Accident benefits for the catastrophically impaired

Acquire knowledge of the highest category of accident benefits

Often, in auto insurance cases, either the insured/injured person, their lawyer, a doctor or the insurer raises the issue of whether the injury is catastrophic. In Ontario, the maximum amount of accident benefits is provided for persons who are designated as having a catastrophic impairment.

Types of impairments that qualify as catastrophic (or “CAT”) are specified in s. 3(1) of the SABS – subject to the qualifications, as applicable, in subsections (2) to (5) – and include impairments sustained as a result of an accident that occurred on or after June 1, 2016 that result in any of the following impairments:

• a paraplegia (i.e. paralysis of the body from the waist down; loss of motor and sensory function in both legs and the lower abdomen) or a quadriplegia/tetraplegia (i.e. paralysis of the body from the shoulders down; loss of motor and sensory function in all four limbs and parts of the chest, abdomen and back)
• a severe impairment of ambulatory mobility or use of an arm; a transtibial or higher amputation of the leg; an amputation of an arm or another impairment causing the total and permanent loss of use of an arm; or severe and permanent alteration of prior structure and function involving one or both legs as a result of which the injured person’s score on the Spinal Cord Independence Measure is 0-5
• loss of vision of both eyes where:

1. even with the use of corrective lenses or medication, visual acuity in both eyes is 20/200 or less or the greatest diameter of the field of vision of both eyes is 20 degrees or less; and
2. the loss of vision is not attributable to nonorganic causes

• if the insured person was 18 years of age or older at the time of the accident, a traumatic brain injury for which:

1. there is diagnostic evidence of intracranial pathology such as, but not limited to, intracranial contusions or hemorrhages, diffuse axonal injury, cerebral edema, midline shift or pneumocephaly; and
2. when assessed with the relevant tools, the injury results in a rating of either a vegetative state one month or more after the accident, upper severe disability or lower severe disability six months or more after the accident or lower moderate disability one year or more after the accident

• if the insured person was under 18 years of age at the time of the accident, a traumatic brain injury for which

1. the insured person is admitted, on an in-patient basis, to a listed public hospital and there is diagnostic evidence of intracranial pathology
2. the insured person is admitted, on an in-patient basis, to a program of neurological rehabilitation in a listed pediatric rehabilitation facility

• one month or more after the accident, the insured person’s level of neurological function does not exceed category 2 (vegetative)

1. six months or more after the accident, the insured person’s level of neurological function does not exceed category 3 (severe disability)
2. 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 services or assistance for physical, cognitive or behavioral impairments for the majority of the insured person’s waking day

• a physical impairment or combination of physical impairments that results in 55% or more physical impairment of the whole person
• a mental or behavioral impairment, excluding traumatic brain injury, that, when the impairment score is combined with a physical impairment, results in 55% of more impairment of the whole person
• an impairment that 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 behavioral disorder

A determination of whether a person has sustained a CAT injury is based on precise measurements using technologies and tests particularly set out in s. 3(1). The application, in the form OCF-19 (“Application for Determination of Catastrophic Impairment”), is completed by a physician or, if the injury is purely a brain impairment, by a neuropsychologist and submitted to the insurer.

Some injuries are automatically deemed to be catastrophic once the insurer receives the OCF-19, such as a child with a severe brain injury who is admitted to hospital. In other circumstances, such as when someone claims a 55% or more impairment of the whole person based on both physical and mental impairments, the person may have to wait two years to apply for CAT designation.

Within 10 days of receipt of an OCF-19, the insurer must give notice to the insured on whether it agrees with a CAT designation + reasons. The insurer may agree with the application or demand IMEs. Any report made by a doctor who conducted an IME must be provided to the insured.

The following benefits are available for an insured person whose injury in a MVA on or after June 3, 2019 is designated as a CAT impairment:

• Up to $1 million in med-rehab benefits and attendant-care benefits over the course of the applicant’s lifetime (SABS, s. 18(3))
• Up to $6,000 per month of attendant-care benefits provided that the expense meets the definition of ‘incurred’ (s. 19(3))
• Up to $100 per week of housekeeping and home maintenance services if the catastrophic impairment results in a substantial inability to perform the housekeeping and home maintenance services that he/she normally performed before the accident (s. 23)
• Income replacement benefits and nonearner benefits up to age 65 when they are adjusted according to the rules (ss. 7 and 8)
• Caregiver benefits of $250 per week for the first person in need of care and $50 per week for each additional person in need of care if, within 104 weeks of the date of the accident, the insured person suffers a substantial inability to engage in the caregiving activities in which he/she was engaged at the time of the accident and if, at the time of the accident, he/she was residing with a person in need of care and was the primary caregiver for the person in need of care and did not receive any remuneration for engaging in caregiving activities (s. 13(1) and (2))

But because those who qualify for two or more of the IRB, NEB or CGB, must elect and can only choose to receive one of them, CAT impaired persons are not entitled to receive all of the above benefits (details below).

• If an application indicates that the applicant may qualify for two or more of the income replacement benefit, the nonearner benefit and the caregiver benefit, the insurer shall, within 10 days after receiving the application, give a notice to the applicant advising the applicant that he/she must elect, within 30 days after receiving the notice, the benefit he/she wishes to receive (s. 35(1)).
• The applicant’s election is final regardless of any change in circumstances (s. 35(3)).
• There is one exception: if the applicant is determined to have suffered a catastrophic impairment as a result of the accident, the insurer shall, within 10 days of the date of the determination, give a notice to the applicant advising the applicant that, despite any election previously made, he/she may elect, within 30 days after receiving the notice, the benefit he/she wishes to receive (s. 35(2)).