News & Events

What is Chronic Pain?

Have you ever woken up in the morning to find that you still have neck or back pain, even weeks after first getting hurt? Your doctor may advise you to seek help when pain is chronic, but just what makes your type of pain chronic to begin with? According to the National Institutes of Health, chronic pain refers to any pain that lasts longer than 12 weeks. This type of pain can be brought on by a medical condition, or after you’ve been injured at work or in a car accident.

Some symptoms that can occur with chronic pain include:
• Fatigue
• Lack of Sleep
• Depression
• Anxiety
• Loss of Appetite

It is important to track the progress of your pain, and note when symptoms occur, so that you can work with your medical professional to have it diagnosed and treated as soon as possible. The longer you wait to deal with chronic pain, the more burdensome it can be on your body. If the pain comes as the result of an accident, be sure to also seek legal counsel to explore your options.

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Slip and Fall Accidents

When you injure yourself in a slip and fall accident, you want to be able to get the help you need. With medical bills and job responsibilities looming over your head, it is essential that you get back on your feet as soon as you can. Falls are the leading cause of injury in Canada, and 50 percent of adolescents, 63 percent of seniors, and 35 percent of adults suffer an injury when a fall occurs.

Falls happen at home, in the workplace, and around town. They can result in broken bones, and lead to you or a loved one losing time at work and income that you depend on. If you are involved in or hurt in a fall, it is important to gather evidence at the scene. Take photos of the area where the fall took place and identify any witnesses that may have seen or heard the accident. Be sure to contact a slip and fall lawyer as well, to learn about your legal options moving forward.

slip and fall info graphic

 

What is Depression?

Depression is a condition that affects many people. This illness can cause many side effects, such as despondency and the lack of motivation to get through everyday life. Because of this, depression can affect both your personal life and your work life. Without a proper diagnosis and treatment plan, depression can have serious consequences in your life. Because depression can have such a major impact on a person’s life, you might want to know more about it. A number of things, such as genetics, abuse, and physical trauma, can cause depression. Something as “simple” as a car accident can lead to an injury, which could then result in debilitating depression, with long-term effects. The following infographic gives you more information on what depression is and how it can affect you. If you or someone you know has depression, it is important to seek help from a medical expert.     pag.13TXT

Slips, Trips and Falls

Fall prevention is an important topic that should be a priority to all businesses and companies. Unfortunately, only a portion of fall prevention is addressed by some companies. Many people tend to think fall prevention only has to do with safety on ladders or other high places, but these people don’t know that most falls happen at ground level. Slips, trips and falls cause thousands of injuries every year. These falls are the result of the physical condition of the area and can be caused by inclement weather, poor lighting, obstructions, or slippery surfaces. A company can often be held liable for any injuries that result from these factors. Due to the fact that a company can be held financially responsible for any injuries that occur on the premises, it’s important to make sure you’re covered. If you own your own business or company, be sure to make your property as safe as possible. Remove or reduce all fall hazards, and complete safety inspections on a regular basis. Taking these preventative measures can help keep your employees and customers safe and injury-free. Infographic_Wireframe_Epson_Legal_cc

What to do if You’ve Been in a Serious Motor Vehicle Accident

A car accident is a serious event that can cost the driver a lot of time and money. Car accidents usually result in damage to property and can even result in injury or death. Although car insurance can cover a portion of these costs, many times, you are left with additional costs and expenses that can be difficult to afford. This can include any medical bills down the road, loss of income due to medical treatment and replacing your car with a new one. Being prepared for an accident and the subsequent aftermath can help you decrease your chances of paying out of pocket expenses. Because car accidents are sudden and unexpected, it can be difficult to know what to do when you’ve been in a serious accident. Many times, your body is in shock. This can prevent you from responding to the accident properly and can even mask injuries inflicted during the accident. If possible, familiarize yourself with the necessary steps to take after an accident. If necessary, contact your lawyer and get advice on the next steps to take.

