• They look healthy and “normal”
  
  
• They deny or have no insight into their deficits
  
  
• Their parents are invested in believing they have recovered and are going to be fine
  
  
• Their cognitive deficits and executive function damage may be severe, but , depending on the age, not evident now or interpreted as lack of motivation or non-compliance, or other negative label
  
  
• Intense rehab intervention now may protect them against profound effects of the deficits later on, but they have returned to their “pre-accident” condition for a child their age
  
  
• The legislation that provides funding for rehabilitation did not consider children, and it is difficult to fit them into the prerequisites for funding
  
  
• The health and service providers focus on the average and the preserved abilities and strengths and don’t clearly identify the losses, impairments and deficits and their practical impact now and in the future on this child, not the average child
  
  
• Many children with brain injury have had pre-existing attention deficit, hyperactivity and/or learning disability—what rehab are they entitled to when they had problems before the injury that didn’t look much different
  
  

One of the first hurdles to get over in paediatric brain injury cases is that most of the children look perfectly normal and exactly as they did before the injury. They can be observed running and playing and laughing and with no evident impairment. It is difficult for people not familiar with this injury to think of a child as severely injured when there appears to be nothing wrong with them. But as many of my parent/clients say: “just let the insurer come and live with him for a week!"

Part of the role of the experts and advocates involved with paediatric cases is to educate about this invisible injury.

DENIAL

Recognizing and dealing with the denial and/or lack of insight of the survivors and their families is critical to their success in the legal/insurance system.

Parents have just seen their “baby” at the doorstep of death. For them to now see her walking and talking, and then playing and going back to school is all they hoped for. It takes a considerable period of time for the parents to recover from their own shock and trauma and begin to recognize subtle changes in their child, which they are desperately hoping will not be there. Most parents will not be reliable historians, or will rationalize behaviour, especially at first. Many parents notice things, but don’t make the connection to the injury and, therefore, don’t report the symptom or behaviour.

No one wants to have a brain injury and denial is a factor for all individuals with brain injury, but teenagers have such a strong need to fit in and be normal, that most attempt to hide and cover up their deficits, mention them to no one and deny them when asked directly. It is very difficult to develop cases for teens. Inexperienced rehabilitation professionals and/or advocates can prove disastrous to the claims of teenagers by seriously underestimating the extent of their impairment.

The best advice I can give is if a teenage survivor of a severe brain injury says he is fine, don’t believe him. Let the proof be in careful assessment and the objective reports of therapists with experience in dealing with teenaged survivors.

The other thing I see routinely in reports on teenagers with frontal lobe damage is blaming labelling, like “he is not motivated”, “he is not complying with the recommendations”, “if he would try harder, he would do better”. Lack of impulse control, lack of motivation and inability to plan and regulate activity are effects of frontal lobe injury. These deficits make it very challenging to treat the teens, but they should be reported as effects of the injury and not as a reason for blaming the child for not doing well.

HOW THE LAW APPLIES

BASIC PRINCIPLE OF INSURANCE

The basic principle upon which all payments of claims under insurance policies are based is to place the person, as much as possible, in the same position as they would have been in had the injury not occurred.

It is important to realize that there is no automatic entitlement to any of the monetary limits of an insurance policy. Limits place a maximum on recovery, regardless of need. Proof of need is required “on the balance of probability”. In other words, any opinion expressed is not to be based on certainty, but on likelihood. The fact that there are limits of insurance available does not make them payable. They are only payable if the injury makes the expenses claimed reasonable and necessary, having in mind the goal of placing the person back in the same position they would have been in had the injury not occurred.

This test is problematic for children. Children may recover from brain injury sufficiently to function cognitively as an average child, but as a child grows up, the cognitive demands of life increase. A child who has been able to return to school full time, achieve average grades and achieve grade level in primary school may be completely unable to cope with the demands of full time, unassisted high school attendance and performance, or even further into the future, be competitively employable

It is not that the injury gets worse, but the effects of the injury become more functionally impairing as cognitive demands increase.

