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A Depression Gene, Stigma, Psychotherapy, Relationship between Concussions and Depression

Monday, January 21st, 2013

The search for a depression gene came up empty. A group of 86 researchers were hoping to discover genetic influences linked to depression while studying approximately 34,500 volunteers. Since depression runs in families, many experts believe that there must be a genetic connection. Research failed to demonstrate any specific genes that cause depression. After raising the number of study subjects to over 51,000, only one spot in the whole genome was tied to depression, but it was not close to any genes. The study had focused on patients with symptoms of depression. The study’s authors are considering trying again on a larger scale, this time focusing on patients who have a confirmed diagnosis of depression.

What prevents people from seeking treatment for depression and mental health treatment? Psychotherapy takes time and effort. There is stigma attached to seeking treatment for mental illness. People are hesitant to admit that they attend therapy sessions. Society places illogical taboos and stigmas around mental illness, therefore many people feel ashamed about their diagnoses or symptoms. Another factor that can prevent someone from seeking treatment is severity- he or she may not realize how severe the symptoms are and may feel that therapy is not warranted. The will to get started and knowing how and when to start is another factor.

Research has shown that, in some instances, there are legitimate biological scenarios that cause secondary illnesses that would not exist in individuals otherwise. Researchers in Denmark at the University of Copenhagen were able to isolate an enzyme called C-Reactive Protein (CPR), that when present in high concentrations can cause depression, using a blood test to isolate a specific protein in the bloodstream. It was through this line of research that they found a relationship between depression and arthritis. It was noted in the past patients with inflammation or arthritis may have been simply “written off” by their doctors as upset due to the physical pain and limitations.

This new research has showed that those patients with higher levels of the CPR protein (which is released by inflammation/inflammatory conditions), were 2-3 times more likely to develop depression. It is not clear though, whether inflammation causes depression or the other way around.

An article released on the Time.Com website concerning the link between concussions and depression explains how sustaining a concussion can make one more vulnerable to depression. Two studies were conducted on  retired NFL players.  The first study, which has already been released found that the former players who are depressed or cognitively impaired have abnormal findings in a specific area of the white matter of their brains.  White matter is critical for transmitting signals. The American Academy of Neurology reports that a higher number of concussions equates to a higher likelihood of depression. Neurologist, Dr. John Hart, who was active in both studies, said that these studies apply to everyone who is affected by concussions, not just professional sports players. He said anyone who has suffered a concussion should be monitored for signs of depression. Depression is manageable, but only if doctors know how to diagnose and treat it properly.

 

Aaron Waxman and Associates is a Toronto Personal Injury Law Firm that focuses solely on the rights of injured persons. We advocate for your rights. We provide a free initial consultation.

 

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Cars with Wifi, Beware of Wildlife and Road Rage: An Update on the Wonderful World of Driving

Tuesday, November 20th, 2012

In-car technology has come a very long way in recent years. Auto makers have installed radar devices and cameras to help drivers maintain safe distances from other cars, keep vehicles in their lane and even alert drivers of impending accidents. There is in-car technology that even goes as far as automatically breaking and stopping the car as necessary.

How about if your car could have a bird’s eye view of the road, and see other vehicles, pedestrians and bicyclists? A special form of Wi-Fi is being developed that will allow cars to communicate with each other through special sensors. It would be vehicle to vehicle Wi-Fi.

This system is being piloted by the University of Michigan, eight automakers and the Department of Transportation. It is being tested on 3,000 vehicles in Michigan with sensors. Participating automakers include GM, Ford, Toyota, Honda, Nissan, VW, Hyundai/Kia and Mercedes. Data from the trial will ultimately help determine whether or not the National Highway Traffic Safety Administration should pursue this technology.

Collisions between wildlife and vehicles are often unpredictable. Collisions tend to spike during the fall, when it is breeding season for deer. In general, due to the earlier dusk and poorer visibility, more accidents are likely to occur. Drivers must obey wildlife signs and traffic signs.

It is better to think about and learn how to avoid an encounter with wildlife, than have to react to a dangerous situation when you are unprepared. Drivers and passengers should be on the lookout for wildlife on the road, in the ditch, on the shoulder. Driving at a slower speed may reduce the chances of having to swerve at all. Always reduce your speed in signed areas. The danger of swerving is that it can take you into the path of a ditch and take you off course.

