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Discriminatory ramifications, inconsistent impairment designations for injured kids

Thursday, April 11, 2019 @ 2:45 PM | By Andrew Leroy Rudder


Andrew Leroy Rudder %>
Andrew Leroy Rudder
The Ontario legislature filed Bill 251/15 under Insurance Act, R.S.O. 1990, c. I.8 on Aug. 26, 2015, which amended the Ontario Regulation 34/10: Statutory Accidents Benefits Schedule (SABS) — Effective Sept. 1, 2010, (SABS 34/10). It ushered in significant changes that came into force on June 1, 2016, such as the removal of the controversial and problematic Glasgow Coma Scale (GCS) test as a means to obtain an automatic catastrophic impairment designation with a GCS score of nine or less.

One of the major changes is the new catastrophic impairment definition for children, 18 years of age or younger, who suffer traumatic brain injuries, which is set out in s. 3.1(5) of the SABS 34/10. The catastrophic impairment definition for children with traumatic brain injuries contains five disjunctive parts, which are applicable at different times: (i) hospitalization, (ii) one month, (iii) six months and (iv) nine months or more. If a child meets any of the five parts of s. 3.1(5), then the child will be granted a catastrophic impairment designation.

I will be focusing exclusively on the first part, s. 3.1(5)i, which introduces a new automatic catastrophic impairment designation. I will also be focusing on one of the superintendent’s issued guidelines that offers guidance on the interpretation and operation of s. 3.1(5)i, which I will show, among other things, has discriminatory ramifications for children who live in rural areas.

Since the identification of problems with the interpretation of a section in a legislation doesn’t occur in a vacuum, I’ll provide a scenario with similar facts to a real case.

Scenario: A 17-year-old girl is involved in a motor vehicle accident in Brantford, Ont., where she sustains a traumatic brain injury, multiple fractures to her spine, as well as a glenohumeral joint fracture in her right shoulder. The child is admitted as an in-patient at Brantford General Hospital (BGH).  

The child requires immediate surgery on her spine, so BGH sends her to Hamilton Health Sciences, where she is admitted as an in-patient at Hamilton General Hospital (HGH), which is a Level 1 trauma centre.

The HGH uses recognized brain diagnostic technology to assess the child, which shows positive findings of an acute subarachnoid hemorrhage in the child’s interpeduncular and suprasellar cisterns.

The child is transferred to the 6 South Surgical Trauma Centre at the HGH so orthopedic surgeons can perform surgery on her spine and shoulder, rather than transferring her to the Regional Rehabilitation Centre in regards to her traumatic brain injury.

In order for the child in this scenario to be granted the automatic catastrophic impairment designation she’d have to satisfy three criteria of the first part of the definition, under s. 3.1(5)i of the SABS 34/10:

1. In-patient admission to a public hospital in a Guideline. The girl was admitted as an inpatient to BGH and HGH.
 
2. Positive findings of “intracranial pathology” that is a result of the accident. A staff radiologist at the HGH conducted a CT scan of the child’s carotid artery and head and confirmed positive findings of intracranial pathology.

3. The findings of intracranial pathology must be from a “medically recognized brain diagnostic technology.” The staff radiologist at the HGH used “medically recognized brain diagnostic technology.”

At first glance, you may think that the child fulfils the three criteria. So, you get a second opinion from a pediatric neuro-psychologist, who arrives at the same conclusion, and submits an OCF-19 Catastrophic Determination form to the insurance company. The insurance company retains a neurologist, who arrives at the same conclusion.

Case closed. Right? No, not so fast.

If you take a closer look at the first criterion, it states “In-patient admission to a public hospital in a Guideline.”  

What guideline?

The guideline that is being referred to is the June 2016, Catastrophic Impairment — Public Hospitals Guideline, Superintendent’s Guideline No. 01/16. It was issued pursuant to subsection 268.3(1) and (1.1) of the Insurance Act and is incorporated by reference in subparagraph 5 i of subsection 3.1(1) of the SABS 34/10 and applies to the definition of catastrophic impairment for accidents occurred on or after June 1, 2016.

It has a list of the 12 public hospitals for which in-patient admittance is one criterion for determining whether an insured child has a traumatic brain injury.  

In the scenario that I presented, the aforementioned Brantford and Hamilton hospitals are not among the public hospitals listed in the guideline. So even though the child meets the second and third criteria, it can be argued that she didn’t satisfy the first criterion, and an insurance company could use this as a reason to deny the automatic catastrophic impairment designation.

What do you do?

I’ll answer that question and more by showing in the next five articles that if we follow through on this line of reasoning to its logical conclusion, it would result in outcomes in the catastrophic impairment designation process that are unfair, unreliable, inaccurate, inconsistent and unpredictable.

More importantly, I will show that the guideline interpretation of s. 3.1(5)i doesn’t harmoniously coincide with the objectives and scheme of the Insurance Act and the intention of Parliament, in general, and the purpose and objectives of the evolutionary changes in the definition of the catastrophic impairment definition from 1996 to the present, as it relates to children, in particular.
 
This is part one of a six-part series. You can read part two here, part three here, part four here, part five here and part six here.

Andrew Leroy Rudder's practice at Centennial Law Group LLP is devoted exclusively to serious and catastrophic plaintiffs’ personal injury cases, as well as accident benefits and disability benefits claims. He takes a deep-dive approach to ensure his clients obtain the best medical and rehabilitation care and the fair and equitable settlements they deserve. Reach him at arudder@cenlawgroup.com.

Photo credit / IIIerlok_Xolms ISTOCKPHOTO.COM

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