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Catastrophic Impairment refers to the highest threshold of injuries in a personal injury claim

Posted by Kotak Law Office on February 26, 2016
Posted under Catastrophic Impairment

You are driving home on Friday afternoon. You stop at a red light, and start thinking about your upcoming weekend. Maybe you were planning on going out that night, sleeping in on Saturday, or playing with your children at the family cottage.

The light turns green, and you step on the gas. Suddenly you catch a brief glimpse of a large, metallic object in the corner of your eye. This is followed by a deafening crash. Everything goes black.

You wake up in a bright hospital room. Everything hurts, your eyes are blurry and you feel completely disoriented. You may not immediately know where you are.

Then you notice something different. You can’t move your legs. The world starts swimming into focus and you realize you’ve been in a car accident. You try to move your legs again, try to move your toes. There’s no pain, no stiffness… just nothing.

You are left to wonder about whether you would ever walk again; whether you will be able to play with your children or keep your job. You probably haven’t even started to think about what will happen to your loved ones, let alone who will provide for you. 

Imagine what it would be like to be in that situation. Imagine the uncertainty and the confusion that someone in that situation must feel. Maybe you don’t need to imagine…

The purpose of this article is to provide some basic information dealing with what someone who has suffered a catastrophic injury can expect from the legal system. None of the information contained herein is intended as legal advice; everyone’s situation is different, and you should consult with a lawyer to receive advice pertaining to your unique situation.

THE STATUTORY ACCIDENT BENEFITS SCHEDULE

The new Statutory Accident Benefits Schedule, or “SABS”, was passed into law in 2010. The SABS limits the amount that a person injured in an automobile collision can recover from insurers. 

In order to determine how much an injured party can claim as compensation for their injuries, the SABS separates all injuries into three categories: minor injuries, non-catastrophic injuries, and catastrophic injuries. Motor vehicle accident victims can claim compensation up to a maximum amount, depending on which category their injury falls into. This article will focus exclusively on the catastrophic injury category.

For reference, I have provided a summary of the maximum claimable benefits by category below:

MINOR INJURIES

  • Medical and Rehab: $3,500
  • Attendant Care: $0
  • Housekeeping and Home Maintenance: $0
  • Caregiving Benefits: $0

NON-CATASTROPHIC INJURY

  • Medical and Rehab: $50,000
  • Attendant Care: $36,000
  • Housekeeping and Home Maintenance: $0
  • Caregiving Benefits: $0

CATASTROPHIC INJURY

  • Medical and Rehab: $1,000,000
  • Attendant Care: $1,000,000
  • Housekeeping and Home Maintenance: $100 weekly.
  • Caregiving Benefits: $250 weekly, plus $50 per dependent

A “catastrophic impairment” is defined specifically at subsections 3(2) - 3(6) of the SABS. Catastrophic injuries include quadriplegia or paraplegia, the amputation or permanent loss of use of an arm or leg, total blindness, severe and permanent brain impairment, or an impairment that would be defined within the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 as either a “class 4” or “class 5” impairment, or an injury resulting in 55% or more impairment of a person. A catastrophic injury classification requires an assessment from a medical doctor. 

DEFINING “CATASTROPHIC IMPAIRMENT”

As you can see from the SABS definition of a ‘catastrophic impairment’, the Courts have some leeway in determining whether an injury is or is not ‘catastrophic’. For example, Ontario courts have ruled that both a victim’s physical and psychological well-being should be taken into account in determining whether an individual’s injuries are sufficiently debilitating to be deemed ‘catastrophic’ .

In the landmark case of Aviva v. Pastore, the Ontario Court of Appeal ruled that a marked impairment in one category of functional limitation was sufficient to determine that an individual suffered a catastrophic injury under the SABS, despite lower scores in the 3 other areas.

With respect to the role of GCS score in determining brain impairment, courts have decided that having one GCS reading of 9 or less within a reasonable period of time meets the statutory definition .  In a recent case, it was confirmed that the inquiry into the seriousness of the actual brain injury is irrelevant and that GCS score is conclusive with respect to the definition under SABS.

NEW AMENDMENTS TO THE SABS

Effective on June 1, 2016, section 3.1 of the SABS will come into effect. This section will effectively replace the current definition of ‘catastrophic impairment’ under the Act regarding injuries sustained on or after June 1, 2016. 

Section 3.1 effectively reduces the total benefits available under the medical/rehabilitation, and attendant care categories to $1,000,000. Previously, a victim was permitted to claim up to $1,000,000 for each of these categories. This effectively covers the maximum lump sum coverage of the victim of a catastrophic motor vehicle accident in half. This represents a significant blow to the Ontario consumer, and a substantial reduction in insurers’ potential liability (and a corresponding decrease in insurer costs) in catastrophic injury cases.

The new amendment gives further details with respect to the previous definition of ‘catastrophic impairment’ by placing additional tests on injuries involving blindness, parapalegia/tetrapalegia, loss of function of a limb, involuntary loss of control over their bowels or neuro-urological function. 

This new amendment also eliminates use of the current Glasgow Coma Scale test, and introduces a number of other tests for determining catastrophic injury. The WPI or “Whole Person Impairment” test would continue to apply (under AMA 6th Edition).

With insurers having access to even more legal roadblocks to hurl in front of victims, it is more important than ever that injured parties seek out a lawyer as soon as possible. 


Harpreet Sachdeva
Associate at Kotak Law

Harpreet Sachdeva Kotak Law

Disclaimer: This article is intended to supply general information to the public. We make every effort to ensure the accuracy of this information. However, as laws change quickly, the reader should always ensure the accuracy and applicability of such information with respect to their particular case. The information contained in this article cannot replace a thorough and complete review of the reader's situation by competent legal counsel who has had an opportunity to review all of the facts.
Posted under Catastrophic Impairment
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