Appeared in
Without Prejudice, Volume 66, No. 10, June 2002
The following paper is information I presented for two Claims Association Meetings in London and Hamilton, Ontario. I have changed the wording to accompany an article format.
FCCAs are valuable in the beginning of a file or at the onset of injury, to earmark funds and for use as a benchmark. Under the current automobile legislation in Ontario, it is important to know if an injury is deemed "catastrophic". If it is deemed "non-catastrophic", then this would eliminate unnecessary services such as case management; however, it's not always a clear cut distinction. For instance, one of my clients had been crushed between two vehicles. He had a shattered pelvis and both legs were fractured. Initially, he was unable to walk, so the injury was deemed to be catastrophic; however, because the injuries were orthopaedic in nature rather than neurogenic, his injuries eventually healed and he was able to walk. I was retained at the six year mark to perform a FCCA, but had the insurance company requested an FCCA at the onset of the injury, they could have saved themselves hundreds of thousands in ABs.
At the two year mark, people with acquired brain injuries should have plateaued and their needs stabilised according to some medical professionals; however, there are others, myself included, who do not agree with this philosophy. The Loss of Earning Capacity Benefits come up for review at the two year mark; however, some people may not even be out of the hospital by that time. Some may have spent the whole time undergoing several treatments, and obviously employment may not have entered the picture at that stage of their rehabilitation; however, most claimants should be medically stable at the two-year mark. They should have their housing, equipment and services in place, with employment perhaps being the only outstanding issue!
There may be costs associated with successfully reiterating a person back into the workforce. For example, a person with an acquired brain injury may need a job coach. A person with a spinal cord injury may need special equipment or services to enable them to return to work; however, all these costs would have to be identified as reasonable and necessary for the insurance company to cover them. It should be noted that their employer may be responsible for some or all of these costs depending on the company's benefits package or union by-laws.
When performing a FCCA for a full and final settlement, I think it is helpful to provide as much information as possible. For example, the details of the accident should provide a brief outline, if possible, on how this person acquired their injury. The person's relevant background information should include any previous medical history, as this may impact on the present claim, or it may even negate the claim. For instance, in one case I had, the individual had an accident which rendered him a paraplegic. Thirteen years later, he was hit by a vehicle and knocked out of his wheelchair. He had complaints of low back pain, headaches, and dizziness which prevented him from returning to his pre-accident status; however, after I read the three foot high file, I discovered that he had the same complaints since the onset of his paraplegia. Two insurance companies were involved, and it was a case where the left hand didn't know what the right hand was doing. By documenting the previous history, it was clear that the complaints were pre-existing; and therefore, they should not covered by the second insurance company.
It is helpful in a FCCA if a summary of the post-accident medical history is provided. By the time a FCCA is ready, there may have been several years of intervention, and I find it is helpful to organize the information into a manageable and easily understood document. Inconsistencies can be noted, as well as measuring timeliness for therapies and so on. Occasionally, a client may have had a long period of time, up to three years, where there were no problems reported by that person, then all of a sudden, the pain or weakness returns in a different part of their body, and they are asking for large sums of money through a settlement. I can also suggest that after five years of using a certain therapy with no gains, that perhaps this therapy is not worth continuing to fund. If it is possible, I provide a psychological, social and family history, which is important as these issues often impact on the clients recovery, or lack of recovery. For instance, one person was not allowed to try and cook at home, because the mother felt it was too dangerous; however, this person was a chef and knew their way around the kitchen. Another client had a pre-existing history of anxiety attacks, and was basically afraid to attempt the occupational and physiotherapist's suggestions. What I'm trying to say is that two people with identical injuries will usually have completely different returns, and so this is why it is important to include all this information. By compiling as much information as possible, the differences can possibly be explained why they are happening.
A person's current status should provide a short summary about the individuals present situation. For example, are they awaiting surgery, are they receiving attendant care, or are they independent? A FCCA may also include a short opinion of the future projections for this individual based on information within the file.
