The Ottawa personal injury team at Auger Hollingsworth was recently successful at having our client identified as having suffered a catastrophic injury on the eve of a FSCO arbitration.  The insurer had denied that our client was catastrophically injured, despite the fact that she was noted to have suffered a GCS of 9 and below in the initial period after the accident.  The following is an excerpt from the legal argument we filed at FSCO.

 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.

If you have been injured in an Ontario car accident, you may be wondering who will pay for the expenses you incur during your recovery.  In many cases, your car insurance company will be able to cover your expenses, but there is a specific process you have to follow in order for this to happen.

The first thing you need to do is to fill out an Expenses Claim Form (OCF 6).  You can find this form on the following website: http://www.fsco.gov.on.ca/en/auto/forms/Pages/ocf_forms.aspx.

This form should be used to claim expenses that have not already been claimed through your health care provider.  You can claim a number of different expenses on this form, depending on what benefits you are eligible for,  such as rehabilitation treatment, transportation services, cost of hiring a caregiver, etc.  All of the expenses that you claim on this form must have been incurred as a result of your accident and must be covered by your auto insurance policy.  It is important to complete this form thoroughly and completely so that you don’t encounter any unnecessary problems with your claim.

You need to submit the Expenses Claim Form within thirty days of incurring the expense so make sure to keep track and to stay within that specified time-frame.  You also need to include any receipt you have of your expenses so it is best to develop a system of organizing your receipts so that you can easily find them and include them with your form.  Be sure to address your expense form to the appropriate adjuster from your car insurance company so that your claim gets to the right person.  Also, keep a copy of your completed form for your files.  Again, all of this may seem tedious but it is important to follow all of the details so that you can receive your claim.

If you do not receive any payment within thirty-five days of submitting your claim, follow up with the insurance adjuster.  There could be a number of reasons why you haven’t received your payment so be sure to speak with the right adjuster to see what the delay or problem is.  Remember to record all follow up in writing so either print e-mails or keep a copy of letters you send to the adjuster.  This way you have something to refer back to if something goes wrong.

While no one really enjoys filling out forms and organizing receipts, it is worth it in this case in order to receive compensation for your accident-related expenses.  It would be a shame to miss out on some financial reimbursement, so be sure to fill out the appropriate forms and follow all of the necessary steps.

After an Ontario car accident, your physician will be asked to complete a Disability Certificate  OCF-3 by your accident benefit insurer.

The Disability Certificate OCF 3 is of vital importance to your entire claim for accident benefits.  As a result, it is very important that your doctor consider the following when completing the form:

• Every single injury from the accident should be listed on the form, including any cognitive, emotional, mental health or psychological issues.  Many doctors only include physical injuries on the initial form which may compromise your ability to get therapy down the road if you need it.
• If there is a tear or a muscle or ligament, the doctor should indicate whether it is partial or complete.  Because of the law governing accident benefits, there is a big difference in what therapy is available for only a partial tear.
• If you have whiplash, the doctor should indicate if neurological injuries are suspected.  Are you getting headaches?  Is the pain radiating down your arm?  Is your face numb?   All of this should be accounted for.
• Do you have any pre-existing conditions that could make it more difficult for you to recover from your injuries?  For example, do you have pre-existing anxiety or depression?  Make sure your doctor knows and completes this on the space allocated for that information on the OCF-3.
• Make sure your doctor knows that the insurer will pay for the completed OCF-3.

Most cyclists probably don’t think about the need for insurance in the event that they get into an accident with a motor vehicle.  In fact, it is very important to have the appropriate automobile insurance if you plan on cycling regularly.  Car insurance is what will protect you if you get into an accident.  This coverage may have to cover all damages related to the accident, including pain and suffering as well as lost wages.  For these reasons, you should ensure that you have the proper car insurance coverage that will protect you if you are injured in an accident with a motor vehicle.