To apply this basic principle to children, requires projecting the deficits which have been identified into the future and stating their probable effect on the child’s ability to function as an adult compared to how they would have been expected to be able to function if the injury had not occurred. This is an objective test based on the particular child. The criteria is never to return the child to average if she was exceptional before the injury. The only realistic goal of rehab may be to get the child to an average level of functioning, but it should be clearly stated that this would not have been the expectation had the injury not occurred.

BILL 198—NEW INSURANCE SYSTEM AS OF OCTOBER 1, 2003

Bill 59 or the Automobile Insurance Rate Stability Act came into force on November 1, 1996. It was the fourth auto insurance system in place in this province in the seven previous years. Bill 198 SABS amendments apply on and after October 1, 2003, in relation to any crash which happened on or after November 1, 1996 (unless otherwise specified).

Under the current system, there are two different types of claims that can be made by the survivor and their family. One is what you commonly hear referred to as “no fault”. This is a claim for certain out of pocket expenses and coverage for medical and rehabilitation expenses. In the case of students, it covers an education benefit and in the case of adults, it covers an Income Replacement Benefit. This claim is made against the survivor's own insurance policy. .

The second type of claim is referred to as the “tort” claim. This is a claim for damages for pain and suffering (over and above the no fault benefits) against the person at fault, or partially at fault for the injury. The right to make a tort claim for pain and suffering has been limited to those survivors whose injury causes death, serious disfigurement or permanent serious impairment of an important physical, mental or psychological function, subject to a $15,000 deductible (commonly referred to as the threshold (see Bill 198 section 4.2 &3 which now defines impairment and function only for cases on or after October 1, 2003)). (NB after Bill 198 the deductible does not apply to cases where the damage assessment exceeds $100,000 or the FLA damages exceed $50,000) A maximum has been placed on the general damages for pain and suffering by case law precedent. The maximum is indexed to inflation each year. At the present time, it is approximately $300,000. The usual time within which a tort claim arising out of a motor vehicle accident must be made is two years. However, in the case of children, a claim can be made up to two years past attaining the age of majority. Notice is to be given of intention to claim under Bill 59/198 within 120 days of the injury, but failure to give that notice in time is not fatal to the claim.

If an automobile crash happened on or after November 1, 1996, the injured survivor can sue the at fault driver for 80% of net income lost up to the date of trial, after deduction for all other income replacement benefits and collateral benefits, regardless of whether they cross the threshold defined above. An important and unusual feature of the bill is that the victim can sue for 100% of gross income or earnings capacity lost from the date of trial on, regardless of the seriousness and permanence of their injury. This provision is important to children whose eventual employability or income earning capacity is affected by their injury.

Under the no fault provisions in the regulations, there is a “non-earner” benefit. In order to qualify for this benefit, the insured person has to suffer a complete inability to carry on a normal life as a result of the accident, be at least 26 weeks post-accident and be at least 16 years of age. For the first 104 weeks after onset of disability, the benefit is $185/week. From 104 weeks on, the benefit increases to $320. A severely injured child who remains completely unable to carry on normal life will become entitled to this benefit at age 16.

Under Bill 59, even if the person has an injury which meets the threshold, there is no claim in the tort action for health care costs, past or future, which are excess to the no fault coverage, unless the person has sustained a catastrophic impairment, within the meaning of the regulations. For non-catastrophic cases, the medical and rehabilitation benefit limit of $100,000 is all that is available from any source, regardless of need. Under Bill 198, for accidents on and after October 1, 2003, however, the person’s right to sue for excess care costs in tort is restored as long as their injury meets the threshold.

NO FAULT COVERAGE LIMITS

Bill 59 and Bill 198 set up two branches of “no fault” coverage for medical and rehabilitation services depending on whether the person is found to have sustained catastrophic impairment of their ability to function. The sum of the medical and rehabilitation benefits paid in respect of an insured person will not exceed $100,000 or 10 years (or to age 25 if the person was under the age of 15 at the date of the accident), unless the person sustained a catastrophic impairment, in which case, the coverage limit goes up to $1 million with no time limit. Coverage for attendant care is $3,000 per month up to a maximum of $72,000, except in the case of catastrophic impairment, where it goes up to $6,000 per month up to a maximum of $1 million.

