Catastrophic Impairment After an Ontario Car Accident: What It Means

A catastrophic impairment after an Ontario car accident is a serious injury that meets one of the specific criteria in section 3.1 of the SABS. It is not a general word for "very bad injury". The definition lists criteria by category, and some depend on medical rating scales and on timing.

This page is general information and does not say whether any person's injury qualifies.

What counts as catastrophic impairment after an Ontario car accident?

Section 3.1(1) covers an impairment from an accident on or after June 1, 2016. The impairment must result in one of the outcomes below. For earlier accidents, which definition applies depends on the accident date and should be confirmed with a lawyer.

The wording of each category is long and technical, so this summary should not be used to decide whether someone qualifies.

Does timing affect a catastrophic impairment finding?

Yes, for some categories. Section 3.1(2) says the two "whole person" categories (physical, and physical combined with mental or behavioural) do not apply unless one of two things is true: two years have passed since the accident, or a physician assessing the person at least three months after the accident finds a 55 per cent or higher impairment that is unlikely to improve below that level.

For the mental or behavioural disorder category, section 3.1(3) similarly requires either two years since the accident or a physician's written statement that the impairment is unlikely to improve below the stated class level.

The brain injury criteria have their own timing. For adults, the outcome-scale rating must be reached at least one month, six months or one year after the accident, depending on the rating.

What about children and teenagers?

Under 18, the brain injury criteria are different (section 3.1(1), paragraph 5). For a person under 18 whose impairment does not already meet section 3.1(1), section 3.1(5) says that if the impairment can reasonably be believed to be catastrophic under the whole-person or mental categories, it is treated as the most analogous listed impairment, taking developmental implications into account.

Section 45.1 adds a shortcut for some brain injuries. If a person under 18 meets the hospital admission or paediatric rehabilitation admission criteria (paragraph 5, subparagraphs i and ii), the person may apply, the ordinary assessment steps in section 45(2) to (5) are skipped, and the impairment is treated as catastrophic for the purposes of section 45(6). For more on injuries to children, see our guide to child injury claims in Ontario.

Why does a catastrophic impairment designation matter?

Several limits and time rules in the SABS change when the designation applies. The first two rows show the default amounts, and the optional-benefit rows apply only if that coverage was purchased. The figures are from the regulation text, and for accidents on or after June 3, 2019 the text adds applicable HST. These amounts are as of the date of this article; confirm the current amounts and which version of the rules applies to a particular accident.

Other differences in the regulation include:

• Case manager services are covered for a person with a catastrophic impairment, or where certain optional benefits are available, as reasonable and necessary expenses under a treatment plan (section 17).
• The 104-week limit on visitor expenses does not apply where the impairment is catastrophic (section 22(2)). For housekeeping and home maintenance, costs incurred over 104 weeks past the onset of disability are not payable where the impairment is not catastrophic (section 23(2)).
• After a catastrophic determination, the insurer must give notice within 10 business days that a caregiver benefit can be elected within 30 days of getting the notice, if the person otherwise qualifies (section 35(2)).
• Where medical, rehabilitation or attendant care benefits are claimed or paid, benefit statements after a catastrophic determination are due at least yearly rather than at least every two months, subject to an exception where the amounts are unchanged (section 50(4), (5)).

Which of these a person is actually entitled to depends on the policy, the accident date and the facts. A lawyer can advise.

Who assesses catastrophic impairment, and how does the application work?

Section 45 sets a process, in outline:

1. An insured person asks the insurer to decide whether the impairment is catastrophic (section 45(1)).
2. The assessment is conducted by a physician, who may be assisted by other regulated health professionals. For a traumatic brain impairment only, a neuropsychologist may conduct it. Any conditions a Guideline sets for the determination must also be followed (section 45(2)).
3. Within 10 business days of receiving an application prepared and signed by the assessor, the insurer gives a notice that it accepts the designation, or a notice that it does not, with medical and other reasons (section 45(3)).
4. If the insurer wants its own examination under section 44 on the question, it may require one. Within 10 business days after receiving that report, it gives the person a copy and a notice with its determination and reasons (section 45(5)).
5. If the person is determined to have a catastrophic impairment, they are entitled to payment of earlier expenses they would have been entitled to had that status applied (section 45(6)).

Section 45(4) provides that, if an application is made within 260 weeks after the accident and attendant care benefits were being paid, those benefits continue during the decision period and are calculated as if the impairment were catastrophic.

What if the insurer says the impairment is not catastrophic?

When an insurer refuses or reduces a benefit, it must give written notice of the right to dispute it (SABS section 54). Under section 280 of the Insurance Act, either the insured person or the insurer can take a dispute about benefit entitlement or amount to the Licence Appeal Tribunal, and courts are generally not the forum for these disputes except for appeals and judicial reviews.

The time limit for a Tribunal application about a benefit is two years from the insurer's refusal to pay what was claimed (SABS section 56). How that period is counted for a dispute over a catastrophic determination depends on the facts. Some conditions can prevent an application, such as missing the notice or application deadlines, or not complying with an insurer examination that was required in accordance with the regulation (section 55(1)). The Tribunal may permit an application despite the examination ground (section 55(2)). Our overview of Ontario accident benefits covers the broader process, and our page on limitation periods explains how those deadlines differ from the lawsuit period.

When it is worth talking to a lawyer

People commonly seek advice at points like these:

• A doctor has described a serious brain, spinal, limb or vision injury.
• A severe injury is approaching the two-year mark and no application has been made.
• An insurer has refused a catastrophic designation or sent the person for its own examination.
• A child has a serious head injury.
• Attendant care or rehabilitation funding is close to its limit.
• A refusal letter has arrived and the dispute deadline has not been calculated.

Where a refusal or an approaching deadline is involved, the dates should be confirmed with a lawyer immediately.

What to gather

• The insurer's application forms and all letters, including any refusal and its reasons
• Hospital, imaging and treating-physician records, and any rehabilitation reports
• Assessments of attendant care needs and treatment plans
• Any report from an insurer-arranged examination
• Records of expenses paid so far, and the benefit statements the insurer sent
• The accident date and the policy details, including any optional benefits