Social Justice: Superintendent cloaks policy issue as science on catastrophic impairment

The superintendent’s report on the definition of catastrophic impairment in the statutory accident benefits schedule may seem like a dry topic, but for those suffering injuries in motor vehicle accidents, the difference between having a catastrophic impairment designation and not getting one can be a life-altering distinction.

Of all of the proposals in the superintendent’s report, none is more controversial than the one rejecting the combination of physical and psychiatric impairments to determine catastrophic impairment. The origin of this proposal lies with the final report of the catastrophic impairment expert panel from April 2011.
The panel conceded in its final report that it “did not have the resources to conduct a comprehensive review of the literature to determine whether valid and reliable methods of combining physical and psychological impairment exist.” Thus, it wasn’t surprising that it “did not find sufficient evidence that combined impairment ratings are more clinically meaningful than using separate criteria.”

We’ve come full circle with the superintendent now concluding that “there is no scientific evidence to suggest that combining impairments is a simple additive process.”

It’s also not a surprising conclusion given the constituency of the expert panel. As stated on July 9 by Dr. Harold Becker in his submission to the standing committee on finance and economic affairs, the majority of the expert panel members weren’t experts in catastrophic impairment and the two physiatrists are friendly to insurers.

Becker believes the “failure to acknowledge the coexistence of traumatic brain injury and associated psychiatric impairment . . . is seriously flawed and demonstrates a serious bias against both brain-injured claimants and claimants who develop associated psychiatric reactions resultant from traumatic brain injury.”

Becker’s views deserve the utmost of deference. He was responsible for leading the advisory panel that wrote the catastrophic impairment assessment guidelines for designated assessment centres in 2001.  He then served as the medical representative on the advisory panel that wrote the previous report on the definition of catastrophic impairment.

Is there an epidemic of claimants? Hardly. According to the 2011 annual report of the office of the auditor general of Ontario, about one per cent of all accident victims are determined to be catastrophically impaired. That’s less than 700 people a year.

But perhaps there’s a potential flood of additional claimants who would satisfy the definition if we allowed the combination of physical and psychological impairments? That’s not the case.

 The current definition of catastrophic impairment has been interpreted to permit the combination of physical and psychological impairments and in last December’s decision in Kusnierz v. Economical Mutual Insurance Co., the Ontario Court of Appeal referred to a concession made by the insurer that “there are only a very few cases where there are permanent physical impairment and permanent psychiatric impairments that are not catastrophic if assessed separately but are catastrophic if assessed together.”

So permit me to be puzzled about the pressing need to disallow combined impairment ratings. It’s also noteworthy that any decision to disallow combined impairment ratings shouldn’t be based on scientific evidence or the lack thereof.

 This isn’t a scientific or medical question. It’s a question of policy. The Court of Appeal said it succinctly in Kusnierz when it said the purpose of the catastrophic impairment definition is to ensure that “those with the greatest need for health care are able to recover the expenses of that health care.” If so, why is it necessary to disallow combined impairment ratings?

The composition of the expert panel was problematic at the outset. It made a recommendation without conducting a comprehensive review. The superintendent has followed that recommendation and in turn made an ill-informed recommendation that cloaks a policy issue as a scientific one to the Ontario government. It’s now up to the government to do the right thing and reject it.

Alan Shanoff was counsel to Sun Media Corp. for 16 years. He currently is a freelance writer for Sun Media and teaches media law at Humber College.  His e-mail address is [email protected].

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