Catastrophic Impairment in Spinal Cord Injury Cases in Ontario

A spinal cord injury is one of the best examples of why Ontario’s catastrophic impairment system exists.

When a collision causes paraplegia, tetraplegia, major loss of mobility, bowel or bladder impairment, or lasting neurological damage, the ordinary accident benefits limits may be nowhere close to enough. A serious spinal cord injury can involve rehabilitation, attendant care, accessible housing changes, mobility equipment, bladder and bowel management, psychological support, transportation needs, and long-term medical care.

In Ontario motor vehicle accident cases, the question is not about whether the injury is serious. The legal question is whether the injured person meets the definition of catastrophic impairment under the Statutory Accident Benefits Schedule, usually called the SABS.

For a broader explanation of the CAT system, including the full list of criteria, see our catastrophic impairment in Ontario guide.

What does the SABS say about spinal cord injury and catastrophic impairment?

The SABS includes a specific catastrophic impairment category for paraplegia and tetraplegia.

Section 3.1(1) of the SABS states that, for accidents on or after June 1, 2016, an impairment is catastrophic if it results in:

“Paraplegia or tetraplegia that meets the following criteria:”

The regulation then sets out the test:

“i. The insured person’s neurological recovery is such that the person’s permanent grade on the ASIA Impairment Scale, as published in Marino, R.J. et al, International Standards for Neurological Classification of Spinal Cord Injury, Journal of Spinal Cord Medicine, Volume 26, Supplement 1, Spring 2003, can be determined.”

“ii. The insured person’s permanent grade on the ASIA Impairment Scale is or will be,

A. A, B or C, or

B. D, and

1. the insured person’s score on the Spinal Cord Independence Measure, Version III, item 12 (Mobility Indoors), as published in Catz, A., Itzkovich, M., Tesio L. et al, A multicentre international study on the Spinal Cord Independence Measure, version III: Rasch psychometric validation, Spinal Cord (2007) 45, 275-291 and applied over a distance of up to 10 metres on an even indoor surface is 0 to 5,

2. the insured person requires urological surgical diversion, an implanted device, or intermittent or constant catheterization in order to manage a residual neuro-urological impairment, or

3. the insured person has impaired voluntary control over anorectal function that requires a bowel routine, a surgical diversion or an implanted device.” 

The SABS refers to paraplegia or tetraplegia and then uses specific medical and functional markers, including ASIA grading, indoor mobility, neuro-urological impairment, and bowel function.

The key point: incomplete spinal cord injuries can still qualify

Many disputes arising from the SABS wording focus on ASIA D spinal cord injuries.

Under the SABS, ASIA A, B, and C spinal cord injuries satisfy the spinal cord injury CAT criterion once the person’s permanent ASIA grade can be determined.

But ASIA D injuries might also qualify if one of the additional requirements is met.

That additional requirement could include:

a SCIM item 12 Mobility Indoors score of 0 to 5 over up to 10 metres on an even indoor surface;

the need for urological surgical diversion, an implanted device, or intermittent or constant catheterization due to residual neuro-urological impairment; or

impaired voluntary control over anorectal function requiring a bowel routine, surgical diversion, or implanted device.

This is why incomplete spinal cord injury cases are when having an experienced Ontario spinal cord injury lawyer is most important. A person can have some preserved movement and sensation but still have qualify for early catastrophic impairment under the SABS.

Why ASIA grading matters

The ASIA Impairment Scale is central to the spinal cord injury CAT test. The SABS asks whether the person’s neurological recovery has reached the point where their permanent grade on the ASIA Impairment Scale can be determined.

That language is important because timing can become an issue. The insurer could argue that it is too early to determine the permanent grade, while the injured person may need CAT-level funding before their long-term needs are fully stabilized.

ASIA grading helps classify the severity of the spinal cord injury based on motor and sensory function. The grade affects whether the person qualifies under the paraplegia or tetraplegia criterion.

Why SCIM item 12 matters in ASIA D cases

For ASIA D spinal cord injury cases, the SABS looks at more than the ASIA grade itself. One pathway is the person’s score on the Spinal Cord Independence Measure, Version III, item 12, which deals with Mobility Indoors. The SABS wording refers to mobility over a distance of up to 10 metres on an even indoor surface.

This is a very practical test. It focuses on the person’s indoor mobility, not just whether there is some movement in the legs.

A person could have made a partial recovery but still be unable to move safely and independently indoors. They may require a wheelchair, walker, assistance, bracing, supervision, or repeated rest breaks. They might be at risk of falls. They may be able to move short distances in a therapy setting but not function reliably at home.

Bladder impairment can be part of the catastrophic impairment test

The SABS also recognizes that spinal cord injury is not just about walking.

