Victims of catastrophic injuries are owed substantial compensation

In Ontario law, individuals who were catastrophically injured, according to the legal definition, are entitled to more substantial accident benefits and damages, than someone who experiences minor injuries in an accident. A catastrophic injury is generally defined as severe injury to the brain, spine or spinal cord, and may also involve fractures of the skull or spinal column. Catastrophic injuries can result directly from violent trauma in an accident, or indirectly from complications associated with the original injury.

Individuals who sustain a catastrophic injury in a motorcycle accident, car accident, fall or another serious incident, typically experience a considerable decline in their ability to function in daily activities and in many other capacities. In addition to the lasting effects to the injured person, the lives of family members are greatly impacted as they witness the pain and struggles of their loved one and in many cases, take on additional responsibilities such as long-term caregiving. Victims of catastrophic injury require considerable compensation for the substantial expenses and loss arising from their injury, which often includes income replacement, medical and rehabilitative care and assistive devices for mobility and in the home.

Incidents that most often result in catastrophic injury

• Motorcycle accidents
• Cycling-motorist accidents
• Pedestrian-motorist collisions
• Car accidents
• Boating accidents
• Slip, trip and fall accidents
• Medical malpractice

What type of injury is designated ‘Catastrophic’?

In December 2011, the Ontario Financial Services Commission (FSCO) published the Superintendent’s Report on the Definition of Catastrophic Impairment in the Statutory Accident Benefits Schedule. A key objective of this report was to consult with medical professionals to reach an accurate, objective and consistent legal definition of catastrophic impairment and also, to determine which qualifications and experience are required among professionals who assess catastrophic injury. One of the purposes of a clear legal definition is to avoid the more liberal interpretation that was previously employed by courts and arbitrators.

The following impairments are defined by FSCO as catastrophic impairments.

• Severe spinal injury as defined by the American Spinal Injury Association, which includes paraplegia or quadriplegia.
• Impairment that results in a permanent loss in the ability to walk independently, which may result from amputation or partial amputation, crushing of a limb, burns or another severe injury.
• Permanent loss of use of both arms (note: loss of one arm would be a partial impairment).
• Blindness or a loss of vision in both eyes.
• Traumatic Brain Injury in adults as constituted by: a comma for one month; severe upper or lower disability for six months; or moderate lower disability after one year of an assessed brain impairment. The Glasgow Coma Scale is referenced to determine whether a brain injury is catastrophic.
• A combination of physical injuries resulting in 55 per cent whole person impairment (WPI). Symptoms that may be included in this impairment are chronic pain syndrome, chronic fatigue syndrome and fibromyalgia.
• Extreme impairment due to a mental or behavioural disorder, such as Post Traumatic Stress Disorder (PTSD), a psychotic disorder or depression. Psychiatric catastrophic impairment is defined by a number of specific criteria such as severely impaired psychosocial functioning and independence, and a requirement for substantial mental health care.
• Traumatic brain injury in children:
  One of the changes proposed in the 2011 report was to give children under 18 who were admitted to a trauma center with serious traumatic brain injury an immediate designation of ‘catastrophic impairment’ and correspondingly, prompt access to the higher tier of benefits under SABS (bypassing the two year waiting period). A second directive is to provide interim benefits of up to $50,000 to injured persons who indisputably require intensive and lengthy rehabilitation, in order to optimize their potential for recovery through access to needed treatments.

For the purpose of defining a catastrophic impairment, physical and psychiatric impairments cannot be combined to determine catastrophic whole person impairment. Also, pain symptoms cannot be quantified as a separate impairment.

The American Spinal Injury Association scale defines catastrophic impairment with respect to specific symptoms of spinal injury, paraplegia or quadriplegia; this scale has become a standard used by Canadian medical professionals and has been accepted as part of the definition for catastrophic impairment by the FSCO. The American Spinal Injury Association (ASIA) classifies patients into five categories depending on the severity of symptoms, which range from complete loss of sensory and motor function (Grade A) to normal function for someone that had a previous SCI (Grade E).

