When you are injured in a motor vehicle accident in Ontario, you are entitled to statutory accident benefits.  These benefits are usually paid by your own auto insurance company.   Since 2010, there have been three levels of benefits.  One of those levels of benefits is for people who have been deemed or found to have suffered a catastrophic injury.

Some injured victims are automatically in the catastrophic category because of the injury they have suffered.  Those injuries include: paraplegia, quadriplegia, amputation, blindness and certain types of traumatic brain injuries.

Other accident victims will qualify for catastrophic benefits if a specially trained medical practitioner (or more often a team of medical practioners) assigns an impairment rating of 55% or more.  This impairment rating is typically completed after 2 years, although in some cases it can be completed earlier.

If the injured person is “catastrophic”, either because he or she has one of the listed injuries, or meets the impairment rating test, he or she qualifies for a higher level of accident benefits.  Most notably, the “medical- rehabibilitation benefit” jumps from $50,000 to $1,000,000.00 and there is an increase in the attendant care benefit. Certain benefits also last longer.

Sometimes there is a dispute between the injured victim and the insurance company as to whether or not the injured person has been catastrophically injured.  An experienced personal injury lawyer can help you navigate that dispute through the Financial Services Commission of Ontario and / or the Ontario Court system.   If you would like to speak to Auger Hollingsworth about your claim and whether or not you qualify for catastrophic benefits, call us at 613 233-4529.

 ISSUES ON THE ARBITRATION

The primary issue in this arbitration is whether Client  has suffered a catastrophic impairment under the Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996, (“SABS”). Subsection 2(1.1)(e) of the SABS sets out the definition for catastrophic impairment as follows:

(1.1)  For the purposes of this Regulation, a catastrophic impairment caused by an accident that occurs before October 1, 2003 is, …

e.       brain impairment that, in respect of an accident, results in,

                                i.      a score of 9 or less on the Glasgow Coma Scale, as published in Jennett, B. and Teasdale, G., Management of Head Injuries, Contemporary Neurology Series, Volume 20, F.A. Davis Company, Philadelphia, 1981, according to a test administered within a reasonable period of time after the accident by a person trained for that purpose, or [emphasis added]

ii.      a score of 2 (vegetative) or 3 (severe disability) on the Glasgow Outcome Scale, as published in Jennett, B. and Bond, M., Assessment of Outcome After Severe Brain Damage, Lancet i:480, 1975, according to a test administered more than six months after the accident by a person trained for that purpose;

Source:            Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996, O.Reg. 403/96, s. 2(1.1) (e) [Book of Authorities at Tab 1].

ANALYSIS

Issue 1: Catastrophic Impairment

 The opinion of the Riverfront assessors and the insurer in this arbitration is incorrect both in medicine (as set out by Dr. Marshall) and in law, as described herein.

1. A.    The test for catastrophic impairment is a legal test, not a medical test.

The case law is clear that the test to be applied to identify catastrophic impairment is a legal test, not a medical one. The leading case on this issue is the decision of the Court of Appeal for OntarioLiu v.1226071 Ontario Inc. It is clear from this decision that the interpretation of the relevant subsection of the SABS requires the application of a legal definition, not a medical test.

Source:            Liu v.1226071 Ontario Inc, 2009 ONCA 571 at para. 27 [Book of Authorities at Tab 2].

In Liu, the Court of Appeal rejected the insurer’s argument that the fact that the claimant’s GCS rose from 3 to 12 within 33 minutes somehow took the claimant out of the section.  The Court stated:

[27]         In my view the answer to the respondents’ objection is the plain language of the legislation.  Provided there is a brain impairment, all that is required is one GCS score of 9 or less within a reasonable time following the accident.  It is a legal definition to be met by a claimant and not a medical test.

[28]         I agree with the appellant’s submission that the fact that there may have been other higher scores also within a reasonable time after the accident is irrelevant.

[29]         In my view the trial judge fell into error in equating the statutory test to a medical one.  It is not.