It is important that you review your car insurance policy to ensure that you have the right kind of coverage, including accident family endorsement protection.  Don’t just assume that you have “full coverage”.  Carefully look over your insurance policy and speak with your car insurance provider to make sure that you have coverage in the event that you are in an accident with an automobile.  Two kinds of coverage are particularly important to have: liability coverage and statutory accident benefits or no-fault coverage.

Liability coverage insures you against any injuries or damages that you cause to another person while in an accident where you are at fault.  MostOntariodrivers have this kind of coverage and the law inOntariorequires drivers to have this coverage with only a minimum limit of $200,000 per accident.  This means that the at-fault driver’s insurance may not cover the cost of all of the injuries inflicted upon the cyclist, if the injuries were severe.  If you are injured as a cyclist, and the at-fault driver’s insurance does not cover the cost of your injuries, your car insurance policy becomes applicable.  For this reason, you want to make sure that you have proper coverage for situations like this.

Statutory accident benefits or no-fault coverage is mandatory for all Ontarians with car insurance.  This kind of coverage, also known as SABS or ABS, will cover lost wages and medical expenses, subject to specific limits.  These benefits are available regardless of whether or not you are responsible for the accident, as long as a motor vehicle was involved in the accident.  This kind of coverage means that you can receive immediate medical attention after the accident, without having to wait for the driver’s insurance company to accept liability.

Knowing your car insurance policy is important in order to ensure that you are properly protected in the event that you are injured in a motor vehicle accident while cycling.  If you have legal questions about your accident, feel free to contact the personal injury lawyers at Auger Hollingsworth.

One of the most serious injuries an Ottawa cyclist can sustain is spinal cord injury.  Like head trauma, damage to the spinal cord is severe and can certainly be life-altering.  Because the spinal cord is responsible for transmitting signals from the brain to the body, and vice-versa, damage to the spinal cord can have very serious and lasting effects on an individual’s health and their ability to function.  The most severe consequences of spinal cord injury involve permanent disability or paralysis of part of the body or the entire body.  The extent of the injury depends upon the location of the damage to the spinal cord. 

Some of the Symptoms of Spinal Cord Injury

A variety of symptoms accompany a spinal cord injury.  Some of the symptoms include numbness, loss of feeling, and loss of motor function in the area below the injury.  Because the spinal cord controls all of the nerves in a person’s’ body, the symptoms of spinal cord injuries usually have to do with sensation and movement of parts of the body near the site of injury.  The severity of these symptoms varies depending on the extent of the damage done to particular nerves.  It is possible to regain sensation or movement in areas that were once affected by nerve damage, but this is never a guarantee.

Ottawa Spinal Cord Injuries May Require Rehabilitation 

Individuals who suffer from spinal cord injury are often hospitalized and require intense medical treatment.  This often placed a burden on themselves and their friends and family.  It can be difficult emotionally and financially.  Because of the severity of the injuries, treatment for spinal cord injuries can take a long time and there are often recurring bouts of treatment, rehabilitation and other medical appointments.

Can A Personal Injury Lawyer Help? 

For these reasons, a personal injury lawyer can be very beneficial in this kind of situation.  It is important to enlist the help of a personal injury lawyer who can help you receive compensation for your injuries.  If you or a loved one has suffered a spinal cord injury, contact the personal injury lawyers at Auger Hollingsworth.  Call us at 613 233-4529 or use the contact form on the site. 

If you have been injured in an Ontario car accident, but do not have your own car insurance, you can still file a claim for your injuries.  You may be entitled to accident benefits, but who pays for them will depend on the circumstances of the accident.  Contacting an Ontario personal injury lawyer should be one of the first things you do when trying to figure out how you can claim accident benefits.  They will be able to guide you and help you determine the best course of action in your situation.

Even if you don’t have car insurance, you will need to fill out an Accident Benefits Application Package, just as you would if you had your own car insurance.  The forms in this package are necessary for an insurance company to assess if you are entitled to accident benefits and if so, how much you will receive.  The particular circumstances of the accident will determine who you should send this package and who will cover any accident benefits you may be entitled to.

