For the purpose of eligibility for ‘no fault’ accident benefits, someone injured in a motor vehicle accident is categorized as either having minor injuries, non-minor injuries, or a catastrophic impairment. This designation is particularly important for seriously injured accident victims because the cost of assistive devices, attendant care, home modifications and so on can be substantial, and one can see how these expenses can easily exceed the maximum allowable if a person’s injury is classified as non-minor (rather than catastrophic). Even if an injury is deemed a catastrophic impairment, necessary rehabilitation and care expenses cannot exceed the maximum allowable under statutory accident benefits over the lifetime of an injured person.
As of June 1, 2016, the Ontario government officially changed the definition of ‘catastrophic impairment’ as it pertains to injury compensation for motor vehicle accidents. The new definition, in Ontario’s standard accident benefits schedule (SABS), will include updated definitions and criteria for: traumatic brain injury (both for adults and children), amputations, ambulatory mobility, loss of vision, and mental & behavioral impairments. It will also introduce a new process for combining physical, with mental and behavioural impairments, as well as provide for an automatic designation of catastrophic impairment for children with traumatic brain injuries, in specific circumstances.
The changes will apply to accidents on or after June 1, 2016. We are being told by the Financial Services Commission of Ontario (FSCO) that the main purpose of these changes is to help make vehicle insurance premiums more affordable. Theoretically, the greater the insurance benefits provided to policyholders, the higher the premiums. However, it remains to be seen if this reduced coverage results in lower insurance rates.
In a Law Times article, Alan Shanoff, a lawyer and frequent contributor to the Toronto Sun, suggests that these reductions will actually only add profits to the coffers of insurance companies, in addition to forcing more accident victims to claim for damages in a lawsuit in order to obtain needed compensation. In any case, FSCO warns Ontario drivers and vehicle owners that they will have lower benefits for policies renewed after June 1st, and should contact their insurer if they wish to purchase optional coverage.
Prior to June 1st, the statutory accident benefits under all vehicle insurance policies, for accident victims who sustain a catastrophic impairment, provided up to $1 million in medical and rehabilitation coverage, as well as up to $1 million in attendant care benefits, which meant a total of $2 million in benefits.
The June 1st amendment has combined the two, reducing the benefits to a $1 million maximum in combined medical, rehabilitation and attendant care benefits. However, vehicle owners have the option of purchasing additional benefits for catastrophic impairment in the amount of $1 million to make up the difference.
Catastrophic Impairment Definition
Per the SABS, prior to June 1, 2016 – a catastrophic impairment caused by an accident included:
- Paraplegia or quadriplegia
- Amputation or other impairment causing the total and permanent loss of use of an arm or a leg
- Total loss of vision in both eyes
- Brain impairment that results in:
- A score of 9 or less on the Glasgow Coma Scale
- A score of 2 (which refers to a vegetative state) or 3 (which refers to a severe disability) on the Glasgow Outcome Scale
The new revisions to the SABS include narrower criteria for a catastrophic impairment designation. This includes: 1) removal of the Glasgow Coma Scale (GCS), to be replaced by the Glasgow Outcome Scale (GOS) in the definition of brain impairment; and 2) a new mental behavior criteria.
Supporters suggest that the change from GCS to the GOS will result in a fairer assessment. The Glasgow Coma Scale typically relies on measuring verbal and motor responses within a short period of time after an accident. By contrast, the Glasgow Outcome Scale is an outcome-based measure that examines and measures function prior to and after an accident. However, critics suggest that the Glasgow Coma Scale is easier to administer while the new tests to discern intracranial pathology are more likely to result in uncertainty and thus, more litigation (according to Shanoff’s Law Times article).
The assessment process begins with a claimant or family member providing important information pertaining to the accident victim’s level of functioning and wellness prior to the accident, such as pre-accident occupational status, mode of transportation, social skills, and normal daily activities. At a three or six-month interval, an evaluation of these same factors is conducted, from which an assessment of catastrophic impairment is made.
With regard to the definition of brain impairment and mental behavior criteria, the newly enacted changes will now require an individual to have an impairment in three of four aspects of function or an extreme impairment in one, where the individual is precluded from useful functioning. Prior to the June 1st amendments, an impairment in one aspect of function was sufficient to receive a catastrophic impairment designation.
The Importance of a Catastrophic Impairment Designation
Based on the seminal decision in Desbiens v. Mordini, the Courts stated that “catastrophic impairment is intended to foster fairness for victims of motor vehicle accidents and ensure that victims with the greatest health needs have access to expanded medical and rehabilitation benefits.”
In other words, catastrophic impairment status is very important because as the definition states, it helps ensure that accident victims with the most substantial requirements (for example, in terms of future care costs and so on) receive the compensation they need. This designation typically includes individuals who have suffered a total loss of vision, loss of limbs, amputation, brain injuries, or suffer from paraplegia or quadriplegia. However, one cannot receive catastrophic impairment benefits without first having an insurance assessor confirm that you meet the criteria for catastrophic impairment.
Understanding these new changes and how they can affect the costs of your insurance premiums and amount of compensation you may receive if catastrophically injured in an accident, is very important. No one wants to be in the position of having insufficient insurance coverage in the event of serious or catastrophic injury. After reviewing your policy, if there is anything you are confused or uncertain about, contact your insurance agent as soon as possible for further clarification.
Making a claim for benefits
If you were injured as a result of a motor vehicle accident, whether as a pedestrian, cyclist or vehicle occupant, you may apply to your insurance company to make a claim for statutory accident benefits, and if appropriate, also apply for a determination of catastrophic impairment. The sooner you do so, the better, as accident benefit claims are subject to a time limit.
At Kotak Law, we have successfully represented many individuals who have been catastrophically injured in an accident, both in fighting for accident victim’s rights in an insurance dispute and in civil suits for damages when injuries result from negligence. We have seen the devastating effects these injuries have not only on the injured person but on their loved ones as well. In most cases, an accident victim’s family members and loved ones play a huge role in supporting and caring for the injured person throughout their recovery as well as in the claims process.
If you or someone you love was injured in an accident please call Kotak Law today. We will be happy to provide a free initial consultation to help you understand your best options for obtaining just compensation.