The No Fault system that will be introduced in April 2019 offers more rehabilitation support than the Part 7 rehab allowances that preceded it. This increased funding is a welcome development that will hopefully provide needed support to injured accident victims. Where challenges are sure to arise are in the months and possibly years after a motor vehicle collision, to those patients who fail to recover as expected. What happens to them?
Under the No Fault regime, arrangements may be made for the patient to be seen by a “registered care advisor” who is required to assess the patient and prepare a written report, the contents of which must include a diagnosis and an assessment of the severity of each of the injuries sustained by the patient.
Ultimately, however, the patient’s injuries will be deemed to be minor and his/her losses will be determined by the Civil Resolution Tribunal (CRT) based on available paperwork, unless the injured person “establishes on the basis of satisfactory evidence that there is a substantial likelihood that the damages will exceed the tribunal limit amount.” (Bill 22, s. 135)
Satisfactory evidence will likely involve a close review of the documentary evidence of the person’s injuries, particularly during the acute period immediately following a collision.
Foreseeable challenges and limitations with this No Fault system are that:
- the injured person won’t be aware of the extent of their injuries, or won’t be aware of the need to document their injuries, or won’t want to admit they were injured, or won’t be sufficiently literate to document their injuries, or won’t be believed if they have documented their injuries;
- obvious injuries (broken bones) will eclipse less obvious injuries that may be disabling in the long-term (i.e. TBI, vestibular injuries, emotional problems);
- more subtle but serious injuries will not be apparent during the acute stage when the injured person is bed-ridden, at home, or while their activities are otherwise limited; and/or
- health care providers will record only those injuries that they are responsible for treating, rather than the full range of injuries.
Given the No Fault regime’s reliance on paperwork to prove injuries, it becomes that much more important to systematically document all aspects of a person’s injuries, including:
- issues with sleep;
- issues with cognition;
- issues with mood;
- issues with balance;
- post-concussion symptoms;
- all areas of the body which are experiencing pain, as well as the degree and severity of the pain;
- all areas of the body which have reduced or altered functioning; and
- changes in the the person’s activity levels.
A valuable tool to assist in recording the person’s injuries would be a comprehensive list of questions as well as pain diagram that can capture not only the full constellation of symptoms experienced by the injured person but also their severity, at a given point in time.
During treatment, it is common to record a patient’s progress with statements like “improving” or “doing better”. This is a very normal and appropriate development to record, but when it is being used to assess a patient’s claim, problems can arise. Using a 10 point scale as an example with 10 representing the person’s pre-accident state, does “better” mean that the patient is improving from a 3 to an 8? or from a 3 to a 3.2? Is the person making consistent progress? Or do the changes represent ongoing fluctuations with periods of improvement and equally frequent setbacks? Do references to improvement reflect what the patient and/or therapist expect or want to believe is happening or what is objectively happening? Is the improvement limited to one aspect of the patient’s condition, with other important elements continuing to pose problems?
Because of the importance that records will potentially have in the No Fault system, to avoid misinterpretation of these records, it will be important to temper one’s optimism, be specific when recording improvements, and where appropriate, use a 10 point scale or other method to provide necessary context.
Similarly, at the end of a treatment period, there may be considerable pressure to conclude that a course of treatment was genuinely helpful. This may be completely appropriate in the vast majority of cases. But for the miserable minority of patients who continue to have significant difficulties, it will be important to record ongoing problems fairly and fully.
Careful attention to the role that treatment records are likely to play in the No Fault system will help everyone: the patient, his or her physician, any registered care advisor, experts, the CRT adjudicators, and the courts, should it become necessary to produce “substantial evidence” of disabling injuries.
 According to the Conference Board of Canada, four out of ten Canadian adults lack the literacy skills necessary to be fully competent in most modern jobs.