Frequently Asked Questions About Catastrophic Injuries

What is a Catastrophic Impairment?

“Catastrophic impairment,” is a legal definition constructed by legislation governing accident benefits claims. Some injuries, if sustained as a result of a motor vehicle accident, enable a person to obtain an automatic classification of catastrophic impairment, including quadriplegia, total loss of vision (blindness) in both eyes, paraplegia, and complete loss of use of upper or lower extremities.

Some injuries are not so “obvious” as to warrant an automatic catastrophic impairment designation under the legislation. One example is a traumatic brain injury, which could support the finding of catastrophic impairment in certain cases. Other examples generally involve multiple separate injuries and their combined effects, which are calculated using strict methods in evaluating impairments, by relying on the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA Guides), 4^th and 6^th Editions.

If your injuries are rendered “catastrophic” (often abbreviated as “CAT”), a standard automobile policy includes the following catastrophic impairment benefits at no extra cost:

1. Medical, rehabilitation, and attendant care benefits are available up to $1,000,000.00, without any time limits. The monthly attendant care benefit available is also doubled, with up to $6,000.00 being available to catastrophically injured individuals in need of assistance with their care.
2. Housekeeping and home maintenance benefits at $100.00/week.

In addition to receiving access to these benefits, injured persons are also able to access higher hourly rates of health care professionals for reimbursement of their medical and rehabilitation expenses. These rates are prescribed under the Professional Services Guidelines, which can be up to 40% higher for catastrophically injured claimants. This means a person who is catastrophically injured will be able to receive more toward their therapists’ hourly rates than those who are not.

What is a Catastrophic Injury Under Ontario Law?

Many factors may play a part in what qualifies as a catastrophic injury for each individual. One of the main factors that must be considered is the law that was in effect on the date of your injury. In June 2016, the provincial government changed some of the criteria for catastrophic injuries, so it is important to understand that injuries before June 2016 and after June 2016 will be determined through different rules. Some of the impairments remain the same, while others were changed.

The current (post-June 2016) legislation, (the Statutory Accident Benefits Schedule) describes the following injuries as “catastrophic impairments”:

