Psychological Injury and PTSD Claims in Ontario

Where the law mentions psychological injury

People searching for PTSD after a car accident in Ontario often ask first whether the law covers mental injury at all. The Insurance Act does not leave it out. Section 267.5 sets a gateway for non-pecuniary damages (pain and suffering) arising from bodily injury in a collision, and it applies to the owner, the occupants and anyone present at the incident. The gateway is death, permanent serious disfigurement, or permanent serious impairment of an important function that the statute describes as "physical, mental or psychological". The accident benefits regulation (Reg. 34/10, s. 3(1)) defines "impairment" as a loss or abnormality of a psychological, physiological or anatomical structure or function.

How courts decide what proof a mental injury requires, and how serious it must be, is a matter of case law that a lawyer can explain. This article does not discuss decided cases.

What psychological injury can look like

After a collision or a serious fall, people commonly describe:

• Post-traumatic stress: intrusive memories, nightmares, a sense of constant alertness, avoiding driving or the location
• Depression: loss of interest, hopelessness, withdrawal, disrupted sleep
• Anxiety and panic, particularly while driving or as a passenger
• Chronic pain with a mood component
• Adjustment difficulties where an active life is suddenly restricted
• Physical symptoms without clear imaging findings

The regulation's tests look at function: effects on work, training or most usual daily activities. For that reason the day-to-day changes in what a person can still do tend to matter.

Psychological conditions and the Minor Injury Guideline

Psychological conditions do not appear in that list. Whether a person's impairment is predominantly a minor injury, or includes a psychological impairment that is separate from it, depends on the medical evidence and may be disputed by the insurer. Section 18(2) also provides a separate exception for a person whose health practitioner gives compelling evidence of a pre-existing medical condition, recorded before the accident, that would keep the person from reaching maximal recovery if the limit applied.

Symptoms that are not reported are not recorded, and unrecorded symptoms are difficult to rely on later. A family doctor can document symptoms and arrange treatment or assessment. The benefits process is covered in our accident benefits article.

The threshold names psychological function

In a lawsuit against the at-fault party, the same gateway applies. Section 4.2 of Reg. 461/96 turns it into criteria: a substantial effect on the ability to keep working or training, or on most daily activities for the person's age, and an impairment that has been continuous since the incident and is not expected to improve substantially on the medical evidence.

Section 4.3 adds evidence requirements. One or more physicians with training and experience in the kind of impairment alleged must address its nature, permanence, the function affected and that function's importance, and conclude that the automobile caused it. Separate evidence must also back up the claimed change in function. Which professionals' reports are used, and how, is a question for a lawyer. Material that is often gathered includes:

• Treatment records from psychiatrists, psychologists or other treating providers over time
• Family doctor records from before and after the collision
• Accounts from family, friends and employers describing the change
• Documented work absence, accommodation or job loss

Our compensation calculation guide shows where the threshold sits within an award.

Issues that are commonly raised

• Pre-existing conditions. Prior records of stress, anxiety or low mood may be produced, and how they relate to the accident is a medical and legal question.
• Motivation. The other side may suggest that symptoms are linked to the claim. Consistent records across time and providers are relevant.
• Absence of imaging findings. Mental health conditions do not appear on a scan, so the evidence is usually clinical.
• Surveillance and social media. Photographs can be presented out of context. Symptoms can vary from day to day.
• Treatment gaps. Missed appointments can be portrayed as recovery, so the reasons may be worth documenting.

Evidence a lawyer typically asks about

1. Early and repeated reporting of symptoms to treating providers
2. Referrals to psychiatry, psychology or a trauma programme, and whether they were followed
3. A journal of sleep, mood and avoidance
4. People who can describe the before and after
5. Written records of work impact
6. A candid account of prior mental health history

When to talk to a lawyer about a psychological injury

• The insurer has placed the claim in the Minor Injury Guideline and symptoms are continuing
• Treatment funding has been refused or limited
• A deadline is approaching or has passed
• A threshold motion or an insurer's medical examination is scheduled
• Work has been lost or reduced because of the condition