The Role of Expert Opinion in a Claim for Catastrophic Brain Injury

After sustaining a traumatic brain injury (TBI) as the result of a motor vehicle accident, the road to recovery can be fraught with difficulties and challenges. Injured accident survivors can experience a range of symptoms that impact various physical, cognitive, and behavioural functions. Depending on the severity of the TBI, accident survivors might recover from their injuries in a matter of weeks or months. Unfortunately, though, people who have sustained catastrophic brain injuries may experience the effects of their injuries for the rest of their lives.

In Ontario, people who have been injured in motor vehicle collisions are entitled to no-fault accident benefits. Regardless of who was at-fault for the accident, insurance coverage should be available to help the people injured as a result of the collision. The amount of accident benefits available to each individual survivor of the collision is dependent on the severity of the injuries they have sustained.

Survivors of motor vehicle collisions whose injuries meet the threshold of “catastrophic impairment” as defined by Ontario’s Statutory Accident Benefits Schedules (SABS) are entitled to higher amounts of insurance coverage than people whose injuries are less severe in nature. The mandatory coverage in all of the province’s basic auto insurance plans includes:

• $3,500 in medical and rehabilitation benefits for accident victims who sustained minor injuries
• $65,000 over 5 years for the combined total costs of medical, rehabilitation, and attendant care benefits for accident victims who sustained non-minor, non-catastrophic injuries
• $1 million for life in combined medical, rehabilitation, and attendant care benefits for accident victims who sustained catastrophic injuries

In order to qualify for the highest amount of available accident benefits, motor vehicle collision survivors must provide evidence proving that their injuries fit the legal definition of “catastrophic impairment.” People applying for a catastrophic impairment designation must undergo assessments from medical experts whose opinions can be used by insurance companies to determine the amount of benefits to which they should be entitled.

Assessing the Extent of Injuries

Medical experts play a crucial role in the assessment of injuries sustained as the result of motor vehicle accidents. If treating a catastrophically impaired patient, these experts will complete an OCF-19 form stating their findings and opinions. Insurance providers use these findings to determine whether or not an injured accident survivor should receive a catastrophic impairment designation.

People applying for accident benefits to offset the costs resulting from their catastrophic TBI must include other forms of supplementary evidence along with their claim. They are required to show positive findings of a TBI on a medically accepted brain imaging scan (CT scan, MRI, etc) in order to be considered catastrophically impaired.

Additionally, motor vehicle accident survivors who have sustained catastrophic TBIs must be assessed by a medical expert using the Glasgow Outcome Scale Extended (GOS-E). The GOS-E is a tool used to determine 8 possible outcomes for adults over the age of 18 who have sustained a TBI. These outcomes are as follows:

• Death
• Vegetative state
• Lower severe disability
• Upper severe disability
• Lower moderate disability
• Upper moderate disability
• Lower good recovery
• Upper good recovery

A medical expert can use the GOS-E metric to assess an injured accident survivor’s condition once they have reached a stable point in their recovery. Depending on the severity of the TBI and the impacts it has on a person’s overall life, these assessments can take place after 1 month, between 6-12 months, or over a year after the injury was sustained. If, after the appropriate amount of time, the medical expert assesses that their patient has one of the following outcomes, they might qualify for a “catastrophic impairment” designation:

• Vegetative state (assessed at least 1 month following the date of injury)
• Upper or lower severe disability (assessed between 6-12 months following the date of injury)
• Lower moderate disability (assessed 12+ months following the date of injury)

Without a supporting diagnosis from attending physicians, neurologists, neuropsychologists, occupational therapists, or other medical experts, motor vehicle accident survivors who have sustained catastrophic TBIs will be unable to apply for the insurance coverage to which they should be entitled.

Supporting the Dispute Resolution Process

Even if a medical expert shares their diagnosis in an OCF-19 form and the patient shows medical imaging proof of their TBI, there is no guarantee that the person seeking a catastrophic impairment designation will automatically get one. All too often, insurance providers disagree with determinations made by medical experts in an attempt to provide claimants with lower amounts of accident benefits than those to which they should be entitled.

In these situations, insurance companies may demand that the claimant undergo an independent medical examination (IME) carried out by a different healthcare professional. If the dispute cannot be resolved through an IME, the insurer and the claimant are usually required to begin the dispute resolution process through the License and Appeal Tribunal.

During the dispute resolution process, the findings of medical experts can help support an accident victim’s claim. These experts might be called upon to provide evidence and/or testimony before an arbitrator. This arbitrator will take the opinions of these experts into consideration when making their determination about the claimant’s condition.

The opinions and findings of medical experts can play a crucial role in this process. While insurance providers might employ unfair tactics to try convincing the arbitrator that the claimant’s TBI does not meet the threshold of catastrophic impairment, an unbiased medical expert can provide important insights about how they reached their initial diagnosis, and elaborate on why the claimant should be entitled to higher amounts of accident benefits.

That being said, the opinions of medical experts may not be enough to help catastrophically injured survivors of motor vehicle collisions get the insurance coverage they deserve. That is why it is so important to work with an Ontario accident benefits lawyer when fighting for fair treatment from insurance providers.

To learn more about how our accident benefits lawyers may be able to help you fight for the insurance coverage you are rightfully owed after sustaining a catastrophic brain injury as the result of a motor vehicle collision, contact us today.