CATASTROPHIC IMPAIRMENT IN MOTOR VEHICLE ACCIDENTS
Statutory Accident Benefits Schedule Regulation of the Insurance Act Last amendment: O. Reg. 347/13.
A catastrophic impairment caused by an accident is,
(a) paraplegia or quadriplegia;
(b) the amputation of an arm or leg or another impairment causing the total and permanent loss of use of an arm or a leg;
(c) the total loss of vision in both eyes;
(d) subject to subsection (4), brain impairment that results in,
(i) a score of 9 or less on the Glasgow Coma Scale, as published in Jennett, B. and Teasdale, G., Management of Head Injuries, Contemporary Neurology Series, Volume 20, F.A. Davis Company, Philadelphia, 1981, according to a test administered within a reasonable period of time after the accident by a person trained for that purpose, or
(ii) a score of 2 (vegetative) or 3 (severe disability) on the Glasgow Outcome Scale, as published in Jennett, B. and Bond, M., Assessment of Outcome After Severe Brain Damage, Lancet i:480, 1975, according to a test administered more than six months after the accident by a person trained for that purpose;
(e) subject to subsections (4), (5) and (6), an impairment or combination of impairments that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in 55 per cent or more impairment of the whole person; or
(f) subject to subsections (4), (5) and (6), 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) or class 5 impairment (extreme impairment) due to mental or behavioural disorder. O. Reg. 34/10, s. 3 (2).
- Partial paraplegia or quadriplegia are sufficient to meet the criteria for catastrophic impairment
- If at any moment the GCS reading is “9 or less”. It matters not if the score improves quickly.
- There is case law to support the position that if a medically appropriate GCS registers “9 or less” within a reasonable time after the accident, where the brain impairment as a result of the accident is not contested, this satisfies the criteria even if taken once a person is intubated.
- Six months after the accident, brain injury survivors can be assessed using the Glasgow Outcome Scale. The Scale is based on overall social compatibility or dependence of the client. It takes into account the combined effect of mental and neurological deficits without listing them as part of the definition.
Catastrophic Injuries: There are four categories of survival:
- Vegetative State
- Severe Disability
- Moderate Disability
- Good Recovery
Where the patient has suffered a “severe disability”, she is deemed catastrophically impaired. A “severe disability” may include situations where an individual may function reasonably well with some ADLs but require assistance with others, may require supervision due to memory, fatigue, or some other impairment. The severe disability may be a combination of mental and physical impairments.
- In determining Whole Person Impairment, the law requires that mental impairments be combined with physical impairments to determine whether 55% is reached.
- Mental impairment (when determining a marked or severe impairment) must be evaluated in accordance with each of these four categories:
- Activities of daily living;
- Social functioning;
- Concentration, persistence and pace;
- Adaptation to work or work-like settings.
In order to qualify as having sustained a “marked impairment”, the applicant must establish that:
“impairment levels significantly impede useful functioning”.
“Significantly” means “more than insignificant, more than minimally. It does not mean “completely”.
“Impede” means “obstruct”, “hinder” or “delay”.
A rating of “marked impairment” in one of the four categories is sufficient to be deemed Catastrophically Impaired.
Occupational therapists, physiotherapists, psychologists, social workers, and other health care professionals typically evaluate one or more activities of daily living in the course of their assessments.
Activities of daily living include: Self-care, personal hygiene, Communication, Physical Activity, Sensory Function, Hand Function, Travel, Sexual Function, Sleep, Social and Recreational activities.
Sleep and pain levels play a significant role in these assessments.
Contact an experienced personal injury lawyer for more information on catastrophic injuries.
For more on catastrophic impairment and determination please see the Statutory Accident Benefits Schedule, American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, or visit www.ottawainjury.ca/catastrophic-injury/