Blog – Neinstein Personal Injury Lawyers
FSCO ruling could improve access to benefits for chronic pain sufferers
A recent Financial Services Commission of Ontario (FSCO) ruling may change the approach chronic pain lawyers take when attempting to secure accident benefits for their clients.
The Minor Injury Guidelines (MIG) of Ontario’s Statutory Accident Benefits Schedule (SABS) currently defines minor injuries as “sprain, strain, whiplash, associated disorder, contusion, abrasion, laceration, or subluxation [an incomplete or partial dislocation of a joint or organ].” It also includes “clinically associated sequelae,” or any conditions occurring as a consequence of such an injury, which is where chronic pain generally fits in. The MIG limits medical and rehabilitation benefits for these injuries to $3,500.
However, in Abyan v. Sovereign General Insurance Company, the plaintiff’s representative argued that the MIG breaches s. 15 of the Canadian Charter of Right and Freedoms by discriminating against individuals suffering from chronic pain. The FSCO arbitrator for the case, Benjamin Drory, agreed.
This ruling is remarkable in several ways. First, it may “open the floodgates to Charter challenges in accident benefit disputes,” wrote Michael McKiernan in a recent Law Times article.
Second, both Ontario’s attorney general and Sovereign General declined to take part in the proceeding, meaning the plaintiff’s argument went unchallenged.
“I can only assume they didn’t think the decision would end up where it did,” one Toronto lawyer who represents insurers told McKiernan. “It’s a very difficult one to take, because I think that if they had attended and made proper submissions, it would have changed the outcome entirely.”
Decisions made in individual FSCO sessions don’t have the same precedential impact as court rulings. Other FSCO arbitrators are not bound by Drory’s decision, and neither will it impact decisions in the Licence Appeal Tribunal, which took over ruling on accident benefits matters last year.
Still, the decision creates a roadmap for chronic pain lawyers eager to access benefits for their clients.
“I can’t imagine any MIG case involving chronic pain where I’m not going to be faced with a constitutional argument,” the lawyer, Alon Barda, said. “The limited precedential value doesn’t matter – I expect to see it raised every time.”
“It’s a very strong decision that should be very persuasive at FSCO and the LAT,” added Toronto lawyer Stephen Birman. “It’s going to be hard for any insurer to justify keeping chronic pain victims within the MIG, knowing that this decision is out there.”
Chronic pain is a deeply misunderstood affliction that has profound impacts on victims’ lives. Any steps the civil justice system takes towards improving access to benefits for chronic pain sufferers is likely to be supported by personal injury lawyers.
If you or a member of your family is suffering from chronic pain as a result of an accident, contact the chronic pain lawyers at Neinstein Personal Injury Lawyers to learn how we can help you on your road to recovery.
Image credit: SanDiego PersonalInjuryAttorney/Flickr
Motorcycle accidents account for 10 per cent of crashes on Ontario roads
Despite accounting for just 2 per cent of the vehicles, motorcycles are involved in 10 per cent of traffic fatalities in Ontario, according to a study published recently in the Canadian Medical Association Journal. The findings, though shocking, will not be of great surprise to Ontario motorcycle accident lawyers, who assist seriously injured motorcyclists on a regular basis.
The study was conducted by researchers at Toronto’s Sunnybrook Health Sciences Centre and the Institute for Clinical Evaluative Sciences (ICES). It looked at motor vehicle accident victims in Ontario’s hospitals from 2007 to 2013. During that time, 281,826 people were injured in car crashes, and 26,831 were injured in motorcycle accidents. In 2013, 50 of Ontario’s 500 motor vehicle deaths involved motorcycles.
“The main results of our study were that each motorcycle in Ontario causes 10 times the severe injuries, five times the deaths, and six times the medical costs of each automobile,” said study author Daniel Pincus in a Sunnybrook release. “Since the average motorcycle travels one fifth the amount of the average car, multiply these numbers by five to estimate injuries, deaths and costs per kilometer travelled.”
Since the year 2000, automobile crash deaths have plummeted by well over 50 per cent in developed countries around the world. In the past ten years, in particular, the rate of severe injuries and deaths caused by automotive crashes has improved significantly in Canada. However, as Ontario motorcycle accident lawyers know, the rate of death and serious injuries in motorcycle crashes has remained stable or even worsened.
“Despite publicly available data indicating the risk associated with driving a motorcycle is much greater than that associated with driving an automobile, this knowledge has not translated to improvements in motorcycle safety,” the study notes.
