In this blog I’ll be discussing what exactly a Guideline is, how it impacts the determination of whether an impairment is a catastrophic impairment, and how it is issued, removed, and amended.
If you want to learn more about what catastrophic impairment is, and how a catastrophic impairment designation significantly enhances your policy limits for your accident benefits, then please click the “link” to read my blog entitled “What is a Catastrophic Impairment?”
Determination of Catastrophic Impairment
If you look at the “Determination of Catastrophic Impairment” section of the Ontario Regulation 34/10: Statutory Accident Benefits Schedule (SABS 34/10) – effective September 1, 2010, under Insurance Act, R.S.O. 1990, c. I.8, or more specifically, clause 3 of s. 45(2), then you’ll see it indicates that a Guideline can influence the determination of whether your impairment is a catastrophic impairment.
Clause 3 of s. 45(2) of the SABS 34/10, reads as follows:
- If a Guideline specifies conditions, restrictions or limits with respect to the determination of whether an impairment is a catastrophic impairment, the determination must be made in accordance with those conditions, restrictions and limits. O. Reg. 34/10, s. 45 (2); O. Reg. 289/10, s. 5; O. Reg. 251/15, s. 17 (1).
The key word in this clause is the word “If”, which is a conjunction that introduces a conditional clause, so only on the condition or supposition that a Guideline exists that specifies conditions, restrictions or limits, then, and only then, do those conditions, restrictions or limits apply. You’ll know because the various catastrophic impairment definitions under the s. 3.1(1) “Catastrophic Impairment” section of the SABS 34/10, which are influenced by a Guideline, will specifically reference a Guideline in the criteria.
For example, if you look at clause 5i of s. 3.1(1) of the SABS 34/10, which outlines the criteria that must be satisfied in order to determine whether a traumatic brain injury sustained by a person 18 years of age or older at the time of the accident, is a catastrophic impairment, it makes a specific reference to a Guideline. Clause 5i of s. 3.1(1) of the SABS 34/10 reads as follows:
i. The insured person is accepted for admission, on an in-patient basis, to a public hospital named in a Guideline with positive findings on a computerized axial tomography scan, a magnetic resonance imaging or any other medically recognized brain diagnostic technology indicating intracranial pathology that is a result of the accident, including, but not limited to, intracranial contusions or haemorrhages, diffuse axonal injury, cerebral edema, midline shift or pneumocephaly.
Therefore, we can see that the Guideline referenced in clause 5i of s. 3.1(1) specifies an additional condition that must be satisfied in order for a child, who sustained a traumatic brain injury as a result of an accident, to get a catastrophic impairment designation; namely, the child must be admitted as an in-patient to a public hospital named in a Guideline.
However, before I identify what Guideline is specifically being mentioned in clause 5i of the s. 3.1(1) of the SABS 34/10, and where do you find it, I first want to explain how Guidelines come into existence.
What is a Guideline?
In order to understand how Guidelines come into existence, we first have to look at the legislative definition of a Guideline in the “Definitions and Interpretation” section of the SABS 34/10, under s. 3.(1), which reads as follows:
“Guideline” means,
(a) a guideline, including the Minor Injury Guideline, issued by the Chief Executive Officer under subsection 268.3 (1) of the Act and published in The Ontario Gazette,
(b) a guideline that is included in the professional fee guidelines or the Optional Indexation Benefit Guidelines, as published in The Ontario Gazette by the Financial Services Regulatory Authority of Ontario, or
(c) a guideline published in The Ontario Gazette that is an amended version of a guideline referred to in clause (a) or (b); (“directive”)
Therefore, a Guideline comes into existence and effect when the Chief Executive Officer (CEO) of the Financial Services Regulatory Authority of Ontario (FSRAO), issues it pursuant to subs. 268.3(1) and subs. 268.3(1.1) of the Insurance Act, R.S.O. 1990, c. I.8.
Issuing Guidelines
Under the “Guidelines, Statutory Accident Benefits Schedule” section of the Insurance Act, R.S.O. 1990, c. I.8, subs. 268.3(1) and subs. 268.3(1.1) read as follows:
268.3 (1) The Chief Executive Officer may issue guidelines on the interpretation and operation of the Statutory Accident Benefits Schedule or any provision of that Schedule. 1993, c. 10, s. 27; 1997, c. 28, s. 116; 2018, c. 8, Sched. 13, s. 22.
Same
(1.1) The Chief Executive Officer may issue guidelines setting out the treatment, services, measures or goods applicable in respect of types of impairments for the purposes of payment of a medical or rehabilitation benefit provided under the Statutory Accident Benefits Schedule, and such guidelines may include conditions, restrictions and limits with respect to such treatment, services, measures or goods. 2002, c. 22, s. 125; 2018, c. 8, Sched. 13, s. 22.