DEFINITION OF “CATASTROPHIC”

Catastrophic is defined in the regulations to mean:

paraplegia or quadriplegia

amputation or other impairment causing the total and permanent loss of use of both arms or both legs

amputation or other impairment causing the total and permanent loss of use of one or both arms and one or both legs

total loss of vision in both eyes

SPECIFIC DEFINITION OF “CATASTROPHIC” FOR BRAIN INJURY

The definition section specifically addresses catastrophic impairment of individuals with brain injury in the Regulations, Part I, Section 2, under Definitions of catastrophic impairment.

GLASGOW COMA SCALE (GCS)

A brain injury is deemed to produce catastrophic impairment where there has been a Glasgow Coma Score of 9 or less according to a test administered within a reasonable period of time after an accident by a person trained for that purpose. Where a person has had a GCS of 9 or less according to this definition, they are entitled to a determination of catastrophic impairment, regardless of their level of functioning. A GCS of 9 or less should automatically entitle a person to the services of a case manager as soon as needed.

GCS is only one of the predictors of outcome. Seizures, penetration of the skull, facial smash, results of neuroimaging and other clinical observations are all important injury characteristics which have been ignored by the legislation. If these characteristics exist, the results should be referred to in the hospital’s final note and attached to any communication with the insurer. Although these test results will not qualify the person for a catastrophic determination immediately, they are predictive of outcome and can be used by the advocate to educate and persuade the insurer of the need for the recommended services.

One of the most glaring omissions from consideration in the definitions of catastrophic impairment is in the case of brain injury to children. The Glasgow Coma Score test cannot be applied to infants or children who are pre-verbal. There is a modified Glasgow Coma Scale for children, in which the Best Verbal Response section is replaced with tests appropriate for infants such as whether they are consolable and appropriately interactive. However, this modified scale is little known and would probably only be used in major centre trauma units.

GLASGOW OUTCOME SCALE (GOS)

The definitions in the regulations also provide that an individual with brain injury will be found to have sustained a catastrophic impairment if, 6 months after their injury, they are either vegetative: “unaware of self or environment”, or have severe disability: “conscious but dependent for daily support. May live at home”, pursuant to the Glasgow Outcome Scale. In the Glasgow Outcome Scale for Children, severe disability is defined as “unable to function independently and requiring substantial assistance with self-care skills.

The moderate disability scale on the GOS for children is defined as “able to function independently but at a reduced level relative to pre-injury status—special education or rehabilitation services required”. If a child is disabled enough to require rehabilitation services, then it would seem logical that they would need a case manager and increased benefits to cover the rehabilitation costs over the educational life expectancy of the student. This has not been taken into consideration in the legislation and some insurers are already refusing to provide case managers unless the child qualifies as catastrophically impaired on the basis of their GCS or GOS.

The Glasgow Outcome Score does not apply until 6 months post-injury and therefore won’t apply at discharge from acute care. However, it is important for the insurer to be on notice as soon as possible that the child may be significantly functionally impaired. Early identification of functional problems starts to pave the way for proof of the need for rehabilitation intervention.

55% IMPAIRMENT OF THE WHOLE PERSON

The only other way an individual with a brain injury can qualify as being catastrophically impaired is if they have an impairment or combination of impairments that, in accordance with The American Medical Association’s Guides to the Evaluation of Permanent Impairment (hereinafter referred to as The Guides), results in 55 per cent or more impairment of the whole person, or results in a class 4 or 5 impairment due to mental or behavioural disorder. If The Guides criteria are to be used, then the person’s health practitioner must state in writing that the insured person’s condition has stabilized and is not likely to improve with treatment or three years have elapsed since the accident, and the person still has 55 per cent or more impairment of the whole person., or have a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder .

This part of the definition cannot be used at discharge from acute care or in the first 3 years post-injury to justify payment of amounts in excess of the non-catastrophic limit of $100,000, but it highlights the ultimate importance of early identification and documentation of functional impairment.