Read some tips on what to do in a car accident

 

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The Effect of Social Media on Insurance Disability Claims

It is no longer a secret that insurance companies are searching for that “smoking gun” on social networking websites to refute injury and disability claims. Indeed, what better refutation is there than a photograph showing the insured engaging in an activity inconsistent with the injury or disability which they allege? However, what few know is that even if the insured’s social networking profile is supposedly private and accessible only to friends or persons in their network, an order for disclosure of the full social networking profile to the insurance company’s lawyers may sometimes be made. Unfortunately, case-law provides no clear guidance on when such an order will be made. In this regard, some cases have indicated that the mere discovery of a social networking profile may be sufficient evidence that relevant information exists for purposes of compelling discovery, while other cases take a much more restrictive approach and only order production where the public areas of the social networking profile provide “hints” that a more extensive search will reveal further evidence. The test in all matters appear to be relevance. Put differently, “there must be evidence that posted photographs are relevant in order to justify an order for production”. (Knox v. Applebaum Holdings Limited, 2013, ONSC 7895, 2013 ONSC 7895 (CanLII) at para 18). Some cases have suggested that social networking profiles are presumptively relevant to claims based on personal injury or disability. Thus, in Leduc v. Roman, 2009 CanLII 6838 (ON SC) at para 32 it was held by the Ontario Superior Court of Justice that: “A party who maintains a private, or limited access, Facebook profile stands in no different position than one who sets up a publicly-available profile. Both are obliged to identify and produce any postings that relate to any matter in issue in an action. Master Dash characterized the defendant’s request for content from Mr. Leduc’s private profile as “a fishing expedition”, and he was not prepared to grant production merely by proving the existence of the plaintiff’s Facebook page. With respect, I do not regard the defendant’s request as a fishing expedition. Mr. Leduc exercised control over a social networking and information site to which he allowed designated “friends” access. It is reasonable to infer that his social networking site likely contains some content relevant to the issue of how Mr. Leduc has been able to lead his life since the accident.” This approach was also followed in Murphy v. Perger, [2007] OJ No 5511 (SCJ): “It seems reasonable to conclude that there are likely to be relevant photographs on the site for two reasons. First, www.facebook.com is a social networking site where I understand a very large number of photographs are deposited by its audience. Second, given that the public site includes photographs, it seems reasonable to conclude the private site would as well.” In other cases, the courts have taken a “judicial peak” at the information on the social networking site to determine if they are relevant, without allowing the defense. Where the court’s own review revealed no relevant photographs, the court declined production on privacy grounds: • Stewart v. Kempster, 2012 ONSC 7236 (CanLII): The Ontario Superior Court of Justice refused production of the plaintiff’s Facebook account where the plaintiff claimed that she was unable to participate in recreational and social activities to extent that she had before accident. The court reviewed the images (without the defense being able to see them) and held that the photographs did not show the plaintiff engaging in any athletic activity beyond sightseeing. The court further held that a request for production of all content of a private portion of a Facebook account is shockingly intrusive, especially where the claim for production was based on nothing more than speculation. • Garacci v. Ross, 2013 ONSC 5627 (CanLII): The Ontario Superior Court of Justice refused production of the plaintiff’s Facebook account where the plaintiff alleged that she suffered injuries to her left leg and ankle including a fracture of her left ankle. The court conducted a random review of the pictures and determined they were not relevant as they did not reveal “any significant physical activity” by the plaintiff. The relevancy test appears to have also been adopted in cases before the Financial Services Commission of Ontario (FSCO) and no automatic right of access has been found to exist. In this regard, in Rakosi v. State Farm Mutual Automobile Insurance Co. (2012), 2012 CarswellOnt 7066 (F.S.C.O. App.) it was found that Facebook pictures were not prima facie producible, but the test was still one of relevance. In that case, production was ordered where the claimant had posted pictures of himself zip lining on a public Hi5 profile and these pictures were found to be relevant to the issues in dispute. It was found that, “I see no error in extending the inference from unrestricted access documents on one site to restricted access documents on a similar site”. The FSCO has also refused production on at least one (1) occasion. In this regard, in Prete v State Farm Mutual Automobile Co, 2011 CarswellOnt 1019 (WL Can) the FSCO found that the public profile of the claimant contained no relevant photographs and therefore a proper evidentiary basis did not exist to order disclosure of the private profile. It therefore appears that relevance is the guiding criteria in determining whether production will be ordered of social networking profiles in personal injury cases. In determining relevance, regard will be had to factors such as (a) the nature of the claim and alleged injury or disability, (b) the existence of evidence on the public profile which “hints” at relevant information existing on the private profile, and (c) the court or arbitrator’s own review of the private information to determine relevance.

