Citizens are crying foul after the City of Hamilton posted signs at popular tobogganing spots warning that sledding was banned and violators would be fined up to $5,000. Cash strapped municipalities say they don’t want to be grinches, but they just can’t afford to expose themselves to potential lawsuits. The Agenda asks McLeish Orlando’s Patrick Brown if this is creating a liability chill, and if our court system has lost touch with reality.
Watch the segment on toboggan hills below:
By: Patrick Brown | Published in: The Lawyers Weekly February 6, 2015 Issue |
Extreme sports is a growing industry that is profiting from the human desire to experience the adrenaline rush associated with risk-laden activities. Whether it is racing down a ski hill on a mountain bike, falling from a white water raft, or climbing up a rock face, there is an increased appetite for such thrills. Continue reading
A recent arbitration decision in Mujku v State Farm provides a useful analysis for determining catastrophic impairment due to a mental or behavioural disorder under the Statutory Accident Benefits Schedule. The applicant, Mrs. Mujku, was injured in a rear end collision in November, 2005. The collision itself, by all accounts, was relatively minor: The vehicle sustained $703.34 worth of damage and Mrs. Mujku suffered soft tissue injuries. Following the collision, Mrs. Mujku’s pain steadily worsened and her mental health deteriorated. Eventually, Mrs. Mujku was diagnosed with a number of recognized mental and behavioural disorders, including, a major depressive disorder and a pain disorder with associated psychological factors.
Arbitrator Jeffrey Rogers decided that Mrs. Mujku met the definition of catastrophic impairment due to mental or behavioural disorder under the Statutory Accident Benefits Schedule. In order to be found catastrophically impaired, an applicant must have a marked impairment in one of four areas of functioning: 1) activities of daily living; 2) social functioning; 3) concentration, persistence and pace; or 4) deterioration or decompensation in work or worklike settings. Continue reading
As seen on AdvocateDaily.com
MISSISSAUGA – Ontario will order auto insurance companies to cut premiums by an average of eight per cent by next August, and by a total of 15 per cent within two years, Finance Minister Charles Sousa announced Friday. Continue reading
As seen on AdvocateDaily.com
Toronto critical injury lawyers John McLeish, Patrick Brown and Dale Orlando are scheduled to participate in a one-day conference for health care providers today.
McLeish, Brown and Orlando, partners with McLeish Orlando LLP, are speaking on a variety of topics at Practical Strategies: Catastrophic Impairment: A Look into the Future, presented by the Personal Injury Alliance.
The conference is designed to provide information on the unique advocacy required for proving a spinal cord injury case and the latest developments for spinal cord injury rehabilitation, provide a forum for discussion of models of care and treatment strategies, and enhance the funding available to Toronto Western Hospital and St. Michael’s Hospital.
Brown is scheduled to speak on the topic Everything You Need To Know About Catastrophic Impairment and New Definitions, while McLeish is slated to take part in a panel discussion on future care reports.
Orlando is set to participate in a panel on the subject of situational assessments.
The conference runs from 8 a.m. to 4:30 p.m. at The Carlu in Toronto.
The Practical Strategies webinar aired on April 30, 2013.
This webinar will update you on how lawyers and health care providers are coping with the evolving challenges of working in the constantly changing auto insurance system. You will learn strategies that will benefit you and your clients, including:
- Establishing “incurred expense” and “economic loss” in attendant care claims.
- Recent developments in catastrophic impairment.
- Common pitfalls in clinical note taking and report writing.
- Preparing for giving evidence in the Courtroom.
An auto insurance industry review of catastrophic impairment provisions is unnecessary at this time, Toronto critical injury lawyer Dale Orlando says in Law Times.
The provincial government has reopened renewed consideration of the provisions by starting stakeholder consultations not restricted to medical experts as was the case with last year’s review by the Financial Services Commission of Ontario, the article says.
“Where’s the fire?” Orlando, partner with McLeish Orlando LLP, asks in the report.
“They’re searching for a solution to a problem that simply doesn’t exist. Around one per cent of claims are deemed catastrophic. On a claim-by-claim basis, it’s a lot of money, but in the scheme of things, there’s no evidence that there’s been an upswing in costs.”
The Law Times article also discusses an Ontario Trial Lawyers Association advisory sent out in March that alleged the Insurance Bureau of Canada is misinforming officials about insurance premiums, claims costs, and profits.
The Insurance Bureau of Canada responded by publishing an actuarial analysis from JF Cheng and Partners on March 28, and then a KPMG LLP-authored analysis of Ontario private passenger automobile insurance results for 2008-12, the article says.
