Bradon’s story is one of an alarming number of catastrophic diving accidents which have occurred in Ontario this past summer. This summer alone, St. Michael’s Hospital has treated seven young people in their 20s and 30s, with spinal cord injuries caused by diving. These injuries have left formerly, healthy people quadriplegics and changed their lives drastically. While this may not seem alarming at first glance, it becomes clear how serious it is when you consider that in the past nine years, the hospital has averaged one catastrophic diving accident per year.

At Neinstein & Associates we handle a large volume of cases involving clients who have suffered from catastrophic injuries. As a result, we are familiar with its meaning and its importance in properly handling a claim.

It is important to know that the majority of diving injuries are preventable. Parents should take the time to educate their children of the risks involved in diving and swimming. Water safety is the key. The majority of the victims of diving accidents are young people and too often alcohol is involved. What this means is that a blatant disregard for water safety is involved. Many of these catastrophic accidents are easily preventable through proper education and supervision.

While it is nice to enjoy the warm summer months, we must keep in mind that there are risks involved and take the necessary precautions to prevent against them. The tragic events of this past summer should serve as a warning that there are risks that come with seasonal pleasure. With the winter around the corner, we encourage everyone to be safe in their activities, whether it be skiing or snowmobiling.

For example, actress Natasha Richardson, after she fell during a beginner ski lesson at a Canadian resort, was laughing and joking. Not long after she complained of pain in her head and died within 48 hours.

On the other hand N.F.L. football players, who played in the decades of the 80s and 90s, are now suing the league for acting with callous indifference for failing to warn players about the consequences of head injuries. Many players claim that they sustained multiple concussions that were improperly diagnosed by team physicians. They suffered short-term memory loss, headaches, and vision problems. They continued to play ball, retired, and some of them are now suffering from serious depression or dementia.

Medical research now shows that whether a person is hit multiple times in football, hockey, or as result of two or more motor vehicle accidents, the long-term consequences are serious and severe.

It seems that American sports franchises, and Canadian insurance companies have something in common. In the interest of profit, they diminish and do not respect minor head injuries to be real, tangible, or serious.

But it is now known that you cannot be hit in the head on multiple occasions without causing a problem. When a person is hit multiple times very subtle injuries pile up and manifest themselves in the future in the form of depression, dementia, and ultimately change the life of the victim and their family forever.

In 1994 the National Football League published a steady string of studies claiming that concussions had no long term effect on professional ballplayers. In 2007 the league began distributing a pamphlet for the players quoting the research commissioned by the league:

”current research with professional athletes has not shown that having more than one or two concussions leads to permanent problems……”

In 2009 a Congressional committee in Washington compared the league’s handling of concussions to the willful, egregious, and reckless conduct of the tobacco industry.

Although it will not always be the case, there are times when a seemingly minor personal injury, can turn out to be very serious.

The changes prevent accident benefit claims by passengers who are injured in a public transit vehicle accident unless that vehicle has collided with another vehicle or object. In addition, the owner and/or driver of a public transit vehicle is no longer considered a “protected defendant” under the Act. As a result, injured passengers who commence a tort claim are not required to establish a threshold and the deductible does not apply to their claim.   

In other words, when passengers are injured on public transit due to a collision, it is treated as a typical motor vehicle accident. Now, because of the legislation, if a passenger is injured while on a bus (by falling during an abrupt stop, for example) it is treated like an Occupiers Liability action.

These changes are clearly made to prevent public transit passengers from making applications for accident benefits in situations where there is sudden breaking but no collision.

The new scheme will likely save transit authorities and insurers a significant amount of money each year by preventing insurance companies from being forced to pay out accident benefits in circumstances that do not involve a collision.

Hence: “No Crash, No Cash”

By: Erik Joffe

Neinstein & Associates, independently of recent published articles, has experienced in many of our own files that this is the case. Perhaps some of our personal injury clients had some pre-existing issues prior to their motor vehicle accident. Perhaps some of our personal injury clients acquired, due to head injury, or the stress of pain and suffering, inability to work, loss of interpersonal relationships, psychological and mental issues as a result of their accident, slip and fall, or other traumatic personal injury.

In addition, we often handle wrongful dismissal cases. Sometimes these cases arise, after a client suffers a personal injury, is then unable to perform their duties in the workplace, and is terminated. Sometimes these accident victims are not terminated but need to file a disability claim, because they cannot cope in the workplace and are required to take time off work.

It is unfortunate that from time to time, what might have been a fairly routine case to recover damages for an innocent victim turns into an action for damages for the personal injury, an action against the employer for wrongful dismissal, and a third action against an insurance company for refusing to pay a disability claim. Now the client is involved in complex litigation with multiple issues and numerous parties, which, in turn exacerbates the client’s anxiety and mental anguish.

A recent case study was reported on both City TV and CNN outlining the case of Susan, a nursing supervisor with a long history in managing human resources, who was slow to seek help when cancer treatment and a suicide in her family combined to send her spiralling into depression.

Susan, of all people, might reasonably have been expected to recognize and act on the signs of mental illness.

She did not.

She regressed from a highly competent professional, at the top of her game, to a life turned upside down. She became increasingly disorganized, unable to concentrate, short tempered, couldn’t sleep, lost her appetite, and started believing that she was incompetent. It took her the better part of a year to come to terms with her mental illness and accept treatment. Even after her time off work on a disability claim, upon her return to work, she felt isolated and ignored by colleagues, a reception that increased feelings of shame and embarrassment.

Research shows, and CAMH has statistics proving that 2 out of 5 five Canadian families are affected by mental illness. People do not want to talk about it, employers do not want to deal with it, and insurance companies do not want to pay for it. Insurance companies fight long and hard to avoid paying compensation to people making disability claims who suffer from physical illnesses and disabilities.

