THE CHANGING LANDSCAPE: A practical approach to the application and understanding of the new 251/15 catastrophic impairment definitions.
Significant changes have been made to the catastrophic impairment definitions under the Statutory Accident Benefits Schedule effective June 1, 2016. Highlights of these changes have been widely publicized and reviewed in various media venues, but to date there has been very little information provided in terms of applying these new definitions to the catastrophic impairment determination process.
Do you have specific questions and want to learn more? If so, plan on attending the 2nd Annual Benchmark IME Conference on November 25th, 2015 to learn more from three of Canada's leading authorities on these topics. The new catastrophic impairment definitions will be presented using a practical approach. The presentations will be invaluable to Property and Casualty Insurers, practitioners, the legal community and all stakeholders.
Rose Bilash is a senior litigator with Shillingtons LLP and is the practice leader for the Accident Benefits Group. Before entering law, Rose practiced as a registered nurse for 12 years. She then attended law school at the University of Western Ontario from 1992 to 1995 and was called to the Bar in 1996.
Rose joined Shillingtons in 2002 working exclusively for insurers in the area of accident benefits. Rose has gained significant experience defending various claims against insurers including all aspects of claims related to catastrophic impairment. Rose has appeared as Counsel before the Superior Court of Justice, the Divisional Court, the Court of Appeal and the Financial Services Commission of Ontario.
Dr. William H. Gnam,
MD, PhD, FRCPC
Dr. William H. Gnam is a psychiatrist and one of the most experienced catastrophic impairment examiners in the province of Ontario. He has lectured frequently to clinicians, lawyers and insurers on topics related to mental and behavioural impairment, and he has appeared on several occasions as an expert witness during Catastrophic Impairment arbitrations at the Financial Services Commission of Ontario. Dr. Gnam in 2010 served as Scientific and Clinical consultant to the FSCO Expert Panel on Catastrophic Impairment. In addition to extensive clinical experience as Staff Psychiatrist at the Centre for Addiction and Mental Health (CAMH) in Toronto, Dr. Gnam is also a Scientist and expert in the scientific foundations of clinical decision making. He has testified in this capacity as a Scientist before the Workers Safety and Insurance Appeals Tribunal, and the Supreme Court of Nova Scotia. His dual qualifications as clinician and scientist enable Dr. Gnam to offer unique insights into controversies in Catastrophic Impairment, such as the growing use of ranges.
Dr. Julian M. R. Mathoo,
MSc, MD, FRCPC
Dr. Julian M. R. Mathoo has nearly 10 years experience in performing catastrophic impairment determinations and has been called numerous times to appear as an expert witness during Catastrophic Impairment arbitrations at the Financial Services Commission of Ontario. He is a duly qualified specialist in Physical Medicine and Rehabilitation holding a certificate authorizing practice within the Province of Ontario. He is a graduate of the University of Toronto and presently Associate Clinical Professor at McMaster University. He holds specialty certification in electromyography (EMG) from the Canadian Society of Clinical Neurophysiologists (CSCN), is board certified by the American Board of Physical Medicine & Rehabilitation, and is board certified by the American Academy of Pain Medicine.
Main Discussion Topics
The Effects of Ontario Regulation 251/15 Revisions to Catastrophic Impairment Definitions for Traumatic Brain Injury, and for Mental and Behavioural Impairment: Tightening, Targeting, and New Challenges
When introduced the new 251/15 catastrophic impairment definitions will encounter the complexities of medical practice, and challenges in interpretation.
The effects of the 251/15 catastrophic impairment definition for traumatic brain injury (TBI) will be significant and almost certainly will reduce the number of persons with TBI who meet the catastrophic threshold. For insured persons who are 18 years or older at the time of the accident, the new catastrophic impairment definition for TBI requires intracranial pathology demonstrated by CT, MR or “any other medically recognized brain diagnostic technology” and meeting a disability threshold measured by the Extended Glasgow Outcome Scale (GOSE). While this revised definition (compared to its predecessor) offers greater precision in selecting persons with high levels of disability due to TBI, ambiguity in what constitutes “medically recognized brain diagnostic technology” and inherent limitations in the GOSE create new opportunities for disagreements in expert clinical opinions. This session will explore the limitations of the current catastrophic definitions for TBI, and predict the areas of challenge for the new Criterion 4 definition.
Changes to the catastrophic definitions affecting mental or behavioural impairments will have complicated and multi-faceted effects. The 251/15 catastrophic impairment definition for mental and behavioural impairment retains the current system of rating (based upon the American Medical Association Guides to the Evaluation of Permanent Impairment, 4th edition) but raises the threshold rating substantially. In theory this change should significantly reduce the number of persons attaining the threshold. However, the revised definition does nothing to resolve other problems with the rating system, which suggests that the impact of the new definitions on the number of Catastrophic Impairment Applications submitted may be smaller than anticipated. The new 251/15 definitions also shrink the percentage number assigned to mental impairment (when it is to be combined with physical impairments) by approximately half. The new definitions adopt the number-assigning method for mental impairments from the sixth edition of the AMA Guides, but leaves the number-assigning method for rating physical impairments unchanged from the current fourth edition. This disjunction in rating systems could have several unintended consequences, which will be explored in this session. This session will explore areas of challenge for the new Criterion 6, 7, and 8 definitions.
A more refined and focused determination of catastrophic impairment: The use of specific diagnostic criteria.
An injured person who sustains paraplegia, tetraplegia, or “…severe impairment of ambulatory mobility or use of an arm, or amputation…” on or after June 1, 2016 will be subject to a more refined and focused determination of catastrophic impairment, using specific diagnostic criteria. In the case of paraplegia or tetraplegia, an injured person’s neurological degree of impairment will be assessed using the American Spinal Injury Association (ASIA) Impairment Scale, a classification framework which quantifies the severity of the spinal cord injury. The ASIA Impairment Scale will be utilized to grade the degree of impairment (A, B, C, D and E) using specific definitions. The use of the ASIA classification also allows other rating scales such as the Spinal Independence Measure, to be used for rating impairment.
The new regulations will also utilize more refined and focused criteria for the determination of “Severe impairment of ambulatory mobility or use of an arm, or amputation…” Specific criteria will now be applied to the impairment of mobility or amputation of a limb that will provide more objective evaluation of the degree and nature of impairment, including the use of a rating scale (Spinal Cord Independence Measure).
This presentation will break down the new definitions for Criteria 1 and 2 in order to provide practical advice and direction in the application of these new thresholds.
Case law: What is still relevant and where is jurisprudence required?
New and significant changes to the Statutory Accident Benefits Schedule – Ontario Regulation 251/15 are scheduled to come into effect as of June 1, 2016. An injured person will be subject to new definitions of catastrophic impairment and as such, these new definitions will render large volumes of case law irrelevant, particularly with respect to brain impairment and mental/behavioural impairment. A myriad of new terms, definitions and classification systems will require clarification and interpretation.
This presentation will be informative and provide insight into cases that no longer apply, cases that will continue to have relevance and the jurisprudence that is required to make the new definitions of catastrophic impairment workable.
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