This is the third part of a series of blogs on Winning Strategies for Handling a Mild to Severe Brain Injury Case. The first part of the series explained the anatomy of the brain, an understanding of which is essential in order to appreciate what happens to the brain after a traumatic brain injury. The second part explained the ways a brain can become injured. This part considers the challenges that Plaintiff’s counsel encounters when representing an individual who has suffered a traumatic brain injury.
Difficulties a Plaintiff’s Counsel Faces in Proving a Traumatic Brain Injury
There are a number of difficulties Plaintiff’s counsel faces in trying to prove the existence and severity of a traumatic brain injury. One of those difficulties is that most brain injuries, unlike other injuries such as a broken arm or an amputated leg, are invisible to the naked eye. X-rays, CT scans and MRIs can detect fractures, hemorrhages, swelling, and certain kinds of tissue damage, but they cannot always detect injury to a person’s brain. This is because traumatic brain injury, especially in its milder forms, often involves subtle traumas to the brain that cause chemical and physical changes to brain tissues. These changes often cannot be found with standard imaging procedures.
Another difficulty for any Plaintiff’s lawyer in a brain injury case is establishing that the traumatic event caused ongoing organic damage which affects the person’s ability to function in the real world. This is often difficult to prove because many brain injured individuals appear “smart.” They are articulate and can perform many of the tasks they did before they were injured. It is difficult for most of us to understand how a person may retain, for example, a high IQ after suffering a traumatic brain injury and still perform very poorly on certain neuropsychological tests and in real life. It is hard for us to understand that deficits do not occur in all areas of the brain and that indeed, many parts of the brain remain intact while the person’s ability to function in many aspects of his or her life is significantly reduced.
A third difficulty is that in the months after suffering a traumatic brain injury, many individuals are in denial. They insist they are fine and have told all their treating health professionals that they are fine. They may tell their treating health professionals the only reason they are seeing him or her is that of ongoing pain resulting from a back injury suffered in the collision.
For these reasons, proving the existence of a traumatic brain injury, and the consequences of that injury to your client can be difficult. However, as Plaintiff’s counsel, that is your job.
The Ontario Trial Lawyers Association has recently sent out a newsletter to every MPP in Ontario regarding the Insurance Bureau of Canada misinforming officials about insurance premiums, claims cost and profits.
McLeish Orlando stands behind OTLA in ensuring that MPP officials are well informed. See below for the newsletter sent out by OTLA.
This is the second of a series of blogs on Winning Strategies for Handling a Mild to Severe Brain Injury Case.
We first discussed the anatomy of the brain, including the structure of neurons. Here we will discuss the ways that our brain can be injured and the implications that flow from the various kinds of injuries.
The brain is very delicate and is considered to be the consistency similar to that of gelatin. If a brain is suddenly jolted or banged or twisted, it will cause a traumatic impact that ripples through the entire brain and can cause complications. The brain is made up of billions of neurons that can be damaged by trauma to a person’s head.
Some of the ways damage can occur to a human’s brain is as follows:
Mild Traumatic Brain Injury or Concussion
The term mild traumatic brain injury is used interchangeably with the term concussion. A concussion is caused by a blow or jolt to the head that disrupts the function of the brain. Unlike more severe traumatic brain injuries, the disturbance of brain function from a concussion is caused more by dysfunction of brain metabolism rather than by structural damage. The current understanding of the neuropathophysiology of a mild TBI involves a paradigm shift away from a focus on anatomic damage to an emphasis on neuronal dysfunction involving a complex cascade of ionic, metabolic and physiologic events. After an impact causing a concussion, there is an increase in glucose metabolism, and then a subsequent reduced metabolic state. These events interfere with the neuronal function in the brain and may lead to cell death after the injury.
Diffuse Axonal Shear
In a diffuse axonal shear injury many of the nerve cell pathways (axons) may be torn apart or stretched. This can cause a loss of connection between brain cells and can lead to a breakdown of overall communication among neurons in the brain. Information processing may be disrupted. A diagram demonstrating the process of axonal shear appears below:
Coup – Contre-Coup
A coup contre-coup injury to the brain occurs when there is a sudden impact to the head, which causes the brain to first slam into one side of the skull wall, then bounce off that wall and slam into the wall on the opposite side of the skull. Continue reading
This is the first of a series of blogs on Winning Strategies for Handling a Mild to Severe Brain Injury Case.