All files have concerns, and I think it is helpful to have an areas of concern section discusses any discrepancies within the file, and may refute or critique any other FCCA that may be attached to the file. For instance, there may be costing for a manual wheelchair, a power wheelchair and a scooter; however, it does not seem reasonable or necessary for an individual to have three methods of transportation. Some FCCAs recommend a "backup" wheelchair in case one needs to be repaired, but do most people have a back-up car? It seems more logical that the vendor performs and on-site repair. Some people will genuinely use both a manual and power wheelchair, our daughter for instance who sustained an acquired brain injury, but these circumstances are unusual. She only has the use of one arm, so she can wheel herself within small areas such as our house, but she cannot cover long distances. She is also a child and needs to keep up with her peers who are running round the playground at recess. A manual wheelchair can be bumped up stairs, whereas a power chair is too heavy. Each piece of equipment has it's strengths and weaknesses, so it is important to assess what is appropriate. A comprehensive FCCA will help determined what's needed verses what's wanted.
Another area of concern is attendant care. This is often the single largest cost within a FCCA. Again, the background information is invaluable. For example, should attendants be provided for meal preparation if that person has never cooked a meal in their life? Similarly for housekeeping, it is important to determine who did what prior to the accident. In one case I worked on, the client had a pre-existing injury. This meant that they had never prepared their own meals even though they were living independently. After accident number two, the mother wanted to be remunerated for her meal preparation and housekeeping; however, she had done this for ten years prior to the second accident. So when did her role change from mother to attendant, and how will this affect her relationship with her son? I discourage family members from becoming attendants, as it really skews family dynamics.
Another problem with attendant care can be DAC assessments. This same individual was receiving fourteen hours of attendant care, most of which was overnight. I wrote an assessment recommending five hours per day, split into two shifts. Prior to my assessment, all of the treating practitioners agreed with fourteen hours of care; however, after my logical assessment and report, the DAC assessment recommended three hours a day. This person may only need three hours of care, but the way the DAC assessors broke down the hours was unrealistic. For instance, it was recommended that this person have two minutes of assistance setting up at meal time, but you cannot hire someone in two or three minute increments. Usually the minimum is two hours. The pay schedule outlined by the Statutory Accident Benefits is also bizarre. For example, housekeeping may be calculated at $6.85 an hour, personal care at $9.55 an hour, and nursing at $15.29 an hour. You cannot hire three different people to come in for their scheduled twenty minutes, nor can you hire one person and pay them three different rates of pay. This does not make sense! I have been hiring my own attendants since I left the hospital twenty years ago. I find that this is the best system. I pay less than I would have to pay an agency, but the attendants receive more had they worked for an agency. I do not pay CPP or UI as I treat them as contractors so there are no deductions; and therefore, less paperwork. The attendants declare their earnings at the end of the year, and I am able to claim the deduction at the end of the fiscal year. This arrangement ensures that loyalty is to me and not with a third party agency.
Attendant care should not be required for people with paraplegia. They should be independent for all aspects of their own care, unless there are some other injuries preventing full use of their arms. If I had use of my triceps, for instance, then I would be able to transfer myself from wheelchair to wheelchair. I am also seeing a trend towards more incomplete injuries due to the advances in medicine. A person with my level of injury, who sustained an incomplete injury may be able to walk out of the hospital. So I can never receive TOO much information. It all counts, and a more complete FCCA can be provided as a result.
When I am called upon to perform a FCCA, it is frustrating to read a file, and the case management reports are a list of people who have been contacted, but you have no idea what was discussed or who these people are. It is helpful if it clearly documented on how a certain methodology was tried and for whatever reason failed. This way any medical professional reading the file will know what happened and if the circumstances change, then perhaps it could be tried again with better results. I also need to know what equipment has been purchased, what is outstanding, and what, if anything, needs repair or replacement.
