Archive for November, 2011

Chronic Pain in the News- Part II

Monday, November 28th, 2011

Our firm handles many types of cases. We do handle many car accident claims. Often times, as a result of car accidents, our clients go on to develop a chronic pain syndrome. Chronic pain is not an imagined symptom.

A recent article in the Wall Street Journal proposed an alternative way for people suffering from chronic people to treat their pain, by using guided meditations and hypnosis. In fact, recent articles appearing on the Internet about treating chronic pain have focused on alternatives to pain medications.  According to the article, “Rewiring the Brain to Ease Pain“, chronic pain represents a malfunction in the brain’s processing centres and this actually be seen on brain scans. The pain signals take detours into areas of the brain involved with emotion, attention and perception of danger and can cause gray matter to atrophy. Studies were conducted, and brain activity was measured while subjects participated in a guided meditation. The results demonstrated that being distracted from pain and thinking about the pain was effective and the study subjects found a new way to look at their pain.

Locally, a chronic pain treatment centre in Vaughan, Ontario is receiving attention. Dr. Ron Nusbaum moved his Canadian Headquarters Clinic just north of Toronto. This is the first in Canada to offer the cutting edge Class IV K-Laser therapy, a unique, painless and side-effect free approach to treatment that stimulates healing, reduces inflammation and pain. Dr. Nusbaum is the founder of the Back Clinics of Canada. He has created a new comprehensive non-surgical, drug-free and integrative approach to diagnosing and treating those who have suffered for years from back pain and chronic pain- the “High Performance Healing System”. He offers an alternative to risky neck or back surgery.

How about talk therapy? Cognitive behavioural therapy is an effective way to help manage chronic pain.  A study in the United Kingston found that exercise and CBT were two successful alternatives to consuming pain medication. Introducing these interventions within the first six to nine months of treatment is preferable.

It is also worth mentioning that women who experience poor sleep are at elevated risk for developing fibromyalgia, according to a Norwegian study. Sleep disturbances and excessive fatigue are known symptoms of fibromyalgia. Sleep deprivation also has been linked with increased levels of circulating inflammatory markers and a loss of pain inhibition.

The company Medtronic received FDA approval for a device meant to help treat chronic pain. The device is called “AdaptiveStim with RestoreSensor” and is a Neurostimulator using innovative motion sensor technology, similar to that used in smartphones and gaming systems by automatically adapting stimulation levels to the needs of people with chronic back and/or leg pain. This device does away with manual changes, and instead is an automatic device that recognizes and remembers the correlation between a change in body position and the level of stimulation needed. It also records and stores the frequency of posture changes, and allows the doctor or therapist to understand how a patient’s individual stimulation requirements are changing over time. This device is also approved by the FDA for use in MRI head scans if recommended by a physician.

Aaron Waxman & Associates: Spreading Expert Knowledge in the Community

Monday, November 28th, 2011

At Aaron Waxman & Associates, we believe it is important to be informed. We are happy to appear as guest speakers at events or community meetings to explain how the legal process works, or how insurance claims work.

Yesterday, November 26, 2011, Aaron Waxman spoke at the Fall 2011 meeting at the Lyme Disease Toronto organization, which is an organization set up to assist people who have developed lyme disease, to provide them with resources, support an information.

Aaron spoke to the attendees about potential issues that people with a chronic illness may have with their insurance companies such as difficulties with paying for medication, short and long term disability payments and medical procedures. Aaron also talked about how our firm can assist with the process for obtaining CPP disability benefits.

Lyme Disease is a serious bacterial infection spread through bites from ticks.

Untreated Lyme Disease can spread to the brain, heart and joints.


Critical Illness Insurance: A Closer Look

Thursday, November 24th, 2011

Critical Illness Insurance is a relatively new product in the insurance world. Canadians are becoming more and more aware of its existence. It came to Canada in the mid to late 1990s. It is part of a Living Benefits Portfolio, intended to supplement disability insurance.

Critical Illness Insurance pays you a lump sum benefit. Payment of the benefit is based on a medical diagnosis versus a level of impairment which is the case in long term disability plans.

CI plans have a survival period you have to meet- usually 30 days, and it is exactly what it sounds like: you must survive 30 days after being diagnosed with a qualifying illness.

Coverage terminates upon payout of benefits.

What does CI insurance cover?

3 core “Illnesses”: Heart Attack, Stroke, Cancer

2nd Tier Conditions:

  • Coronary Artery Bypass Surgery
  • Neurological Conditions such as Parkinson’s, Multiple Sclerosis, ALS, Alzheimer’s
  • Major Organ Transplant, Kidney/Kidney Failure
  • Accident Related Incidents- Burns, Paralysis, Blindness, Loss of Speech, Loss of Limbs, Occupational HIV Infection

Other covered conditions: Bacterial Meningitis, Anemia

A Critical Illness policy is medically underwritten, meaning your medical history and family history are carefully reviewed.  With disability insurance, your medical health is considered, but not as carefully examined and closely reviewed as with Critical Illness policies. In a long-term disability policy, your occupation is what is heavily weighed.

