What you need to know about Catastrophic Injury Compensation

Catastrophic injury or catastrophic impairment refers to the most severe level of injury that may be sustained by a person.  Catastrophic injuries or impairments have the greatest impact on an individual’s ability to function normally. These injuries commonly impact your ability to perform day-to-day activities (including housekeeping chores such as taking out the garbage and washing dishes), essential work tasks, and social and family interactions. And, the physical and psychological effects of a catastrophic injury typically result in a diminished quality of life.

If a person’s injury occurred as a result of a motor vehicle accident, the catastrophically injured person is entitled to claim statutory accident benefits against their vehicle insurance policy or against the policy of one of the drivers involved in the accident. Anyone injured in the motor vehicle accident may claim accident benefits, including pedestrians, cyclists, motorcyclists, snowmobile riders, and vehicle passengers.  And, persons are entitled to these benefits regardless whether they were at fault in causing the accident.

Motor Vehicle Accident Benefits for a Catastrophic Impairment

‘Catastrophic impairment’ has a distinct meaning under Ontario insurance law. Accident victims who sustained a catastrophic impairment are entitled to the highest level of statutory accident benefits. 

A person applying for statutory accident benefits against their automobile insurance policy (or against the policy of a driver involved in the accident) must include medical reports and examinations from their doctors substantiating their level of injury, and their doctor must complete a form titled an ‘Application for Determination of Catastrophic Impairment’ (OCF-19) which is available under the Government of Ontario FSCO website.  Typically, several different physicians and specialists are involved in treating and assessing a person with a catastrophic impairment.

In Ontario, the following types injuries constitute a catastrophic impairment:

• Traumatic brain injury (TBI)
• Severe spinal cord injury resulting in paraplegia or tetraplegia
• Amputation or severe impairment in the mobility of, or use of, an arm
• Lost of vision in both eyes
• A physical impairment or combination of impairments which effects 55% or more of the whole person
• A mental or behavioural impairment (excluding TBI) in combination with a physical impairment that effects 55% or more of the whole person
• A marked impairment (‘Class 4’) in at least 3 areas of functioning that precludes useful function
• An extreme impairment (‘Class 5’) in at least 1 area of functioning resulting from a mental or behavioural disorder

Note that there are some differences in the determination of catastrophic impairment for children and youths under the age of 18.

Benefits available to accident victims with a catastrophic impairment

• Income replacement benefit
• Non-earner benefit (for persons who don’t qualify for income replacement, such as full-time students)
• Medical, rehabilitation and attendant care benefits
• Care-giver benefit
• Lost education expenses
• House keeping and home maintenance benefits
• Visitor’s expenses

Statutory accident benefits are subject to a maximum amount in each category of benefits.  In the case of medical, rehabilitation and attendant care expenses, the current maximum amount available through a standard vehicle insurance policy, for persons with a catastrophic impairment, is $1 Million.  However, in the 2019-2020 budget announced by the province in April, the Ontario government has proposed increasing the maximum to $2 Million (similar to the amount that was available under Ontario insurance law prior to June 1^st, 2016).

Insurance dispute over catastrophic injury benefits:  Pucci v. Wawanesa Mutual Insurance Company (2019)

A catastrophic injury effects not only the quality of life for the accident victim; catastrophic injury also often places a significant financial burden on sufferers and their families.  The effects of this burden are understandably magnified when the person’s insurance company unfairly challenges their claim for owed benefits.  This is what occurred when a woman, Ms. Pucci, sustained serious injuries in a car accident and subsequently claimed benefits for a catastrophic impairment.

As a result of her car accident, Ms. Pucci claimed she sustained a Class 4 ‘marked impairment or a Class 5 ‘extreme impairment’ due to a behavioural or mental disorder.  The claimant’s insurer, Wawanesa, did not dispute Ms. Pucci’s condition and agreed that Ms. Pucci is catastrophically impaired due to a mental or behavioural disorder; however, the insurer disputed the claim arguing that her disorder was not caused by the accident.

Wawanesa challenged Ms. Pucci’s assertion that her catastrophic injury was caused by the accident based on the fact that she had suffered several traumatic events as a young person, including sexual assault at the age of 12, bullying, Crohn’s Disease, and a controlling boyfriend, which significantly effected her past mental health.  After her first year of university and following a breakup with her then boyfriend, Ms. Pucci attempted suicide by overdosing on pain medication. While hospitalized, she was diagnosed with depression, post-traumatic stress disorder (PTSD) and alcohol abuse, and was prescribed depression medication. She later complained to her doctor that, in addition to depression, she suffered anxiety and was stressed due to difficulty concentrating at university.

In the year after she was hospitalized, Ms. Pucci applied to the university for a classification of permanent disability due to Crohn’s disease and was granted status, allowing her to take a reduced course load and additional time for writing essays and exams.  For a time and despite her mental health challenges, Ms. Pucci worked part-time, regularly went to the gym and had a full social life while attending university.  However, as time went on, she stopped attending classes and became heavily involved in illegal drug use, partly influenced by a boyfriend who was a drug user.  Ms. Pucci and her boyfriend then enrolled in a methadone clinic, resulting in Ms. Pucci being weaned off the street drugs and being able to function independently.

