The new definition of “catastrophic impairment”, which comes into force on June 1, 2016, contains a specific definition for children with brain injuries that is different from the adult definition. This is a major change. This new definition is set out in section 3.1(5) of the Statutory Accident Benefits Schedule – Effective September 1, 2010. The “child” rules in subsection (5) apply to people under the age of 18, which is consistent with current thinking about brain development.
Unlike the changes to the definition in respect of adult brain injuries, the new definition in respect of children may not necessarily reduce the number of catastrophic impairment claims for children as compared with the old definition, but it will likely require more vigilance for the declarations to be obtained and the declarations will likely come with a greater delay. In fact, some children who may not have been found to be catastrophically impaired under the existing system may qualify as being catastrophically impaired under the new system.
The definition for catastrophic impairment for brain injuries in children is disjunctive. A child will be found to be catastrophically impaired if he or she meets any of the five parts of the definition. The different parts of the definition apply at different times: hospitalization, one month, six months, nine months and two years. It will be crucial that people who are caring for and acting for brain injured children give careful consideration to the issue of catastrophic impairment at each interval.
Because the issue of catastrophic impairment is going to have to be considered at different intervals, one key concern is who will ensure it is considered? If a lawyer is involved, the lawyer should ensure that it is considered. In many cases, there is a delay in retaining a lawyer. In those cases, who will ensure catastrophic impairment is considered at each stage? Will health care providers take on that responsibility? Will insurers take on that responsibility? These questions remain to be answered.
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