Pincus, a PhD candidate at ICES and orthopaedic resident physician at Sunnybrook Hospital, believes improved road safety measures are the solution, not a ban on motorcycles, mopeds, motor scooters, and motorized bicycles.
“A lot of people enjoy riding them,” he told the Toronto Sun. “The answer, I think, is trying to improve safety and try to improve preventable causes.”
He also noted that, despite his study’s grim findings, Ontario does more to protect motorcyclists than other jurisdictions.
“There’s mandated helmet legislation,” he said. “A lot of places in the states there isn’t.”
If you have been injured in a motorcycle crash, contact the Ontario motorcycle accident lawyers at Neinstein Personal Injury Lawyers today to arrange a free consultation. For decades, our team has helped Ontarians who have been injured in automotive accidents access compensation and medical care to help their recovery.
Image credit: Mikey O./Wikimedia Commons
Online therapy provides access to care for spinal injury victims
Spinal injury lawyers provide a variety of services to their clients, including managing legal and insurance matters and providing access to medical, rehabilitative, and continuing care. The aim of these services is to lighten the burden on the injury victim so they can focus on their long and sometimes painful recovery.
Unfortunately, these services rarely address clients’ mental health needs. A serious spinal injury can affect every aspect of a person’s life, from their ability to work to their personal relationships, and these changes often have devastating impacts on the victim’s emotional well-being.
According to the Regina Leader-Post, just 43 per cent of people living with spinal injuries have adequate access to emotional counseling, an issue that University of Regina post-doctoral research fellow Swati Mehta aims to improve.
Mehta has initiated a research project that offers internet-based cognitive behavioural therapy services to spinal injury victims. The eight-week course helps individuals manage their mental health and cope with new thoughts and behaviours associated with their injuries. It uses a series of vignettes and stories from spinal injury survivors to normalize the experiences and feelings the newly injured person might experience.
As Mehta told the Leader-Post, drastic physical changes in a person’s body can lead to severe emotional consequences.
“One might be body image because they’re in a wheelchair and they feel different,” Mehta said. “Having people stare at them, they might feel stigmatized. Others might be having bowel or bladder incontinence, so they fear having an accident when they’re in public. A lot of thoughts can come in and cause anxiety and depression and affect how they interact with people in their everyday lives.”
Mehta’s project is inspired by the work of Heather Hadjistavropoulos, also of the University of Regina, who founded an online therapy unit providing care for individuals grappling with post-partum depression, fibromyalgia, and cardiac issues, among other afflictions.
Physical and financial limitations often make mental and emotional counseling inaccessible for the clients of spinal injury lawyers. By providing therapeutic services through the internet, Mehta and Hadjistavropoulos are building a framework for access to care for some of Canada’s most vulnerable populations.
No amount of money can replace the lifestyle that a spinal injury victim has lost, but access to healthcare, counseling, and fair compensation improves that person’s chances of a full and successful recovery. If you or someone you love has suffered an injury, contact a Neinstein Personal Injury Lawyers spinal injury lawyer today to arrange a free, no-obligation consultation. Our team has been helping injured Ontarians access compensation and regain control of their lives for decades.
Advocates, Ontario brain injury lawyers call for athletic rule changes to fight concussions
In October, NHL legend Ken Dryden spoke to the CBC’s Anna Maria Tremonti about the impact of concussions on athletes. His statements echoed concerns and opinions held by most Ontario brain injury lawyers.
“Concussions affect a life,” he said. “They don’t just affect the ability to play a sport.”
Dryden has become an important anti-concussion voice in his post-hockey and post-political career. He recently published a book on ex-NHLer Steve Montador whose death at 35 was linked to a concussion-related neurodegenerative disease, and has called for significant concussion-reducing changes to the rules of hockey.
Dryden isn’t the only voice pushing for rule changes, including improved return-to-play protocols. Researchers at Western University’s Schulich School of Medicine, for example, recently published a study that revealed ongoing changes to the brains of concussed youth hockey players months after the injury occurred.
The Western team compared images of concussed brains taken 24 to 72 hours after the injury with scans taken three months later. The comparison showed ongoing damage to the brain’s wiring that could affect vision, balance, and thought process in the 11- to 14-year-old test subjects.
“We don’t yet know if this is a healthy coping mechanism in the brain, or if there will be detrimental effects later in life,” medical biophysics PhD candidate Kathryn Manning told CTV News. “This could be alarming if the brain is no longer able to compensate for this underlying damage.”
The study suggested that young athletes are returning to play too soon, leaving them susceptible to ‘second impact syndrome.’ The authors, and many Ontario brain injury lawyers, believe changes to return-to-play rules may be necessary.