[30]         Any notion of catastrophic injury, other than the specific meaning ascribed to that term by the legislation must be discarded when considering whether a claimant meets the statutory test.   The statutory scheme creates a bright line rule which is relatively easy to apply. This enhances the ability of those looking to the definition to know what injuries will and will not be considered catastrophic. Having the same definition for both no fault and third party liability claims avoids inconsistency. The ease with which the rule can be applied adds an element of predictability which will facilitate the settlement of claims.

[31]         It matters not that there is some evidence – albeit disputed evidence – that the appellant is capable of managing his property, clothing, hygiene, shelter, safety and taking two trips toChina. Nor does it matter that his head injury was described as “moderate to severe” or “moderately severe”.

[32]         All that is required is a brain impairment and a GCS reading of 9 or below within a reasonable period of time after the accident. The appellant met both criteria on the trial judge’s findings and is entitled to recover damages for health care costs in accordance with the verdict of the jury [emphasis added].

Source:            Liu v.1226071 Ontario Inc, 2009 ONCA 571 at paras. 27-32 [Book of Authorities at Tab 2].

B.     The presence of hypotension does not invalidate the GCS reading

In Young v. Liberty Mutual, Arbitrator Allen rejected the notion that GCS readings obtained in the presence of confounding factors such as intubation, sedation and post-accident seizures were invalid.  The Arbitrator held that the legislature was presumed to understand that GCS readings would be influenced by post-trauma complications and yet chose not to create exclusions for these situations. As she held:

I find one must be able to assume the legislature was aware of these features of the GCS score when it chose it as a means to assess catastrophic brain impairment. Surely the legislature would not have intended to provide the GCS score as a measure of catastrophic impairment under circumstances where the very characteristics of this tool would rule it out as an appropriate measure. It cannot be intended by the legislature that the most seriously injured might not have the enhanced benefits available to them soon after the accident because their GCS scores were confounded by the severity of their injury. In the end, however, the GCS score is a tool medical assessors and adjudicators must work with in assessing catastrophic brain impairment.

…

I accept the Applicant’s view that a GCS score is not intended to project into the future the medical status of an applicant, but is rather a tool employed among medical practitioners to communicate the level of consciousness of a person who has sustained head trauma. It is employed under the Schedule as a measure of an injured person’s states of consciousness for a reasonable time after the accident in order to assess the level of brain impairment [emphasis added].

Source:            Young v. Liberty Mutual, 2003 FSCO A02-000695, at pp. 25 and 28 [Book of Authorities at Tab 4] aff’d 2005 FSCO Appeal Order P03-00043 [Book of Authorities at Tab 5] and 2006 CanLII 7286 (ON SCDC) [Book of Authorities at Tab 6].

Accordingly, in this case, the Riverfront assessors’ opinion that Client ’s significant hypotension would somehow invalidate her GCS reading is incorrect in law.

C.    The prognostic value of the GCS reading is not relevant

On appeal, the Director’s Delegate in Young v. Liberty Mutual, rejected the notion that a GCS reading would only be the basis for a finding of catastrophic impairment where the GCS reading was predictive of outcome. In that decision, it was held:

I agree with the arbitrator. Again, to return to the definition, “catastrophic impairment” means brain impairment that, in respect of an accident, results in a score of 9 or less on the Glasgow Coma Scale. None of the other provisions of the definition require a forecast of the insured’s future condition, so it is unclear why a forecast should be part of the GCS test. The definition on its face requires that the low scores result from a brain impairment, and accordingly the “reasonable period of time” requirement focuses on that point and not on a forecast. The matter would be different if, for instance, catastrophic brain impairment meant brain impairment resulting from GCS scores of 9 or less taken after a reasonable period of time. However, that would then start to resemble the GOS [subclause e(ii)] test, which does indeed look at the outcome of the insured after six months.

Source:            Young v. Liberty Mutual, 2005 FSCO Appeal Order P03-00043 at 25, 26 [Book of Authorities at Tab 5].

In Tournay v. Dominion of Canada General Insurance Company, it was held:

[The GCS] is not intended to be administered in the manner of an insurer’s examination by someone retained to give the insurance company an independent opinion on neurological function.  The GCS is a clinical test, pure and simple.  Thus, if a medically appropriate GCS test registers a score of “9 or less” within a reasonable time after the accident, where the brain impairment as a result of the accident is not contested, then, in my view, that must be taken as satisfying Section 2(1.1)(e)(i) of the schedule.