Further to the aforementioned definition of a Guideline, once the CEO of FSRAO issues the Guideline, he or she must make it public by publishing it in The Ontario Gazette, which is the official publication for legislative decisions, proclamations of new statutes, all regulations made under Ontario statutes, and notices that must be made public. The Ontario Gazette is now available in digital format only, as the print version ceased on March 31, 2021.
The Ontario Gazette
So, if you want to find out the particulars of a Guideline referenced in the criteria of a catastrophic impairment definition under s. 3.1(1) of the SABS 34/10, such as the aforementioned Guideline specifically referenced in clause 5i of s. 3.1(1) of the SABS 34/10, then you have to conduct, and periodically conduct, a search in The Ontario Gazette.
The URL address for The Ontario Gazette search engine is as follows:
https://www.ontario.ca/search/ontario-gazette
In the “Search by Keyword” open field, I typed in quotation marks “Catastrophic Impairment”. Since the most recent amendments to the SABS 34/10 took place on June 1, 2016, I chose to restrict my search window from June 1, 2016 to the present date (February 10, 2022). The URL link for this search query was as follows:
You’ll see that the above search query revealed all of the 17 results or published articles referencing “catastrophic impairment” within my specified time frame, including the most recent published Guideline.
A Concrete Example of a Guideline’s Impact on a Catastrophic Impairment Determination
My first encounter with a Guideline was in 2018, when I was a Toronto-born, personal injury law lawyer working in Hamilton, Ontario. My client was a 17-year-old, indigenous girl, who was a passenger in a vehicle traveling at 100 km/hr in the Six Nations of the Grand River reserve. The driver lost control of the vehicle and crashed into a tree, which sent my client flying head-first through the windshield and causing severe head-trauma. The Brantford General Hospital was closeby, so the paramedics brought her there, where she was admitted as an inpatient. She also sustained multiple fractures to her spine, right elbow and right hand. This prompted the physicians to transfer her to the Hamilton Health Sciences, which is a hospital network comprising seven unique hospitals. She was admitted as an inpatient to the Hamilton General Hospital (HGH), which is a Level 1 trauma centre. The radiologist used recognized brain diagnostic technology to conduct neuro-imaging tests, which revealed evidence of acute intracranial pathology. However, despite her head trauma she was not transferred to the Regional Rehabilitation Centre, which treats traumatic brain injuries. Her multiple fractures triggered inpatient protocols, so she was transferred to the 6 South Surgical Trauma Centre in the HGH, so orthopaedic surgeons could perform immediate surgery on her spine, elbow and hand.
In this case, I was sure that my under age client, who sustained a traumatic brain injury, satisfied the criteria pursuant to the aforementioned clause 5i of section 3.1(1) of the SABS 34/10, which are as follows:
- Inpatient admission to a public hospital in a Guideline;
- Positive findings of intracranial pathology; and
- The use of medically recognized brain diagnostic technology.
I initially assumed my client satisfied the three criteria. She was admitted as an inpatient to the HGH, and medically recognized brain diagnostic technology confirmed that she had positive findings of intracranial pathology. So, I got a medical opinion from a pediatric neuro-psychologist with a PhD. The doctor arrived at the same conclusion as I, and submitted an OCF-19: Application for Catastrophic Impairment Determination form to the insurance company.
If you want to learn more about the OCF-19: Application for Catastrophic Impairment Determination form, and how to kickstart your accident benefits application, then please click this “link” to read my blog entitled “How to Get Your Accident Benefits Application Started”
The insurer retained a reputable neurologist, who also arrived at the same conclusion as us. So, the case is closed. Right? No, not so fast. Again, if you take a closer look at the first criterion to be satisfied, it states “admission, on an inpatient basis, to a public hospital in a Guideline”, which begged the question: What Guideline?
The guideline that is being referred to, which, again, can be found by searching the database of The Ontario Gazette, is the June 2016, Catastrophic Impairment – Public Hospitals Guideline, Superintendent of Financial Services’ Guideline No. 01/16 (Superintendent’s Guideline). It was issued pursuant to subs. 268.3(1) and subs. 268.3(1.1) of the Insurance Act, R.S.O. 1990, c. I.8, and was incorporated by reference in clause 5i of subsection 3.1(1) of the SABS 34/10.
The Superintendent’s Guideline has a list of the 12 public hospitals for which inpatient admittance is the first criteria for determining whether an insured child has a traumatic brain injury, and ultimately a catastrophic impairment. Those 12 public hospitals are as follows:
- Children’s Hospital of Eastern Ontario in Ottawa;
- Hamilton Health Sciences (Regional Rehabilitation Centre) in Hamilton;
- Health Sciences North in Sudbury;
- Kingston General Hospital in Kingston;
- London Health Sciences Centre in London;
- McMaster Children’s Hospital in Hamilton;
- St. Michael’s Hospital in Toronto;
- Sunnybrook Health Sciences Centre in Toronto;
- The Hospital for Sick Children in Toronto;
- The Ottawa Hospital in Ottawa;
- Thunder Bay Regional Health Sciences Centre in Thunder Bay; and
- Windsor Regional Hospital (Ouellette) in Windsor.
