Hello to all of our Readers,
In this edition of the newsletter, we have chosen to highlight a recent important decision, Watters vs. State Farm (FSCO A13-00628). This is in preparation for the GOS-E replacing the GCS and the GOS.
The applicant, Ms. Watters, was a 38-year-old wife and mother of 2 when she was a pedestrian struck by a motor vehicle on September 29, 2011. She sustained multiple skull fractures and a significant brain injury as a result of the accident. She was unable to return to her pre-accident job as a manager at Tim Horton’s and she was largely housebound, relying on her husband and daughter for support and supervision.
The significant issue in this case was whether the applicant’s impairments were sufficient to meet the definition of a catastrophic impairment under the GOS (Glasgow Outcome Scale).
To succeed on this issue, she had to sustain a brain injury and according to the GOS criterion on the OCF 19, receive a score of 3 (severe disability) on the GOS as published in Jennett, B, and Bond, M., Assessment of Outcome after Severe Brain Damage, Lancet 1975.
The GOS is a 1-5 point global scale used by professionals for clients with brain injuries. The 5 categories are: 1- Dead; 2- Vegetative; 3- Severe; 4- Moderate; and 5-Good.
According to the 1975 article, a severe disability (GOS score of 3) describes patients who are “dependent for daily support by reason of mental or physical disability, usually a combination of both. Many will be in institutions, but this is not a criterion, because exceptional family efforts may enable such patients to be looked after at home.”
Dr. Moddel, Neurologist, completed an IE on Ms. Watters in May 2013 and came to the conclusion that her GOS score was not at the severe (3) level.
He testified that he perceived the GOS as “being exclusively a neurological test and only objective results from formal neurological testing should be considered in assigning a GOS.”
He pointed out that other than a decreased sense of smell, the applicant had consisted of few if any, neurological deficits.
Dr. Vaidyanath, Physiatrist, assessed the client for the plaintiff. In her analysis, she stated that the GOS scores for the same patient could vary significantly depending upon who was doing the assessment.
To address these issues, she educated the court that the original authors of the 1975, wrote a follow up article in 1981.
In the 1981 article, the definitions of severe disability and moderate disability were more specific. They defined severe disability as, “A patient is conscious but needs the assistance of another person for activities of daily living every day” and moderate disability as, “Such a patient is able to look after himself at home, to get out and about to the shops and to travel by public transport. However, some previous activities, either at work or in social life, are now no longer possible by reason of either physical or mental deficit”.
In this article, it is stated that personality change is the most consistent finding with these patients. The study also revealed that interviewing relatives or others close to the patient about the client’s function and behaviour often yielded useful information.
Dr. Vaidyanath added that in 1998, a structured interview for the scoring of GOS was developed by Wilson, Pettigrew and Teasdale, to promote consistency between practitioners.
The interview requires the assessor to interview the patient as well as family members in order to determine the patient’s ability to be independent in a number of different tasks.
In this article, severe disability is determined by “obtaining answers to all the main questions concerning independence and the questions concerning preinjury problems in this area. If the patient was fully independent before the injury and the answers to one or more of the dependence questions indicate that this is no longer the case then they are Severely Disabled”.
In her testimony, Dr. Vaidyanath stated that although it is not strictly required that you consider the 1981 article and nowhere in the schedule does it require a practitioner to use the structured interview, “knowledge of this literature, developments in the field since 1975 and current best practices ought to inform one’s interpretation of the GOS.”
In her opinion, the client should score a “severe” disability, score of 3 on the GOS, based on the applicant’s lack of independence and need for daily assistance with some activities of daily living.
She critiqued Dr. Moddel’s methodology and his conclusion.
The arbitrator rejected Dr. Moddel’s interpretation and application of the GOS and found it “far too simplistic”.
The arbitrator gave greater weight to the opinion of Dr. Vaidyanath and found that considering the 1981 and 1998 articles when assessing a client on this criteria is the right way and determined that as a result of the accident, the Applicant sustained a brain impairment that had resulted in a score of 3 on the GOS and was therefore is catastrophic.
This is an important decision for future cases of determining catastrophic based on the GOS.
Although the current schedule states that we only use the 1975 article by Jennett and Bond to determine GOS, with new advances in this field since that time, the Judge agreed that the 1981 revised article and 1998 structured interview can be considered.
It is important to note that the new legislation coming up in June 2016 are considering only the 1998 article.
To read more about the 1998 article regarding the GOS-E structured interview, please visit our Blog post written by Ms. Kathryn Decker, OT.
Galit Liffshiz, MA OT Reg. (Ont.)
President of GLA