The phrase “serious and permanent injury” has long been a part of legal discourse. In the last year, we have heard the term used in the context of COVID-19 vaccines, when the Canadian government announced that, in response to demands dating back to the 1980s, a vaccine injury support program has been established. Until June 2021, Quebec was the only Canadian jurisdiction with a provincial vaccine injury compensation scheme. It was then that Canada’s federal program (shortened to “VISP”) began accepting applications for support. Since then, of the approximately 400 applications to the program, data from the program’s administrators indicate that no more than five have met the criteria for an undisclosed amount of compensation. Delays inherent in verifying medical information, reviewing evidence, and making decisions are offered in explanation of the small number of approvals.
Due to the unquestionable privacy interest of individuals and their families in the protection of personal health information, a clear picture of why particular claims have been allowed or disallowed under the VISP is unlikely to emerge in the near future. The program’s website offers this definition of what constitutes a “serious and permanent injury”:
A serious and permanent injury is defined as a severe, life-threatening or life-altering injury that may require in-person hospitalization, or a prolongation of existing hospitalization, and results in persistent or significant disability or incapacity, or where the outcome is a congenital malformation or death.
Given that the VISP provides for evaluation of claims by a panel of three medical professionals, one can gather that this definition is open to different interpretations. What any individual person considers “severe” can vary, and because the word “may” is used, this explanation is far from clear, from the legal perspective. A look at how Canadian courts and legislators have defined “serious and permanent injury” in other contexts may be instructive on how claims will be evaluated.
CANADIAN COURTS ON SERIOUS AND PERMANENT INJURY
Because of the prevalence of motor vehicle injury accident lawsuits, courts have been called upon to consider what constitutes a “serious and permanent injury” in these contexts countless times. A frequently cited case from the Ontario Court of Appeal, Meyer v. Bright, provides an analysis of how the phrase is interpreted in the legal context. Interestingly, “seriousness” does not equate with “catastrophic,” and the way in which an individual person lives and works is a significant part of the determination:
There is no justification in the statute for qualifying “serious” as significant or as approaching the catastrophic. While obviously an impairment that was significantly serious or almost catastrophically serious would be a serious impairment, there is no necessity for the impairment to be that serious in order to qualify as being a serious one. In order to qualify as serious an impairment must be serious — no more no less.
Generally speaking, a serious impairment is one that causes substantial interference with the ability of the injured person to perform his or her usual daily activities or to continue his or her regular employment.
What is particularly notable about the analysis the Ontario Court of Appeal undertook in Meyer v. Bright is the subjective nature of the inquiry. The court recognized the inherent differences between people in their perception of pain and suffering, and the differential impacts that various impairments have on their lives:
Impairment of an important bodily function that is serious to one person may not necessarily be a serious one for someone else. The task of the court in each case will be to decide whether the impairment is serious to the particular injured person who is before the court. In performing that task the question will always be the detrimental effect which the impairment has upon the life of the particular injured person. It is impossible for this court to lay down general guidelines of the concept of seriousness in all cases. Each case must be decided upon its own facts.
Deciding whether or not a physical, mental, or psychological injury is “serious and permanent” is a fact-based determination. It depends on the extent to which the injured person’s future, including their ability to work and to enjoy life, will be impacted, with no expectation that things will ever be the same.
POLICY MAKERS DEFINE SERIOUS AND PERMANENT INJURY
Canada has given oversight of whether individuals seeking compensation through the VISP to an independent consulting firm, ostensibly taking no role in decision making with respect to individual claims for support for vaccine injuries. Nonetheless, a review of how legislators have defined “serious and permanent” injuries may be helpful in predicting how the new program will be administered.
In considering whether an individual is entitled to disability benefits, Canada requires a “severe permanent disability” to be demonstrated. The definition provided is “a functional limitation caused by a physical or mental impairment that (1) prevents you from performing the daily activities necessary to participate in substantially gainful employment, and (2) will remain with you for life.” This model for determining eligibility to claim disability benefits is one that administrators of the VISP may seek to apply to claims.
The Quebec Vaccine Injury Compensation program does offer visitors to its website with definitions of both “bodily injury” and “victim,” which, interestingly, includes not only vaccinated persons, but also those who may have been indirectly harmed, though not claiming injury from a vaccination they received:
The “victim” is a person who suffers bodily injury after being vaccinated against disease or infection listed in the regulation.
A victim can also be a person who contracts the disease from a vaccinated person, the fetus of either of such persons or, if a death occurs, the person who is entitled to a death benefit from the date of death.
“Bodily injury” consists of any serious permanent physical or mental injury, or death.
VACCINES AND COMPENSATION
For those who may believe that they or someone close to them has suffered a serious and permanent injury due to any vaccine approved in Canada to prevent infectious disease, including a COVID-19 vaccine, key details about Canada’s VISP include:
- There is a three-year limitation period on filing a claim for support under the VISP, which commences on the date of vaccination, the date of death, or the date when an injury attributable to the vaccination becomes apparent.
- A claim cannot be filed without an initial report of the injury to a healthcare provider.
- It is the location where a vaccine was administered that determines eligibility for a claim to be made under the VISP. Canadians who obtained vaccines abroad (e.g. vaccine “tourists”), even if they received a Health-Canada approved vaccine, are ineligible, as are those who were vaccinated in Quebec (for those in the latter category, claims must be made to the Quebec Vaccine Injury Compensation Program).
- Claimants to Canada’s VISP do not waive their rights to seek redress from the courts for their injuries. This means that individuals who believe they have suffered serious and permanent injuries from a vaccine can both make a claim under the VISP and also commence a lawsuit against those who may be considered liable for the injury. However, the program’s website informs potential claimants that “individuals may be required to repay some or all financial support received through VISP if a subsequent court award or settlement compensates for the same injury.”
SERIOUS PERSONAL INJURY AND MEDICAL MALPRACTICE LAWYERS IN CALGARY
Do you suspect that you or someone close to you have suffered a serious and permanent injury due to a vaccine, or any other medical procedure? Armed with years of professional experience in serving clients with the most significant injuries, Cuming & Gillespie LLP is ready to advise you about the best path forward. Call us today at 403-571-0555 or use our contact form to schedule a consultation.