No-fault accident benefits are intended to provide immediate support to accident victims. This includes paying for medical and rehabilitation needs or income replacement for lost wages. For those most seriously injured, enhanced benefits are available if deemed “catastrophically impaired” (although such benefits have been substantially reduced from previous limits).
The test to qualify as catastrophically impaired is difficult and most times a protracted process. Finances of families of accident victims will be strained while the injured person pursues the catastrophic impairment definition. The injured person will be put through a physical, emotional and mental rollercoaster. It is a daunting process for someone already struggling with pain and the life-altering consequences of their injury. The gauntlet of testing that is required can itself deter a person from pursuing their claim for enhanced benefits despite obvious need and a meritorious case.
Below are strategies that can be enacted to avoid conceding your entitlement.
The Contentious Catastrophic Impairment Criteria
While even those that have sustained a traumatic brain injury may have difficulty meeting the catastrophic impairment definition (colloquially “CAT”), those attempting to qualify based upon physical impairments, mental or behavioural impairments or a combination of physical and mental/behavioural impairments face the most challenging road. The catastrophic impairment definition was changed post-June 1, 2016 to include the following:
- Subject to subsections (2) and (5), a physical impairment or combination of physical impairments that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in 55 per cent or more physical impairment of the whole person.
- Subject to subsections (2) and (5) a mental or behavioural impairment, excluding traumatic brain injury, determined in accordance with the rating methodology in Chapter 14, Section 14.6 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th edition, 2008, that, when the impairment score is combined with a physical impairment described in paragraph 6 in accordance with the combining requirements set out in the Combined Values Table of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in 55 percent or more impairment of the whole person.
- Subject to subsections (3) and (5), an impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 results in 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 function that precludes useful functioning, due to mental or behavioural disorder. O. Reg. 251/15, s. 3; O. Reg. 116/16, s. 1.
A person cannot qualify under criteria enumerated as 6 and 7 (above) unless a physician conducting an assessment more than 3 months after the accident determines that the 55% impairment threshold (the “Whole Person Impairment” test or “WPI”) is exceeded and the person’s condition is unlikely to improve to less than 55%. A person cannot qualify under criteria 8 (above) until the two-year anniversary of their accident.
Early Identification
Identify whether impairments are impacting your ability to function at work, home or generally in society as early as possible. Listen to reports from family members. The treatment team that regularly sees the person in their natural environment including occupational therapists, social workers, rehabilitation therapists and rehabilitation support workers can also provide invaluable information. Also, notes and record keeping can provide a sound basis for the pursuit of the CAT designation and the foundational observations that will underpin the claim.
Adequate Preparation and Understanding of the Process is Critical
A personal injury lawyer needs to be more than simply an advocate in dealings with an insurance adjuster, defence counsel or in a courtroom. I regularly speak with my clients about the likelihood of needing to undergo a battery of assessments in order to access their entitlement. I explain the legislation requiring the catastrophic assessments. I will enlist the treatment team to reinforce this likely requirement. It is always easier to go through something difficult when you’ve had an opportunity to prepare for it and understand the basis for participating. I remind clients about their needs and how important the outcome of the testing can be for their future circumstances and ability to achieve the best recovery possible.
Completion of the CAT Application by a Family Doctor
If you have a supportive family physician (or other appropriate physician), applications for catastrophic impairment under the above-mentioned criteria can be completed by that physician without the need to go through an initial battery of testing. Often, a physician will not feel that they can complete the form and address the above criteria. Family physicians can be intimidated by the form. I have initiated conversations with family physicians to try and alleviate their concerns. Sometimes this is helpful, other times it is not. Providing the family doctor with medical evidence from other practitioners supporting qualification under one of the above-mentioned criteria (e.g. medical reports initiated through the accident benefits process or medical-legal reports) can sometimes assist the physician.
The CAT Assessments
If an appropriate treating physician is not willing to complete the application form, a variety of assessments will be required. These assessments can include any of (or as many as) physiatry, neurophysiatry, psychology, neuropsychology, psychiatry, orthopaedic, and occupational therapy, among others depending on the circumstances of the case. Some will need five (or even more!) different assessments in order to derive the medical evidence necessary to support a claim for catastrophic impairment.
These assessments will include a deep inquiry into the person’s past. Very personal questions will be asked. While always a challenge to answer, these are particularly difficult when you are struggling with an injury that has significantly altered your life. Further, an insurer is going to assert that it was not the accident that caused the impairments but pre-existing conditions and/or that you would have suffered these impairments regardless of the accident. This is often referred to as the causation analysis.
In cases where a psychological component is a significant portion of the subject impairments, discussing your personal history feels like further victimization. You are asked to justify decisions made and actions taken prior to the accident which, on their face, do not bear any relevance to your current circumstances. Understanding the importance of the pre-accident vs. post-accident analysis will help. Much of the litigation that results from disputes concerning catastrophic impairment are predicated on the pre-accident vs. post-accident presentation of the injured person. It is vital to report your pre-history fully to the catastrophic impairment assessors so that a full comparative analysis is performed, which will allow for a determination that, in fact, your accident-related injuries are the cause of your significant impairments.
Responding Insurer’s Examinations
The most difficult part of the CAT process is that the insurer has a right to responding assessments. In other words, after having completed a battery of assessments and being found to meet the CAT definition, you must now re-do the assessments so that the insurer can test the findings of the initial assessors. The harm to injury victims (and their families) is only fully appreciated once you listen to their emotional responses. Nevertheless, it is an unavoidable part of the process (except in the most extreme of cases where significant harm can be demonstrated).
Provide the insurer’s examiners all of the pertinent medical records in advance of the assessments. If there are modifications that can assist with the ability to complete these assessments that minimize the risk of harm, notify the insurer of these requests in advance. These can include frequent breaks, the presence of a support person and conducting the assessments over a number of weeks as opposed to completing a battery in consecutive days. The help of family members or treatment providers ought not be provided in completing the assessments as the results must accurately reflect the injured person’s abilities.
The Personal Injury Lawyer
Don’t forgo your right to enhanced and much needed benefits. There is no denying that the path to catastrophic impairment can be extremely taxing. However, following the approaches above can assist in having a positive outcome and minimizing the difficulty of the process where possible. Accepting, understanding and participating in the process as opposed to simply viewing the assessments in a silo will help in completing the CAT testing.
Goodman Halioua LLP offers free consultations. If you need the assistance of a personal injury lawyer, reach out to us. We are happy to discuss your claim with you and provide support. Goodman Halioua LLP has been assisting injured accident victims navigate the complex and cumbersome accident benefits system since 2012.