The designation of a catastrophic injury is different for children than for adults in the case of brain injury, partly because brain injury in children may not become apparent for several years after the accident. For other injuries in children, such as spinal injuries, blindness, loss of limbs and so on, children are assessed for catastrophic injury the same as adults.

Case findings of catastrophic impairment

Catastrophic motorcycle accident

A young man, Ronald Kirk sustained catastrophic injuries when he was struck by a car while riding his motorcycle. The tragic accident left him paralyzed from the waist down. He experienced further injury while in the hospital when an infection entered his spinal cord and caused further deterioration resulting in significant loss of this thoracic capacity. Now Mr. Kirk’s shoulders and arms must bear all his weight.

In Kirk v. Kloosterman, 2011, the jury found the driver, Ms. Kloosterman 85 per cent liable in Mr. Kirk’s injuries, and Mr. Kirk was found contributorily liable for 15 per cent. Damages were assessed at almost $4 Million including the 15 per cent deduction: $2,000,000 for cost of future care, $105,712 for loss of past income, $1,240,400 for estimated future income loss, general damages of $327.100 (for pain and suffering) and special damages of $120,600. An amount of $200,000 was also put in trust for Rachel Kirk, the victim’s wife.

Cyclist-motorist collision

A 28 year old man was struck by a police car as he was riding his bike at the intersection of Front and Gill Street in Orillia. The cyclist sustained various injuries to his body, including multiple head injuries, frontal brain injury and a fracture to his spine. He was left with a permanent facial disfigurement, post-traumatic stress syndrome and chronic pain.

In Pelletier v. Ontario (2013), the court found that although the Orillia police officer had the right of way as he entered the intersection, his failure to react in time was a factor in the collision. It was concluded that his poor reaction time was due to his failure to keep a proper lookout for others, his excessive speed and a lack of caution. As a result of these conclusions, the court found the officer 60 per cent liable in Mr. Pelletier’s injuries. The victim was found 40 per cent contributorily liable because he was in contravention of the Highway Traffic Act, s. 144(9) for failing to yield the right of way at an intersection. Mr. Pelletier was also not wearing a helmet at the time of the collision.

A determination of damages considered the fact that Mr. Pelletier would require full-time attendant care. The cost of full-time future attendant care for an apartment was assessed at $3,195,000 and attendant care for outings was assessed at $1,167,000. The court also awarded a loss of future earning capacity of $112,500 and general damages of $250,000 for pain and suffering.

Medical malpractice

The trial, Trajdos v. Bala, 2003, is a medical malpractice case charging that the Ottawa obstetrician attending to the birth of Peter Trajdos breached the standard of care in failing to provide the mother with sufficient information to give informed consent on the manner of delivery. When the baby was delivered using a vacuum extractor, the umbilical cord was around his neck, he was blue and not breathing. As a result, the baby sustained brain damage, cerebral palsy and is quadriplegic.

Expert medical witnesses testified that Peter is fully dependent for all aspects of daily care such as dressing and bathing, and can only assist somewhat with self-feeding with assistive devices. His condition is permanent and he is at risk of developing spinal deformities as he ages. The judge in this case accepted evidence that there was no discussion between the doctor and mother, no indication or urgency and no explanation of the risks, benefits and other options. The judge found in favour of the Trajdos family and assessed damages of $5,238,368.41 in total. This sum included an assessed cost of future care of $3,220,603 and $900,000 for loss of income.

Compensation available for victims of catastrophic injuries

Tort action against the negligent party

Anyone who was injured due to the negligence of another person, is entitled to sue the ‘at fault’ party for damages. This option extends to any type of accident that resulted in catastrophic injury, including (but not inclusive of) a car accident, motorcycle accident, cycling accident, slip and fall, unsafe product or recreational accident. In most cases, your personal injury lawyer can negotiate a settlement for damages without going to trial.

When you make a claim for damages for catastrophic injuries against the negligent party and their insurer, you and your family members are be entitled to the following compensation. The amount awarded for each benefit relates to the severity of injury.