Again, these criteria will be seriously inadequate for assessment of children. The Guides is developed for assessing impairment of adults and focuses on adult functioning, activities of daily living and independence which are not applicable to children.

If there are indications of severe functional impairment that will later qualify the child for a determination of catastrophic impairment they should be well and thoroughly documented and flagged in reports as early as possible. Even if early prognosis regarding expected catastrophic impairment does not result in early rehabilitation intervention, it will be helpful in the ultimate catastrophic determination and in building a case for the long term effects of the injury being more profound because of lack of early intervention. It will put the insurer on notice so they can get their reserves established early and makes them accountable for their refusals to fund for recommended treatment.

Children with brain injury may be left without a case manager for three years after an accident until it is possible to assess the extent of impairment of the whole person under a developmental adaptation of The Guides. The condition of a child with brain injury does not really “stabilize” because the impact of the deficits changes as the child develops and as the executive function demands (i.e. increased need for organization, planning, judgment, abstract thinking, motivation, initiation, and independence and reduced structure and prompting) of their educational level change. The word “stable” is not defined in the regulations. When you look at the “stabilized” criterion, you might initially think that it provides a way to get earlier access to increased rehabilitation funding, but it is tied to “and not likely to improve with treatment”. This gives with one hand and takes away with the other.

BILL 198 AMENDMENT FOR PERSONS UNDER 16

In Bill 198 a new subsection was added to the Catastrophic definition for persons under the age of 16 where one of the GCS, the GOS or the AMA guides can be applied by reason of the age of the insured person. Subsection 1.4 now provides that an impairment sustained in an accident by a person under the age of 16 that can reasonably be believed to be a catastrophic impairment… “shall be deemed to be the impairment that is most analogous to the impairment referred to in [the other clauses of the definition] after taking into consideration the developmental implications of the impairment.

This section is stated not to apply to an accident that occurs before October 1, 2003.

In my view, the new definition of threshold and this added section are seriously flawed. It is yet to be seen how the court’s will interpret these changes and whether they will impair or enhance a child’s right to recover for their losses.

ENTITLEMENT TO MEDICAL, REHABILITATION AND ATTENDANT CARE BENEFITS

The test for entitlement to coverage for medical, rehabilitation and attendant care benefits is whether the expense is “reasonable and necessary”. Failure of health practitioners to use this language in their reports often results in delay in getting approval for needed services. Please state your recommendations in definite terms. Language such as “the patient would benefit from” or “I recommend” does not meet the test for funding.

The Regulations state: “The rehabilitation benefit shall pay for reasonable and necessary measures undertaken by an insured person to reduce or eliminate the effects of any disability resulting from the impairment or to facilitate the insured person’s reintegration into his or her family, the rest of society and the labour market”. The specific kinds of coverage spelled out in the legislation are: life skills training, family counselling, social rehabilitation counselling, financial counselling, employment counselling, vocational assessments (presumably educational assessments although not mentioned), vocational or academic training, work place modifications, home modifications, vehicle modifications, transportation to treatment, including an aide or attendant if required.

It would be helpful to the survivors or their parents if you could just advise them to keep all of their receipts in one big envelope. Receipts are required to be submitted within 30 days of incurring the expense, following which the insurer has 30 days to pay.

SIGNIFICANCE OF PRE-INJURY HISTORY

There is a principle of law called the “thin skull” rule. Simply put, the rule is “you take the victim as you find her”. A person may have been quite vulnerable before the injury for a variety of reasons, but working steadily and living independently. The effects of the injury may be the proverbial straw that breaks the camels back. A child may be identified with attentional deficit disorder before the injury, but functioning well and achieving grade level. A brain injury superimposed on ADHD or LD can result in the need for significantly increased rehabilitation interventions for that child as compared to a child with the same severity of brain injury who did not have previous ADHD or LD. The application of the thin skull rule to that child’s case results in entitlement to funding for those services where the need for the services is materially contributed to by the crash.

In the case of children, you also take the family as you find it. If the child’s rehabilitation is more expensive because of family dynamics and factors, they are entitled to the increased costs.

