When life takes an unexpected turn, a catastrophic injury can change everything. But what exactly is considered a catastrophic injury under Canadian laws? Each jurisdiction provides rules for what qualifies as one, and it’s crucial to understand them to know what benefits suit an injured person.
Here, we’ll discuss the statutory criteria used by insurers and the government in determining what a catastrophic injury is. This guide helps both legal professionals and clients with key evaluation steps and eligibility requirements for these types of injuries.
What is considered a catastrophic injury in Canada?
To determine the benefits that an injured person is entitled to, the law categorized injuries according to their severity and length of recovery. In terms of recovery, injuries can either be short- or long-term. As regards severity, they can be classed either as minor or catastrophic.
Catastrophic injuries are defined by provincial and territorial statutes. They may also be set by precedents and common law. Commonly, these injuries are at the far end of the spectrum when it comes to personal injuries. In some cases, they may also overlap with what is considered as a long-term disability.
Catastrophic injuries can include one or a combination of the following severe injuries:
- birth injuries
- internal organ damage
- loss of limb (arm or leg)
- loss of senses (e.g. eyesight)
- multiple bone fractures
- paraplegia
- severe burns
- spinal cord injury
- traumatic brain injury
In addition to the physical effects of a catastrophic injury, there’s the added emotional distress on the part of the injured person and their family. For the most part, an injury is catastrophic if it prevents the injured person from continuing their education, or from performing their present (or future) gainful work.
To understand know what a catastrophic injury means and its effects, here’s a video that shows such injuries from a patient’s perspective:
For more information on what constitutes a catastrophic injury, reach out to the best personal injury lawyers in Canada as ranked by Lexpert.
Catastrophic injuries vs. other injuries
What sets apart a catastrophic injury from other injuries are its nature and effects:
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permanent: this is why catastrophic injuries are also similar with long-term disabilities, although catastrophic ones are more severe
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recovery: because of its severity, catastrophic injuries need longer period to recover; in some cases, recovery is not even possible
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impact: a catastrophic injury justifies huge award of benefits and compensation because of its huge impacts — financially, emotionally, and physically
These differences are also the bases for determining whether an injury is catastrophic or not, especially on the part of the evaluating health practitioner.
What is the catastrophic determination assessment in Canada?
Insurers and government bodies rely on statutory catastrophic determination assessment criteria. Because of the large costs of benefits for this type of injury, strict requirements are used to determine whether a person’s injury meets the criteria of a catastrophic injury.
By way of example, we’ll discuss the criteria used in Ontario. Note that these may be just part of the whole system of determination assessment that agencies and insurers use.
Catastrophic injuries under Ontario’s SABS
The most comprehensive definition and standard of what constitutes a catastrophic injury in Ontario are found in the Statutory Accident Benefits Schedule (SABS). The SABS is a regulation under the provincial Insurance Act, which also lists down the benefits of injured persons under a motor vehicle liability policy.
Under the SABS, the following impairments are considered as catastrophic injuries, but only if the following criteria are met:
Paraplegia or tetraplegia
The following criteria should be met for paraplegia or tetraplegia to be considered as a catastrophic injury:
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insured’s neurological recovery can be determined on the permanent grade of the American Spinal Injury Association (ASIA) Impairment Scale, as published in the International Standards for Neurological Classification of Spinal Cord Injury
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insured’s permanent grade on the ASIA Impairment Scale is:
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A, B, or C; or
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D, and one of following conditions are present:
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insured’s score on the Spinal Cord Independence Measure is 0 to 5
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insured requires urological surgical diversion, an implanted device, or intermittent or constant catheterization
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insured has impaired voluntary control over anorectal function that requires a bowel routine, a surgical diversion, or an implanted device
Severe impairment of ambulatory mobility or use of an arm, or amputation
Any of the following criteria must be met so that an impairment of ambulatory mobility or imputation is considered a catastrophic injury:
- trans-tibial or higher amputation of a leg
- arm amputation
- another impairment causing total and permanent loss of use of an arm
- severe and permanent alteration of the structure and function of one or both legs, resulting in the insured’s Spinal Cord Independence Measure score of 0 to 5
Loss of vision in both eyes
Loss of vision must be in both eyes, and must meet the following criteria:
- even with the use of corrective lenses or medication, it results in either:
- visual acuity in both eyes of 20/200 (6/60) or less, as measured by the Snellen Chart or an equivalent chart
- the greatest diameter of the field of vision in both eyes is 20 degrees or less
- loss of vision is not attributable to non-organic causes
Traumatic brain injury
As a catastrophic injury, a traumatic brain injury (TBI) must meet the following criteria:
- injured is 18 years old or older at the time of the accident
- injury shows positive findings indicating intracranial pathology, including intracranial contusions or hemorrhages, diffuse axonal injury, cerebral edema, midline shift, or pneumocephalus
- if the injury is assessed using the Glasgow Outcome Scale, it results in a rating of either the following after the accident:
- vegetative state, after one month or more
- upper or lower severe disability, after six months or more
- lower moderate disability, after one year or more
Physical impairment
A physical impairment is catastrophic if it results in 55 percent physical impairment of the whole person, or more. It can also be a combination of physical impairments, given the same standard of percentage.