For ASIA D cases, catastrophic impairment may be established if the injured person requires urological surgical diversion, an implanted device, or intermittent or constant catheterization to manage a residual neuro-urological impairment.

This is a major point. Some spinal cord injury survivors often regain partial mobility but continue to have serious bladder dysfunction. That can affect independence, infection risk, sleep, dignity, employment, travel, relationships, and daily care needs.

A CAT application should not treat bladder impairment as a side issue. If neuro-urological impairment is part of the injury picture, it should be properly documented.

Bowel impairment can also be part of the test

The SABS also includes impaired voluntary control over anorectal function where the person requires a bowel routine, a surgical diversion, or an implanted device.

Again, this wording is important because spinal cord injury often affects bowel function in ways that are not visible to others.

Bowel routines are time-consuming, uncomfortable, difficult, and medically significant. It may require assistance, planning, medication, equipment, monitoring, or changes to daily life. It can also affect a person’s ability to work, travel, socialize, and live independently.

For some injured people, bowel and bladder impairment are among the most life-altering parts of the spinal cord injury.

What if the spinal cord injury criterion is not met?

Not every serious spinal cord injury end up qualifying under the paraplegia or tetraplegia wording in the SABS.

However, that does not definitely mean the person cannot qualify as catastrophically impaired. Often it will just mean that it will take longer.

A spinal cord injury is still be relevant to a catastrophic impairment application under the 55% whole person impairment routes in the SABS. This is important in cases where the person has a serious spinal cord injury or spinal neurological injury, but does not clearly satisfy the specific paraplegia or tetraplegia criterion.

The physical impairment route states that catastrophic impairment includes:

“Subject to subsections (2) and (5), a physical impairment or combination of physical impairments that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in 55 per cent or more physical impairment of the whole person.” 

The SABS also includes a combined physical and mental/behavioural route where a mental or behavioural impairment is combined with a physical impairment, using the required AMA Guides methodology, and the combined result is 55% or more impairment of the whole person.

This is important if the spinal cord injury causes significant residual impairments but the person does not meet the paraplegia or tetraplegia criterion. Examples may include severe incomplete spinal cord injury, cauda equina-type impairment, residual neurological impairment, weakness, sensory loss, spasticity, gait impairment, neuropathic pain, bladder dysfunction, bowel dysfunction, sexual dysfunction, chronic pain, or other physical consequences that must be assessed together.

In some cases, the correct CAT route may be the specific paraplegia or tetraplegia criterion. In other cases, it may be the 55% physical whole person impairment route. In others, it may involve a combined physical and mental/behavioural impairment analysis.

One of the reasons the Whole Person Impairment route is less preferable is that it takes longer to qualify. Often these assessments cannot be reliably obtained until after two years have passed. For the victim of a spinal cord injury, catastrophic level funding will often be necessary much earlier.

For more on serious psychological impairment in CAT claims, see our Criterion 8 marked impairment guide.

Where the same accident also caused a traumatic brain injury, the analysis may also involve the adult traumatic brain injury criterion. We explain that issue in our criterion 4 GOSE guide.

Why catastrophic impairment status matters after a spinal cord injury

Catastrophic impairment status drastically changes the accident benefits available after an Ontario motor vehicle accident.

For serious spinal cord injury survivors, the difference affects access to:

attendant care

case management

physiotherapy

occupational therapy

wheelchairs and mobility equipment

home modifications

vehicle modifications

psychological treatment

urology care

bowel and bladder supplies

transportation assistance

future care planning

rehabilitation support

family and caregiver support

Ontario accident benefits are available regardless of fault. A person does not need to prove that another driver caused the collision before applying for accident benefits. Fault may matter in the lawsuit against the at-fault driver, but it does not prevent an accident benefits claim.

The CAT application should be built around the exact SABS wording

Catastrophic impairment applications should not simply say that the person suffered a severe spinal cord injury. There needs to be evidence answering the actual legal questions.

• Has the person’s neurological recovery reached the point where the permanent ASIA grade can be determined?

• Is the permanent ASIA grade A, B, C, or D?

• If the grade is ASIA D, does the person meet one of the additional requirements?

• What is the person’s SCIM item 12 Mobility Indoors score?

• Does the person require catheterization or other urological intervention for residual neuro-urological impairment?

• Does the person have impaired voluntary control over anorectal function requiring a bowel routine, surgical diversion, or implanted device?

• If the paraplegia or tetraplegia criterion is not met, is there still a 55% whole person impairment analysis based on the physical consequences of the spinal cord injury?

• Is there a combined physical and mental/behavioural impairment analysis that needs to be considered?