Long-Term Disability Claims – General Concepts (Part One)

Introduction In this first part of our two part installment, we explore the various factors that need to be considered when making a long-term disability claim. First, we start by looking at some disability insurance concepts, particularly the interpretation of “total disability” followed by the distinction between coverage based on “own occupation” and “any occupation”. The second part involves a discussion on the subjectivity of assessing claims and the ‘credibility-war’ often waged by insurers in order to undermine the plaintiff. The objective is to provide readers with an understanding of legal precedents regarding chronic fatigue or fibromyalgia, insurance company tactics, and the reason why an expert long-term disability lawyer is vital to achieving a successful claim. “Total Disability” Interpretation In order to qualify for long-term disability benefits, insurance policies usually require that the claimant have “total disability” that prevents them from engaging in any gainful occupation specific to education, training or experience (known at the “own” occupation test). The test is usually applied to the first two years of disability payments whereby the policy usually changes to payments that are only made to the claimant if they are “totally disabled” from performing any occupation within their training or education or background (known as the “any” occupation test). The Supreme Court of Canada ruling in Sucharov v Paul Revere [1983] establishes the principles which apply to the interpretation of “total disability”. In the case, the insured was the owner-manager of an insurance brokerage company who suffered from hypertension and stress. As owner-manager, he wore many hats and was involved in all aspects of the business including but not limited to operating a brokerage, bookkeeping, sales and customer services. At the onset of his illness, he could perform all these tasks individually, but when business required him to do them all he would be overcome with anxiety that prevented him from functioning. Justice Laskan, in the majority decision, determined that in order to define “total disability” one must look at the job as a whole. He went on to add that the insured is disabled so long as he could not perform “substantially all” of the normal duties of their respected occupation. In subsequent cases such as Hiscock v Metropolitan Life [1989], Sucharov has been taken to mean that the policy definition of disability is to be construed in a liberal fashion, and that the term “total disability” means substantial inability regardless of the particular language of the policy. Furthermore, while the distinction between “own occupation” and “any occupation” coverage is important, the principles of interpretation established in Sucharov apply to both categories of coverage. Disability will always mean the substantial inability to perform the proposed job taken as a whole, and not the complete inability to perform each and every one of the discrete tasks that make up the job. Furthermore, the Courts have often stated that the insured should be considered disabled unless they can perform their regular duties on a consistent basis. The case of Dale v Commercial Union [1980] elaborated on this point by stating that the insured may still be considered disabled, even if they are able to work in a sheltered/non-competitive environment. Onus The use of medical evidence and credibility of claimant is vital to establishing that on a balance of probabilities that he or she qualifies for the disability benefits. With respect to credibility, it is something that comes up extensively in litigation, a topic we will explore in the next segment. However, for the purposes of fleshing out general concepts, claimants should be aware that the best way to prove that they are unable to perform their duties is to attempt to return to work. The often quoted paragraph from Foden v Co-Operators (1979) states that: “No one should be discourages from attempting to take up their former employment or any work out of fear that the attempt might be held against them. Far from necessarily proving that an insured has capability of performing his task, it may … prove the reverse. There is no better evidence of incapacity to perform a task than the failure of honest and sustained attempt to do it” Even if the claimant does offer some consistency in the form of part-time or modified work, they may still be qualified for disability benefits. However, if the claimant is unable to return to work, strong medical evidence is required. Such evidence is important regardless of the “own” or “any” occupation distinction. The court will normally hear the testimony of the insured’s treating physicians, as well as that of specialists retained by both sides, a diagnosis is not prerequisite to a finding of disability. So long as evidence shows an inability to work, it is not necessary for the insured or their doctor to precisely identify the disabling condition. Own Occupation Coverage Own occupation coverage means that the insured is entitled to benefits so long as he is unable to resume his regular occupation. In other words, the occupation the insured was engaged in at the time he became disabled. Reasons for disability can include pain, fatigue or medication among others. Courts recognize that some jobs require much greater precision and consistency than others, which is why the meaning of what it means to be disabled is subject to the insured’s respected field of work. As mentioned in the case of Sucharov business owners are often forced to continue to work through the pain in order to keep their business open, but this is not determinative of the existence of a disability. For employees of a company, Foden tells us they can claim benefits as long as they can establish that their duties are restricted to light work or that their responsibilities have been displaced to co-workers. If the claimant is a specialist, there might be some conflict when it comes to defining what that specialty is and an alternative occupation. For example, in Attridge v Fidelity & Casualty Co. (1972) the insured’s occupation was that of an ear, nose and throat specialist, and held that he was disabled from this occupation. The court found that while he was unable to perform such a task, he was not barred from general practitioner work, and as such could continue his practice. Defining the specialty is something that needs to be given considerable thought, as it can be detrimental to the claim, or amount of benefits received. Any Occupation Coverage As mentioned before a common employer’s group insurance policy provides the disabled with own occupation benefits for a period of one or two years, which transitions to a period of long-term disability coverage on an any occupation basis. What this means is that the claimant will continue to receive benefits during the “any occupation” period, so long as he is prevented in engaging in work for which he is “reasonably suited by training, education or experience” or work which is suited to his “skill and ability” or something similar. This lowering of threshold from one coverage to another is an important transition in a disability claim. Most insurers will put a claim under scrutiny once it reaches such a point, and request updates from claimant’s physicians or other specialist reports. Insurers are also likely to use their own physicians in order to confirm the insured’s status. As for the court, it will be interested in the insured’s mental and physical condition, age, education, work history, tolerance to stress, energy level, consistency and endurance. All of these matters are taken into consideration in assessing the capacity of the insured to succeed at the proposed job. However, policies do not take into consideration high unemployment, or the insured’s capacity to find work. Reaching a Resolution As with most civil cases, there is an emphasis on reaching a settlement prior trail. To do this there are essentially two ways in long-term disability issues can be resolved. First, the insurance company can decide to pay the claimant everything owed to date, and agree to continue to provide benefits so long as they meet the relevant disability test. This means that the insured remains dependent on the insurance company, and their constant evaluation of health and employment status. The alternative is to seek a lump sum that can take into consideration pension entitlement, medical, rehabilitative or any other cost associated with an extended disability. However, as we will explore in the next segment, reaching a favorable resolution is dependent on a wide array of defensive tactics insurers use to limit or dismiss disability claim.

