By Karina Dziuba
In the recent decision Adams v. Federated Insurance Company, 2022 ONLAT, Adjudicator Chloe Lester provided a detailed analysis of the GOS-E functional assessment for catastrophic determination. The applicant was involved in a motor vehicle accident when her motorized scooter was struck by a dump truck at an intersection and dragged approximately fifteen feet. As a result, she suffered a traumatic brain injury (“TBI”). After exhausting her non-catastrophic medical and rehabilitation benefits, Ms. Adams applied to Federated Insurance Company. Ultimately, the adjudicator found that the applicant failed to meet the required criteria under s. 3.1(1)4 ii of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”) and was not catastrophically impaired within the meaning of the SABS.
In order to qualify for a catastrophic impairment designation as a result of a traumatic brain injury, the applicant must meet two criteria set out in the SABS: (1) there must be objective evidence of brain injury demonstrated by positive findings on CT, MRI or other recognized diagnostic technology indicating intracranial pathology, and (2) based on a functional assessment, the injury results in a rating of Vegetative State one month post accident, Upper Sever Disability or Lower Severe Disability six months post accident or Lower Moderate Disability, one year after the accident. This functional assessment is performed in accordance with structured interview guidelines on the Glasgow Outcome Scale and the Extended Glasgow Outcome Scale (GOS-E). However, the application and use of the questionnaire to determine catastrophic impairment have been subject to much debate.
The applicant maintained that “the GOS-E questionnaire needs to take into account the individual circumstances of the person.” Federated Insurance disagreed, arguing that GOS-E questionnaire needs to be a high-level overview or a “quick and dirty assessment”. In deciding these questions, Adjudicator Lester interpreted both the purpose and intent of the GOS-E questionnaire and its appendices.
Firstly, Adjudicator Lester makes it clear that as required by the Schedule, only a physician or neuropsychologist is capable of conducting an examination for determination of catastrophic impairment. While the assistance of another regulated health professional such as an occupational therapist may be required, their role in the assessment must be secondary in order to comply with s. 45(2) of the Schedule. An occupational therapist cannot alone complete the GOS-E questionnaire.
Secondly, a big area of debate exists between parties as to the level of disability determined by the answers to the GOS-E questionnaire. More specifically, parties often disagree as to how much detail the adjudicator must consider in determining answers to the structured interview and whether the subject functional capabilities must be carried out perfectly by the applicant. Adjudicator Lester found that the GOS-E questionnaire was not designed to account for a great amount of detail, but rather it is intended to “give a general index of the overall outcome” of the applicant’s capabilities.
Adjudicator Lester also explained that when determining functional capabilities of the applicant, the activity in question does not need to be carried out perfectly. Instead, the insured must demonstrate merely that they have functional and emotional capacity to complete the tasks. This approach to assessing disability based on the answers to the questionnaire is more in line with the purpose and scope of the GOS-E questionnaire and the appendices. For example, “the appendix provides a real caution in interpreting dependency within the home, saying that many people receive assistance but do not depend upon it.” Benefiting from assistance must be distinguished from an actual dependency on the assistance of a caregiver, which appears to be required for a catastrophic impairment designation.
This decision is highly instructive and is the most in depth in its analysis of the GOS-E testing requirements. It confirms the strictness of the GOS-E functional assessment questionnaire for catastrophic determination. The assessment is intended to be a high-level overview of the applicant’s disability and should not consider specific details of the person’s individual circumstances. This case emphasizes that catastrophic impairment based on a traumatic brain injury requires clear evidence of the applicant’s inability to independently complete tasks of daily living. Where some Applicant’s counsel had seen this sub category of CAT entitlement as being an easier way to gain access to CAT level benefits, the reality seems to be that absent a clear objective case of significant TBI, claimants will have to wait to apply under the more general 55% whole person and Chapter 14 mental and behavioural categories at a later date.