• These are not minor details. They are often the core issues in a serious spinal cord injury CAT claim.

Common insurer disputes in spinal cord injury CAT cases

Even serious spinal cord injury cases can be disputed. An insurance company could argue that the person’s neurological recovery is not yet at the point where a permanent ASIA grade can be determined. It may dispute the ASIA classification. It may argue that an ASIA D injury does not meet the SCIM, bladder, or bowel criteria. It may accept that the person is seriously injured but deny that the SABS definition has been met.

There are also possible disputes about whether the injury should be assessed under the 55% whole person impairment route. These disputes can become technical because the rating must be done in accordance with the AMA Guides. The insurer may challenge the impairment ratings, the combination of impairments, the role of pain, the effect of pre-existing conditions, or whether the person is likely to remain above the required threshold.

There may also be disputes about the level of attendant care, the reasonableness of home modifications, the need for case management, the cost of equipment, or the long-term rehabilitation plan.

This is why a spinal cord injury catastrophic case should be prepared with the regulation in mind from the beginning.

What evidence is usually important?

The most important evidence will depend on the injury, but spinal cord injury CAT claims often require:

hospital records

rehabilitation hospital records

spinal cord injury specialist evidence

physiatry evidence

neurology or neurosurgery records

ASIA assessment evidence

occupational therapy reports

SCIM scoring where relevant

urology evidence

bowel and bladder management records

pain and spasticity evidence

sexual dysfunction evidence where applicable

psychological or psychiatric evidence where applicable

attendant care assessments

home accessibility assessments

case management records

future care planning evidence

family evidence about day-to-day function

Our Ontario spinal cord injury lawyers like to try to obtain witness statements from family members and PSWs which describe exactly the detailed efforts that go into caring for the injured individuals. It is one thing for insurance companies to hear us as lawyers making points about how badly off a person is; It is exponentially more powerful for them to hear it from the people who see it in person every day.

Spinal cord injury claims often involve both accident benefits and a lawsuit

A spinal cord injury case after a car accident, motorcycle crash, bicycle collision or pedestrian accident usually has two major components.

The first is the accident benefits claim. This is the no-fault claim with the auto insurer. It deals with treatment, rehabilitation, attendant care, income replacement, case management, and CAT designation.

The second is the tort claim. This is the lawsuit against the at-fault driver or other responsible parties. It may include claims for pain and suffering, income loss, future care, housekeeping loss, family claims, and other damages.

These two parts should be coordinated. The medical evidence gathered for the CAT application may also be important in the lawsuit. Future care reports, attendant care assessments, vocational evidence, and functional assessments can affect both claims.

For more information about serious spinal cord injury claims generally, see our Ontario spinal cord injury lawyers page.

Spinal cord injury, catastrophic impairment, and long-term care needs

The consequences of a spinal cord injury continue long after the initial hospital admission.

Survivors will often need help with bathing, dressing, transfers, bowel care, bladder care, pressure relief, skin monitoring, medications, transportation, meal preparation, housekeeping, and community access. Some people also face chronic pain, spasticity, sexual dysfunction, fertility concerns, infections, fatigue, depression, anxiety, and loss of independence.

That is why catastrophic impairment status is so important. The designation is not just a label. It can affect whether the injured person has access to the level of funding needed to live safely and with dignity.

When should catastrophic impairment be considered?

Catastrophic impairment should be considered early in any serious spinal cord injury case, especially where paralegia and quadriplegia are terms being discussed by medical professionals.

The SABS wording refers to the point when the person’s neurological recovery allows the permanent ASIA grade to be determined. For the 55% whole person impairment routes, the SABS also contains timing rules, including the two-year point or a physician assessment three months or more after the accident where the required impairment level is unlikely to improve below 55%.

The file should still be prepared early for these assessments. Waiting too long can create funding pressure.

Related spinal cord injury resources

Spinal cord injury claims are often handled through both the accident benefits system and a lawsuit against the at-fault driver. We also have location-specific resources for people looking for Ottawa spinal cord injury lawyers and London spinal cord injury lawyers.

Key takeaway

Spinal cord injury is one of the most important catastrophic impairment categories under Ontario’s SABS. The legal test is technical. It depends on the exact wording of the regulation, including ASIA grading, SCIM item 12 indoor mobility, neuro-urological impairment, catheterization, bowel routines, and impaired anorectal function.

A person with an incomplete spinal cord injury can still qualify. And even where the specific paraplegia or tetraplegia criterion is not met, the spinal cord injury may still be part of a 55% whole person impairment analysis or a combined physical and mental/behavioural impairment analysis.

This article was prepared by Lane Foster, an Ontario personal injury lawyer representing individuals seriously injured.