For example, if you were driving a vehicle owned by the company you work for, you should send your Accident Benefits Application Package to the insurance company that insures that vehicle.  If you were a passenger in a vehicle that was in an accident, you should contact the insurance company that covers the vehicle you were riding in.  If you were hit by a vehicle while walking or cycling, the insurance company for that vehicle should cover your accident benefits.  If you were a passenger in an uninsured vehicle, and the other car involved in the accident is insured, then the insurance company for that vehicle will deal with your application for accident benefits.  If the other vehicle was also not insured, you may be able to make a claim for accident benefits to Ontario’s Motor Vehicle Accident Claims Fund (MVACF).

In the event that no other insurance company can be found to be responsible for any accident benefits you may be entitled to, the MVACF might be able to provide you with some coverage.  They are a last resort when no other recourse is available.

If you are trying to determine how you can make a claim for accident benefits after a car accident, contact the Ottawa personal injury lawyers at Auger Hollingsworth for a free consultation.  If you are entitled to accident benefits, they will help you achieve a favourable outcome.

As we wind down 2010,  the Ottawa Personal Injury Lawyers at our law firm wanted to share some of the “low lights” of our dealings with insurance companies on behalf of our clients in 2010.   Here are our top four this year.

• The insurance company cut off benefits saying claimant had not pursued a specific treatment AFTER the insurance company denied that the treatment was reasonable and necessary.  The treatment was recommended in an assessment by the insurance company, the treatment provider filed the forms with the insurance company, the insurance company denied the treatment and then cut off benefits!

• The insurance company refused to pay benefits to a claimant saying that the claimant had not undergone a insurer’s assessment,  when the insurance company had repeatedly failed to give the claimant notice of any assessment telling her where and when to show up. The insurance company kept scheduling appointments with the assessors and then forgot to send the notice to our client.

• The insurance company told a man who now uses a wheelchair for mobility that they did not have to ensure he had an accessible washroom because he lived in a rental home.  (Renters don’t have to go, I guess?)

• The insurance company refused to fix a teenager’s teeth which were broken in an accident saying they had no proof of the damage despite being provided with before and after photos. Imagine having your graduations photos taken with broken front teeth.  Not nice.

The accident lawyers at our firm are either working on or have resolved each of these issues for our clients.  If you had an accident and didn’t have a lawyer, would you know how to fix these issues?  (Hint:  rational discussion usually does not work.)

When The Best Just Won’t Do: Accident Benefits and Catastrophic Injuries

OTTAWA PERSONAL INJURY LAWYER – What would you do for money if you were catastrophically injured in a single car accident and there was no-one to sue?

It is very easy to identify millions of dollars in necessities, not luxuries, that are needed by quadriplegics or others with profound disabilities. Medical devices, lifts, attendant care, prescriptions, physiotherapy, massage therapy, vocational assistance, case management, wheelchairs, adapted transportation and home modifications are just some of basic needs of people who suffer serious injury.

If you don’t have disability insurance and significant extended health benefits, how do you pay for this? If you think the answer is OHIP, think again. Virtually none of the items in that list are covered by OHIP.

Fortunately, in Ontario, we have the most extensive no-fault accident benefits available in North America. Virtually everyone in Ontario who is injured in a motor vehicle accident is entitled to these benefits. That is true even if you do not have your own auto insurance. That’s great, right?

It’s good. Not great.

I met with someone recently who became a quadriplegic in a single car accident a few years ago. There has been no opportunity to make a claim against any form of insurance apart from the no-fault accident benefits. We have been discussing settlement and what might happen down the road. I was asked by a family friend who met with us whether the plan we were proposing, which would be an excellent result relative to what is available, would be enough for this person to cover his needs.