1. Paraplegia or tetraplegia that meets the following criteria:
   1. The insured person’s neurological recovery is such that the person’s permanent grade on the ASIA Impairment Scale can be determined.
   2. The insured person’s permanent grade on the ASIA Impairment Scale is or will be,
      1. A, B or C, or
      2. D, and
         1. the insured person’s score on the Spinal Cord Independence Measure is 0 to 5,
         2. the insured person requires urological surgical diversion, an implanted device, or intermittent or constant catheterization to manage a residual neurological impairment, or
         3. the insured person has impaired voluntary control over anorectal function that requires a bowel routine, a surgical diversion, or an implanted device.
2. Severe impairment of ambulatory mobility or use of an arm, or amputation that meets one of the following criteria:
   1. Trans-tibial or higher amputation of a leg.
   2. Amputation of an arm or another impairment causing the total and permanent loss of use of an arm.
   3. Severe and permanent alteration of prior structure and function involving one or both legs as a result of which the insured person’s score on the Spinal Cord Independence Measure is 0 to 5.
3. Loss of vision in both eyes that meets the following criteria:
   1. Even with the use of corrective lenses or medication,
      1. visual acuity in both eyes is 20/200 (6/60) or less as measured by the Snellen Chart or an equivalent chart, or
      2. the greatest diameter of the field of vision in both eyes is 20 degrees or less.
   2. The loss of vision is not attributable to non-organic causes.
4. If the insured person was 18 years of age or older at the time of the accident, a traumatic brain injury that meets the following criteria:
   1. The injury shows positive findings on a computerized axial tomography scan, magnetic resonance imaging, or any other medically recognized brain diagnostic technology indicating intracranial pathology that is a result of the accident, including but not limited to, intracranial contusions or haemorrhages, diffuse axonal injury, cerebral edema, midline shift or pneumocephaly.
   2. When assessed in accordance with the Glasgow Outcome Scale, and the Extended Glasgow Outcome Scale the injury results in a rating of,
      1. Vegetative State (VS or VS*), one month or more after the accident,
      2. Upper Severe Disability (Upper SD or Upper SD*) or Lower Severe Disability (Lower SD or Lower SD*), six months or more after the accident, or
      3. Lower Moderate Disability (Lower MD or Lower MD*), one year or more after the accident.
5. If the insured person was under 18 years of age at the time of the accident, a traumatic brain injury that meets one of the following criteria:
   1. The insured person is accepted for admission, on an in-patient basis, to a public hospital named in a Guideline with positive findings on a computerized axial tomography scan, a magnetic resonance imaging, or any other medically recognized brain diagnostic technology indicating intracranial pathology that is a result of the accident, including, but not limited to, intracranial contusions or haemorrhages, diffuse axonal injury, cerebral edema, midline shift, or pneumocephaly.
   2. The insured person is accepted for admission, on an in-patient basis, to a program of neurological rehabilitation in a paediatric rehabilitation facility that is a member of the Ontario Association of Children’s Rehabilitation Services.
   3. One month or more after the accident, the insured person’s level of neurological function does not exceed category 2 (Vegetative) on the King’s Outcome Scale for Childhood Head Injury.
   4. Six months or more after the accident, the insured person’s level of neurological function does not exceed category 3 (Severe disability) on the King’s Outcome Scale for Childhood Head Injury.
   5. Nine months or more after the accident, the insured person’s level of function remains seriously impaired such that the insured person is not age-appropriately independent and requires in-person supervision or assistance for physical, cognitive, or behavioural impairments for the majority of the insured person’s waking day.
6. A physical impairment or combination of physical impairments that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, results in 55 percent or more physical impairment of the whole person.
7. 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, that, when the impairment score is combined with a physical impairment and combining requirements in the guide, results in 55 percent or more impairment of the whole person.
8. An impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 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.

What is the Significance of a “Catastrophic” Impairment?

Every person injured in a motor vehicle accident has access to a certain amount of benefits, depending on the options they decided to purchase with their insurance. These benefits are divided into three tiers, which each injured person may fall under depending on their level of injury. The three tiers are minor injuries, non-minor/non-catastrophic injuries, and catastrophic injuries.

Some benefits are included with each standard auto insurance policy, and optional coverage is available to anyone who wishes to purchase increases to the benefits they may have available in the event of an unfortunate injury.

The standard auto insurance policy includes the following benefits:

1. Income Replacement Benefits (up to $400/week weekly maximum included)
2. Non-Earner benefit (weekly maximum of $185/week, up to 2 years)
3. Medical and Rehabilitation and Attendant Care Benefits (5-year time-limit included. Minor Injury claim limited to $3,500 over the entire claim, without a right to attendant care benefits. Non-minor injuries entitle a person to a maximum claim limit of $65,000.00, including access to the Attendant Care Benefits of no more than $3,000.00/month)
4. Lost Educational Expenses ($15,000.00 limit)
5. Death and Funeral benefits ($25,000.00 to the surviving spouse, $10,000.00 to each surviving dependant, $6,000.00 limit for funeral expenses)

How do I increase my protection in the event I become injured in an automobile accident?

There are several optional coverages that should be purchased to increase your protection. 

For non-catastrophic injuries, you can increase the policy limits for medical, rehabilitation, and attendant care expenses from $65,000.00 for a 5-year period to $1,000,000 without any time limit (for life). For catastrophic injuries, you can increase the policy limits for medical, rehabilitation, and attendant care expenses from $1,000,000 without any time limit to $3,000,000 without any time limit (for life).

Another optional benefit to increase your protection is to increase your income replacement benefit (IRB). IRBs are standard at $400/week; however, they can be increased to increments of $600.00/week, $800.00/week, or $1,000.00 per week.

