Changes to The Definition of “Catastrophic Impairment”

Ontario Regulation 281/03 amends the definition of Catastrophic Impairment in subsection 2(1) of Ontario Regulation 403/96, for accidents which occur on or after October 1, 2003. The previous definition remains for accidents occurring up to that date Section 2 (1.1).

1. Section 2 (1.2) contains the new definition of “catastrophic impairment”, which has the following additions:
   1. Total and permanent loss of use or amputation of both legs is added. This modest change addresses one of the shortcomings of the previous legislation, which only dealt with loss of both arms as a catastrophic impairment.
   2. An amendment which indicates that amputation or total loss of use of one or both arms and one or both legs will be considered catastrophic. The troublesome aspect of this change is the question of whether the word “and” is to be read conjunctively or disjunctively. This subsection is poorly drafted and, on a plain reading appears to add absolutely nothing to the definition of catastrophic.The argument against such an interpretation is that the plain reading of this section suggests a conjunctive reading. In addition, if the government intended single limb amputation or loss of use to pass the definition of catastrophic, the government could have used much simpler and clearer language.
2. Another change to the definition of catastrophic impairment is the treatment of children under 16 years of age where the GCS, GOS, 55% whole person impairment test, or marked or extreme impairment due to a mental or behavioural disorder test, cannot be applied due to the age of the injured person.In these circumstances, the amendment states that where an impairment to a child is reasonably believed to be a catastrophic injury, the injury shall be deemed to be the impairment that is most analogous to, impairments which cannot be applied taking into consideration the developmental implications of the impairment.It is difficult to understand how the government believes that this definition clarifies the application of catastrophic impairment in the case of injured children. The one aspect of the new definition which is useful is that it permits a consideration of the developmental implications of the impairment. This allows the medical assessor some latitude in determining whether a child’s injuries are catastrophic, by allowing the medical practitioner to take into account their clinical experience, as well as the normal progression of certain serious injuries.

   The classic example of where this new definition will assist injured children is in the case of a child who has suffered a mild to moderate brain injury. Often such an injury may appear not to be catastrophic initially, because the child is still capable of functioning relatively well, using the existing fund of knowledge which the child had prior to the accident. However, as the child gets older, and more demands are put on the child’s brain, the severity of the brain injury becomes apparent. This section would allow doctors to take such developmental implications into account in assessing whether the child has suffered a catastrophic impairment.

   For serious orthopaedic injuries, the future effects of early arthritis, the need for further surgeries, joint replacements, etc. will also be able to be considered by the medical assessor.

3. Another change to the definition is contained in section (2.1)(a) which relates to when the 55% whole person impairment test (1.2) (f) or the marked/extreme mental or behavioural (1.2)(g) tests may be applied.Section 2.1(a) reads as follows: (2.1) Clauses (1.2) (f) (g) do not apply in respect of an insured person who sustains an impairment as a result of an accident that occurs on or after October 1, 2003 unless,
   1. the insured person’s health practitioner states in writing that the insured person’s condition is unlikely to cease to be a catastrophic impairment; or
   2. two years have elapsed since the accident.

   The resulting change from 3 years to 2 years fills the gap for those catastrophically injured persons whose conditions were not stable at the 2 year point ( ie. the point when the accident benefits ran out for non-catastrophic injury) and the previous 3 year limit for assessing catastrophic injury. In those situations, a person who was catastrophic, but whose condition had not stabilized, could be caught without benefits for one year.

   As well, the medical practitioner only needs to determine and state in writing, that the insured’s person’s condition is likely to remain catastrophic, rather than finding that the condition is stable and not likely to improve.

4. The final point to note about the definition of catastrophic impairment is that the proposed legislation continues to reference the 4th Edition of the AMA Guidelines to Permanent Impairment. The 5th Edition is the current edition and significantly updates the old edition. The 5th Edition is also the edition used by most Workers Compensation Boards.Many of the flaws which were identified as part of the 4th Edition, have been corrected in the 5th Edition.
5. The balance of the definition for catastrophic impairment contains no changes. Paraplegia, quadriplegia, loss of use of both arms, loss of use of an arm and a leg, total loss of vision in both eyes, a head injury with a GCS of 9 or less or a head injury with a GOS of 2 or 3 (more than 6months post accident), 55% whole person impairment, and marked or extreme mental or behavioural disorders will still be considered catastrophic injuries.