There is another principle called the “crumbling skull” rule. This principle is intended to differentiate cases where what you see is the same as you would have expected without an intervening trauma. In the case of the application of this principle, the person would have to have been either deteriorating or expected to deteriorate to the same extent as is now evident and in the same period of time, even without a new intervening traumatic event.

When considering pre-accident history, ask yourself, “what would the expected outcome be without the intervention of this new trauma?” Then, describe the symptoms, deficits and difficulties the person now faces because of this injury being superimposed on the pre-accident condition. The fact that this result might have been seen with any intervening trauma is irrelevant. If it happened as a result of this trauma, then it is compensable.

This is especially important in the case of children with brain injury. A child with a brain injury superimposed on a previous attention deficit, hyperactivity disorder, may not look that different in primary grades. Where the added effects and impairments of the brain injury will likely be seen is in the higher grades or when competitive employment is sought. I can’t stress enough the importance of predicting the effects of an injury related impairment on a child’s adult future physically, socially, mentally, emotionally, educationally and vocationally.

EXPERT REPORT WRITING FOR PAEDIATRIC BRAIN INJURY CASES

Report writing and charting is important right from the first emergency note. Now that the lowest post-resuscitation Glasgow Coma Score is so critical to the amount of coverage available to children with brain injury, a careful scoring and recording of it will be much more important than in the past. Discharge notes from the multi-disciplinary team in acute care will set the base line for measuring improvement and, in most cases, will initially determine how much early rehabilitation will be funded.

As you can see from the definitions of catastrophic impairment and the threshold created by the legislation for the right to sue for pain and suffering, the individual’s overall ability to function and reintegrate to their family, their school and their community is critical to their entitlement to compensation and rehabilitation.

An early record of changes in the person’s ability to function compared to pre-injury functioning starts the case off with the required focus on function and gives later assessors a base line for measuring improvement, and can be used to predict eventual adult outcome.

For children, adolescents and teens, we are not only looking at their ability to reintegrate now, but we are also looking ahead to predict the impact of these new deficits on their eventual ability to integrate and function competitively in a marriage, a competitive working environment and a demanding society as an adult, compared to how they could have done if this injury had not occurred.

Any observations made that are suggestive or predictive of future problems should be recorded. They may not achieve the goal of securing the insurers agreement to early rehabilitation intervention, but they will be useful in retrospect, when the time comes for an application for determination of catastrophic impairment based on the Glasgow Outcome Score or 55% impairment of the whole person.

PHILOSOPHICAL CHALLENGES

One of the biggest hurdles to getting proper compensation for injured accident victims is the failure of health practitioners to clearly identify the losses, impairments and deficits and their impact on the person’s ability to meet the demands of their life in a way that would have been normal for them had the injury not occurred.

I understand the focus of rehabilitation on people’s abilities instead of disabilities and on their successes instead of their failures. However, the entitlement to financial recovery under insurance law is framed in terms of impairments, deficits and losses. This problem is complicated even further for children, by a provider’s failure to explain the likely effects of their deficits on their ability to function as an adult. Reports concerning children must predict outcomes for their future. For example a child with attentional problems and loss of impulse control may be cute and accepted as a child, but obnoxious and ostracized as an adult. The ultimate implications of the new deficits as a result of the accident must be spelled out.

This is not a science and outcome cannot be predicted with certainty. Many health practitioners are loathe to make negative predictions even when they are indicated by the results of the current research, for fear that it will discourage or de-motivate the individual, or cause them to lose hope and give up. The civil burden of proof is not certainty, it is balance of probability. In order for the person to receive compensation, the probable losses, especially as they relate to educational and employment potential must be strongly stated.

PURPOSE OF YOUR REPORT

If your opinion has been requested in reference to a specific question, then please clearly state the reason for the referral or the referral question either at the beginning or at the end of the report. If you are going to address the issue of a person’s entitlement to a certain benefit or compensation, then make sure that you know the legislative test that has to be met. Whether that test is met is a question of law, but at least you should be putting content in your opinion that addresses what the legislation requires. This will avoid your report being used out of context and for a purpose for which you did not intend.