It baffles me when paraplegics, who have full use of their upper body and should be able to transfer independently, are prescribed trucks, vans, or all terrain vehicles. In most cases, they are not practical. Usually, a two-door car will provide adequate transportation; and therefore, vehicle prescriptions are sometimes questionable. For example, I have seen a paraplegic provided with a pickup truck with a lift mounted in the back of the payload area. This individual was quite capable of transferring themselves into the front seat, but there was insufficient space to store their wheelchair. The lift would pick up the wheelchair and mount it into the payload area. When it rained or snowed the wheelchair became soaked. It was subjected to extreme temperature changes which obviously diminished the lifespan of the wheelchair.
In other cases I have worked on, full-sized vans with raised roofs are recommended for paraplegics with different rationales. For example, a stronger chassis means that the van should last longer, or a full sized van will enable paraplegics to perform intermittent catheterizations in the back; however, vans with raised roofs cannot park in most underground parking areas due to their height, and I have yet to hear from anyone who catheterizes in the back of their van. A two door car will enable a person with paraplegia to fold their wheelchair and place it behind the driver's seat. If space is required for passengers, the wheelchair can be placed in the trunk. It is my opinion that this is much more cost effective and practical. This also provides individuals with another form of exercise to minimize weight gain.
For a paraplegic or an incomplete quadriplegic, the only special requirements may be hand controls. GM and other manufactures have "disability programs" that subsidize up to $1,000.00 for items such as remote start and remote keyless entry. If the claimant exercises and remains fit, they should be able to continue transferring themselves for the rest of their lives. For quadriplegics and others who cannot transfer independently, a mini van with a lowered floor may be more practical as it will fit in underground parking, and if the individual cannot drive, it seems more palatable for a broader selection of attendants to drive.
When providing a FCCA, common sense advice regarding housing modifications should be used. In most cases housing is of the utmost concern and is the second largest cost after attendant care. Housing is one of the biggest expenses an individual will ever incur over a lifetime. Where the insured is still a minor, the insurance company may be reluctant to subsidise home renovations because the parents own the home. There may also be difficulties if the home is rented, or if the individual has an acquired brain injury with associated cognitive issues.
Statistics reveal that the highest divorce rates are with couples who have one spouse who has sustained a spinal cord or closed head injury, but there are no statistics on families with two people with catastrophic injuries. I guess we are writing the book on that one! The insurance company's responsibility is with the injured party, not with the uninjured spouse, so if they divorce, there may be legal ramifications as to who owns the home.
Plaintiff lawyers, who are looking at getting the most money for their clients, may focus on the dollar value and not always look at practical housing solutions. Depending on the family situation, it may be in the client's best interest to consider moving to a condominium within a metropolitan area. The costs of renovating a condominium are less then an average home, which is so, in part, because condominiums usually don't have stairs requiring modification to make them accessible. Most condominiums are equipped with advantageous amenities such as in-suite laundry facilities, and if attendants are required, they can perform laundry within the condominium; and therefore, concentrate on the needs of their client. Condominiums usually have extensive security systems, which is important these days, and they are usually included within the maintenance fees. Other conveniences such as a pool or party room may assist with client's social reintegration.
Condominiums are often centrally located, which provides accessibility to shopping, banking, employment, restaurants and other leisure activities. A centrally located condominium also broadens the selection of potential attendants. There are no landscaping costs, and condominiums with underground parking ensure that snow will not have to be removed from their vehicle.
People should have a choice. They may perceive living in a condominium as confining, and may long for the openness of a home in the countryside. In cases where a house is desirable because of children, I would recommend what is needed as opposed to wanted. I mentioned this earlier which is a subtle but important difference. I know of one company that performs housing assessments, and they seem to make the same housing recommendations regardless of the circumstances.
I thought we could take our house as an example as what is reasonable and necessary. We could have done anything we wanted, but I hope you'll agree that our modifications were minimal and inexpensive.