Traumatic Brain Injuries – Assessing the Cost of Future Care

The last six years saw Ontario courts award record-breaking damages to plaintiffs for their traumatic brain injuries. For example, in Marcoccia v Gill [2008]¸ the plaintiff suffered a severe traumatic brain injury to the frontal lobe in a motor vehicle accident. Marcoccia, who was 20 years old at the time of the accident, was left with severe behavioural disabilities and was unable to control emotions or live independently. He required 24/7 care and was rendered incapable of working for the remainder of his natural life. The courts assessed his damages at $16.9 million. The 2008 cases of Gordon v Greig and Morrison v Greig saw two plaintiffs arising from the same accident involving a drunk driver. Gordon suffered a catastrophic brain injury was left without bladder and bowel control, sense of smell, taste and hunger and loss of temperature control and sexual function. Morrison’s spinal injury left him with paraplegia. The court awarded Gordon $11.5 million in damages and Morrison was awarded $12.3 million. More recent cases like Sandhu v Wellington Place Apartments [2008] and MacNeil v Bryan [2009] saw awards up to $18.5 million. Upon first glance of the multi-million dollar awards, it is hard to resist an assumption that we are entering a golden age of plaintiff-sided decision making and over inflated awards. However, none of these cases show a new legal principle, or a change from past reasoning. In this week’s blog entry, we examine the legal principles behind future cost quantifications and what factors you need to consider with your traumatic brain injury lawyer when making a claim. The Principle of Restitutio in Integrum “Full Compensation” The legal principles for the assessment for future care claims can be traced back to a trilogy of Supreme Court of Canada cases. In Andrews v Grand & Toy Alberta Ltd [1978] Dickson J. stated that “full compensation” is the main objective for courts deciding on cases of severe injury. In the context of assessing future care claims, the court in Andrews insisted that the plaintiff should be awarded the most advantageous care possible and could not be forced to mitigate his or her loss by accepting a lesser standard. McLachlin J. in the two subsequent cases of Watkins v Olafson [1989] and Ratych v Bloomer [1990] reaffirmed Dickson J.’s line of reasoning by stating that the plaintiff must be awarded “full and adequate compensation” and “given damages for the full measure of his loss, as best as can be calculated”. In addition, the courts have historically set a low standard of proof when awarding future care claims. In order for the court to conclude that there is a real and substantial risk of a future loss, the plaintiff need only establish that he or she is at risk of a future pecuniary loss. Justice does not require severely injured plaintiffs to just “get by” or “make do” with the cheapest possible care. The Court rejects this approach in support of awards meant to provide a high standard of care. Professor Cooper-Stephenson has described this as “a very high standard of post-accident care” which is meant to anticipate almost any expense that will facilitate physical and mental recovery. As such, the standard of future care for an injured Plaintiff is higher than that normally provided under statutory compensation and rehabilitation schemes. It is important to note that the Court was not prepared to have the level of past care dictate the level of future care. The sole consideration is to attain a level of care that would be most beneficial to promote the physical and mental well-being of the plaintiff. This was evident in Morrison v Greig where Ryan Morrison underwent stem cell surgery in Portugal followed by an intensive rehabilitation program in Michigan to increase his chances of being able to walk again. Glass J approved this alternative form of surgery as a reasonable medical procedure that was not available in Ontario which had a substantial possibility of success and therefore awarded Mr. Morrison the costs associated with the procedure. Factors to Consider when Quantifying Damages for Future Cost of Care 1. Medical Expenses As shown in Morrison v Greig the advancement and availability of new medical procedures is one of the factors that accounts for the rise in court awards. Over the years, both medical professionals and counsel have become more sophisticated in their understanding of serious brain and spinal cord injuries, and as such have developed life care plans to address these impairments. The biggest factor of most life care plans are costs of attendant care that an injured person will need. The availability of volunteer support from friends and family has been rejected as a factor that could diminish the quantum of award. The court had stated in Marcoccia that for the purposes of assessing future claims, the family must be taken out of the picture. As such, it must be assumed that