Source:            Tournay v. Dominion of Canada General Insurance Company, 2006 FSCO A05-000507 at 16 [Book of Authorities at Tab 8].

D.    A broad reading is to be given to the section

A broad and inclusive interpretation of this subsection of the SABS is appropriate.  The Honourable Mr. Justice Keenen in Holland v. Pilot Insurance Company states “This type of regulation is adopted by the legislature after extensive consultation with interested parties, including insurers.  If restricted meaning is to be assigned to the regulation, it should clearly be recited in the regulation itself.”

Source:            Holland v. Pilot Insurance Company, 2004 CanLII 13787 (ON SC) at para 24 [Book of Authorities at Tab 6].

It is respectfully submitted that Client  meets the test for catastrophic impairment. She sustained a brain impairment, which continues to impair her. She had a GCS reading of 9 or less in respect of an accident. The GCS reading was administered within a reasonable time after the accident. The readings were taken by persons trained for that person. Accordingly, all of the statutory pre-requisites are met.

Your Background:

• Your name
• Address
• Education
• Marital / Family Status

Your Home:

• The layout of your home
• Number of bedrooms
• Number of bathrooms
• Size of your lot
• Number of stairs
• Location of the laundry
• Number and size of gardens
• Who cleaned the house before the accident
• Who cleans the house after the accident
• Details about any limitations in housekeeping and home maintenance

Your Injuries

• Head to toe, identify all the body parts that were hurt in the accident
• Details about the prognosis of each injury
• Details about how each injury has improved or not since the accident
• Details about what medical professionals have said about the injuries
• Any planned surgeries
• Details of any psychological / emotional injuries
• Steps you have taken to get better
• All therapies under taken
• Medications since the accident
• Specialists seen since the accident and what they have said
• Description of the pain experienced since the accident

 The Accident

• Details about the vehicle you were in / bike you were on
• Where were you going?
• What route did you take?
• Were you familiar with the route?
• Were you distracted in the vehicle?
• Were you wearing your seatbelt?
• When did you first see the other vehicle?
• What did you see?
• What did you do?
• What part of your body made contact with the inside of the car, if any?
• Did you hit your head?
• How far did your car move at impact?
• Speed at impact?
• Details about lighting, weather, visibility, road condition
• Damage to the vehicles
• Statements given to police
• On site first aid received

Loss of Income / Loss of Competitive Advantage

• Details about your employment history over past 10 years
• Job at the time of the accident, including duties, physical requirements, salary, benefits, performance review, raise history
• Time lost from work after the accident
• Details of return to work
• Description of any current limitations at work

While this is not a comprehensive list, being able to answer these questions confidently and accurately will take you a long way in your discovery preparation.

For more information about the steps in a personal injury law suit, contact a personal injury lawyer at Auger Hollingsworth at 613 233-4529.

If you or someone you know has been diagnosed with Traumatic Brain Injury (TBI) in Ottawa, you may have heard of the Glasgow Coma Scale (GCS), which is a system used by doctors to evaluate and diagnose the symptoms associated with TBI.

GCS: An Overview

GCS is a 15-point scale that helps doctors determine the severity of a patient’s brain injury.

Patients are evaluated in the following categories:

1. Motor Response: Scores range from 1 (no motor response) to 6 (obeys commands fully)
2. Verbal Response: Scores range from 1 (no verbal response) to 5 (alert, coherent, and oriented)
3. Eye Opening Response: Scores range from 1 (no eye opening) to 4 (eyes opening spontaneously)

Interpreting GCS Results

The patient’s three scores are added up, and the final score helps to diagnose the injury.

Generally, the scores can be classified as follows:

13 to 15: Mild brain injury

9 to 12: Moderate brain injury

3 to 8: Severe brain injury

Many medical practitioners consider 8 to be the critical score, meaning that patients with a score less than or equal to 8 are often in a coma.

TBI Symptoms: Mild vs. Severe

A patient who receives a GCS score of 13 to 15 is typically diagnosed with a mild brain injury. Their symptoms, however, can still last one year or more and have a serious impact.