• Loss of past income
• Loss of future income
• Cost of attendant care and future care
• Housekeeping and home maintenance expenses
• Special damages
• General damages for pain and suffering and loss of enjoyment of life
• A family law award for loss of companionship and guidance for family member(s)

In Ontario, the cap for general damages for pain and suffering is $310,000, but the amount is expected to be adjusted for inflation over time. This maximum amount is generally awarded to persons surviving with quadriplegia. However, in a 2007 trial, Gordon v. Greig, a young man who is a paraplegic person was awarded $310,000 because it was judged that his positive attitude and extremely aggressive rehabilitation program are the only reasons he is not more confined and sedentary. The court acknowledged that he is susceptible to a number of conditions in the future, such as kidney disease, urinary tract infections and osteoporosis. In total, this plaintiff was awarded well over $12 Million in damages for the catastrophic injuries he suffered as a passenger in a motor vehicle accident caused by a negligent driver.

Automobile insurance accident disability benefits

If you were seriously injured in a motor vehicle accident, you have two options for obtaining financial compensation: suing the negligent person and making a claim against your insurer. Everyone in Ontario is entitled to make a claim for accident benefits under their insurance company; if you are not yet insured as a driver, you can claim under the insurance of the driver involved in the collision or a family insurance policy. These benefits are outlined under the Ontario Insurance Act, Statutory Accident Benefits Schedule (SABS), and are generally referred to as ‘no fault’ insurance because the application process is the same regardless who was negligent in causing the accident.

In the event of any type of motor vehicle accident, you need to notify your insurance company of your accident and injuries within seven days of the accident. There are a number of automobile insurance claims forms available from your insurance company or the FSCO website, such as OCF-1, an Application for Accident Benefits, which must be completed prior to receiving any accident benefits for your injuries, whether or not your injuries were catastrophic or minor.

If you or a family member were catastrophically injured, your physician needs to complete form OCF-19 titled Application for Determination of Catastrophic Impairment which can be printed from the FSCO online website. In the completion of this form, your family physician will likely require input from other doctors such as an orthopaedic surgeon, neurologist and/or other medical professional involved in your care.

If you sustained catastrophic injuries as a result of any type of motor vehicle collision, including a car accident, motorcycle accident, pedestrian accident or cycling accident, you may be entitled to the following benefits.

• Medical and rehabilitative benefits of $1,000,000.
• Attendant care benefits of $6000 monthly to a maximum of $1,000,000.
• Housekeeping and home maintenance benefits of up to $100 weekly.
• Caregiver benefits of up to $250 weekly, as well as $50 for each dependent.
• Death and funeral expenses for family members (including $25,000 for a spouse an $10,000 for each child)
• Educational expenses up to $15,000 for incurred education costs for education that must be suspended due to injury.

Although SABS benefits are available through your insurance company, the process for obtaining medical evidence of injury is complicated and insurers are sometimes reluctant to give accident victims the compensation they are owed.

In Holland v. Pilot Insurance Co., 2004, the insurer contested the designation of 'catastrophic injury' determined by Mr. Holland’s medical professionals after he suffered traumatic brain injury in a pedestrian-car accident. The benefit amount to which Mr. Holland is entitled would be a maximum of only $100,000 for minor injuries versus $1,000,000 for catastrophic impairment. Mr. Holland was 15 and had consumed more than the adult legal limit of alcohol when he was struck by a car. Emergency personnel and later readings at the Hospital for Sick Children in Toronto used the standard Glasgow Coma Scale (GTS) to conclude that Mr. Holland’s brain injury was catastrophic. Pilot Insurance argued that his alcohol level made the GTS scores unreliable. A medical expert testified that current research indicates that individuals who are impaired actually have a worse outcome that those who are sober at the time of the traumatic brain injury. The judge for this case ruled that Mr. Holland’s injury constituted catastrophic impairment, and thus he was entitled to the higher level of benefits.

The Injury Lawyers of Ontario (ILO) group are experienced catastrophic injury lawyers who are skilled in obtaining the prerequisite medical evidence for building a strong case and in identifying convincing case law arguments. Accident victims who were catastrophically injured require zealous and expert representation to garner an optimal settlement. An ILO attorney can represent your interests in a SABS claim against your insurer or in building a successful tort action against the negligent party. Call us today for a free consultation.