the plaintiff may not continue to live with their parents and be allowed to live in an apartment with attendant care as needed. In other words, damages for future care should be quantified on the basis of what it costs to purchase care in the market place. Brennan v. Singh [1999] encompassed this idea by stressing that injured plaintiffs are entitled to compensation for the value of the services they require, regardless of whether or not services are rendered to them by member of the immediate family. With an emphasis no longer on time, but rather level of care, the value for such services on the market has considerably increased over the years. For example, in MacNeil, the court accepted that the plaintiff required 8 hours a day (ranging anywhere from $24.00/hour to $52.00/hour) of care from a rehabilitation support worker (RSW), who could facilitate her involvement in community and volunteer communities as a part of an ongoing brain injury treatment. This was in addition to the 16 hours a day ($15.00 hour) of basic supervisory care from a personal support worker (PSW). Compounded by an assessed life expectancy RSW fees accounted for almost $4.5 million out of the $15 million cost of future care awarded to MacNeil. 2. Guardianship and Management Fees In addition to cost of medical services, alternative treatments and general inflation, the courts have recognized the cost of guardianship and management fees. Usually, family members of an injured claimant who receives future care cost award in the millions of dollars do not have the expertise on how to properly invest this money for the benefit of the claimant. Therefore, the investment and management of these funds becomes the responsibility of a professional guardian, such as a trust company. This cost is to be calculated after a claimant is awarded a lump-sum at trial. Such sums can be considerable. In Gordon, the fee was more than $520,000 and in MacNeil it reached as high as $830,000. Such fees are intended to cover the fees that the injured person will incur to amend management plans, bring motions to the court for advice and direction, and pass accounts and professionally manage the funds. For example, in Sandhu, a case involving a child falling out of an apartment building window, the court estimated a lifetime of legal fees and management fees to be valued at $400,000. Conclusion With the continued increase in the cost of health care expenses at rates greater than the rate of inflation, we can expect a continuous rise in personal injury awards. To ensure adequate compensation for you and our loves ones it is of the utmost importance that you develop the necessary evidentiary foundation in order to cover future economic losses. At Edson Legal, we will provide the appropriate support through arranging assessments with expert physicians and other health practitioners for each item recommended by a life care planner, along with providing a solid evidentiary foundation to establish the need for management and guardianship fees. With over 30 years of experience, we are here to ensure that you and your loved ones get the best care possible and do not settle for a lesser standard.

Pastore v Aviva Canada Inc. (2012) – Catastrophic Impairment

Pastore v Aviva Canada Inc (2012) is the latest in a trilogy of cases by the Ontario Court of Appeal relating to the important definition of catastrophic impairment. The court ruled that only one marked or extreme functional impairment due to a mental or behavioral disorder is necessary to qualify accident victims for enhanced catastrophic impairment benefits. While personal injury lawyers and those affected both mentally and physically by their injuries applauded the decision, insurers have perceived it as an overall loss in their attempt to raise the ‘catastrophic impairment’ threshold.

Facts

The appellant Ana Pastore (Pastore), was hit by a car while crossing the street in 2002. Her injury was a fractured left ankle that gave rise to complications and surgeries over the span of five years due to not healing properly. In addition to the ankle surgeries, her knee had to be replaced when ankle pain led to a change in her gait. The injury to her ankle had a great impact on Pastore’s life. Prior to the accident, Pastore was described as an active and self-sufficient matriarch, who was the primary caregiver to her husband of 38 years who was undergoing chemo-dialysis at the time. The accident significantly reduced her mobility, and she was no longer able to do housekeeping or participate in recreational activities. She became almost completely dependent on others for her basic personal care needs. In May 2005, Pastore filed an application with her insurer Aviva Canada Inc. (Aviva) to have her injuries designated as causing a “catastrophic impairment”, which allowed her to qualify for significantly enhanced Statutory Benefits Act Schedule – Accidents on or after November 1, 1996, O. Reg. 403/96 (SABS) benefits.