We were originally living in a two bedroom apartment with 1,000 square feet. When you have two people who use wheelchairs, an office, plus a couple of attendants it was pretty cramped, but we managed for over a year. We considered buying an existing property, but the renovation costs were cost prohibitive, so instead, we built from scratch. We found a great house plan that suited our needs, and a good builder who was open to suggestions. As part of the costs, we able to have all our doorways thirty-six inches wide, low thresholds throughout, and both bathrooms reconfigured. Not bad, and we had not required a dime for extraordinary expenses. Our bathroom was meant to have a separate shower unit, bath and two sinks. We took out the shower and the extra sink which opened it right up. Why didn't we have a wheel-in shower? It's simple, I prefer baths. It's important to find out what the client wants. They may not want renovations, or they may not want to move. If we go back to the accessible apartment, the bathroom was huge, but the sink was located in front of the toilet. This made it inaccessible from the front. It was also against a wall which meant that only one side was open. Due to our daughter's hemiplegia she was unable to transfer herself from that side. In our house, we situated her toilet in the centre of the wall, so she had access from both sides. Our kitchen was not made accessible as I do not cook. The utility rooms should be accessible to the people that use them. In the apartment, the kitchen was accessible, but my wife found that her back was sore leaning over the lowered counters, and the shallow sink splashed water everywhere.
I wanted to use the front door of my own house, so we had a ramp built, but it looks like a normal part of the landscaping. We chose to incur this cost, but as it was part of the landscaping, it was not an extraordinary expense. The power door opener from my previous residence was installed to provide independent access. During the winter, the ramp can be slippery, so we also put an entrance in through the garage. This was via an elevator, which also provides access to the basement. This was our only extra cost for housing accessibility! Typically these doors are opened with power door openers like the one on our front door; however, with three doors to open, this would have cost $6,000. Instead, we installed a towel rack on the inside of each door, so I had something to pull them closed. This cost us a mere $15, and we don't need a mechanic if they fail, we would just go to Zellers and replace them. As you can see, we just used common sense based on what was needed. An Occupational Therapist would not have designed an accessible home like this, but the therapists who have seen it, think it's great.
Housing becomes a complicated issue when a person with a cognitive impairment is involved. In less severe cases, the person could live in supported housing from six to twelve months while they develop the skills required to live independently. The next stage is spent with partial support, and the optimistic outcome is that the person should be able to live independently. In more severe cases, options may be quite limited.
Unusual costs maybe included in a FCCA, and it is important to explain why they are reasonable or necessary. For example, over the last two years, our daughter went through a major growth spurt. Typically this has no ill side effects on an able-bodied child; however, in her case, her spasticity increased as the muscles stretched and she lost function within both legs. She tried a new drug called Botox, which is a slow release muscle relaxant that is injected into the affected muscle. She was also put into three sets of leg casts to hold her ankles in a good position. The results were good. Even though the Botox has worn off, there has not been a reversal of function.
That was one example where the cost of a drug was reasonable and necessary; however, I recently underwent a bone density test and discovered that the bone density within my hips and knees was very low which put me at risk for fractures. According to the physiatrist, the calcium is lost within six months of the spinal cord injury. There is an experimental study currently underway at Chedoke McMaster Hospital in Hamilton, and Lyndhurst Hospital in Toronto. They are using a mixture of medications and weight bearing exercises in an effort to increase the density of the hip and leg bones; however, after recently attending the International Association of Rehabilitation Professional's Conference in Miami Florida earlier this year, representatives such as Dr. Green noted that their studies revealed no difference after extensive trials of calcium replenishment and weight bearing exercises. It is unlikely that I would known of these problems and procedures if I were not living with the same problems every day.
So, I hope you can see, Future Care Cost Analysis can be helpful in determining what is reasonable and necessary throughout the various stages of rehabilitation. They can evaluate outcomes of previous therapies. They can note discrepancies and hopefully bring common sense to the table. They are helpful in determining the amount for a full and final settlement for either AB or the BI claim. They can assist the reinsurer earmark funds in the beginning, or assist when determining specific costs at key times such as the two year mark.