The straight answer I had to give him was “no”. For a young person (and by young I mean 40 and under), there is simply no way to stretch the policy limits under the accident benefits (assuming you can get the limits) to make them cover all of the needs of a quadriplegic if that person lives a typical lifespan. And that is in the province with the best no-fault scheme.

So what is the call to action? First, despite tougher economic times, the message is: resist the urge to make ends meet by cutting disability or other health insurance you have. In the event of a tragic accident, you would need every penny available. If not for yourself, think of the financial and emotional strain on your extended family if you coould not afford your own basic medical needs.

Second, speak up over the coming months when the insurance industry makes noise about cutting the no-fault benefits regime. Tell your MPP that this important safety net is not something you think Ontario should be without. I have relayed this message to my MPP. I hope you will do the same.

Accident Benefits Lawyer: What is a Catastrophic Injury?

An injured person in Ontario who suffers an impairment after a car accident can apply, often with the help of an experienced personal injury lawyer, for a determination of whether their impairment qualifies as a “catastrophic” impairment under Ontario’s accident benefits.

Catastrophic Impairment means:

a) paraplegia or quadriplegia;

b) the amputation or other impairment causing the total and permanent loss of use of both arms or both legs (after September 1, 2010 a single amputation is sufficient)

c) the amputation or other impairment causing the total and permanent loss of use of one or both arms and one or both legs

d) the total loss of vision in both eyes

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

(i) a score of 9 or less on the Glasgow Coma Scale; or

(ii) a score of 2 (vegetative) or 3 (severe disability) on the Glasgow Outcome Scale

f) any impairment or combination of impairments that results in a 55 percent or more impairment of the whole person, in accordance with A.M.A. Guide’ or

g) any impairment that results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder, in accordance with the A.M.A Guide.

Here are some of the differences in benefits for those who are Catastrophically Impaired insured, versus those who aren’t:

1) Attendant Care payable at $6,000 per month (up to a maximum of $1,000,000) if you are insured, instead of $3,000 if you aren’t

2) Those who are insured receive a maximum of $1,000,000 for life in Medical and Rehabilitation Benefits,

3) The Medical and Rehabilitation benefits are also for life, instead of just for 10 years.

To learn more about Statutory Accident Benefits, order our free book Injured Victim’s Guide to Fair Compensation.

Don’t Forget to Buy Disability Insurance…

I spoke to a shocked professional man today who called for a free consultation with an Ottawa personal injury lawyer.  He was shocked because I confirmed what his Ontario accident benefit insurer’s adjuster told him.  The maximum income replacement benefit he was eligible to receive was $400 per week.  Plus, if he worked enough each week to earn $400, he would get nothing, even if his weekly earnings were more than $1500 before the accident.

For medium and high income earners, it is unwise in the extreme to rely exclusively on the Ontario auto accident insurance regime to assist you financially after an accident.  First, the Ontario income replacement benefit amount is low.  Second, the Ontario income replacement benefit decreases by every penny you make while you are disabled.  Third, there are many ways to be disabled that would not make you eligible for Ontario income replacement benefits.

Although in many cases my clients recover their loss of income from the person who was responsible for the accident, that process is rarely quick and painless.  Your mortgage is due long before your case against an at-fault driver will be settled.  What do you do to meet your expenses in the meantime?

Financial planning requires planning for disability.  As my Ottawa personal injury practice has taught me, anything can happen at any time.  In an average week, I speak to no fewer than 10 Ottawa residents who cannot work because of an accident, of one type or another.  For those who are self-employed and who are without disability insurance, the situation is soon dire.

If you are self-employed, please make this the month that you look after purchasing disability insurance to protect yourself and those who rely on you.

If you have been injured in an Ontario accident, make sure you speak with a personal injury lawyer who can help you get the best possible compensation for your injuries. For more information, contact the Ottawa injury lawyers at Auger Hollingsworth by email info@ottawalawfirm.ca or by phone at (613) 233-4529.