This standard is found in the Guides to the Evaluation of Permanent Impairment of the American Medical Association (AMA).
Mental or behavioural impairment
A mental or behavioural impairment is a catastrophic injury if it’s:
- other than a traumatic brain injury
- determined using the rating methodology of AMA’s Guides to the Evaluation of Permanent Impairment
- results in 55 percent or more, impairment of the whole person, if the impairment score is combined with a physical impairment
Exceptions: what are not considered catastrophic injuries
Ontario’s SABS provides for certain exceptions to injuries that can be considered catastrophic, such as in the following cases:
- if two years have elapsed since the accident that caused the injury
- if a physician certifies that the criteria (e.g. the percentage) are not met
However, some impairment can be deemed analogous to the listed catastrophic injuries, after considering the developmental implications of the impairment.
Other provinces’ catastrophic injuries criteria
The above-mentioned criteria of what is a catastrophic injury under Ontario’s SABS are somehow similar with the criteria of the other provinces and territories. However, to be sure, below are the legal basis of the criteria of the other provinces and territories:
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British Columbia: Section 2, Permanent Impairment Regulation, Insurance (Vehicle) Act
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Manitoba: Schedule 4, Section 70(1), The Manitoba Public Insurance Corporation Act
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Québec: Section 5, Regulation respecting catastrophic injuries or sequelae, Automobile Insurance Act
Especially for persons without any medical background, the jargon used in these laws may be too difficult to understand. As a remedy, injured persons may turn to personal injury lawyers to help them assess if their injuries are considered catastrophic already, and the benefits they’re entitled to.
What benefits are available to those who suffered a catastrophic injury?
Typically, catastrophic injuries need extensive medical treatment, long-term or permanent care, and long periods of recovery. To help with a person's recovery and alleviate their family’s suffering, the law provides for several benefits and assistance.
However, knowing what benefits are due to an injured person is different from knowing the application process for these benefits. This means that the next step is to discover how to apply for long-term disability benefits, for which catastrophic injuries may fall under.
Assistance for catastrophic injuries under provincial laws
To narrow down all the benefits — because there’s a lot of them — one can just look at their province’s personal injury statutes. Examples of these are the provincial insurance laws, which list the appropriate benefits for a type of injury.
For instance, Ontario’s SABS provide the following benefits for catastrophic injuries:
- caregiving: $250 per week
- attendant care: $6,000 per month
- medical, rehabilitation, and attendant care (optional benefit): $2 million
- housekeeping and home maintenance: $100 per week
These benefits are not exclusive and automatic, since injured persons need to apply for them, and these are subject to the evaluation of their own insurer.
If you’re a family member or an injured person, you can ask a personal injury lawyer near you, so that you won’t be overwhelmed if you’re searching for these benefits. These lawyers can also point you to the right law and course of action.
Tort action arising out of catastrophic injures
In addition, or as an alternative, to the statutory benefits for catastrophic injuries, the injured party can sue in court to recover damages against the negligent party. This tort action is mainly based on the negligence of the other party.
Damages that can be recovered from the other party include:
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special damages: cover past and future costs of medical expenses, caregiving needs, medicines, and lost employment benefits
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general damages: for the pain and suffering of the injured person and their family members caused by the injury
Aside from knowing the criteria for catastrophic injury, the limitation period to file an injured person’s claim must be kept in mind. Know about this, in the context of Ontario’s limitation law, in this video:
Filing for a claim for catastrophic injuries? Hire the best personal injury law firms in Canada as ranked by Lexpert.
Catastrophic injury: dissecting under legal and medical criteria
Injuries can range from minor to life-changing, but a catastrophic injury is a whole different level. These severe injuries come with specific criteria that insurers and government providers use, which can make or break a claim.
It’s important to learn about these criteria, so that injured people know what benefits (since there are a lot of them) are right for their own case. In all these, reaching out to a personal injury lawyer is a client’s best option to learn more about catastrophic injuries and their determination criteria.
Still looking for law firms to help you with your catastrophic injury? Head over to this Special Report from Canadian Lawyer, one of our sister publications, on Canada’s Best Personal Injury Law Firms.