You can also purchase additional coverage for housekeeping and home maintenance benefits (up to $100.00 each week, for as long as it is needed), and a caregiver benefit ($250.00 per week for the first eligible dependant, $50.00 for each additional dependant in need of care due to your disability, for up to 2 years).

Read our blog to learn more about the importance of option coverage:

The Importance of Optional Benefits in Your Automobile Insurance Policy

Who determines whether I have sustained a “Catastrophic” Injury?

The determination is usually made by your insurance company at the recommendation of medical professionals.

In most cases, the injured person, or their representatives, will obtain medical opinions from certain experts to help support the conclusion that they have reached a permanent impairment that is classified as catastrophic under the law. If the insurer disagrees with the findings of the injured person’s experts, they are entitled to obtain a second opinion from their chosen experts.

Generally, suppose the insurer’s experts conclude the person has sustained a catastrophic impairment, the insurer will accept this finding, although they are not obligated to do so if they believe the expert made an error.

In cases when the insurance company and the injured person do not arrive at the same conclusion (i.e., one party maintains catastrophic impairment, and the other disputes this finding), the matter may be put before an adjudicator member of the Licence Appeal Tribunal (“LAT”). The adjudicator will hold a hearing to allow both parties to present their respective evidence and will make a final determination regarding the person’s impairment. The Tribunal’s finding is binding on the parties unless grounds for reconsideration or judicial review are made.

What You Need to Know About Catastrophic Injury Compensation

It is important to understand that obtaining a “catastrophic impairment” determination from an insurer or a tribunal is often only the first step in the process of receiving compensation for your injuries. Think of the catastrophic impairment designation as a certain “title” behind a person’s name rather than a specific benefit for the injured person. It identifies the person as having access to certain benefits but does not entitle them to those benefits per se, because each benefit has its own eligibility criteria.

When negotiating compensation for a catastrophic injury, an injured person and their experienced lawyer (paralegals in Ontario cannot negotiate compensation for catastrophic injuries) must carefully consider the individual’s future recovery needs, costs, and risks. Often, experts must be retained to develop a Life Care Plan and Future Care Costing analysis. Financial advisors may also be consulted to help maximize the use of these funds. The parties then consider these professional opinions to the negotiation (injured person, their insurer, and each of their representatives, if applicable), who will attempt to negotiate a fair value for the person’s claim.

When the injured person is ready, and the insurer is willing to do so, the two may part ways through a negotiated agreement of the person’s past and future claims. This negotiation requires extensive knowledge, planning, and calculation, which is where the expertise of a serious personal injury lawyer is particularly crucial. It is imperative to remember that this negotiation process must be done in good faith by both parties and their respective lawyers. If the parties cannot negotiate a settlement on the claim’s value, there is no way for one party to compel the other to settle the claim. In other words, the injured person and the insurer could keep the claim open until the injured person is deceased.

If I have sustained a brain injury from a motor vehicle accident, will I automatically be deemed catastrophically impaired?

Many people who are involved in a motor vehicle accident sustain a brain injury. Those injuries are referred to as concussions or traumatic brain injuries (TBI) and are often classified as mild, moderate, or severe.

Many times, injuries are classified as “mild” if the initial brain diagnostic imaging scans do not reveal a bleed or other structural damage to the brain. Nevertheless, these “mild” TBIs can cause severe symptoms and significantly interfere with a person’s day-to-day functioning.

For some people, the CT scans or MRI scans (diagnostic imaging scans) of the brain may detect a smack brain bleed. In cases where the brain injury is clearly documented, their injuries could be determined catastrophic in nature if the person’s condition after the brain injury, at different intervals, warrants such a determination. The criteria to qualify for catastrophic designation in the event of a brain injury depends on the injured person’s age.

Read our blog to learn more about catastrophic impairment due to brain injuries caused by motor vehicle accidents:

Accessing Funding for Medical Rehabilitation after Suffering a Mild Traumatic Brain Injury in a Motor Vehicle Accident.

