There are more than 4,500 new spinal cord injury cases in Canada every year.
More than 30% of those cases are caused by traumatic events such as motor vehicle accidents. When a spinal cord injury from a motor vehicle accident occurs, those individuals may apply for Statutory Accident Benefits (SABS).
Whether they’re considered catastrophically impaired (CAT), for accidents occurring after June 1, 2016, depends on a new definition of quadri- and paraplegia implemented in 2016. That definition is based on the ASIA test; a more in-depth medical criteria for measuring these categories of catastrophic impairment.
Old Definition of Quadri- and Paraplegia
Prior to June 1, 2016, the definition of CAT was found in section 3(2) of the SABS. To qualify as catastrophically impaired, one of two criteria had to be met:
- paraplegia or quadriplegia;
- the amputation of an arm or leg or another impairment causing the total and permanent loss of use of an arm or a leg.
Under the old definition for CAT, quadri- and paraplegia were considered standalone terms. But effective June 1, 2016 that has changed.
The new definition of quadri- and paraplegia requires the insured to meet thorough medical criteria to be considered CAT – and those criteria are largely based on the ASIA test.
The ASIA Test
Whether someone is considered quadri- or paraplegic depends on their grade on the ASIA Impairment Scale. This neurological examination was developed by the American Spinal Injury Association and involves two parts: a sensory examination and a motor function examination.
The sensory examination tests 28 key sensory points on the body for light touch and pinprick sensations. The grading scale runs from 0 to 2, with 0 indicating no sensation, 1 indicating that sensation is present but impaired, and 2 indicting that sensation is normal.
The motor examination involves 10 key muscles split into upper and lower limbs. Each muscle is tested and graded on a scale from 0 to 5 as follows:
- 0 = total paralysis
- 1 = visible or palpable contraction
- 2 = active movement, full range of motion, gravity eliminated
- 3 = Active movement, full range of motion, against gravity
- 4 = Active movement, full range of motion, against gravity and provides some resistance
- 5 = Active movement, full range of motion, against gravity and provides normal resistance
The results of both examinations are amalgamated to provide a single numerical value. That value is then matched to a scale from A to E, where A means there is no motor or sensory function and E means that sensory and motor function is normal.
The New Definition of Quadri- and Paraplegia
Determining catastrophic impairment in accidents that occurred on or after June 1, 2016 relies on the ASIA Impairment Scale. Section 3.1 (1) of SABS now states that quadri- or paraplegia must meet the following criteria:
- Neurological recovery is such that the insured’s permanent grade on the ASIA Impairment Scale can be determined
- The permanent grade on the ASIA Impairment Scale is or will be A, B, C, or D
In addition, if the insured’s score is a D on the Scale, they must also have a score of 0 to 5 on the Spinal Cord Independence Measure, Version III, item 12 (mobility indoors), urological diversion/catheterization or a bowel routine.
In the old definition, quadri- and paraplegia were standalone terms that made it easy to determine whether an insured was considered CAT under these categories. These new definitions based on medical measurement scales and very particular criteria, on the other hand, complicate matters.
Permanency and The Patel Case
In Patel v RSA Insurance, the issue was the interpretation of the word “permanent” in the Section 3.1(1) of the SABS.
The insured sought benefits under the SABS for injuries suffered in a motor vehicle accident. When her medical benefits as well as an application to determine CAT were denied, Patel applied to the Licence Appeal Tribunal (LAT) for a resolution.
According to the Regulation, the insured must have a permanent grade on the ASIA Impairment Scale. And, as we’ve covered, if that score is a D, the insured must also demonstrate a score of 0 to 5 on the Spinal Cord Independence Measure, Version III, item 12 (mobility indoors), urological diversion/catheterization or a bowel routine.
When assessed by Dr. McGillivray, Patel scored a D on the ASIA Impairment Scale and a 4 on the Spinal Cord Independence Measure, Version III. As such, Dr. McGillivray concluded that Patel was catastrophically impaired.
However, when Patel was assessed by the neurosurgeon representing the insurance company, he disagreed as to the permanency of Patel’s injuries. Dr. Farhadi would not conclude that Patel was catastrophically impaired because her injury had the potential to improve over an 18 to 24 month period. Because he assessed her less than 1 year after her accident, Dr. Farhadi instead recommended that Patel be re-examined after 24 months.
When the case was brought before the LAT, Patel argued that it wasn’t possible to obtain a permanent grade on the ASIA Impairment Scale when her assessments were conducted. She stated that there is no explicit statement of a temporal element of CAT and that coverage provisions should be understood broadly, exclusions narrowly, and in favour of the consumer.
The Adjudicator in Patel’s case ruled in favour of Ms. Patel. He noted that the wording in the Regulation indicates that a score can change and a potential to improve may be present but as long as the grade is from A-D, the insured is considered CAT.
Have You Been Catastrophically Impaired in a Motor Vehicle Accident?
Under the old definition of catastrophic impairment , quadri- and paraplegia were standalone terms. But the definition in effect since June 1, 2016 requires that applicants meet strict medical criteria in order to qualify. Applicants are subjected to the ASIA Impairment Scale wherein they must receive a grade between A and D and, if the score is a D, they must meet additional requirements.
When you or a loved on are involved in a motor vehicle accident that results in serious injury or catastrophic impairment, navigating these terms and definitions can become a barrier to recovery. Let an experienced attorney assist you through this difficult time. Contact Sharma Law to get started.