As with any insurance policy, there are likely issues that would require a lawyer’s help. We refer to those as “litigious issues”. Sometimes insurance companies attempt to rescind policies for material misrepresentation or non-disclosure.  If you are purchasing a CI policy, you should not leave out important information such as pre-existing health conditions or appear to misrepresent yourself.

Section 308 of the Insurance Act states that it is up to the policy owner and the insured to disclose every fact withing their knowledge which is material to the insurer, and failure to do so, renders the contract voidable by the insurer.

The onus to prove that misrepresentation has happened is on the insurance company.

Another issue that might affect coverage is the actual diagnosis itself. First of all, a diagnosis must be made by a qualified specialist, and of course, the insurance company’s doctors have to agree with that diagnosis. Where some diagnoses may not be as clear cut as others, policy holders may run into difficulties.

At our firm, Aaron Waxman & Associates, we have handled many critical illness claims and are experienced in this area of law. We help our clients get access to the benefits they deserve and need.

Are your LTD benefits at risk?

Wednesday, November 23rd, 2011

A recent article on posed the question, “Are your disability benefits at risk?”

What is meant by this, is what type of disability benefits are your employers providing you with? If you have long-term disability benefits available to you through your employer, is there an insurance company underwriting these benefits?

Some companies/employers have moved to a “self-insured” arrangement, where they set aside money to pay for their employees’ disability benefits…Unfortunately, you may not be aware of this until your employer gets into financial trouble, meaning your LTD payments are at risk.

An example is what happened with Nortel employees, a company who decided to go this route. About 400 employees were in receipt of LTD benefits. Nortel filed for bankruptcy protection in 2009 and employees found themselves cut off from disability benefits. The disabled employees received a lump sum benefit that will cover them for a couple of years only.

Employees of Nortel were under the impression that they were insured by Sun Life as their disability insurer. Sun Life handled the administration and communication for Nortel’s long-term disability benefits but did not cover the payments.

Independent financial analyst Diane Urquhart provides her advice in the article and it is noteworthy that approximately 1.1 million people  (7% of the workforce) are in employer-sponsored long-term disability plans that are not underwritten by insurance companies.

If your LTD plan is underwritten by an insurance company, you should take comfort in knowing that insurance companies are regulated for solvency by the Office of the Superintendent of Financial Institutions. They must set aside reserves to pay for current and future claims.

At the law firm of Aaron Waxman & Associates, we specialize in long-term disability claims and can help you in your time of need.

Criminal Injuries Compensation Board

Wednesday, November 16th, 2011

Aaron Waxman & Associates can assist you with your Criminal Injuries Compensation Board claim.

The CICB was establish in 1971 to help the victims of violent crime committed in Ontario. It provides financial compensation to victims of crime and to the families of deceased victims.

The CICB aims to treat victims with courtesy, compassion and respect for their personal dignity and privacy.

The Criminal Injuries Compensation Board is an administrative tribunal that is governed and operates under the The Criminal Injuries Compensation Board is an administrative tribunal that is governed by the Compensation for Victims of Crime Act.  The Board assesses financial compensation to those who qualify under the Act, namely victims or the family members of deceased victims of violent crimes committed in the Province of Ontario.

No amount of money can ever make up for the harm suffered by victims of crime, but the CICB believes that compensation can play a vital role in their recovery; it may assist them in meeting their physical, emotional and financial needs. The goal of the CICB is to ease the financial burden experienced by victims of violent crime in a sensitive and respectful way.

Who can apply to the Criminal Injuries Compensation Board?
It depends on whether there was an injury or a death.
Anyone who is injured as a result of a violent crime in Ontario is able to apply, including a person who is hurt or affected while making an arrest or assisting a peace office with law enforcement duties, or even while trying to prevent a crime. Violent crimes include firearm offences, poisoning, arson, assault, sexual assault, domestic assault, child physical assault, child sexual abuse etc.
The injuries may either be physical or psychological. According to the CICB, the injuries must be more than merely transient or trifling in nature in order to be awarded compensation.If a victim is under the age of 18, or unable to manage his or her personal affairs or under a legal disability, a legal guardian must make the application on his or her behalf.If a person died as a result of violent crime in Ontario, or in an activity described above, any family members that were dependent on the deceased person or who paid expenses as a result of the death (including expenses to care for one or more children of the deceased person or expenses for bereavement counselling) can apply for compensation.A person can also apply for compensation if he or she witnessed or came upon the scene of the crime that resulted in the death and meets the criteria for a finding of “mental or nervous shock.”