Common symptoms of mild TBI include:

-   Fatigue

-   Headaches

-   Memory loss

-   Dizziness or lack of balance

-   Inability to concentrate or pay attention

-   Seizures

-   Mood changes, including irritability or feelings of depression

Patients who score less than 13 on the Glasgow Coma Scale are typically diagnosed with a moderate to severe brain injury. The symptoms of moderate or severe TBI are wide-ranging and can affect all areas of a patient’s life.

These symptoms may include:

-   Difficulties speaking, concentrating, or remembering

-   Loss of vision or blurred vision

-   Loss of hearing or ringing in the ears

-   Seizures

-   Paralysis

-   Chronic pain

-   Sleep disorders

-   Changes in appetite

-   Emotional difficulties, including irritability, depression, aggression, or lack of awareness

Treatment and Recovery

GCS is an important tool in accurately diagnosing traumatic brain injury. Once the patient’s injury has been classified as mild, moderate, or severe, a proper course of treatment can prescribed. If you or someone you know has suffered from TBI as a result of an accident, be sure to consult an injury lawyer as part of your recovery process. A good injury lawyer can help you understand and settle the legal aspects of your injury.

To speak with an Ottawa personal injury lawyer at Auger Hollingsworth, please call us at 613-860-4529, email us at info@personalinjuryottawa.ca, or use our contact form.

While TBI cannot always be completely cured, and while the recovery process can be long and challenging, there are some important prevention methods that everyone should be aware of.

TBI: Common Causes

Traumatic brain injury can be caused by a wide variety of incidents. Some of the most common causes include the following:

-   Car accidents

-   Other transportation accidents, including bicycles and motorcycles

-   Slips and falls, including falling down stairs, falling out of bed, or slipping in the bath

-   Sports-related injuries, particularly involving high-impact sports like football, boxing, or skateboarding

-   Work-related injuries, often caused by working with unsafe equipment or on unsafe surfaces

Preventing TBI

While some incidents of TBI are nearly impossible to prepare for or avoid, there are some basic methods of prevention that can help individuals avoid serious injury.

Here are some simple things everyone can do to help prevent TBI:

-   Always wear a seatbelt when riding in a car or other vehicle

-   Never drive while under the influence of alcohol or drugs

-   Follow speed limits and take proper precautions while driving

-   Make sure that children are properly restrained in a car seat or booster seat while riding in a vehicle

-   Always wear a helmet when riding a bicycle or motorcycle

-   Always wear a helmet and proper protective equipment when participating in any kind of contact or extreme sports (including activities like skiing or skateboarding)

-   Hold onto railings when walking up or down stairways

-   Ensure there is adequate lighting when walking up or down stairways

-   Do not stand or sit on unsafe or unbalanced surfaces

-   Always be aware of your surroundings, and always use common sense

Unfortunately, even if you do everything right, accidents do happen and injuries like TBI cannot always be prevented. If you or someone you know has been affected by a traumatic brain injury as a result of an accident, be sure to contact an injury lawyer, who can help you navigate any complicated legal implications of your situation. A good injury lawyer will help ease some of the stress associated with a complex injury like TBI.

To speak with an Ottawa personal injury lawyer at Auger Hollingsworth, please call us at 613-860-4529, email us at info@personalinjuryottawa.ca, or use our contact form.

Click here if you are wondering if you have a claim for damages after the OC Transpo bus crash.

The injured passengers were sent to local hospitals mostly complaining of neck pain, and knee and joint pain, according to paramedics on the scene.  None of the injuries were considered serious, although neck related injuries such as whiplash are always treated with caution as underlying issues may be present.  Amongst the injured was one of the bus drivers involved in the accident.

Many local Ottawa commuters were delayed several hours yesterday due to the crash and passengers of both buses were in shock over the incident.  For those injured it may be several days or weeks before the pains of Tuesday’s unfortunate collision subside.  The health and welfare of the passengers and victims is the most important issue in any accident.

For all of us, the OC Transpo accident is a reminder of the importance of public safety, and how vital public transportation is to communities and the city of Ottawa.  Accidents can happen even amongst the most experienced and trained of drivers and public workers.  The hope is that from every incident comes the knowledge to help prevent reoccurrence in the future and to keep improving our public health and safety.

