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What Is a Catastrophic Impairment Claim?
There are two types of claims that arise out of a motor vehicle accident. One of the claims is against the at-fault party, typically called the “tort claim”. This claim seeks compensation for pain and suffering, and other amounts that a dollar figure can be applied to.
For example, if an injured person cannot clean a home and must hire someone at $500 per week for housekeeping, then the injured party can claim for that. A judge or jury decides these tort claims, and it can take years before the case is resolved.
The more immediate compensatory relief for an injured person is a claim directly an insurance company for statutory accident benefits. These are referred to as “no-fault” benefits since the benefit can be obtained from the insurance company even if the accident was the fault of the injured person, unlike a tort claim.
These benefits are intended to provide immediate funds to an injured person and include various benefits, including a weekly payment (for example, up to $400 a week for income replacement) and benefits for treatment so that a person can get better.
If a person has a minor injury (i.e. a simple neck strain) then the limit for treatment that the insurance company will pay for is $3,500. If an injury is not considered minor (i.e. a wrist fracture) then the limit is $65,000 (assuming optional benefits were not purchased) for treatment and attendant care (someone to come to the home and assist with personal care tasks, such as bathing) for a maximum of five years.
What happens when a person has an injury that requires treatment beyond the five years up to the $65,000 limit? This is when the catastrophic impairment category may apply.
For catastrophic claims (again, assuming optional benefits were not purchased) the monetary limit is $1 million for attendant care benefits and medical benefits combined for the injured person’s life (as opposed to just five years). The idea is that seriously injured individuals need more treatment and will likely need that treatment and assistance for the person’s entire life.
The catastrophically injured person will also be entitled to a housekeeping and home maintenance benefit for life. Accordingly, if a person is seriously injured, it is imperative that they are designated as catastrophically impaired.
Defining a catastrophic impairment
There are various avenues for a catastrophic determination to be made. Under Criterion 8 of the Statutory Accident Benefits Schedule, a person is considered catastrophically impaired if that person has what is called a “marked” impairment, which means that the impairment significantly impedes useful functioning, in three or more areas of function or one “extreme” impairment.
The various areas considered include activities of daily living (i.e. cleaning, paying bills, cooking), social functioning (i.e. the ability to get along with others), concentration persistence and pace (i.e. sustaining focused attention long enough to complete everyday tasks) and adaptation (i.e. failure to adapt to stressful circumstances in the workplace and withdraw as a result).
If a person has a marked impairment in three out of four of these areas, then that person has a catastrophic impairment.
There is, unfortunately, a rather glaring misunderstanding of what qualifies as a catastrophic injury. A catastrophic impairment does not mean that a person is at home in a bed with a severe brain injury and cannot function.
In fact, it is not the number of activities that are restricted that is important, but the overall degree of restriction, and the quality of the activities of daily living are judged by their independence, appropriateness, effectiveness and sustainability.
For example, if a person who might be able to cook and clean is too fearful to leave home, shop, or see a physician, then the restriction may be considered such that the person has a catastrophic impairment.
What to do if the insurer denies my catastrophic impairment claim?
If the insurer refuses to accept that a person is catastrophically impaired, then the matter will be decided by an adjudicator at the Licence Appeal Tribunal. This decision-maker is not necessarily a lawyer and will have the final say on the catastrophic status of the person.
The Licence Appeal Tribunal has been around since April 2016. By the end of 2023, the statistical chance of being successful as an applicant was about 15%.
While the statistical chances of winning are daunting, the reality is that these cases can be won against insurance companies, which Preszler Law was recently very fortunate to do in Christensen v. Primmum 2024 CanLII 115421 (ON LAT).
Christensen v. Primmum, an example of a successful catastrophic impairment claim.
In this case, the occupational therapy and psychiatry reports that were completed on behalf of the victim were found to be detailed, specific, concise, thorough and credible.
Ultimately, the adjudicator found that the victim’s experts, both in the reports and through their evidence, to be credible such that the adjudicator assigned significant weight to their findings.
The adjudicator, however, also found the insurer’s psychiatrist to be a “credible witness and accomplished medical practitioner in the field of psychiatry with extensive credentials” (at para 36).”
As a result of this finding, it was imperative to utilize cross-examination to give the adjudicator reasons why he should prefer the conclusions of victim’s assessors to that of the insurer’s. As such, considerable time was spent outlining the various errors in the insurer’s psychiatry and occupational therapist reports.
Thankfully for the victim, the adjudicator ultimately concluded that, due to the number of errors in the insurer’s psychiatry report, including “errors involving critical aspects of catastrophic determination, little to no weight can be given to the report” (at para 43).
Similarly, the adjudicator found that there were “inconsistencies” in the occupational therapist’s report that “reduced the overall weight of the report” (at para 48).
The victim was ultimately found to have a marked impairment in all four domains and, therefore, catastrophically impaired.
Call Preszler Injury Lawyers to represent you
There is obviously a significant and life-changing difference for an injured person between having the $65,000 limit over five years and having access to $1 million for life.
Having said that, these are difficult cases to win and require lawyers, such as the ones at Preszler Injury Lawyers, that have expertise in both handling these claims and in being successful at the Licence Appeal Tribunal.
If you are injured in an accident and may be catastrophically impaired, the lawyers at Preszler Injury Lawyers would be pleased to talk to you further about your case, the process set out above, or any other questions you may have.