Unrelated research led by Michael Cusimano, a neurosurgeon at St. Michael’s Hospital in Toronto, reviewed almost 30 studies involving more than 240,000 baseball and softball players with brain injuries. While head injuries are less common in these sports, the study found that a strong correlation between helmet use and injury severity. While just 14 per cent of the observed injuries were considered ‘severe,’ the vast majority of severely injured victims (upwards of 93 per cent) admitted to not wearing a helmet. Better-enforced league regulations and more effective awareness and education programs could go a long way in reducing the prevalence of concussions or other brain injuries in recreational athletes, the research suggests.
If you or a member of your family suffers a brain injury while playing a sport, you may be entitled to compensation. Contact Neinstein Personal Injury Lawyers’ team of experienced Ontario brain injury lawyers to find out how we can help.
Image credit: University of the Fraser Valley/Flickr
“Phones Down, Heads Up Act” comes under fire
Last month, Ontario Liberal MPP for Etobicoke Centre Yvan Baker introduced a private member’s bill, the “Phones Down, Heads Up Act,” that he hopes will curb distracted walking and improve road safety in the province. While Ontario personal injury lawyers agree that there are far too many pedestrian fatalities in Toronto and elsewhere, many have questioned the wisdom of the proposed bill.
“The purpose of this bill, first of all really, is to just raise awareness,” Baker said. “Experts tell us that if you are distracted while you’re crossing the street, looking down at your phone, then you’re at risk of hurting yourself and maybe hurting somebody else, as well.”
Baker’s bill has its supporters. Last year, after Toronto endured its most pedestrian deaths in well over a decade, city council asked the province to make crossing streets while using your phone illegal under the Highway Act. The province declined, but encouraged the city to pass its own bylaws.
Toronto police Sgt. Jeff Zammit also told the CBC that the law, which would impose a maximum $50 fine for first offences, could lead to safer streets.
“This is a great way of just saying, ‘hey, wake up because you’re going to get a ticket if you don’t, or you’re going to get injured and end up in hospital.”
However, the “Phones Down, Heads Up Act” has also prompted significant backlash, including from Ontario personal injury lawyers.
A Toronto Sun editorial complained about the law’s “nanny state” qualities, while quite reasonably pointing out that “since the potential penalty is serious injury or death, and people do it anyways, they’re not going to be deterred by a $50 fine.”
The Globe and Mail’s Andrew Clark suggested the law puts an unreasonable burden of responsibility on pedestrians.
“If we follow Heads Up, Phones Down logic, shouldn’t we be fining people who get shot for distracted walking?” he melodramatically wondered. “Surely they should have their heads on a swivel looking for stray bullets.”
The vast majority of pedestrian deaths in Ontario are caused by motorists. Rather than punish pedestrians for the foolish but relatively harmless act of reading a text while crossing, shouldn’t all levels of government be pushing for improved pedestrian and cycling infrastructure; reduced speed limits; and harsher penalties for impaired, distracted, and dangerous driving?
If you or someone you know has been injured in a car accident, contact the Ontario personal injury lawyers at Neinstein Personal Injury Lawyers today. Our team has the experience and expertise to secure fair compensation for your injuries.
David Marshall criticizes Ontario auto insurance system
It’s not easy to find enthusiastic supporters of Ontario’s auto insurance industry: from policyholders who believe their premiums are too high to car accident lawyers worried about drastic cuts to accident benefits, the system has room for improvement in numerous areas.
In 2015, the provincial government sought to identify solutions for some of these issues by enlisting David Marshall, the former CEO of the Workplace Safety and Insurance Board, as a special advisor to Finance Minister Charles Souza. Marshall observed and analyzed the industry over the next two years, and in April 2017 published his report titled Fair Benefits Fairly Delivered. We discussed this report and its impact on car accident lawyers and their clients in May.
Fair Benefits Fairly Delivered described an industry “filled with disputes and inefficiencies” and that struggled to reduce costs to consumers.
“Overall,” Marshall wrote, “Ontario has one of the lowest levels of auto accidents and fatalities in Canada and the most expensive auto insurance premiums.”
On October 25, Marshall renewed his criticism of the auto insurance system during a session at the Insurance Brokers Association of Ontario annual convention. Speaking with Don Forgeron, president and chief executive officer of the Insurance Bureau of Canada, Marshall called on insurers to do more for catastrophically injured claimants. He also took aim at the June 2016 changes to Ontario’s Statutory Accident Benefits Schedule that drastically reduced coverage for basic policyholders and revised criteria for catastrophic injuries like amputations, loss of vision, mental and behavioural impairments, and brain injuries.
