A serious traumatic brain injury can affect far more than a person’s physical health. Many people experience ongoing problems with memory, attention, fatigue, emotional regulation, relationships, and work. In the most severe cases, these impairments may qualify as a catastrophic impairment under Ontario’s Statutory Accident Benefits Schedule (“SABS”). A catastrophic impairment designation can significantly increase the accident benefits available to help pay for treatment, rehabilitation, attendant care, and other support services.
The benefit of being designated catastrophically impaired means that funds available for medical, rehabilitation, and attendant care increases from $65,000 for up to 5 years after the accident, to $1,000,000 for life (these numbers may be different if you purchased optional benefits).
There are eight pathways, or Criteria, to meet the legal test to be designated “catastrophically impaired”. This article focuses on Criterion 4, which applies to adults who suffered traumatic brain injuries in an automobile accident.
What must you prove?
Criterion 4 applies to people who were at least 18 years old at the time of the accident. To qualify, two requirements must be met:
- First, there must be objective medical evidence showing traumatic injury to the brain. The legislation requires positive findings on a CT scan, MRI, or another medically recognized brain imaging test showing intracranial pathology caused by the accident. Examples listed in the legislation include brain contusions, hemorrhages, diffuse axonal injury, cerebral edema, midline shift, and pneumocephaly.
- Second, the brain injury must result in a specified level of disability when assessed using the Glasgow Outcome Scale Extended (“GOSE”). The GOSE is a structured assessment that examines how the brain injury affects a person’s ability to function in everyday life.
Both parts of the test must be satisfied. A person does not qualify simply because a traumatic brain injury appears on diagnostic imaging. The question is whether the injury causes the level of functional impairment required by the legislation.
Understanding the Glasgow Outcome Scale Extended (GOSE)
To understand Criterion 4, it is first necessary to understand the Glasgow Outcome Scale Extended, commonly called the “GOSE.”
The GOSE is a structured assessment used to measure how a traumatic brain injury affects a person’s day-to-day functioning. It does not simply look at MRI findings or diagnoses. Instead, it evaluates how the brain injury affects a person’s ability to function at home, in the community, at work, and in relationships. The GOSE is often completed by an occupational therapist or neuropsychologist. However, for a catastrophic impairment application, the final opinion under Criterion 4 must come from a physician or neuropsychologist.”
The assessment asks questions about:
- Independence at home
- Ability to shop and travel independently
- Ability to work or attend school
- Participation in social and recreational activities
- Relationships with family and friends
- Ongoing symptoms that affect everyday life
The assessor then assigns a rating on an eight-point scale. The following chart provides a simplified explanation of the GOSE categories:
|
GOSE Rating |
What it means |
Examples |
|
1. Death |
The person died as a result of the injury. |
N/A |
|
2. Vegetative state |
The person remains awake at times but shows no meaningful awareness of their surroundings. They cannot consistently communicate, follow commands, or interact purposefully. |
A person may open their eyes but cannot communicate, follow simple instructions, or demonstrate meaningful awareness of people or their environment. |
|
3. Lower severe disability |
The person is conscious but requires frequent assistance and supervision throughout the day. They cannot safely be left alone for extended periods. |
A person requires a caregiver most of the time, needs reminders or supervision for daily tasks, cannot safely manage meals, medications, or emergencies, and cannot be left alone for eight hours. |
|
4. Upper severe disability |
The person is still dependent on others, but can function independently for longer periods. |
A person can remain alone for part of the day but cannot independently shop, travel in the community, or fully manage daily living without assistance. |
|
5. Lower moderate disability |
The person is independent but cannot participate in one or more major areas of life. |
A person can live independently but cannot return to work or school, rarely participates in social activities, or experiences constant disruption in family relationships and friendships because of the brain injury. |
|
6. Upper moderate disability |
The person is independent but has significant ongoing limitations. |
A person can return to work only with accommodations, reduced hours, or reduced responsibilities. They participate in social activities much less than before the accident or experience frequent relationship difficulties. |
|
7. Lower good recovery |
The person has largely returned to normal life but continues to experience injury-related problems. |
A person works and lives independently but still experiences symptoms such as headaches, fatigue, memory problems, reduced participation in leisure activities, or occasional relationship difficulties. |
|
8. Upper good recovery |
The person has effectively returned to their pre-accident level of functioning. |
The person has resumed normal work, social activities, relationships, and daily living without significant limitations caused by the injury. |
When can a person apply for Catastrophic Impairment under Criterion 4?
The timing depends on the severity of the disability.
The SABS sets out three separate pathways:
|
Level of disability |
Earliest time for assessment |
|
Vegetative state |
1 month after the accident. |
|
Lower severe disability or upper severe disability |
6 months after the accident |
|
Lower moderate disability |
1 year after the accident |
Conclusion
If both parts of the Criterion 4 test are met, the injured person can apply to their automobile insurer for a catastrophic impairment designation. The insurer may accept the medical findings and approve the designation, or it may require the injured person to attend another round of insurer assessments focused on whether they meet the catastrophic impairment test. If the insurer denies the application and the dispute remains unresolved, the injured person can ask the Licence Appeal Tribunal to decide the issue. Because this process can involve complex medical evidence, strict legal tests, and insurer examinations, it is best to have a lawyer assist with the application and any dispute that follows.