Pastore was assessed for catastrophic impairment at a Designated Assessment Centre (DAC) by a team that included a physiatrist, a psychologist, a psychiatrist, and an occupational therapist. The assessment by the DAC was carried out by reference to the American Medical Association’s Guide to the Evaluation of Permanent Impairment (the Guides) that set out a three-stage test for evaluation of catastrophic impairment based on mental disorder using four categories of functional limitation and five levels of dysfunction. The first stage is a diagnosis of any mental disorders, followed by a second stage where the impact on daily life is identified. The final stage assesses the extent of the limitations by looking at four categories and determining their levels of impairment. Proving most relevant in this case was the court’s focus on limitations regarding activities of daily living; social functioning; concentration, persistence and pace; and deterioration or decompensating in work or work-like settings.

The four categories are then each assessed based on the following levels of impairment: Class 1 – no impairment; Class 2: mild impairment which is to say that “any discerned impairment is compatible with most useful functioning”; Class 3: moderate impairment, which “means that the identified impairments are compatible with some, but not all useful functioning”; Class 4: market impairment, which is “level of impairment that significantly impedes useful functioning”; lastly Class 5: extreme impairment, which “preclude(s) useful functioning”. Relying the required five-level scale, the DAC came to the conclusion that Pastore had a catastrophic impairment consisting of a marked impairment in her daily activities due to mental or behavioral disorder under s.2(1.1)(g) (currently section s.3(2)(f)). With relation to the other three points, she qualified as having only moderate impairment in that she had some, but not all, useful functioning. However, as later contested by Aviva, the DAC found that one marked impairment was enough to qualify Pastore as having suffered a catastrophic impairment.

Findings

Disagreeing with the DAC findings, the parties engaged in an arbitration process under s.282 of the Insurance Act. Aviva put forward two issues to the Financial Services Commission of Ontario (FSCO) delegate: (i) does the then s.2(1.1) (g) of SABS require an overall assessment of marked impairment in all four categories of functional limitation in the Guides, or can marked impairment in one category result in a finding of catastrophic impairment; and (ii) was it an error for the DAC assessors to include physical pain in the assessment of mental disorder in order to comply with the American Medical Association’s Guides to the Evaluation of Permanent Impairment?

The FSCO delegate’s decision that was overturned by Ontario Divisional Court and then reinstated by the Court of Appeal was found to be reasonable given the facts. With regards to the first issue, her conclusion that the word “a” in s.2(1.1)(g) of the SABS could be interpreted in its ordinary meaning as per Oxford Dictionary. This meant that the section required only a single function from the Guides to be at the marked impairment (class 4) level in order to qualify as catastrophic impairment, a decision the Court of Appeal agreed was certainly within the range of possible, acceptable interpretations of the statute.

This finding was contrary to Aviva’s argument that DAC guidelines required overall class 4 impairment for claimant to qualify as catastrophically impaired. The Court of Appeal did admit to the Guides being fairly ambiguous in terms of how many functions need to be impaired in order to be seen as catastrophic but chose to show deference to the delegate in her interpretation of the agency’s governing statute. On the second point, Aviva contended that the daily pain Pastore experienced was a result of the physical injuries to her ankle and knee and as such should not be included as “due to” her mental disorder. The delegate reviewed evidence from doctors found Pastore had Adjustment Disorder with Depressed Mood and was indeed a significant factor in her chronic pain issues. Once again, the delegate referred to the Oxford Dictionary meaning of “due to” which included “because of, owing to” to form her interpretation, one falling within the reasonable range according to the Court of Appeal. Pastore’s final mental disorder diagnosis was “Pain Disorder Associated with Psychological Factors and General Medical Condition”. Since the mental disorder did involve pain along with pain associated with general medical condition, it was surely reasonable to include pain from the general medical condition to the extent that such pain was connected with a diagnosed mental disorder

Analysis

As Brian Cameron, Intervener and Counsel for the Ontario Lawyers Association had stated, the decision “should not have taken five hearings over several years to determine that ‘a’ means one” as the FSCO arbitrator had so clearly reasoned. It is hard to imagine on any reasonable interpretation of the word “a” that it could mean overall or more than one. The Pastore decision is illustrative of the extent that insurance companies are willing to go through in order to prevent access to the accident benefits system that were designed for people who require health care needs in order to regain some stability in their lives. To suggest that impairment in one aspect of a victims life is not enough for a successful application is troubling. For example, a person with marked impairment within the Guides definition of daily activities is one whose behavioral impairments significantly impede most useful functioning such as cleaning, shopping, cooking, riding the bus, grooming, paying bills or using the telephone to name a few.