Under the existing system, Marshall said, claimants may spend “thousands and thousands [of dollars] on assessments and doctors and lawyers fees and so on,” only to receive a one-time payout that must last “for their lifetime.”
This line of criticism echoes a complaint that car accident lawyers have been making for years: that the auto insurance industry isn’t focused on patient outcomes.
“Not a single insurance company that I spoke to in Ontario – and I spoke to all the big ones – has anything in their records about when a person got well,” Marshall told the audience, according to Canadian Underwriter. “They know when the claim was resolved and how much they got paid.”
If you or a member of your family has been injured in an automotive accident, contact the car accident lawyers at Neinstein Personal Injury Lawyers today. Over our many decades in practice, our team has developed a sophisticated understanding of Ontario’s auto insurance industry and of the numerous challenges facing injury victims. We are here to fight for your right to compensation.
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Neinstein Personal Injury Lawyers at the 2017 Acquired Brain Injury Provincial Conference
From November 1 to 3, Neinstein Personal Injury Lawyers was pleased to attend the 2017 Acquired Brain Injury (ABI) Provincial Conference in Niagara Falls, ON. This annual conference brings together hundreds of professionals representing a variety of discipline, as well as individuals, family members, and caregivers living with the effects of brain injury.
Organized by the Ontario Brain Injury Association (OBIA), the 2017 ABI Provincial Conference curriculum included subjects of interest to care managers, legal professionals, occupational therapists, physiotherapists, psychologists, researchers, and speech and language pathologists.
Neinstein Personal Injury Lawyers has a longstanding relationship with the OBIA. Not only did we participate in this year’s conference as Silver Sponsors, we are proud to chair the annual Mix & Mingle, an event that raises money for the OBIA and the Brain Injury Society of Toronto (BIST).
Check out our Facebook page for pictures from the event. Congratulations also to our booth prize winner, rehab therapist Nicky Tsiropoulos – she has won a pair of Blue Jays tickets for next season!
City of Toronto approves bike lanes on Bloor
In May 2016, Toronto City Council approved a year-long pilot project that would see bike lanes installed along a roughly two-and-a-half kilometre stretch of Bloor Street, between Avenue Road and Shaw Street. It was a contentious decision: bike lanes enjoy support from cycling and road safety advocates – and some bicycle accident lawyers – who say they improve safety for cyclists, pedestrians, and motorists. Car-driving members of the public, on the other hand, believe they prolong commutes and, in some cases, make streets less safe.
The lanes were installed in August 2016 at a cost of approximately $500,000. A year later the project wrapped up, and in October city transportation staff published a report recommending that the lanes be made permanent.
The report ‘determined that the lanes have achieved the key objectives of improving safety on the corridor, dramatically increasing cycling rates, and minimizing negative effects on other roads users,’ the Toronto Star reported.
Several city council members immediately announced their support for the permanent bike lanes, including councillors Joe Cressy and Mike Layton, whose wards contain the affected section of Bloor, and Mayor John Tory.
“I will support the staff recommendation to keep the bike lanes, with continued improvement to be made to safety, street design and practical improvements for local businesses,” Mayor Tory said.
On November 7, council made good on its words, voting 36 to 6 to make the lanes permanent. Three councillors abstained.
Safety Improvements
Road safety is at the heart of the decision to keep the bike lanes. The city report found that conflicts between motorists fell by 71 per cent during the pilot, while conflicts between cyclists and motorists fell 61 per cent and conflicts between pedestrians and motorists fell 55 per cent. Each of these numbers is sure to bolster support among bicycle accident lawyers.
The news wasn’t all good: incidents between cyclists and pedestrians increased by 61 per cent, and the total number of collisions involving cyclists did not fall, though usage surged. Importantly, all road users, including drivers, said they felt more comfortable on Bloor Street following the installation of the lanes.
The case for bike lanes
Bike lanes are an important element of most road safety improvement plans. They encourage cyclists to ride in greater numbers, which raises motorists’ awareness and generally leads to sizeable decreases in collisions, serious injuries, and fatalities, particularly when the infrastructure includes a physical barrier. While they can have minor negative impacts on commute times, local businesses, and municipal revenues, their efficacy in reducing injuries can’t be underestimated.
“Making cycling in the city easier and safer has a host of benefits,” wrote the Toronto Star’s editorial board. “It’s healthy, good for the environment, and eases congestion on the roads and public transit. The Bloor project shows it can work even in some of the busiest parts of the city, if it’s done right.”