To apply for compensation, you should complete an application form and provide as much detail as possible. The form can be downloaded off the website, or the CICB will mail it to you.  It is important to send as many supporting documents as necessary.
It is important to note that an application for compensation must be made within two years of the date of the incident. The Board can extend the two-year limitation when it is warranted, but a request will have to be made and an explanation will have to be provided in the application form.

The Board does not say it is necessary to hire a lawyer, but there are benefits to hiring a lawyer. Once you hire a legal representative, the CICB will communicate only with your legal representative. Your legal representative will have a better idea of what supporting documentation to provide the Board with and how to help you complete the application form.

The CICB will schedule either an electronic, oral or documentary hearing and will contact you or your lawyer with the time, location and type of hearing.

In cases where there has been a criminal conviction, the person who committed the crime is referred to as an “offender”. In all other circumstances, he or she is referred to as the “alleged offender”. The Board will advise you if the (alleged) offender is entitled to be notified of a Board hearing and may choose to participate.  You must notify the Board if you have concerns about them notifying an (alleged) offender or the disclosure of personal information to that person.
How is a decision made? According to the CICB website:
  1. whether a violent crime under the Criminal Code or an arrest has occurred, or whether the injured/deceased person was assisting a peace officer with his/her law enforcement duties, or trying to prevent a crime from occurring. The Board considers the provisions of the Criminal Code in effect at the time of the incident,
  2. whether there is enough reliable information available to support your claim,
  3. all of the relevant circumstances, including any behaviour of the injured/deceased person that caused or contributed to the injuries or death,
  4. whether you have refused reasonable cooperation with or failed to report the offence promptly to the police,
  5. whether you have received any benefits paid by private insurance, the Workplace Safety and Insurance Board or any other source, as a result of the crime (not including Ontario Works or Ontario Disability Support Program).

Following the hearing, you will receive written notice from the Board informing you of the adjudicator’s decision. If you are awarded compensation, we will attach a cheque to the decision. If your claim for compensation is denied, the reason(s) for the denial will be described in the decision. You will also be provided with options if you wish to ask for a review or appeal of the Board’s decision.

What about suing in a Civil Action?
The CICB process does not interfere with your right to sue the (alleged) offender(s) in a civil action. However, if you are successful in a civil action, you must reimburse the Board for any compensation you receive from us.

What is the Maximum Amount Payable:

When one person is injured or killed as a result of a violent crime, the maximum award that the CIBC pays as a lump sum is $25,000.

When more than one person has been injured or killed as the result of a violent crime, we can award a maximum of $150,000 as a lump sum to all of the claimants.

Ongoing monthly periodic awards can be made in certain cases when there is an ongoing financial loss (e.g. lost income, child care expenses). When a periodic award is made, the amount of the lump sum component cannot exceed $12,500. The maximum amount that we may award as a periodic payment is $1,000 per month. Periodic payments cannot exceed a total of $365,000. Periodic awards are reviewed on an annual basis to determine whether there is still a need for the funds.

The Board may award compensation for any of the following:

  1. treatment expenses
  2. travel to treatment expenses
  3. loss of income
  4. pain and suffering
  5. funeral and burial expenses
  6. bereavement counselling expenses
  7. loss of financial support for the dependants of a deceased victim
  8. costs associated with supporting a child born as a result of a sexual assault

We require original receipts and/or supporting documents before we make such an award. For more information, click on What’s Covered?

The Board does not award compensation for:

    1. crimes committed outside the Province of Ontario,
    2. damaged, lost or stolen property,
    3. motor vehicle incidents (except where the vehicle was used deliberately to assault or harm another person),
    4. legal fees for criminal court and/or civil suits,
    5. distress and/or loss of wages for attending criminal court,
    6. workplace accidents (claim should be filed with the WSIB),
    7. accidental deaths,
    8. deaths resulting from suicide,
    9. pain and suffering for grief and sorrow (however, we may award compensation for bereavement counselling expenses),
    10. monetary loss due to fraud,
    11. neglect or abandonment of children (except where it amounts to criminal negligence),
    12. accidental injuries (slip and falls),
    13. negligence by an institution/organization,
    14. malicious prosecution of accused persons.

If you are in the process of submitting a claim to the CICB, contact Aaron Waxman & Associates today.

Defining Partial Disability and Total Disability in LTD Claims

Thursday, November 10th, 2011

The law firm of Aaron Waxman & Associates specializes in long-term disability claims and helping clients whose claims have been denied by their insurance companies.

