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Catastrophic Impairment and GOS-E: Abdi v. TD Insurance Company, 2022 ONLAT 19-008845/AAB – Bodily Injury

On February 16, 2022, the License Appeal Tribunal (LAT) issued its reconsideration decision in Abdi v TD Insurance Company, 2022 ONLAT 19-008845/AABS. On the underlying application for a catastrophic impairment determination, the LAT denied the plaintiff’s application for a catastrophic impairment determination under the GOS and GOS-E 4(ii) criteria of s. 3.1(1) of the
Schedule of Statutory Accident Benefits (the
“SABS“) in respect of head trauma he suffered in an automobile collision. The underlying claim and reconsideration decision in Abdi provide an overview of the LAT’s approach to determining catastrophic impairment using the GOS-E scale. Specifically, LAT stated the following in
Abdi:

  • The role of the LAT in determining catastrophic impairment using the GOS-E scale is not simply a weighing of medical experts to determine which expert opinion the LAT will accept. As the trier of fact, the LAT must review each part of the GOS-E checklist and determine whether the insured could participate in the activity absent the non-cerebral physical injury or psychological injury. If the insured is unable to participate in activities due to their brain injury, this should be included in the GOS-E scale.

  • In accordance with SABSan assessment of catastrophic impairment using GOS and GOS-E must be performed by a physician.

  • The LAT will take a flexible approach to timing in determining whether an insured has a catastrophic impairment in accordance with GOS-E. LAT is not limited to reviewing only the time of the first assessment and may review an insured’s condition beyond the date of the first assessment. However, the timing of proof of an insured’s condition may affect the weight to be given to the proof.

  • To determine catastrophic impairment under the GOS-E, the
    SABS requires the assessor to assign a GOS-E that reflects only the effects of brain injury. However, if the effect of other types of physical or psychological injury cannot be separated from the effects of traumatic brain injury, they should be considered when administering GOS-E.

Background

the Abdi decision arose out of a motor vehicle collision that occurred on June 29, 2017, in which the plaintiff suffered undisplaced pelvic fractures, a laceration of the right ear and minor head trauma. As a result of his injuries, the plaintiff began to receive statutory accident benefits from the respondent, TD Insurance Company, pursuant to SABS.

The plaintiff subsequently requested a determination of catastrophic impairment under the SABS to access additional accident benefits. In accordance with the SABSa catastrophic impairment designation would increase the policy limits available to the claimant from $65,000 to $1,000,000 and make additional benefits available to the claimant.

The insurance company denied that the plaintiff suffered from a catastrophic impairment, leading the plaintiff to ask the LAT to determine whether the plaintiff’s traumatic brain injury met the definition of catastrophic impairment under the SABS.

The original request to the LAT

The question before the LAT was whether the claimant suffered from a catastrophic impairment within the meaning of criterion 4(ii) of s. 3.1(1) of the SABS; traumatic brain injury which, when assessed in accordance with the Glasgow Outcome Scale (the “GOS”) and the Glasgow Outcome Scale Extended (the “GOS-E”), results in a rating greater or lesser severe disability six months or more after the collision or lesser moderate disability one year or more after the collision. For reference, the GOS-E ratings are as follows:











1 -Death
2 – Vegetative state (EV) State of unconsciousness with only reflex responses but with periods of spontaneous eye opening
3 – Low Severe Handicap (SD-)

4 – Severe upper handicap (SD+)

Patient who depends on daily support for a 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 a high level of SD, otherwise it is a low level of SD.
5 – Moderate low handicap (MD-)

6 – Higher moderate handicap (MD+)

Patients have disabilities such as aphasia, hemiparesis or epilepsy and/or memory or personality deficits but are able to support themselves. They are independent at home but dependent outside. If they are able to return to work even with a special arrangement, it is the upper level of MD, otherwise it is the low level of MD
7 – Poor good recovery (GR-).

8 – Recovery of the Good Superior (GR+)

Resumption of a normal life with the ability to work even if the pre-accident state has not been achieved. Some patients have minor neurological or psychological deficits. If these deficits are not disabling, it is the upper level of GR, if they are disabling, it is the lower level of GR.

In the underlying claim, the LAT found that the claimant had failed to prove that he suffered a catastrophic impairment under GOS and GOS-E as a result of his minor traumatic brain injury.

In addition to denying the application for a catastrophic impairment determination, the LAT made several important procedural decisions regarding the catastrophic impairment determination under the GOS and GOS-E generally.

The role of LAT in determining GOS-E

The plaintiff argued that it is the role of the medical experts to determine the plaintiff’s GOS-E and that the LAT must choose the expert’s opinion that carries the most weight. The Claimant argued that once this choice is made, the LAT must accept the expert’s opinion which carries more weight in determining whether the Claimant has the GOS-E required to be catastrophically impaired.

LAT disagreed with this procedure and said LAT is the trier of fact, not the experts. LAT was unwilling to allow experts to usurp its role as trier of fact. As such, the LAT must review each part of the GOS-E checklist and determine whether the applicant could participate in the activity absent the non-cerebral physical injury or psychological injury. If an applicant is unable to participate in activities due to their minor head injury, this should be included in the GOS-E scale.

GOS-E Calendar

The claimant argued that the relevant time period for the LAT in determining impairment under the GOS-E is the time of the initial assessment. LAT disagreed and concluded that a flexible approach to timing was needed.

The LAT further stated that a flexible approach requires that the LAT does not review the petitioner strictly after one year, but also the petitioner’s condition more than one year after the collision. However, the LAT noted that an assessment made more than a year after the collision may be of limited value or given little weight.

The Role of Psychological and Physical Injuries in GOS-E

The Applicant argued that his psychological impairments are the result of his head trauma and should therefore be considered under GOS-E. The insurance company disagreed and argued that the plaintiff’s psychological impairments are dealt with in other sections of the SABS and that only impairments due to traumatic brain injury should be considered when assessing the GOS-E.

The LAT agreed with the insurance company and said 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 life domains rather than the particular deficits and symptoms caused by a head injury. the head.

The LAT further clarified that the disability must result from the traumatic brain injury and not from other psychological or physical injuries 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 brain injury. However, if the effect of other types of physical or psychological injury cannot be separated from the effects of traumatic brain injury, they should be considered when administering GOS-E.

The LAT reconsideration decision

The plaintiff filed a request for reconsideration, alleging that the LAT made an error of law or fact such that the LAT would likely have reached a different result had the error not occurred. The plaintiff’s request for reconsideration was ultimately dismissed as the LAT found that the plaintiff largely advanced arguments already made at the original hearing and had not provided sufficient case law for his positions.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.