By Patrick Brown and Aidan Vining, Student-at-Law
If you or someone you know has been wrongfully injured, you may find yourself coming across many words that are unfamiliar. It can be overwhelming. The hope of this article is to provide you with a brief explanation of some common terms you might come across following an injury. If you would like to schedule a free consultation to discuss your options further, please contact our office.
In Ontario, insured drivers that are injured in a motor vehicle collision have access to certain benefits through the Statutory Accident Benefits Schedule (“SABS”). The SABS is a no-fault insurance scheme included in every Ontario automobile insurance policy.
The accident benefits an injured individual may be entitled to include: income replacement benefits, non-earner benefits, caregiver benefits, medical and rehabilitation benefits, attendant care benefits, case management, expenses of visitors, housekeeping and home maintenance, and loss of educational expenses – some of which are described in more detail below.
The severity of an individual’s injuries does not affect a person’s right to claim income replacement benefits or non-earner benefits. However, the severity of injury does affect a person’s right to claim all other benefits. Individuals labelled by their insurer as having “minor injuries” will receive significantly less medical and rehabilitation benefits than those deemed “catastrophically injured”. Those deemed “non-catastrophically injured” will fall somewhere in between. Whatever the amount, once this money runs out, an individual generally cannot go back to ask for more.
Activities of Daily Living (ADL)
Activities of Daily Living, or “ADLs”, is a phrase used to describe the collective fundamental skills an individual requires to independently take care of themselves. They are essential activities that most young and healthy individuals can perform without assistance. An assessment of an individual’s ability to perform various ADLs is one way to get an idea of a person’s present abilities. If a person cannot perform ADLs on their own, that is a strong sign that they require personal or attendant care. Specific ADLs include: eating, bathing, washing, hygiene, mobility, dressing, toileting.
The term adjuster is commonly used to refer to an insurance adjuster. An adjuster works for an insurance company, and investigates and inspects claims against the insurance company to determine how much the insurance company should pay for the loss.
Ambulation is a term that refers to an individual’s ability to move from one position to another without assistance, or with an assistive device. It is basically a medical term used to describe an individual’s walking ability.
Aphasia is a disorder that results from damage to areas of the brain that produce and process language. Aphasia may be a result of a brain injury. A person with aphasia can have trouble speaking, reading, writing, and understanding language. The severity of aphasia can vary from mild to severe. An individual’s ability to communicate may be impacted in one area but not another. For example, an individual may have difficulty reading and writing but not with speaking sentences.
Attendant Care Benefits
When an individual is injured in a motor vehicle collision, there are multiple ways to obtain recourse to help recover from injuries sustained. One of these avenues is accident benefits, or the SABS, as discussed above. One of the accident benefits provided under the SABS is the attendant care benefit.
The attendant care benefit helps cover the cost of an attendant’s services, should one be required, either at home or in a healthcare facility. If you are unable to care for yourself without assistance as a result of the accident, then the insurer will pay “reasonable and necessary” expenses for an aide, attendant, or long-term care facility. An “attendant” may be someone that was hired to provide assistance with daily living, or it may be a family member that is providing assistance to a loved one.
Case Manager (CM)
A Case Manager is an individual that may act as a “team captain” focused on getting an injured person back to their old life as soon as possible. Case Managers coordinate with the injured person, their lawyers, the insurer and other treatment professionals, to assess the injured person’s care needs. The Case Manager then works with the injured person and the rest of the team members to develop an effective treatment plan that is tailored to the individual’s needs.
At McLeish Orlando, we often put clients in contact with a case manager right away. This ensures that our clients are having their individual needs addressed and that their accident benefits are being used in the most efficient way possible to maximize their benefits.
The cerebellum, which is also known as the “little brain,” plays an important role in motor control. It plays a role in virtually all physical movement, from running and throwing a baseball, to eye movement and vision.
Due to the important role the cerebellum plays in movement, there can be devesting effects when injured. An injury to the cerebellum can lead to a loss of coordination and motor control, an inability to judge distances, as well as staggering or tremoring when walking.