Several months after becoming ‘clean’, Ms. Pucci was involved a car accident in which she sustained a whiplash injury. Immediately after the accident, the plaintiff experienced headaches, and neck and back pain.  She was also nauseated, sleepy, dazed and confused. Doctors believed she had a mild brain injury and likely, a concussion, although a CT scan did not indicate a brain injury.

Ms. Pucci’s family doctor believed she was traumatized by the collision and suffered from post-traumatic stress disorder (PTSD), and prescribed medication for her mental distress.  And, in the weeks afterwards, her family observed changes in her behaviour, such as zoning out, inattention to what was occurring around her, and a reduced ability to care for herself.  Two weeks after the accident, the plaintiff was involved in a fender-bender resulting only in slight damage to the vehicles, but she was threatened with a lawsuit, which further added to her anxiety.

About a month after the accident, she saw her family doctor and complained of an increase in headaches, neck injuries and back pain. Her doctor also noted an increase in her emotional distress, characterized by panic attacks, depression and PTSD.  Ms. Pucci was recommended for counselling and her clinic psychologist diagnosed major depressive disorder and PTSD.  A few months after the first accident, her symptoms worsened and she developed a speech impediment, and tingling in her arms, hands and legs.  A neuropsychology examination also revealed that her memory and ability to multi-task and process information were weak.

Ms. Pucci’s cognitive abilities, memory loss and ability to function independently continued to decline in the next few months.  Her mother gave testimony that she had become like a child - for example, she now needs help with choosing appropriate clothing; reminders to get up in the morning, brush her teeth and how to behave in certain situations; and couldn’t remember basic information such as her age.  And, despite the reminders, she would often miss appointments or arrive late, and increasingly missed work and depended on her mother to take care of her.

The plaintiff’s father testified that, within one year of the accident, Ms. Pucci lost hearing in one ear, vision in one eye, and would close her eyes while talking if she was stressed.  And, about this time, a neurologist seen by the plaintiff recommended that she give up driving because her reaction time was so slow.

Ms. Pucci was also re-assessed and tested by her neuropsychologist, who testified that, in the year since the accident, her condition had markedly declined and she was “not doing well”: her cognitive abilities were much slower; she was more confused; she appeared more child-life; and she was lethargic and took much longer to complete tests despite making an effort to do so. The neuropsychologist concluded that concussion could not alone explain Ms. Pucci’s rapid decline and symptoms, and he recommended attendant care.

The social worker who subsequently cared for the claimant stated that she had child-like speech and often experienced difficulty finding the right words in day-to-day interactions, felt lost, and was easily overwhelmed by her emotions.  Ms. Pucci’s behaviour was also often inappropriate in social situations, which led to isolation and a reduction in her social circle to include only her family.  And, the plaintiff now relies entirely on her family and care-givers for day-to-day functioning.

During the trial, a variety of medical experts offered testimony and all agreed that the plaintiff’s symptoms are real but gave the opinion that they cannot definitively diagnose the source of many of her difficulties, such as problems with balance and coordination, pseudo-seizures and other neural symptoms.   The plaintiff’s psychiatrist testified that she was suffering from a somatic symptom disorder which, he stated, are physical symptoms which cannot be explained by medical tests.  Another psychiatrist testifying for the plaintiff believes she is suffering from major depressive disorder, a sleep disorder, conversion disorder and opiate addiction. And, the psychiatrists testifying for both the plaintiff and defence agreed that they believe Ms. Pucci is suffering from a conversion disorder (although the defendant’s psychiatrist disagreed that the disorder was caused by the collision). 

After considering all the evidence, the judge concluded that “on a balance of probabilities, the plaintiff suffers from a conversion disorder triggered by the [first] motor vehicle accident” and “but for the collision” she would not have experienced the catastrophic disorder that impairs her ability to function mentally and behaviourally.  The judge noted that, although Ms. Pucci suffered difficult experiences prior to the accident, she was able to work, study, socialize and function independently as an adult.  Further, the decline in her mental and behavioural state occurred soon after the accident and ultimately resulted in the substantial decline in her ability to function independently.  The judge stated that the evidence supports a finding that Ms. Pucci suffered a catastrophic impairment as a result of the collision and is therefore owed accident benefits for income replacement, housekeeping and home maintenance, and attendant care, up to the highest maximums allowable.

Any type of accident may result in a catastrophic injury

Motor vehicle accidents are, of course, not the only way that a person may become catastrophically injured.  Slips and falls, medical malpractice, assault and other violent events also sometimes result in very serious or catastrophic injuries.  Persons who sustain a catastrophic injury caused by another person’s reckless or negligent actions, such as a car accident or slip and fall accident, may commence a personal injury action/lawsuit against the at fault party to recover their financial losses and non-economic losses due to their pain and reduced quality of life. 

If you were seriously injured in an accident and are claiming owed compensation, or your accident benefits were unfairly denied, talk to an experienced catastrophic injury lawyer at Dietrich Law in Kitchener and let us help you win your case.