If you or a member of your family has been injured in a cycling accident, contact the bicycle accident lawyers at Neinstein Personal Injury Lawyers to find out how we can help. Our team has extensive experience in all manner of personal injury cases, and can help you access compensation for your injuries.
Should helmets be mandatory in community softball leagues?
Recreational sports are a great way to stay in shape and meet new people. In Toronto, where Neinstein Personal Injury Lawyers’ head offices are located, community sports leagues provide a physical outlet for athletes of all kinds, from basketball players to dodge-ball enthusiasts.
While participants in these leagues are engaging in a healthy pastime, they are also putting themselves at risk. Despite the best efforts and intentions of organizers and players, injuries are unavoidable in any sports environment. Recreational leagues generally produce less serious injuries than highly competitive settings, but the injuries can be severe nonetheless.
In August, 32-year-old British Columbia man Chris Godfrey was killed after being struck in the head by a softball during a Comox Valley Slopitch League (CVSP) game in Courtenay, BC. Reporting on the death, CBC News British Columbia also talked to Danielle Hitcher, who was struck and sustained serious injuries in a game last year.
“The ball fractured my skull and burst an artery,” Hitcher said. “Basically an artery pumps blood … It would just continually fill my head with blood and squish my brain down into my spinal cord. Eventually it cut off circulation to my organs.”
Accidents like these have caused league participants, public safety watchdogs and personal injury lawyers to question the safety practices employed by community sports leagues. Should helmets be mandatory? Or should players be allowed to forgo protection at their own risk?
Softball Canada lays out the rules for community leagues around the country, and today helmets remain optional for batters and base runners. The organization released a statement following Godfrey’s death.
“We are deeply saddened by the tragic loss of Chris Godfrey and wish to extend our sincere condolences to his friends and family in these difficult times,” the statement read. CEO Hugh Mitchener pledged to continue to review safety standards to ensure the pastime remains safe and fun for participants.
Some of British Columbia’s recreational leagues aren’t waiting for the governing body’s direction: the CSVL made helmets mandatory on August 23, and some Vancouver Island teams are planning to follow suit. New Westminster’s Co-ed Adult Recreational SloPitch League announced following Godfrey’s death that it is “considering implementing measures regarding the use of helmets that may exceed the current Softball Canada rules.”
According to Slo-Pitch Ontario’s 2016-17 handbook, approved helmets may be worn by any player, but are not mandatory.
If you or a member of your family has been injured in a community sporting event or has suffered a serious injury in an accident, contact Neinstein Personal Injury Lawyers today to find out how we can help. Our experienced team has been representing injured Ontarians for decades.
How liability insurance can protect you and your kids
Injuries can happen at any time and to anyone, including kids at school. The unpredictability of injuries and the countless unique scenarios that produce them are what make personal injury lawyers jobs so challenging. Today, we’ll look at an interesting civil case that reveals the importance of wide-ranging liability coverage, as well as the versatility or homeowners insurance.
In March 2015, a group of children at a Catholic school in Toronto became involved in a physical altercation that resulted in one child breaking his arm. The mother of the injured child sought out the parents of two other children involved in the altercation and informed them that she would be seeking financial compensation for her child’s medical expenses, the time she was forced to take off work, and child care expenses related to the injury. When the families failed to respond, she initiated a lawsuit against her son’s school, the principal of the school, and the Catholic school board.
According to CTV News, the ‘Ontario School Boards’ Insurance Exchange, which provides insurance coverage for the Catholic school, filed a cross-claim against the two children, arguing it is the children who should be held accountable, not the school, principal and school board.’ The children, the exchange argued, acted negligently and failed to comply with the school’s “hands off” policy.
Hiring personal injury lawyers to pursue compensation on behalf of your child is a perfectly reasonable thing to do. While a schoolyard fight is unlikely to yield significant, lasting injuries, in rare cases it may cause serious damage for which your family should be compensated.
“You have to look at the poor kid who got hurt,” a Toronto lawyer told CTV. “He broke his arm and unfortunately, sometimes these injuries don’t heal well, and this person might need physiotherapy for the rest of their lives. These are things we don’t think about because we have public health. But physiotherapy is not always covered.”
Luckily, most homeowners’ insurance policies, which mortgage providers generally require, provide basic liability coverage for injuries that policyholders – and their children – incur in and outside of the home. Individuals who rent their home can access this coverage through tenant insurance, which is fairly affordable.
If you or a member of your family has been injured in an accident, contact Neinstein Personal Injury Lawyers to set up a free, no-obligation consultation. Our team can help you understand your legal options and advise you of your path forward.
Photo credit: Aislinn Ritchie/Wikimedia Commons
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