What is the law if I sustained a brain injury? It’s not a question anyone should want to ask, but it’s nonetheless an important one. And, unfortunately, finding an answer is hardly straightforward. “The law” is a broad term, as there are many different areas of law in Ontario, which apply depending on the nature of the accident itself. To simplify the matter, let’s assume that the brain injury was a result of a serious car accident. In this case the question, “What is the law if I sustained a brain injury?” is far easier to answer.
Statutory Accident Benefits Schedule
Ontario’s Insurance Act contains the legal framework for how automobile accident insurance companies provide benefits after a serious collision. The Automobile Insurance section of the Act relies on a regulation called the Statutory Accident Benefits Schedule (or SABS) for the protocol surrounding provision of benefits. The SABS includes a definition of “catastrophic injury” (which affects the tier of benefits allotted in the Insurance Act) and rules for how to access benefits.
Defining Catastrophic Injury
The benefits system in Ontario is divided into two tiers: non-catastrophic injury and catastrophic injury. Most injuries, and subsequently the benefits that they garner, fall into the “non-catastrophic” tier. However, catastrophic injuries receive special, higher benefits in order to compensate for their greater severity. Thus, the SABS’s definition of catastrophic injury is an important one. According to the SABS, a catastrophic injury includes any of the following:
- Paraplegia or quadriplegia;
- The amputation of an arm or leg or another impairment causing total and permanent loss of use of an arm or a leg;
- Total loss of vision in both eyes; or
- Serious brain injury as determined by a physician or neuropsychologist.
If your injuries fit any of these criteria after an accident, your potential insurance payout increases as many twenty times (for certain benefits).
Traumatic Brain Injury in Adults
Clearly, a term like “serious brain injury” is vague, regardless of the determinations of a physician or neuropsychologist. The SABS understands that “serious" brain injury is legal, not medical, in nature, and so expands upon the definition in its regulations by mandating the use of recognized evaluative schema. For traumatic brain injury (TBI) in adults, the SABS incorporates the Extended Glasgow Outcome Scale (GOS-E) and then uses independently reached timelines. As such, an adult is considered catastrophically injured if:
- They are in a GOS-E vegetative state for 1 month;
- They have a GOS-E severe upper or lower disability after 6 months; or
- They have a GOS-E lower moderate disability after 1 year.
Note, also, that even though it would take as long as 1 year to decide whether a person’s injuries are catastrophic under these guidelines, the SABS automatically grants catastrophic injury benefits in many instances. An injured person automatically receives these interim benefits if they unequivocally require intensive and prolonged rehabilitation.
If you’ve read all this and still find yourself asking, “What is the law if I sustained a brain injury?”, don’t worry. Experienced Toronto personal injury lawyers are ready to go through the details with you, giving you the peace of mind you want while helping to secure the compensation you need. Contact Sokoloff personal injury lawyers for a free consultation today!
Sources:
http://www.fin.gov.on.ca/en/autoinsurance/si-report.html
http://www.ontario.ca/laws/statute/90i08
http://www.ontario.ca/laws/regulation/100034
https://www.fsco.gov.on.ca/en/auto/Catastrophic-Impairment/Documents/OBIA.pdf