However, if you are about to collide with a moose, experts say you should swerve as a collision with a moose carries a significant risk of injury or death to motorists and passengers.

Another threat on the roadway is distracted drivers. The popularity of smartphones and internet use while driving has made drivers even more distracted than ever.

State Farm conducted its annual research report on distracted driving, surveying 1000 US motorists. Texting and driving remains a concern, but there has been a noticeable increase in “webbing” while driving (internet use).

The study found that it is not just youth who are committing these distracted driving offenses, but motorists of all ages.

While the distracted driving focus has traditionally been on young people, the data indicate that motorists of all ages are using the mobile web while driving.

Another study says that young drivers are more likely to drive while tired. The AAA Foundation for Traffic Safety surved drivers aged 16-24 and found that 1 in 7 licensed drivers have admitted to falling asleep behind the wheel at least once in the past year.

Research shows that fatigue impairs a person’s driving ability, and causes them to behave in similar ways a person does while intoxicated. Most drivers underestimate the dangers of driving while fatigued. Driving fatigued can cause a person to miss exits and traffic signs,  drifting from your lanes and daydreaming.

A Canadian Study shows that 80% of Canadian drivers admit to road rage behaviour.   The poll, completed by Leger Marketing, suggests that about 80% of Canadians admit to aggressive behaviour such as using profanity, yelling or following other vehicles too closely. The most commonly reported aggressive behaviour was speeding.

Distracted drivers (including the use of mobile phones) were the most common trigger for road rage-like behaviour. Being cut off by other drivers, as well as tailgating behaviour were also causes of road rage. Other reasons for road rage included running behind schedule and having a bad day.

Aaron Waxman and Associates is a personal injury law firm located in Toronto. We handle various types of personal injury claims including automobile accident claims and disability claims.

 

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Halloween Safety Tips 2012

Tuesday, October 30th, 2012

Children anxiously await the end of October, waiting for Halloween to come. This year, with the unpredictable weather we’ve had over the past few days, everyone, should take some extra precautions when trick or treating and if driving in residential areas during the peak of trick or treating.

Regardless of the weather, there are certain safety recommendations that should not go ignored when it comes to ensuring the safety of trick or treators.

Safety Tips for Trick or Treating:

1. Make yourself seen: Costumes should be light coloured or have reflective strips so that children are seen more easily at night (put reflective strips on accessories too).

2. Be careful of costume length – make sure costumes aren’t dragging so that children don’t trip over their costumes.

3. Use face pain rather than masks or something that covers the eyes – keep childrens’ line of sight clear.

4. Travel in Groups. Young children should be accompanied by an adult.

5. Cross safely, walk safely: Remind children to walk on sidewalks on not on the streets, and to cross at intersections or crosswalks. Remind them to look both ways before crossing the street and to check for cars.

6. Stay in well-lit areas: Visit homes that have the porch light on, or other lights on. Carry a flashlight or make sure your child is carrying a flashlight.

7. Tell your trick or treator to stay away from candles and open flames.

8. Teach your children to only accept treats at the door, not to get into cars with strangers, or enter anyone’s house that they don’t know.

 

Drivers, too have to take extra care and be extra vigilant.

Safety Tips for Drivers:

1.  Watch out for children and other pedestrians crossing the street in residential areas- they may not be crossing at intersections.

2. Expect large groups of people to be crossing; be patient and let them finish crossing.

3. Be aware of increased pedestrian traffic.

4. Look out for signs of moving objects like debris, or it could be people in dark costumes.

5. Drive slowly, don’t be in a hurry.

 

Aaron Waxman & Associates is a personal injury law firm in Toronto handling various types of personal injury claims. We offer a free no obligation consultation.

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Storm Safety Tips 2012

Monday, October 29th, 2012

Over the course of the next few days, we may be expecting increased amounts of wind and rain. We have already experienced a very windy night and had not had a reprieve from rain for a few days, due to Hurricane Sandy.

It is very important to exercise caution and safety when you are a pedestrian, cyclist or motorist during times of a storm. There are many factors to consider.