Will certain injuries or a combination of injuries automatically conclude that a person meets the definition of catastrophic impairment?

Independent medico-legal examiners rely on the AMA Guides 4th and 6th Editions to rate a person’s accident-related impairments and assign the appropriate ratings to each body part or function. Each person’s individual rating is converted to a “whole person impairment” rating.

For example, a person who loses complete function of their right arm from the shoulder to the fingers may receive an “upper extremity” rating of 100% impairment, which corresponds with 40% whole-person impairment under the 4^th edition of the AMA Guides.  If the person has other injuries, they are all rated independently, and once a rating for each injury has been assigned, they are “combined” – which should not be confused with “adding up” the ratings.

Under Ontario Law, if the combined ratings amount to a whole-person impairment of 55% or more, the individual’s injuries must be deemed catastrophic. It is, therefore crucial that a person’s independent medical assessments are appropriately conducted, as required under the AMA Guides, and that the experts produce a detailed report of their findings, along with their ratings and rationale for their conclusions.

The “whole person impairment” ratings include:

“Criterion 6”, refers to the combination of physical impairment ratings, the total of which, when combined, amount to 55% whole person impairment or more.

“Criterion 7” refers to the combination of physical impairment ratings and mental and behavioural impairments, which, when combined, amount to 55% whole-person impairment or more.

“Criterion 8”, Mental and Behavioural Impairments of Marked (Class 4) or higher. According to current Ontario Law, if a person has sustained a Marked Impairment (Class 4) in at least three out of four mental/behavioural function domains or if they have sustained an Extreme Impairment (Class 5) in at least one of the four mental/behavioural function domains, they are deemed catastrophically impaired.

The law requires using the AMA Guides, 4^th edition, to guide the evaluator on what constitutes a Marked (Class 4) or Extreme (Class 5) impairment. The AMA Guides rate the following four domains of function to make this determination:

• Activities of daily living
• Social functioning
• Concentration, persistence, and pace
• Deterioration and decompensation in work or work-like activities (also referred to as adaptation)

Each mental/behavioural function domain is rated on a sliding scale from Class 1 (no impairment) to Class 5 (extreme impairment). Essentially, a mental health professional will determine if a person’s mental and behavioural impairments affect their ability to independently and effectively participate in these four areas of their life. Following their assessment, the expert will rate each domain on the following basis:

• Class 1 – if there is no impairment (when there is no impairment noted)
• Class 2 – if there is a mild impairment (when impairment levels are compatible with most useful functioning)
• Class 3 – if there is a moderate impairment (when impairment levels are compatible with some, but not all, useful functioning)
• Class 4 – if there is a marked impairment (when impairment levels significantly impede useful functioning)
• Class 5 – if there is an extreme impairment (when impairment levels preclude useful functioning)

What is an OCF-19/Application for Determination of Catastrophic Impairment?

The OCF-19 form, officially titled “Application for Determination of Catastrophic Impairment,” is a crucial document. It is used by individuals who have sustained severe injuries in an automobile https://www.injurylawyercanada.com/wp-admin/edit.php?post_type=pageaccident to apply for recognition as having a catastrophic impairment. The form requires detailed medical information and assessments to substantiate the claim of catastrophic impairment. You can access the form here.

What is the process of completing the OCF-19 form?

Completing the OCF-19 form involves a detailed and meticulous process.
The individual or preferably their legal representative must gather comprehensive medical documentation pertaining to the injuries. This includes medical reports, diagnostic test results, and expert evaluations. The form requires specific details about the injuries, treatment received, and the individual’s current medical condition. It’s essential to ensure all information is accurate and thoroughly documented.

Once completed, the form is submitted to the individual’s insurance company for review. The insurer may request additional information or assessments to determine if the injuries meet the criteria for catastrophic impairment.

This process is critical in securing the appropriate level of benefits and support for the injured individual. Therefore, it is recommended that you seek legal representation before submitting such documentation to your insurance company.