If you compare the two aforementioned lists, you’ll notice that the Hamilton Health Sciences was removed and replaced with the Regional Rehabilitation Centre and the McMaster Children’s Hospital.
In my fact scenario, my client was admitted as an inpatient to the Brantford General Hospital and the HGH. However, neither one of them are among the public hospitals listed in the Superintendent’s Guideline. So, even though my client satisfied the last two criteria of clause 5i of s. 3.1(1) of the SABS 34/10, namely (2) Positive findings of intracranial pathology; and (3) Positive findings of intracranial pathology from medically recognized brain diagnostic technology; she was denied an automatic catastrophic impairment designation, because she didn’t satisfy the first criterion: (1) Inpatient admission to a public hospital in the aforementioned Guideline 01/16.
This is a concrete example of how a Guideline, such as the Superintendent’s Guideline referenced in clause 5i of s. 3.1(1) of the SABS 34/10, which specifies conditions, restrictions or limits, has the power to impact the determination of whether your impairment is a catastrophic impairment, pursuant to s. 45(2) of the SABS 34/10.
In this case, I ultimately utilized the modern approach to statutory interpretation to demonstrate the Guideline 01/16’s interpretation of clause 5i of s. 3.1(1) of the SABS 34/10, didn’t harmoniously coincide with the scheme and object of the Insurance Act, R.S.O. 1990, c. I.8 and the SABS 34/10, and the intention of the Ontario legislature, and as such, would have ridiculous, frivolous, unreasonable, inequitable, illogical or incoherent consequences, in general, and discriminatory ramifications based on geography, in particular.
If you want to learn more about the legal argument I made that demonstrated how the Guideline 01/16’s interpretation of clause 5i of s. 3.1(1) of the SABS 34/10 had discriminatory ramifications based on geography, then read my book published by LexisNexis Canada Inc. entitled “Catastrophic Impairment Law in Canada”, which can be found at the following URL link:
A summary my argument is as follows:
Further to the 2011 Superintendent’s Report, it was the original intention of the Ontario legislature to include all Level 1 Trauma Centres into the section, which includes the Hamilton General Hospital. As such, the absence of it was merely a bureaucratic glitch, especially when one considers it was included in the original list of 11 hospitals that the Ministry of Health and Long Term Care designated as Lead Trauma Hospitals. The reason is because admission as an inpatient to a Level 1 Trauma Centre coupled with positive findings of intracranial pathology constitute objective and sensitive markers, and clinical predictors of prolonged recovery and poor outcome. The reason is because the probability of a child’s traumatic brain injury having a prolonged recovery and poor outcome is high, because there is a correlation with positive findings on a brain scan, coupled with admission to a major Level 1 trauma centre, which is supported by statistical data gathered by studies conducted by doctors, such as Dr. Crouchman, who refined the Kings Outcome Scale for Childhood Head Injury (KOSCHI) scale — referenced in clause 5 of s. 3.1(1) of the SABS 34/10 – by observing inpatient management and outpatient follow-up of approximately 200 head injured children admitted to Level 1 Trauma Centers over a long period of time from 1990 to 1997.
To say that admission as an inpatient to the Hamilton General Hospital disqualifies my client because it’s not on the Guideline list, would lead to absurd, ridiculous and frivolous consequences, and would be extremely unreasonable and inequitable in a manner that is incompatible with the object of the legislative enactment and the intention of Parliament.
My argument persuaded the insurer in my case to retract its initial denial of a catastrophic impairment designation for my client, which increased her policy limits from $65,000 to $1 million. I then used the same argument to persuade the CEO of FSRAO to amend the Superintendent’s Guideline 01/16, pursuant to the aforementioned subs. 268.3(1) and subs. 268.3(1.1) of the Insurance Act, R.S.O. 1990, c. I.8. So, FSRAO has replaced the old Superintendent’s Guideline No. 01/16 with the new Guideline on Public Hospitals and Determination of Catastrophic Impairment, which can be found at the following URL link:
The new Guideline took effect on October 17, 2020. It interprets clause 5i of section 3.1(1) of the SABS 34/10, as it applies to “a public hospital named in a Guideline” issued by FSRAO under subs. 268.3(1) and subs. 368.3(1.1) of the Insurance Act, R.S.O. 1990, c. I.8, thereby changing the interpretation of the automatic catastrophic impairment definition of children who sustained severe traumatic brain injuries. It deems any public hospital designated by the Critical Care Services Ontario (CCSO), in partnership with the Ontario Ministry of Health, as Lead Trauma Hospitals, to be a hospital listed in the new Guideline. Now all Level 1 Trauma Centres, including the Hamilton General Hospital, are included in the public hospital list.
I hope you found this information valuable. Rudder Law Group’s website is your one-stop source for answers to all of your legal questions concerning catastrophic impairment law and personal injury law.
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