Howie, Sacks & Henry LLP – Personal Injury Law – Eman Khoshbin
Eman Khoshbin

Sweeping changes were recently made to the definition of “catastrophic impairment” in Ontario’s Statutory Accident Benefits Schedule.  On June 1, 2016, drastic changes were made that will have significant implications for motor vehicle accident victims. Those most impacted by the recent changes are those who face significant life-altering injuries, such as severe brain damage and spinal cord injuries.

Two of the most substantial changes include: the narrowing of the definition of catastrophic impairment (“CAT”) and benefits being decreased by 50% for these individuals.

The changes to the definition of CAT and the accompanying new rigid requirements for a CAT designation will undoubtedly complicate the CAT determination process.  The changes are expected to effectively reduce the number of individuals that will qualify for CAT benefits.

Part of MRI scan emulsion ready for examination.

The reduction in qualified victims must be quantified with specific monetary values to fully appreciate the magnitude of savings to insurers and the resulting impact on catastrophically injured individuals.  Prior to the changes, individuals who were deemed catastrophically injured were entitled to access $1 million for medical-rehabilitation benefits and $1 million for attendant care benefits.  After June 1, 2016, those with injuries deemed catastrophic are only entitled to access a combined sum of $1 million for medical-rehabilitation and attendant care benefits.  Overnight, Ontarians with the most severe injuries and in most need lost $1 million worth of benefits.

While the changes to the CAT definition extends to the criteria for spinal cord injuries, amputations, mental behavioral impairments and psychiatric impairments, this article will focus on the changes to the CAT definition regarding brain injuries in adults as an example.

For accidents prior to June 1, 2016, the Glasgow Coma Scale (GCS) was one tool used to assess brain injuries in adults who sustained brain injuries as a result of a motor vehicle accident.  The GCS was the primary metric for determining CAT.  Simply put, if a person was determined to have a GCS score of 9 or less, they would automatically qualify for CAT benefits.

As of June 1, 2016, the simple GCS score is no longer used for determining CAT due to brain injury.  The GCS has been replaced with the highly specialized Glasgow Outcome Scale Extended (GOS-E).  The GOS-E can only be administered after 6 months from the date of the injury.  Consequently, individuals who would have been automatically entitled to CAT benefits must now wait at least 6 months for the assessment.  This will detrimentally affect victims who require significant medical-rehabilitative services in the immediate period after their accident.  The changes will expose victims, who cannot afford private attendant care services, to safety and health risks, especially if they require 24 hour attendant care services and are restricted to the limit for non-CAT attendant care benefits of $3,000 per month and capped at $36,000.

In addition to the introduction of GOS-E as a measure for brain injury in adults, there is a requirement for a positive finding on medical imaging.  This change was introduced despite consensus among the medical community that an absence of a positive finding on medical imaging does not preclude functional impairment or structural abnormalities, and does not accurately predict ongoing needs.

The impact that the changes to the CAT definition will have on adults with traumatic brain injuries remains to be seen.  However, with the lengthy delay that will result from disputes over GOS-E assessments, brain injured individuals will likely have to pay a portion of their recovery expenses in the interim periods, or may be relegated to relying on a public health system that is ill-equipped to service the needs stemming from a brain injury.  Given the rising costs of healthcare services and the reduction to $1 million worth of benefits, brain injured individuals will find themselves hard-pressed to focus their efforts on recovery in attempting to return to a stable level of functioning.

In this series, we will review the impact of the changes to the CAT definition and reduction of accident benefits, as of June 1, 2016, with respect to brain injuries in children, and spinal cord injury generally.

For more information on this article or any Accident Benefit Claims generally, or more specifically related to the new changes, please contact Eman Khoshbin at 416-361-7583, email at ekhoshbin@hshlawyers.com, or Michael J. Henry at 416-361-0889, email at mjhenry@hshlawyers.com. Special thanks to Gerry Antman (HSH Summer Student, 2016) for his contribution on this article.

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Since 2011 Canadian Lawyer Magazine rated us one of the top personal injury law firms in Canada. Why? With close to 20 years helping accident victims and their families, our firm understands the laws that affect your rights to compensation because we’ve helped shape those laws in favour of accident victims.

Among the best in Canada

Since 2011 Canadian Lawyer Magazine rated us one of the top personal injury law firms in Canada. Why? With close to 20 years helping accident victims and their families, our firm understands the laws that affect your rights to compensation because we’ve helped shape those laws in favour of accident victims.