To begin, an understanding of brain anatomy is essential to gain some knowledge of what happens to the brain after a traumatic brain injury. It is one of the responsibilities of counsel in a traumatic brain injury case to educate the judge and jury on the anatomy of the brain.
Interestingly, the brain is not a hard muscle-like substance, but rather a soft gelatin-like organ that sits within a rough and bony skull. The brain is covered by three thin protective layers called the meninges. The space between the meninges and the brain is filled with a clear liquid called cerebral spinal fluid. This fluid works to keep the central nervous system healthy. The brain is innervated by a sophisticated system of blood vessels which carry blood to and from the heart.
Within these two hemispheres there are four lobes – frontal, parietal, temporal, and occipital, and each lobe is responsible for specific functioning. The brain stem and cerebellum also play a significant role in the brain’s functioning.The outermost and largest part of the brain is called the cerebrum and it controls things like thoughts and actions. It has a wrinkled surface and is divided it into two halves, known as the left and right hemispheres.
- Frontal Lobes – deals with reasoning, planning, self-control, some speech and emotion functions, and problem solving. The frontal lobes also play an important part in memory, intelligence, concentration, and are responsible for executive functions.
- Parietal Lobes – are involved with movement, and also help people to understand signals received from other areas of the brain such as vision, hearing, sensory and memory. A person’s memory and sensory information received give meaning to objects and “put it all together”.
- Occipital Lobes – found at the back of the brain, receive signals from the eyes, process those signals, allow people to understand what they are seeing, and influence how people process colours and shapes.
- Temporal Lobes – are located at around ear level, and are the main memory centre of the brain, contributing to both long-term and short-term memories. The temporal lobe is also involved with understanding what is heard, and with the ability to speak. The left temporal lobe is involved in verbal memory and aids in understanding language, where the right temporal lobe is involved in visual memory and helps people recognize objects and faces.
- Brain Stem – is responsible for maintaining the body’s most basic functions such as breathing, heartbeat, and blood pressure.
- Cerebellum – it is divided into two halves, with the main function of controlling and regulating the body movement of the muscular skeletal system.
The brain and nervous system also consist of billions of tiny cells called neurons. Neurons are the “communicators” and each neuron has three main parts:
- Cell body: the central station that sends out impulses
- Axon: long, slim “wire” that transmits signals from one cell body to another via junctions known as synapses
- Dendrites: networks of short “wires” that branch out from an axon and synapse with the ends axons from other neurons.
The neurons receive and transmit information in a relay where electrical impulses alternate with chemical messengers. The electrical impulses flow through nerve cell pathways along the axons and dendrites. Neuro-chemical transmitters leap the synaptic gaps between each neuron’s axon and the other neurons with which an axon makes contact. Each neuron is its own miniature information center which decides to fire or not fire an electrical impulse depending on the thousand or so signals it is receiving every moment.
Stay tuned for the next part in the blog series on the ways a brain can be damaged.This is a basic overview of the anatomy of the brain. It is important that lawyers understand the functions of the brain to better understand how injury to a particular area of the brain can impact your client.
The Ontario Court of Appeal released the Pastore v. Aviva decision today and decided that a marked impairment of a single area or aspect of functioning is enough to designate a person as catastrophically impaired.
In the decision delivered by Justice Feldman, the Court concluded that the Director’s Delegate’s decision to this effect was a reasonable one:
In my view, the decision of the delegate, in which he concludes that the use of “a” in the definition of “catastrophic impairment” in cl. (g) refers to a single functional impairment due to mental or behavioural disorder at the marked level, constituting a catastrophic impairment, is a reasonable decision. The reasoning process was logical and transparent and the result is within the range
What is also very important is that the impairment does not have to be due “solely” to the mental or behavioural disorder. The marked impairment can be caused by a combination of mental and behavioural disorder as well as physical causes of pain:
Seriously injured accident victims received an early Christmas present from the Ontario Court of Appeal this morning. The Court released its long-awaited decision on catastrophic impairment in Kusnierz v. Economical Mutual Insurance Company. In it, the Court reversed the decision of Mr. Justice Lauwers, who had held that assessors could not combine psychological and physical impairment scores to determine an injured person’s Whole Person Impairment (WPI) score. Instead, the Court adopted the previous practice espoused by Spiegel J. in the 2004 decision of Desbiens v. Mordini.
Justice MacPherson, writing for a unanimous Court of Appeal, set out five reasons in support of its decision to allow the combining of physical and psychological impairment scores.