Written By: Joseph Cescon and Aidan Vining, Student-at-Law
On February 16, 2022, the License Appeal Tribunal (LAT) released its reconsideration decision in Abdi v TD Insurance Company, 2022 ONLAT 19-008845/AABS. On the underlying application for determination of catastrophic impairment, the LAT dismissed the Applicant’s claim for catastrophic impairment determination under the GOS and GOS-E criterion 4(ii) of s. 3.1(1) of the Statutory Accident Benefits Schedule (the “SABS”) with respect to a traumatic brain injury he sustained in a motor vehicle collision. The underlying application and reconsideration decision in Abdi provide insight into the LAT’s approach to catastrophic impairment determination using the GOS-E scale. Specifically, the LAT stated the following in Abdi:
- The LAT’s role in determining catastrophic impairment using the GOS-E scale is not simply a weighing of the medical experts to determine which expert opinion the LAT will accept. As the trier of fact, the LAT must look at each part of the GOS-E checklist and determine whether the insured could participate in the activity absent a non-brain physical injury or psychological injury. If the insured is unable to participate in activities because of their brain injury, then that must be included in the GOS-E scale.
- In accordance with the SABS, a catastrophic impairment assessment using the GOS and GOS-E must be done by a physician.
- The LAT will take a flexible approach to timing in determining whether an insured is catastrophically impaired pursuant to the GOS-E. The LAT is not restricted to looking at only the time of the first assessment and may look at an insured’s condition beyond the date of the first assessment. However, the timing of the evidence of an insured’s condition may affect the weight to be given to the evidence.
- To determine catastrophic impairment under the GOS-E, the SABS requires the assessor to assign a GOS-E that reflects only the effects of the brain injury. However, if the effect of other types of physical or psychological injury cannot be parsed out from the effects of the traumatic brain injury, then they are to be considered in administering the GOS-E.
The Abdi decision arose from a motor vehicle collision that occurred June 29, 2017, in which the Applicant suffered non-displaced pelvic fractures, a right ear laceration, and a mild traumatic brain injury. As a result of his injuries, the Applicant began receiving statutory accident benefits from the Respondent, TD Insurance Company, pursuant to the SABS.
The Applicant subsequently applied for a catastrophic impairment determination under the SABS in order to access additional accident benefits. Pursuant to the SABS, a designation of catastrophic impairment would increase the policy limits available to the Applicant from $65,000 to $1,000,000 and make additional benefits available to the Applicant.
The insurance company denied that the Applicant had suffered a catastrophic impairment, which led the Applicant to apply to the LAT for a determination as to whether the Applicant’s traumatic brain injury met the definition for catastrophic impairment under the SABS.
The Original Application to the LAT
The issue before the LAT was whether the Applicant sustained a catastrophic impairment as defined under criterion 4(ii) of s. 3.1(1) of the SABS; a traumatic brain injury that when assessed in accordance with the Glasgow Outcome Scale (the “GOS”) and the Extended Glasgow Outcome Scale (the “GOS-E”), results in a rating of Upper or Lower Severe Disability six months or more post-collision or a Lower Moderate Disability one year or more post-collision. For reference, the GOS-E ratings are as follows:
|2 – Vegetative State (VS)||Condition of unawareness with only reflex responses but with periods of spontaneous eye opening|
|3 – Low Severe Disability (SD-)
4 – Upper Severe Disability (SD+)
|Patient who is dependent for daily support for mental or physical disability, usually a combination of both. If the patient can be left alone for more than 8 hours at home it is upper level of SD, if not then it is low level of SD.|
|5 – Low Moderate Disability (MD-)
6 – Upper Moderate Disability (MD+)
|Patients have some disability such as aphasia, hemiparesis, or epilepsy and/or deficits of memory or personality but are able to look after themselves. They are independent at home but dependent outside. If they are able to return to work even with special arrangement it is upper level of MD, if not then it is low level of MD|
|7 – Low Good Recovery (GR-).
8 – Upper Good Recovery (GR+)
|Resumption of normal life with the capacity to work even if pre-injury status has not been achieved. Some patients have minor neurological or psychological deficits. If these deficits are not disabling then it is upper level of GR, if disabling then it is lower level of GR.|
On the underlying application, the LAT found that the Applicant failed to prove that he sustained a catastrophic impairment under the GOS and GOS-E as a result of his minor traumatic brain injury.
In addition to rejecting the application for a determination of catastrophic impairment, the LAT made several important procedural decisions with respect to the determination of catastrophic impairment under the GOS and GOS-E generally.
The LAT’s Role in Determining the GOS-E
The Applicant argued that it is the role of the medical experts to determine the Applicant’s GOS-E and that the LAT is to choose which expert’s opinion has more weight. The Applicant submitted that once that choice is made, the LAT must accept the opinion of the expert that carries more weight to determine whether the Applicant has the requisite GOS-E to be catastrophically impaired.
The LAT disagreed with this procedure and stated that the LAT is the trier of fact, not the experts. The LAT was not prepared to allow experts to usurp its role as the trier of fact. As such, the LAT must look at each part of the GOS-E checklist and determine whether the Applicant could participate in the activity absent a non-brain physical injury or psychological injury. If an Applicant is unable to participate in activities because of their minor traumatic brain injury, then that must be included in the GOS-E scale.
Timing of the GOS-E
The Applicant argued that the relevant time period for the LAT in determining impairment under the GOS-E is at the time of the initial assessment. The LAT disagreed and found that a flexible approach to timing must be taken.
The LAT further stated that a flexible approach requires that the LAT does not look at the Applicant strictly at the one-year mark, but also the Applicant’s condition more than one year after the collision. However, the LAT did note that an assessment carried out more than a year after the collision may be of limited value or receive little weight.
The Role of Psychological and Physical Injury in the GOS-E
The Applicant argued that his psychological impairments are a result of his traumatic brain injury and should therefore be considered under the GOS-E. The insurance company disagreed and argued that the Applicant’s psychological impairments are addressed under other sections of the SABS and that only impairments from the traumatic brain injury should be considered when assessing the GOS-E.
The LAT agreed with the insurance company and stated that the GOS-E scale reflects disability and handicap rather than impairment. In other words, the GOS-E focuses on how a head injury has affected an individual’s functioning in major areas of life rather than on the particular deficits and symptoms caused by a head injury.
The LAT further clarified that the disability must be a result of the traumatic brain injury and not other psychological or physical injuries in order to be considered under the GOS-E. To determine catastrophic impairment under the GOS-E, the SABS requires the assessor to assign a GOS-E that reflects only the effects of the brain injury. However, if the effect of other types of physical or psychological injury cannot be parsed out from the effects of the traumatic brain injury, then they are to be considered in administering the GOS-E.
The LAT Reconsideration Decision
The Applicant filed a request for reconsideration, arguing that the LAT made an error of law or fact such that the LAT likely would have reached a different result had the error not been made. The Applicant’s request for reconsideration was ultimately dismissed as the LAT found that the Applicant was largely advancing arguments already made at the original hearing and did not provide sufficient case law for its positions.