If you or someone you know has been injured in a public transportation accident, or any other form of accident, call us at 613-233-4529.  Know your rights and let the personal injury lawyers of Auger Hollingsworth help.

Causes

TBI is typically caused by a severe blow to the head. Common causes of TBI include:

-   Car accidents and other transportation accidents, including bicycles and motorcycles

-   Sports and recreation-related accidents

-   Slips and falls, particularly among children

-   Work-related accidents

Signs & Symptoms

Because TBI is such a complicated injury, its symptoms can be varied and widespread. However, some of the most common symptoms of TBI include:

-   unconsciousness

-   convulsions

-   headache

-   vomiting or nausea

-   dizziness or lightheadedness

-   lack of balance or coordination

-   blurred vision

-   fatigue or lethargy

-   slurred speech or difficulty speaking

-   weak or numb limbs

There are also non-physical symptoms that may occur, including:

-   changes in mood or behaviour

-   confusion

-   trouble concentrating or remembering

-   difficulty focusing, paying attention, or thinking

Diagnosis

TBI is typically diagnosed by a doctor through a physical or neurological examination of the patient, often including verbal or cognitive tests to determine the mental implications of the injury. Doctors may also order an MRI or a CT scan to determine the extent of the injury.

The Glasgow Coma Scale is a system that evaluates a person’s conscious state and level of consciousness following a head injury. It can help determine the severity of a brain injury and help doctors prescribe the proper course of treatment. The Glasgow Coma Scale evaluates a patient’s visual, verbal, and motor response to different stimuli and assigns a score based on each response. This score helps doctors identify the severity of the patient’s brain injury and make an accurate prognosis.

Treatment & Recovery

Recovering from TBI can be a long and difficult process. It is crucial to begin treatment as soon as possible in order to minimize the damage to the brain. Treatment itself depends on the severity of the injury and the state of the patient.

Treatment options may include:

-   Antibiotics to prevent infection

-   Surgery to reduce swelling of the brain or remove broken skull fragments

-   Rehabilitation to help patients regain brain function, including speech and mobility

If you or someone you know has suffered from TBI as a result of an accident, it is important to consult a good personal injury lawyer. To speak with an Ottawa personal injury lawyer at Auger Hollingsworth, please call us at 613-860-4529, email us at info@personalinjuryottawa.ca, or use our contact form.

Treatment: What Are My Options?

TBI is a complicated injury, which means there are several different stages and options when it comes to treatment.

1.  Initial treatment

Initial treatment of TBI occurs when the patient is first admitted to a hospital or examined by a doctor. It is important that treatment begins immediately, in order to minimize the potential brain damage caused by the injury. At this stage, doctors work to stabilize the patient and may do one or more of the following:

-   unblock airways and ensure proper oxygen flow to the brain

-   treat open wounds and/or give antibiotics to prevent infection

-   order an MRI or CT scan to help determine the extent of the injury

-   perform surgery to reduce brain swelling or remove broken skull fragments

2.  Rehabilitation

Rehabilitative treatment may take place at a specialized centre or even at the patient’s home. Its purpose is to help patients regain lost brain-related functions or abilities, as well as prevent further complications.

The nature of the rehabilitative treatment will depend on the patient’s individual needs and the extent of his injuries. Some components of rehabilitation may include the following:

-   Language or speech therapy, which helps the patient work on his ability to talk and communicate.

-   Physical therapy, which works on issues related to balance, strength, movement, and coordination.

-   Occupational therapy, which relates to day-to-day living skills and can include things as basic as dressing, hygiene, or cooking.

Rehabilitation often also provides social and psychological support to the patient’s family, as they work through a difficult time of transition.

If you or someone you know has suffered from TBI as a result of an accident, it is important to consult a good personal injury lawyer who can help you deal with the legal implications of your accident. To speak with an Ottawa personal injury lawyer at Auger Hollingsworth, please call us at 613-860-4529, email us at info@personalinjuryottawa.ca, or use our contact form.

Need help after an Ottawa motorcycle accident?  Call us at 613 -233-4529.