Your insurance contract should contain a definitions section which contains all the relevant definitions for your policy. Two important definitions you should consider are that of partial disability and total disability.

Total Disability: A total disability means that a reasonable man would recognize that he should not engage in certain activity even though he literally is not physically unable to do so. It is a total disability if the insured person’s injuries are such that common care and prudence require him to desist from his business or occupation and in order to effectuate a cure or prolongation of life, common care and prudence will require that he cease work.

Partial Disability:  A partial disability is the inability of the insured to perform the regular daily duties of his occupation at least one-half of the time usually required in that occupation or the inability to perform one or more of the important regular duties of his occupation.

Returning to Standard Time and Night-time Driving

Thursday, November 10th, 2011

Last weekend we turned the clocks back an hour and returned to Standard Time. While we gain an extra of sleep, we lose an hour of daylight. This early onset of nightfall actually creates more danger for pedestrians. Toronto Police Constable Hugh Smith from Toronto Traffic Services told 680News that “This is a dangerous time for pedestrians”.

With less hours of daylight, an increase in motor vehicle pedestrian accidents occurs, as many police officers report.

U.S. Researchers have shown that there is an increase in pedestrian related deaths during the dinner time rush hour in November as we adjust to the earlier darkness.

Pedestrians should make themselves visible to motorists and should be sure to cross at crosswalks and intersections, with the traffic lights.

Another factor that contributes to an increase in motor vehicle accidents is an increase in driver fatigue. As it gets darker earlier, motorists should pay attention to signs of fatigue and avoid driving while drowsy.

How many people do you know that can say they actually get a good night’s sleep during a weekday?

According to the National Sleep Foundation’s 2011 Sleep in America Poll, 43% of Americans aged 13-64 say they rarely or never sleep well on a weeknight.  Two out of five drivers admit to falling asleep behind the wheel, with one in ten stating it has happened to them over the past year.

Drowsy driving is every bit as deadly impaired driving.

Aaron Waxman & Associates is a personal injury law firm in Toronto that specializes in car accidents, pedestrian accidents and disability claims.


Mr. C v. Coachman Insurance Company

Tuesday, November 8th, 2011

At Aaron Waxman and Associates, we handle serious personal injury claims. We handle and have handled many catastrophic car accident claims. We have dedicated past blog posts to the subject of proposed changes to the definition of catastrophic impairment and to the Kusnierz case, which is being heard on November 16, 2011.

Recently, a case was heard at FSCO called Mr. C. v. Coachman Insurance Company where the insured party, Mr. C. sought catastrophic impairment determination. Coachman Insurance Company denied the determination.

Mr. C. , prior to his accident, was employed as a labourer, with a good track record and overall a good life. After the accident, he was diagnosed with Major Depressive Disorder (severe), Pain Disorder Associated with Both Psychological Factors and General Medical Condition (herniated discs) and Specific Phobia (driving, passenger anxiety). His condition continued to deteriorate and he became suicidal and expressed suicidal and even homicidal wishes towards his family. He was hospitalized for his psychological problems, and shortly thereafter, overdosed on his pain medication.

Assessments had been obtained on the behalf of Mr. C. supporting a CAT designation on the basis of marked impairment. Coachman Insurance Co. did not call any witnesses to defend its case and Arbitrator J. Miller found that in the insurer assessments, the assessors failed to comment on/consider important assessments and appeared to be biased towards the insurer. The written submissions on behalf of the insurer did not present an objective picture of evidence. Further, during the proceedings, the insurer’s counsel was aggressive with its cross-examination of Mr. C.

Mr. C. underwent a very aggressive and at times inappropriate cross-examination. Inappropriate in that, counsel for Coachman screamed some of his questions at Mr. C. with the clear intention, in my view of intimidating Mr. C. As well, counsel glared intensely while firing off questions at a very rapid pace. In addition, counsel unnecessarily and redundantly repeated questions that already had been answered. Objections to counsel’s behaviour were consistently ignored.”

Arbitrator Miller found that Coachman Insurance Co. did not have a defense of any substance in this case and he accepted the evidence of Mr. C. and found that he suffered a catastrophic impairment pursuant to 2 (1.2) (g) of the Statutory Accident Benefits Schedule (SABS). Clause 2(1.2)(g)  provides that a catastrophic impairment includes an impairment that, in accordance with the American Medical Association, Guides to the Evaluation of Permanent Impairment, Fourth Edition, results in a class 4 (marked impairment) or class 5 (extreme impairment) due to mental or behavioural disorder.

Coachman Insurance Company and its counsel were not allowed to use bullying or intimidation as means of defending the claim. Bullying cannot be tolerated, nor should not be tolerated at FSCO.

The decision was released on October 21, 2011.