If Aviva’s argument had succeeded this would mean that not only must a person face significant impediment with routine activities noted above, but they must also face impediment in social functioning, concentration, persistence and pace or decompensating in work or work-like setting. This means that a person must not only be unable to ride the bus or use the phone, but they must also experience other impediments within the class 4 to 5 designations in order to have a successful application. It is difficult to conceive of a word other than ‘catastrophic’ to describe impediments that limit a person’s ability to do things that people perform on a daily basis without thought – to demand impediments of all aspects of life would be beyond all reason. As such, the Pastore case can prove to be a powerful tool when it comes to standing up to insurance companies and receiving benefits for physical and mental impairments arising from injury. If you feel that you are not receiving the benefits, let the experts at Edson Legal provide you with the help that you deserve.

How Serious is Your Motor Vehicle Accident?

The effects of motor vehicle accident injuries range in a wide variety and can impact lives in many different ways. Sustained injuries can impair an individual’s ability to work, enjoy life or even perform basic day-to-day functions. The big question here, and one which is most concerning to courts and insurance companies is whether or not the injury suffered by the claimant is serious enough to meet the “threshold” as specified by the amended s.267.5(5) of the Insurance Act.

There has been much said about the implementation of Bill 198 in 2003 and the Ontario government’s mandate to ‘tighten up’ on the definitions of ‘serious and permanent’ injury. At its inception, Bill 198 was speculated to bring in an objective standard to threshold analysis, but as seen in the cases that followed, the court’s interpretation has remained very much a subjective one in line with previous authority. In this week’s blog entry we explore what constitutes a ‘serious impairment’ for victims of motor vehicle accidents and how it affects their ability to make a successful tort claim. “Threshold” and Bill 198 With the political issue of sky-rocketing premiums in the 1990s for motor vehicle insurance, Ontario Legislature has adopted a series of amendments of the Insurance Act to try and reduce the large amount of costly whiplash claims. The intention was to restrict tort claims by weeding out the smaller ones. The denial of compensation in tort accident victims with smaller claims was to be balanced with more generous first party benefits payable without fault. Those amendments gave birth in Ontario to what came to be known as the “no-fault motor vehicle insurance”. Bill 59, which applied to all accidents after November 1, 1996, amended that section to provide that an owner of an automobile is not liable in an action for damages for non-pecuniary loss unless the claimant had sustained “permanent, serious impairment of an important physical, mental or psychological function”.

Despite the anticipation of a much stricter regime by many, much of the Bill 59 amendments have been carried on into Bill 198 which applies to all accidents that have occurred since October 1, 2003. Those amendments did not change the language of the threshold of entitlement to recover non-pecuniary general damages. Rather, Bill 198 demanded a higher evidentiary burden as to whether or not a permanent injury did indeed occur. In order to do so, the Bill went into greater detail than its predecessor by defining which impairments are serious, what functions are important and the meaning of permanent. Thus, if one is to meet the threshold, the following must be demonstrated:

  1. The impairment must substantially interfere with usual activities of daily living, considering the person’s age.
  2. To be an important function, the function must be important to the usual activities of daily living, considering the persons age.
  3. For the impairment to be permanent, it must have been continuous since the incident, and must, based on the medical evidence, be expected not to substantially improve as well as continue to meet the criteria in paragraph 1, and the nature that is expected to continue without substantial improvement when sustained by persons in similar circumstances.

Ontario Court’s Interpretation of the Bill 198 Threshold Despite the amendments, the Court of Appeal case of Meyer v Bright (1993) (a Bill 59 ruling) still remains the lens by which courts gauge the threshold. It can be argued that Bill 198 was little more than a codification of the factors regarding permanency, impairment and its serious effect on bodily function expressed in Meyer. The changes that did occur came in the form of more framed definitions of the terms and prescription of the evidence required to meet the threshold. The investigation now required that an injured person prove to the court that the impairment complained of substantially interferes with his or her ability to continue with their former employment or training despite reasonable attempts at accommodation and that the impairment has been continuous since the accident. The Plaintiff is also required to convince the court that based on medical evidence, the impairment is expected to continue despite reasonable treatment, and that such an impairment would be expected for others in “similar circumstances.” It has been argued that this last part of the test introduces an objective component not present in Meyer, however, review of some of the Bill’s jurisprudence suggests that the Courts have been reluctant to import an objective analysis in considering this issue (see cases below). In terms of “importance” of the impairment to the individual, the Court of Appeal in Meyer directed that the term must be considered in the context of the Plaintiff as a whole.

