcome Scale for Childhood Head Injury (KOSCHI) and the Global Assessment of Functioning (GAF).  The panel has also removed the Glasgow Coma Scale (GCS) because “of the questionable ability of the GCS to predict the long term outcomes with respect to catastrophic impairment,” and instead included the Extended Glasgow Outcome Scale (GOS-E). If the goal of including all of these scales and assessments was to increase accuracy and improve the effectiveness of determining long-term needs, then the panel missed the mark.  

All of the scales mentioned in the above paragraph are subjective measures that have error and room for interpretation in their use.  Even if these assessments are carried out by trained health care professionals and physicians, the assessments are not completely reliable or valid (Chafetz, Vogel, Betz, Gaughan & Mulcahey, 2008; Calvert, Miller, Currant et al., 2008).   Use of additional scales to determine catastrophic determination will increase dispute, prolong the wait for access to treatment and promote the need for mediation, arbitration and litigation.

The current SABS classify any injured motor vehicle accident victim who has suffered quadriplegia or paraplegia, as being catastrophically impaired. This definition is straightforward and relatively easy to apply. It leaves little room for debate. Under the proposed definition, the panel suggests using the ASIA system of classification for the determination of level of disability with respect to spinal cord injuries. The ASIA system classifies patients in five severity categories, Grade E considered normal and Grade A considered a complete spinal cord injury.  The panel has recommended that anything above a Grade C designation be considered catastrophic.  The main issue with this classification is that studies have shown that without adequate training, the test results vary widely depending on the assessor.  Chafetz  et al. (2008) found that, “unfortunately, even after training, accurate classification of motor level and AIS designation remained unacceptably low.” 

Similarly, studies show that the KOSCHI is not an adequate predictor of long-term outcomes. Calvery et al. (2008) concluded that while the KOSCHI is easy to use and may have a useful role in the clinical setting as a summary indicator for estimating physical and cognitive needs at hospital discharge, “it does not appear to be a useful predictor of behavioural or emotional difficulties.” They note that, “the KOSCHI scored at discharge does not appear to be a sensitive predictor of clinical outcome or rehabilitation needs at least 6 months post-TBI.”

While the GOS-E appears to be a better predictor of outcomes for brain injury in adults than the GCS, it is still a subjective test that has varying results depending on the assessor, and the GAF has been shown to demonstrate clinical symptoms, but not to be an adequate assessor of functioning. Roy-Byrne, Dagadakis Unutzer and Ries (1996) conclude that “reliance on the GAF as the only tool to assess patients’ functioning may be problematic.”

 Disputes over assessment ratings achieved from these scales will lead to delay in access to treatment for people that have been injured and will result in further need for mediation, arbitration and litigation to sort out these disputes.  It would be much better to use the funds required to challenge disputes, on providing treatment to people with that have been injured.

The scales being proposed will effectively narrow the definition and further limit the number of severely injured patients who will qualify for the higher benefit limit.  This might be well fine and good, if the injured person does not need treatment.  However, many people now who have been severely injured, but do not qualify for the catastrophic determination, will not have their rehabilitation needs met with the $50,000 cap.  Only 2 to 3 per cent of the people that have been injured in automobile accidents today qualify for the catastrophic benefit levels now.  To further reduce the numbers of people injured who will qualify for catastrophic levels of treatment is a ridiculous recommendation.

Conclusion

The expert panel should have approached their task with an attempt to ensure that people who are injured in automobile accidents are provided access to the goods and services that they require to recover from their injuries and to restore their lives at home, in the community and in their occupation.   If the panel wants to identify a measure to determine what a person who has been injured will need over the course of their lifetime, on a case-by-case basis, then I would support the panel.  However, that has not been in the approach of the panel. The panel appears to have undertaken their work with their major intent being to reduce the numbers of people that will qualify for Catastrophic Determination and consequently I cannot support the recommendations that the expert panel has put forward.

The entire notion of Catastrophic Definition does little more than promote an adversarial and litigation-driven environment.  The best course of action in overhauling this definition would have been to scrap it altogether.  The better system is one where there are sufficient caps or limits on the amount of money available to meet the reasonable and necessary needs of the person with a disability.   The better system is one where people that have been injured in motor vehicle accidents,   medical and rehabilitation professionals, adjusters and lawyers,  work together to determine need for and provide access to the goods and services that are reasonable and necessary  to help the person with the injury recover and get on with their life post injury.  The panel needs to recognize that many people sustain serious injury as a result of motor vehicle accidents, and that many these people need access to more help rather than less.

I sincerely hope that you will reconsider this definition in light of my concerns.

Please do not hesitate to contact me if you have any questions or if I can be of any further help.

Sincerely,

James Campbell, MEd (Counselling Psychology), MBA, RRP, CCRC, CCC.

Director, Rehabilitation Services

Rehab First Inc.

 

 

WORKS CITED

Calvert, Sophie et al. “The King’s Outcome Scale for Childhood Head Injury and injury severity and

outcome measures in children with traumatic brain injury.” Developmental Medicine & Child Neurology 50 (2008): 426 – 431

Chafetz,Ross et al. “International Standards for Neurological Classification of Spinal Cord Injury: Training

Effect on Accurate Classification.” The Journal of Spinal Cord Medicine 31.5 (2008)

Boy-Byrne, P et al. “Evidence for limited validity of the revised global assessment of functioning scale.”

                The American Psychiatric Association (1996)

 

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