Bike Accident Benefits - Catastrophic Impairment

Recently, The Biking lawyer LLP won up to $1M in care for psychological trauma stemming from a bike crash. The Licensing and Appeals Tribunal Decision, Ortaugurlu v. Pembridge Insurance was a critical win for a seriously injured cyclists.

Accident Benefits are no fault medical and income supports that kick in immediately following a bicycle crash if a motor vehicle is involved. For whiplash and road rash you are entitled to up to $3,500 in medical expenses. For more serious injuries like fractures and concussions, up to $65,000.

However, you may be entitled to up to $1,000,000.00 in benefits if you have suffered injuries that are deemed catastrophic. There are strict tests that must be met for a bike crash injury to be deemed catastrophic and as you can imagine, insurance companies fight tooth and nail to avoid paying. 

In April of 2021, our client was riding his e-bike between food delivery jobs when a motorist turned right across his path. He was struck and taken to Mount Sinai for emergency surgery on his knee. Prior to this, he had come to Canada in 2018 and worked a number of jobs, bolstering his English skills and sending money to his family overseas. His goal, to create a new life in Canada, work hard to support himself and his family.

Unfortunately, the collision altered that course and his dreams. Serious infections, months of immobility and the realization that he would never be able to work in the same capacity as he was equipped for in his new home country weighed heavily on him. He didn’t tell his parents, fearing they would worry from afar and feeling embarrassment that his goal of supporting them would not be met.

His mental health deteriorated. He didn’t have OHIP. His Accident Benefits of $65,000 were quickly exhausted in treatments aimed at his major physical injuries. We then applied to the Accident Benefits insurer for more funding via the Catastrophic Impairment Category, but the application was denied.

On the one hand, the insurance company’s medical assessors agreed that because of the deterioration in this young man’s mental health he was incapable of working. Those doctors insisted only with the right care could he recover. On the other hand, another set of medical assessors hired by the same insurance company denied his need for additional treatment.

They diminished the impact of his mental health and chronic knee pain on his ability to work, socialize and live a normal life.

Our office took up this fight over our client’s entitlement to Catastrophic Impairment Benefits at the Licensing and Appeal Tribunal and a hearing was held over five days in November of 2024.

To succeed, we would have to demonstrate that our client suffered a minimum of 3 marked impairments or 1 extreme impairment out of 4 spheres of functioning; Activities of Daily Living, Social Functioning, Concentration Persistence and Pace, and Adaptation (in a work-like setting). Our medical assessors found him to have 4/4 Marked Impairments. The insurance company’s medical assessors only acknowledged 1/4 spheres of function as been Markedly Impaired.

The decision on who was right lay in the hands of the Adjudicator hearing evidence from both sides. Ultimately, our team and our client were successful!  Our client’s injuries were deemed Catastrophic and he was entitled to up to one million dollars in benefits. 

Historically Criterion 8 Catastrophic Impairment related hearings are rarely fought by injured people. The Marked Impairment threshold is very subjective and onerous to meet.

In this case, we believed firmly in our client, his story, and his right to more supports. He was a new Canadian, a working cyclist who came here for a better life. When that life was taken from him in an unalterable way, the deterioration of his mental health was profound. We knew he needed the additional Catastrophic Impairment Supports and we were committed to the fight.

Through a grueling 5-day hearing we were successful in part because:

• We had lay witness testimony from our client’s roommate who knew him before and after the crash and could speak to the decline in his mental health decline and his post-collision reclusive nature.

• We cross examined the insurer occupational therapist on his failure to properly assess social functioning. On cross-examination the OT admitted to not having our client interact with any Rexall staff and having only used the self check-out on a community outing to test his social interactions.

• We highlighted the cursory nature of the insurance company’s psychiatrist in making his determinations, there was no explanation as to why our client could have a Marked Impairment in Adaptation, which centers largely on ability to adapt at work, but then not in the sphere of Concentration, Persistence and Pace, which also is work focused.

We are so delighted to have helped our client secure the supports he needs and deserves. These kind of decisions are life changing and we couldn’t be happier to have assisted this cyclist in need.

Stay tuned our next blog on Catastrophic Determinations beyond the severe mental/behavioural disorder of Criterion 8, including:

• Paraplegia or tetraplegia

• Traumatic brain injury

• Blindness or a loss of vision of both eyes

• Amputation or severe impairment of the ability to move or use one arm or to walk independently

• Physical impairment or a combination of physical impairment that results in 55 percent whole person impairment

STAY INFORMED

****We use the word Accident for SEO purposes only, we know that barring a medical emergency all road collisions are preventable. Not accidents.

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