If you have been in a car accident, lawyers, health care professionals, and those in the insurance industry will often raise the question of whether you have sustained a catastrophic injury. In the auto insurance world, “catastrophic” means much more than the common-sense notion of that term.
What is the Significance of a “Catastrophic” Impairment?
A designation of “Catastrophic Impairment” has significant consequences for an injured person. The money available to fund their treatment and improve their quality of life will increase dramatically.
In the Statutory Accident Benefits Schedule (“SABS”) – the no-fault auto accident insurance benefits regime that is available to anyone injured in a car accident in Ontario – there are three “tiers” of injuries that govern the amount of funding available to accident victims. The lowest tier is called the Minor Injury Guideline; individuals with “minor injuries” (defined as whiplash-related injuries, muscular strains/sprains, contusions, and lacerations) are entitled to funding of $3,500 for their medical-rehabilitation needs. Anyone whose injuries do not fall into the Minor Injury Guideline falls into the next tier which usually provides up to $65,000 of medical-rehabilitation and attendant care funding, lasting up to five years.
The “upper tier”, so to speak, is the Catastrophic Impairment category. To fall into this category, an individual’s injuries must meet one of several criteria that are set out in the legislation. If a person falls into this category, then their medical-rehabilitation and attendant care needs are usually funded up to $1 Million for their lifetime. Certain other benefits are also increased, extended or made available (such as a $100/week housekeeping benefit).
What Constitutes a “Catastrophic” Injury?
For the purposes of the “catastrophic” designation, the SABS looks at impairments rather than the injury itself. Many injuries that at first instance appear catastrophic must result in a long-term impairment that meets the statutory criteria for “catastrophic impairment”. Since June 1, 2016, a Catastrophic Impairment has been defined to include 8 categories of impairments. The complete criteria can be found in section 3.1(1) of the SABS, also located here.
The 8 criteria are too lengthy to be fully reproduced in this article, but can be summarized as follows:
- Paraplegia or tetraplegia
- Severe impairment of ambulatory mobility or use of an arm or leg, or amputation of an arm or leg
- Loss of vision of both eyes
- If the person is over 18: traumatic brain injury, provided that the brain injury is confirmed by medical imaging and a Glascow Outcome Scale assessment determines that the injury results in one of the following ratings:
A. Vegetative State, one month or more after the accident,
B. Upper Severe Disability or Lower Severe Disability, six months or more after the accident, or
C. Lower Moderate Disability, one year or more after the accident.
- If the person is under 18 years of age: a traumatic brain injury, confirmed by medical imaging, and the person has been admitted into a hospital, or, the person has severely impaired neurological functioning
- A physical impairment or combination of physical impairments that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in 55 percent or more physical impairment of the whole person.
- A mental or behavioural impairment, excluding traumatic brain injury, determined in accordance with the rating methodology in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th edition, 2008, that, when the impairment score is combined with a physical impairment described above results in 55 percent or more impairment of the whole person.
- An impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in a class 4 impairment (marked impairment) in three or more areas of function that precludes useful functioning or a class 5 impairment (extreme impairment) in one or more areas of function that precludes useful functioning, due to mental or behavioural disorder.
The foregoing is a summary of the criteria required for Catastrophic Impairment. Each of the 8 criteria above is expanded upon in the legislation. It is important that your health care provider review the expanded criteria before arriving at an opinion as to whether you are catastrophically impaired. It often requires specialized knowledge or training, such as a familiarity with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, and an understanding of the Glascow Outcome Scale and the ASIA Impairment Scale.
Who determines whether I have sustained a “Catastrophic” Injury?
In order to be deemed Catastrophically Impaired, the auto insurer requires the completion of a form called an OCF-19, Application for Determination of Catastrophic Impairment. This form is available here.
A physician or, in the case of a traumatic brain injury, a neuropsychologist, must complete this form and send it to the auto insurer. Sometimes, the use of an occupational therapist, psychologist, and speech-language pathologist may supplement or add to the assessment by your treating health care provider as to whether you have sustained a Catastrophic Impairment. An occupational therapist and psychologist may be particularly helpful where the injury that forms the basis of the Application is a mental or psychological impairment. A speech-language pathologist can also provide assistance in the assessment of catastrophic impairment in the context of a traumatic brain injury.
Some injuries are automatically deemed catastrophic upon receipt of the OCF-19, such as a paraplegic, amputee, or a child with a brain injury who has been admitted to hospital. Other injuries, such as a traumatic brain injury in an adult or a person claiming to have a 55% “whole person impairment”, may require that the individual wait two years or more before submitting an OCF-19.
Once an OCF-19 form is submitted to the auto insurer, the auto insurer can accept the Application and deem the person catastrophically impaired. In most instances, however, the insurance company will require the individual to attend a series of medical assessments for the purposes of determining whether the criteria for catastrophic impairment have been met. If the medical assessments – conducted under s.44 of the SABS – conclude that the criteria have been met, then the insurer must designate the person as catastrophically impaired and begin providing the enhanced benefits discussed above.
If the s.44 medical assessments conclude that the individual is not catastrophically impaired, then the injured person can dispute that conclusion by obtaining their own assessments and proceeding with an application to the License Appeal Tribunal for dispute resolution. An application to the License Appeal Tribunal will result in a hearing before an adjudicator. The injured person’s lawyer will adduce evidence from the various medical professionals in support of the catastrophic designation; the insurer will adduce evidence to the contrary. The injured person will usually appear as a witness and will be examined in-chief by their own lawyer and cross-examined by the insurance company’s lawyer. Ultimately, the adjudicator will decide whether the person’s injuries have met the criteria for “Catastrophic Impairment” as set out in s.3.1 of the SABS.
It sounds like a long and adversarial process. Should I pursue a Catastrophic Designation?
OHIP-funded health care for individuals who have been seriously injured in a car accident can be woefully inadequate. OHIP does not cover treatment by physiotherapists, massage therapists, speech-language pathologists, occupational therapists or psychologists, nor does OHIP fund medication, assistive devices or home modifications such as ramps and stairlifts.
The consequences of a serious injury can be life-long and can potentially bankrupt an individual and his/her family – financially and emotionally. Auto accident benefits are intended to supplement OHIP and provide the injured person with financial and emotional peace-of-mind while maximizing the resources available to an injured person to allow them to be as functional as possible in their home and in society at large.
If you have a serious injury that may fall into one of the 8 categories for catastrophic impairment, summarized above, it is worthwhile to speak to your health care providers and your lawyer about it, if they have not raised it already.
Thanks to the Ontario Trial Lawyers Association (OTLA) for this article https://www.otla.com/