For the impairment to be “important” it must play a major role in the health and well-being of that person. Bill 198 amendments added a functional component to the analysis and mandated that in order to satisfy the “important” requirement the Plaintiff must suffer an impairment of a function which is necessary for the Plaintiff in order to allow him or her to perform the “essential” tasks of regular employment, training, care or well being or important to the usual activities of daily life. With regards to “seriousness” the Ontario Court of Appeal held that the question to be considered is whether the impairment is serious to the person in issue, taking into account his or her unique characteristics and held that as a general proposition. Thus, 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 continue employment. Determining the seriousness of an injury is a subjective exercise to which the authority in Meyer still remains instrumental. In Meyer, the court made an illustration through a hypothetical example of two violinists who have lost their small left finger.

The first, an amateur violinist who plays for his own amusement, might not have his life seriously impaired, nor will the quality of his performance seriously suffer. On the other hand, for a highly skilled professional concert violinist, the impairment may detrimentally affect performance to such a degree that the person can no longer attain the level of competence necessary to the continuance of a professional career. In such cases, the court may find the impairment to be a serious one. Yet again if the impairment was sustained by the same person but only after he or she had retired and decided not to play the violin anymore, a court may consider the impairment not to be a serious one. Thus, what makes an injury serious is as unique as the victims of motor vehicle accidents. For further illustration we turn to some recent cases of injuries sustained after October 1, 2003. Guerrero v Fakuda (2008) Guerrero was the first case since the implementation of Bill 198 that successfully crossed the threshold. Here the plaintiff had suffered whiplash injuries which left her with pain in her upper and lower back. Her whiplash injury had persisted after the accident, consistent throughout the hearings. Consequently, she was unable to work full-time. In his decision, Justice Little wrote that ‘pain and its degree of severity are subjective and can exist without any objective finding – calling an expert to say that no objective finding equals no point is no longer acceptable…that same expert will often treat the pain that exists even though it is without objective finding’.

The Plaintiff was only able to perform part-time work and suffered lifestyle restrictions, which detrimentally altered her ability to work and her enjoyment of life, and as such met the threshold. Sherman v Guckelsberger (2008) Plaintiff sustained soft tissue injuries, and complained of headaches, and neck pain, as well as numbness and tingling in the little and ring fingers of her right hand. She worked as an office administrator for a family physician, working eight hours per day. Within weeks of the accident, she returned to work on a part-time basis, followed by full-time soon after. After two years of full-time work the plaintiff had reduced her hours of work, still feeling the effects of her injuries. However, she still remained active outside of work, regularly going to the gym and enjoyed camping. Justice Milanetti, taking in the full context of the effects of the injuries on the Plaintiff’s life determined that the ongoing pain and discomfort was not sufficient to get her over the threshold, given that the “increasing specificity of the no fault legislation”. Sabourin v Dominion of Canada General Insurance Company (2009) In Sabourin another case of whiplash injury, soft tissue damage was caused and limited the range of motion in the plaintiff’s neck and shoulders.

The Plaintiff claimed that she had difficulty taking care of herself and maintaining hygiene, communication in terms of speaking, reading or writing and physical activities such as standing, sitting, walking, driving/riding in a vehicle. The court examined injuries from two points of view. First by asking the question whether or not the plaintiff was able to prove on the balance of probabilities as per s.4.2(1)1(iii) of Bill 198 that she was experiencing pain that substantially interfered with most of her activities of daily living. Second, was the impact of the pain and discomfort significantly reducing her quality of life? With regards to the former, the plaintiff failed to satisfy the court that most of her life was hindered by the injuries, but was successful in earning $40,000 in general damages with respect to the latter. Conclusion While Bill 198 has specified some additional evidentiary hurdles when it comes to assessing the injury threshold, the current and past case law maintains a subjective approach. Furthermore, unless there is a decision that goes past the appellate level, Meyer will likely continue to hold weight in court’s interpretation of facts. The type of injury, current physical capacity, work status, age and lifestyle can all factor in when embarking on a tort claim. If you are unsure whether or not your injuries meet the threshold, consult our motor vehicle injury experts at Edson Legal.