Your report should always list or attach as an appendix of the reports and records you reviewed and whether you relied on them to reach your opinion. Often as a case develops, more and more records are collected. When trying to assess how much weight to give an expert’s opinion, it is important to know whether that expert had all the facts now known that might have affected that opinion.

PROGNOSIS

In this business, we must hope for the best and plan for the probable worst. If you don’t state the probable prognosis for the effect of this injury on this person’s future, they may be deprived of the fair and reasonable compensation to which they are entitled. Of course you need to wait until the person stabilizes, but we cannot take a wait and see approach with children. Especially where difficulty completing education or competitive unemployability is reasonably predictable, that opinion should be stated as soon as that prognosis can be made “on the balance of probability”.

Bear in mind that there are limits on the amounts available. The limits of policies do not increase by inflation or bear interest. If it can be stated on the balance of probabilities today that an injury is so severe that it has reduced the child’s earnings capacity by at least 50% but possibly more, or that the child had the potential for a professional career before the accident, but now has the potential for only a salaried position, the level of which is not clear, then state as much as you can say as soon as you can say it. The grey area for your prognosis may be irrelevant if the best of the likely prognosis makes the case worth the limits of financial recovery available.

NEED FOR ADVOCACY

Many people who are injured in accidents have never needed a lawyer before. This lack of experience in dealing with a lawyer makes it difficult for people to choose a lawyer. If left unguided, they often call the lawyer who wrote their will or who acted on the purchase of their house. The results of your patients’/clients’ insurance claims will have a serious long-term impact on their quality of life and their financial future. I think it is an important part of your service to steer them towards those lawyers whom you know have expertise in this area.

I find that clients with brain injury, and especially children and adolescents are often misunderstood and don’t get the rehabilitation they need or the financial recovery they deserve. They need specialized advocacy.

Under Bill 59/198, early advocacy is going to be more important than ever, especially in cases where catastrophic impairment is not automatic by virtue of a GCS score of 9 or less. It is going to take concerted effort, coordination and cooperation between the advocate and the treatment team to get proper services for the mild to moderate cases. The children are victims and they are especially vulnerable to the system and even to the inadequate resources of their parents. Parents are often in denial after serious injuries to their children. They need to be encouraged to protect their child against future eventualities, which they might not recognize or understand. Referral to an advocate is all the more important where you see evidence that the parents’ ability to manage all the issues around their child’s injury may be limited.

SOLUTIONS

• Recognize and be cognizant of denial both in the children and the adults and draw on information from other sources such as teachers and independent assessments
  
  
• Know the law and make sure your reports address the legislative tests which are prescribed by law
  
  
• Clearly state the deficits, disabilities, impairments, barriers that the child faces now and will probably face as she develops as compared to what would have been normal for her had this injury not occurred
  
  
• Identify the deficits as objectively as possible and describe the specific practical implications of those deficits on the child’s ability to function, both now and as he develops
  
  
• Educate parents and insurers as to the effects of brain injury. This is probably the first brain injury they have ever been exposed to
  
  
• In all your reporting, think about supporting your recommendations based on the likely future effects for the child of a failure to provide the service now, i.e.: he needs this; he needs it now; and if he doesn’t get it, this is likely to happen in the future…”
  
  
• If your particular profession permits it, say as much as you can as soon as you can about the probable future implications of the injury for independent living and employability
  
  
• If restrictions have been put on the issues you are to address in your reports by the requestor, then state clearly the perimeters of your assessment to avoid your report being used out of context
  
  
• Refer the family to a lawyer with expertise in paediatric brain injury cases
  
  

JULY 1997,updated November 2004

Nancy Ralph is certified by the Law Society as a Specialist in Civil Litigation. She is the president of Nancy Ralph & Associates. Her law firm is a team of professionals committed to being pacesetters and leaders in providing legal representation to survivors of serious injuries and the families of those seriously or fatally injured, according to a standard of excellence in advocacy, service and education.