Insurance companies seem to fight longer and harder when the victim suffers from a mental disorder.

Dates:

June 21^st 2011 – Bridgepoint Classic Golf Tournament in support of Bridgepoint Health

August 3^rd 2011 – PRHC Foundation Charity Golf Tournament in support of Peterborough Regional Health Centre

September 15^th 2011 – Out of the Rough in support of St. Michael’s Hospital
 
September 12^th 2011 – Rehab Golf Classic in support of St. John’s Rehab Hospital

For the past six years, the Ontario Brain Injury Association (OBIA) and the Brain Injury Society of Toronto (BIST) have co-hosted a special gathering to celebrate the members who work together for a very important and relevant cause: to support those in the community who are living with the effects of acquired brain injury (ABI), along with their families, friends and caregivers, through advocacy, education, and services.

June is Brain Injury Awareness Month

On June 16, once again law firms, rehabilitation hospitals, caregivers, family, friends, and people affected with brain injury will aim to raise awareness of brain injury in Toronto, Ontario by participating in the 7^th annual ‘Mix and Mingle for Brain Injury’.  Already this year, OBIA and BIST have secured over 25 sponsors and $50,000.00 in sponsorship revenue alone, and tickets are already almost 95 % sold.

Revenue generated from this event will support programs and services offered by OBIA and BIST including:

• Special seminars and workshops that support brain injury survivors and their families
• Community meetings and social events
• Caregiver support and mentorship programs

This year’s Mix and Mingle event will be held at the Rosewater Room, 19 Toronto Street in downtown Toronto from 5:00 – 8:00 pm on June 16, 2011.  To purchase tickets, please call 800-263-5404 or email twilcox@obia.on.ca!  

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 The Brain Injury Society of Toronto (BIST) is a volunteer run, grassroots organization.  BIST supports acquired brain injury (ABI) survivors and their family members living in the city of Toronto.  To find out more visit: www.bist.ca

 The Ontario Brain Injury Association (OBIA) provides support services, professional development programs and community involvement.  To find out more visit www.obia.ca

In Small Claims Court, the limit was increased from $10,000 to $25,000.  For Simplified Procedure, the limit was increased from $50,000 to $100,000. The monetary amount is evaluated by the fair market value of any real or personal property as at the date the action was commenced.

Simplified Procedure is very similar to the Ordinary Procedure but it is designed to have faster timelines.  There is also a shortened Examination for Discovery.  It is limited to a total of two hours for all parties compared with the seven hours allotted for Examination for Discovery under the Ordinary Procedure.

Another advantage with Simplified Procedure is that the matter can proceed by a Summary Trial where evidence is introduced by written affidavit. This makes the trials run faster and more cost-effective.

Although some Plaintiffs may not want to limit their claims at the outset, there is an additional incentive to do so.  If they begin a proceeding in Ordinary Procedure which should have been commenced in the Simplified Procedure, there may be cost consequences at the end of the litigation against the Plaintiff. 

This change in the monetary limits means that modest claims can be resolved much faster and more effectively.

Originally from Jamaica, Mr. Carr worked in manual labour for the majority of his life. For eleven years he worked as a port worker loading and unloading cargo, before immigrating to Canada in 2002. Once in Canada, he resumed working in physically demanding positions. He worked numerous factory jobs where he was responsible for lifting between 100 and 200 pounds on a daily basis.

On January 30, 2008, Mr. Carr’s life took a turn for the worse, and he was involved in a motor vehicle accident, where he suffered serious and permanent personal injuries.

Mr. Carr attended a plethora of doctors, who all confirmed his back pain and inability to work in any capacity. However, the insurer relied on its own independent medical reports, which failed to even mention his back pain. Although his job required standing for long periods, the insurer doctors tested his ability for alternating repeatedly between standing and sitting. The insurer concluded Mr. Carr is fit to return to work based on the findings of the independent medical reports, and withheld his income replacement benefits.

Upon further examination, it was clear that the insurer’s independent medical examiners were not provided any information regarding Mr. Carr’s work duties as a manual labourer. Without this information, the insurer doctors could not determine his potential for returning to work accurately.  Killoran found no basis for accepting the insurer reports.

 Mr. Carr was entitled to receive $36,000 in income replacement benefits.

As you may be aware when a benefit is denied by an Insurance Company an injured person’s only recourse is to file for Mediation.  Arbitrator Blackman recently discussed the delay at FSCO and noted the following:

 … there were 14,000 applications for mediations in the 12-month period ending 2007. Last year, there were 26,000 applications in the same period.
“That is 500 applications for mediation a week,” Blackman said. “That’s an 89% increase, and there has been no increase in staff.”

One of the most significant changes to the Accident Benefits Schedule is the extreme reduction of benefits. Medical and Rehabilitation Benefits have been slashed in half (from $100,000.00 to $50,000.00) and the maximum for Attendant Care Benefits has also been cut in half (from $72,000.00 to $36,000.00). In addition Housekeeping and Caregiver benefits have been eliminated (unless a person is deemed Catastrophic).

One of the only positive changes is found in the definition for being deemed Catastrophic. You will now be considered to be Catastrophic if you are a single limb amputee whereas pre-September 1, 2010 you would only qualify if you lost more than one limb.

It is important to be aware of when your Insurance policy renews as this has a direct effect on what benefits you may receive and when your entitlements change. It is also important to discuss optional Accident Benefits coverage with your Insurance Company or broker.

Protect yourself as the new legislation is clearly protecting the Insurance Companies.