Toronto Injury Lawyer Blog
Goldfinger Injury Lawyers represents clients who have sustained catastrophic injuries as a result of a serious motor vehicle collision.
The term “catastrophic” isn’t thrown around lightly by personal injury lawyers.
The term “catastrophic” has special legal meaning under the Insurance Act. It would be defined as a term of art which carries with it a special medico legal definition.
Under the Insurance Act, a “catastrophic injury” is defined as:
1. Paraplegia or Tetraplegia;
2. Severe impairment of ambulatory mobility or use of an arm, or amputation;
3. Loss of Vision of Both Eyes;
4. Traumatic Brain Injury (applicant 18 years of age or older at the time of the accident);
5. Traumatic Brain Injury (applicant under 18 years of age at the time of the accident);
6. Physical Impairment or Combination of Physical Impairment which results in 55% or more of whole person (see“Additional Criteria” below);
7. Mental or Behavioural Impairment, Excluding Traumatic Brain Injury, Combined with a Physical Impairment which
results in 55 percent or more impairment of the whole person. (see “Additional Criteria” below); and/or
8. 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 functioning, due to mental or behavioural disorder
(see “Additional Criteria” below).
Analogous Test – If the insured person is under the age of 18 at the time of the accident and the insured person’s
impairment can reasonably be believed to be a catastrophic impairment for the purposes of item 6, 7 or 8 of the above
criteria, the impairment shall be deemed to be the impairment referred to in item 6, 7 or 8 of the above criteria that is
most analogous to the impairment, after taking into consideration the developmental implications of the impairment (see“Additional Criteria” below).
Additional Criteria
Item 6, 7 or the Analogous Test of the above criteria apply to the applicant because:
two years have elapsed since the accident; or
an assessment conducted by a physician three months or more after the accident determines that,
1. the insured person has a physical impairment or combination of physical impairments determined in
accordance with item 6, or a combination of a mental or behavioural impairment and a physical impairment
determined in accordance with item 7 that results in 55 per cent or more impairment of the whole person, and
2. the insured person’s condition is unlikely to improve to less than 55 per cent impairment of the whole person.
Item 8 or the Analogous Test of the above criteria apply to the applicant because:
two years have elapsed since the accident; or
a physician states in writing that the insured person’s impairment is unlikely to improve to less
than a class 4 impairment (marked impairment) in three or more areas of function that precludes useful functioning,
due to mental or behavioural disorder.
If you have a clear understanding of what it takes to qualify under the definition of catastrophic, then you’re a better person than me! It takes an army (around 3-5) highly specialized doctors and/or healthcare professionals to make such a determination. Once a determination has been made by one catastrophic medical team, that’s not say that it won’t be accepted, or can’t be challenged by an opposing catastrophic medical team.
It’s not uncommon for a catastrophic medical team assembled by an insurance company to have a differing opinion on the catastrophic injury finding than the team assembled by the injured accident victim and his/her personal injury lawyer.
The very definition of catastrophic and just what it takes to be deemed catastrophic is a lot to take in.
Making matters worse, and even more confusing is that the definition of “catastrophic” changes what seems to be year after year, making it more difficult for the most seriously injured accident victims to get the rehab support they need. Most rehab support is NOT covered by OHIP. Attendant care, housekeeping, the cost of massage, physio, occupational therapy, counselling, the cost of ramps, home modifications, car modifications, wheelchairs, canes, crutches etc. is also NOT covered by OHIP.
Goldfinger Injury Lawyers has successfully represented clients who were not at first to be found catastrophic, and then challenged those findings only for those clients to be later deemed catastrophic. It’s a lot of hard work, but the results make a huge difference for our clients.
Disclaimer: Past results are not indicative of future success.
Some of our past tangible catastrophic benefit results include but aren’t limited to:
- The cost of a modified vehicle for wheelchair access
- The cost of ramps to assist wheelchairs getting inside and outside of the home
- The cost of modified bath tubs to get people with disabilities get inside and outside of the tub
- The cost of whole home modifications or the cost of a complete relocation to an accessible home
- The cost of attendant care services provided by nurses or personal support workers
- The cost of Rehab Support Workers to facilitate rehab and work out routines
- The cost of assistive devices around the home to make living with a catastrophic injury easier
- The cost of accessible taxi passes or accessible transit passes to make getting from point “A” to point “B” as hassle free as possible
- The cost of medication not covered by any private or government plan
- The cost of treatment such as physio, massage, OT, chiro, counselling, social work etc. not covered by any private of government plan
- On going income replacement benefits
- On going non earner benefits
- On going housekeeping benefits
- On going out of pocket expenses related to the car accident not covered by any private or government plan
- The cost of prosthesis and any adjustments which need to be made
Keep in mind that catastrophic accident benefits are NOT meant to compensate the injured party for their pain and suffering, loss of enjoyment of life, loss of competitive advantage in the workplace, past income loss beyond the $400 weekly income replacement benefit or the loss of guidance, care and companionship between the injured accident victim and their family. These heads of damages are reserved for the tort claim against the at fault driver.
Some catastrophic claims do not have an accompanying tort claim because the accident was the injured party’s fault, the accident was a single car motor vehicle accident or other factors where there is no party to sue (like hitting a moose or a deer on a roadway).
