Benchmark IME November 2015 Conference

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.