Closed Head Injury / Closed Brain Injury
A closed head or brain injury occurs when the brain moves rapidly forward or backward or is shaken inside the skull. These injuries are often caused by car accidents, cycling accidents, motorcycling accidents, falls, or sports. Such an injury can result in bruising, tearing, and bleeding of the brain. Additional symptoms may include headaches, nausea, vomiting, bleeding, dizziness, confusion, difficulty concentrating, sensitivity to light, and others.
Cognition refers to the mental process involved in acquiring knowledge, comprehension, understanding, thoughts, and experiences. Cognition also involves speech, language, memory learning, problem solving, and decision making.
A coma refers to a prolonged state of unconsciousness. An individual may be in a comatose state as the result of a brain injury. The length of a coma can vary greatly from a few hours, to days, to weeks, and rarely longer.
Contingency fees, or contingency fee agreements, refer to the type of arrangement where a lawyer agrees that they will only receive payment from the client if the client receives a favourable result. In such an arrangement, the lawyer and the client will agree to a percentage at the outset of the relationship that will be paid to the lawyer from any money received by the client. However, if the lawyer is unsuccessful in representing the client, the client does not have to pay the lawyer for their services. Contingency fee agreements are an import tool for access to justice. They allow people with injuries to receive compensation and justice without having to take on the expensive risk of hiring a lawyer out of their pocket.
At McLeish Orlando LLP, we enter into contingency fee agreements with all of our clients and only receive a percentage of any payment the client receives. We also offer free consultation at the outset so that there is no risk for potential clients.
The term “collateral benefits” refers to sources of income replacement that exist for those who sustain injuries outside of a civil lawsuit. Examples of collateral benefits include disability benefits received through the Canada Pension Plan, Employment Insurance, or income replacement benefits from a person’s accident benefits insurer (see above). Many personal injury claimants will receive collateral benefits following sustaining injuries. In the majority of cases, these benefits are part of a legislative “no-fault” scheme put in place by our government to provide access to support to injured parties. These benefits come often in exchange for certain limits on one’s ability to sue in tort.
CT scans stand for “Computerized Tomography” scans and are sometimes called “cat scans.” CT scans involve a series of X-Ray images that are combined to create cross-sectional images (i.e. slices) of bones, blood vessels, and soft tissue.
In the context of personal injury law, “damages” is a term used to refer to the amount of money an injured person may receive in order to put the injured person back in to the position they would have been in had the wrongful act committed by the defendant not occurred.
Damages are often divided in to two categories: (1) pecuniary or special damages, and (2) non- pecuniary or general damages.
Pecuniary, or special, damages are those that have a specific dollar amount attached to them or can be quantified. Examples of pecuniary damages include loss of past and future income, medical bills, and repair costs.
In contrast, non-pecuniary, or general, damages include things that do not have a monetary value attached to them, such as pain and suffering, humiliation, and disfigurement.
A rare head of damages is punitive damages. Punitive damages look backwards to condemn and punish a wrongdoer’s actions.
In the context of personal injury law, the “deductible” is in reference to the statutory deductible that operates to reduce the amount a person injured in a motor vehicle collision recovers for pain and suffering. The deductible is set out in s.267.5(7) of the Insurance Act.
The current reduction in 2021 is $39,754.31. This means that if you are injured in a motor vehicle collision, the insurance company will keep the first $39,754.31 of any damages awarded to you for pain and suffering. Juries are not told about this deductible, and triers of fact (i.e. juries) are supposed to make damage awards without regard to the deductible.
In law, a “defendant” is an individual, corporation, institution, or entity that is being sued or accused of wrongdoing. If you are suing a person for wrongfully causing a motor vehicle collision, then the person you are suing would be referred to as the defendant.
The Motor Vehicle Accident Claims Fund, or “MVAC,” provides compensation to people injured in automobile collisions when no other auto-insurance policy exists to respond to the claim. This would be the case, for example, where an uninsured pedestrian or cyclist is struck by a driver who then flees the scene. In this case, there is no auto-insurance policy to respond to the victim’s losses. The MVAC was established by the government of Ontario to respond to these types of scenarios and will respond to the uninsured’s Statutory Accident Benefits claims in a hit and run situation. The MVAC will also provide uninsured victims with compensation for personal injury damages when the driver flees the scene, up to $200,000, Ontario’s minimum liability limit.
Dealing with hit-and-run cases or other cases where there is no insurance policy to respond can be confusing and daunting. We recommend setting up a free consultation with an experienced team of lawyers to discuss your options.
Occupational Therapist (OT)
Occupational Therapists, or “OTs”, are highly trained and knowledgeable health care professionals who help individuals resume or maintain participation in various activities. This may include assistance with work, recreational activities, social activities, or activities of daily living. OTs often work alongside other health care professionals, such as physiotherapists and physicians, as well as the client to find ways for the client to get back to their pre-injury life. For example, an OT may develop a plan that allows a person to work comfortably from home or at an office. They may also accompany individuals when shopping to provide assistance. They are an integral part of recovery for many injured individuals.
Paraplegia refers to paralysis of the lower half (approximately) of the body. In other words, a person with paraplegia may not be able to move their legs, toes, or lower torso at all. Some individuals are able to move their toes and feet. Individuals also sometimes regain the use of part or all of their lower body over time.
The parietal lobe is one of the major lobes of the brain located at the upper back area of the skull. The parietal lobe is largely responsible for processing sensory information such as, touch, taste, smell, and temperature. An injury to the parietal lobe can lead to dysfunction of the senses, such as the removal of an individual’s sense of smell and taste.
A personal injury is any form of injury to an individual’s physical body, mind, or emotions. Personal injury is differentiated from injury to property or financial injury. The term encompasses any form of harm to an individual’s body or mind.
Personal Injury Law
At its most basic level, personal injury law refers to the area of law that addresses incidents where an individual has suffered a personal injury. Personal injury law is a broad term that encompasses many other areas of the law, including tort, negligence, insurance, contract, and civil litigation.
Overall, personal injury law involves putting an injured person back in to the position they would have been in had the injury not occurred. This involves obtaining financial compensation for any expenses the injured person has suffered, as well as providing for any past or future income loss. It also involves ensuring an injured person has access to, and knowledge of, the proper professionals to assist them in getting back to the physical position they were in prior to the injury.
A good personal injury lawyer dedicates their entire practice to personal injury cases. When looking for a personal injury lawyer, you should look for lawyers that have experience in trials and are respected by their peers. A good personal injury lawyer also understands that being a personal injury lawyer involves more than just trying to get money for your client. A good personal injury lawyer should be involved and familiar with healthcare professionals and should work hard to ensure that all of their clients are recovering to their fullest potential.
You should also consider the lawyer’s credentials, such as whether:
- The lawyer is a Certified Specialist in Civil Litigation by the Law Society of Ontario
- The lawyer is Ranked Most Frequently Recommended by Lexpert
- The lawyer is involved with the Ontario Trial Lawyers Association
- The lawyer has experience at the Superior Court of Justice, License Appeal Tribunal, and Court of Appeal
- The firm is ranked as one of the Top Ten Personal Injury Boutique law firms by Canadian Lawyer Magazine
- The lawyer has expertise
- The lawyer is involved in the community
In law, a “Plaintiff” is the person or persons who commenced a lawsuit. The Plaintiff is the one seeking a legal remedy. For example, if you sue a driver for causing a motor vehicle collision that you were involved in, you would be the Plaintiff in that lawsuit.
Subrogation is a way for an insurance company to recover money that it has paid to an injured person with insurance. This is done by bringing an action in the name of the insured as against the person who is responsible for the loss/injury. The right of subrogation is established contractually, at common law, and in section 278 of the Insurance Act.
A tort is a civil wrong, as opposed to a criminal wrong. A tort is brought when one person is harmed by another person through a wrongful or tortious act. One example of a tort is negligence. The tort of negligence involves one person committing a careless, wreckless, or negligent act that causes harm to another person. When a driver carelessly causes a collision with another driver, the innocent driver can bring a tort in negligence to recover damages from the careless driver.