 

Pedestrian & Cyclist Tips:

1. Be Visible: wear reflective clothing or take a strip of reflective tape to make yourself seen by motorists.

2. Stay away from trees: the water makes the leaves heavy, thereby making branches heavy, and making them more likely to break off and fall.

3. Cross only at stop signs, cross walks and marked intersections. It is not worth jay-walking or crossing without a light.

4. Be aware of flying debris! Strong winds can cause debris to fly around and you have to keep your eyes open for flying items.

5. Don’t text and walk (or cycle). Keep your eyes on the road.

6. Be aware of your visual surroundings – be extra careful if you are wearing a hood.

7. Take out the earphones and pay attention to your surroundings!

 

Tips for Drivers:

1. Be Seen: Make sure your headlights are on and are in working order.

2. Be Heard: Use your horn to warn of your approach.

3. Be on the lookout for pedestrians and cyclists.

4. Pay close attention to traffic signals.

5. Give yourself extra time to get where you need to be.

6. Give yourself extra stopping distance.

7. Don’t brake suddenly.

8. Use your signals- they are not just for you, but for alerting others of your intentions.

9. Be aware of hydroplaning, you want to keep control of your car.

10. If the rain or wind is too heavy/strong, and you know you can’t drive safely, pull over!

 

Aaron Waxman & Associates is a Toronto Personal Injury Law Firm practicing in various areas of personal injury law.

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A Guide to Brain Anatomy & Function, courtesy of Omega Medical Associates

Wednesday, October 24th, 2012

This post will discuss brain anatomy and function. The areas of the brain that will be discussed will be referred to in the diagram above. Our source for information for this post is Omega Medical Associates, a multidisciplinary assessment clinic, that specializes in catastrophic impairment assessments.

The key areas of the brain that you should be aware of when it comes to functioning are the frontal lobe, parietal lobe, occipital lobe, temporal lobe, cerebellum and brain stem.

A brain injury is life-altering. Symptoms of a brain injury can vary depending on the area of the brain affected.  The Guide to Brain Anatomy & Function provided by Omega Medical Associates lists the anatomical regions of the brain, their functions and symptoms of impairments.

We have provided the descriptions below.

The Frontal Lobe:

Function: The frontal lobe is responsible for executive functioning and judgments, emotional response and stability, language and memory. It is integral to personality, involved in tracking, sense of self, arousal and awareness of environment.

Symptoms of Impairment:

  • Changes in personality and social behaviour
  • Loss of spontaneity in interaction with others
  • Sequencing (difficulty planning and completing tasks in correct order)
  • Perseveration (repeating same actions and comments over with conscious awareness of having done so)
  • Loss in flexibility in thinking (mental rigidity)
  • Distractibility
  • Mood swings
  • Diminished abstract reasoning
  • Difficulty with problem solving
  • Language difficulties (usage and word finding)
  • Loss of simple movement of various body parts

The Parietal Lobe:

Function: The parietal lobe is involved in visual perception, tactile perception, integration of sensory information that allows for understanding of concepts, and goal-directed voluntary movements.

Symptoms of Impairment:

  • Difficulty naming objects
  • Difficulty writing words
  • Inability to attend to more than one object at a time
  • Inability to focus visual attention
  • Problems with reading
  • Poor hand-eye coordination
  • Confusion of right-left orientation
  • Difficulty performing math calculations
  • Difficulty drawing
  • Lack of awareness of certain body parts and/or surrounding space

The Occipital Lobe:

Function: The occipital lobe is the visual perception system.

Symptoms of Impairment:

Impaired vision

The Temporal Lobe:

Function: The Temporal Lobe plays a key role in intellect, as well as auditory perception, long-term memory and some visual perception.

Symptoms of Impairment:

  • Difficulty remembering names and faces
  • Difficulty understanding spoken words
  • Difficulty with identification of, and verbalization about objects
  • Difficulty with concentration
  • Short-term memory loss
  • Interference with long-term memory
  • Aggressive behaviour
  • Change in sexual interest
  • Persistent talking (right lobe damage)
  • Difficulty with the location of objects in environment
  • Inability to categorize objects
  • Seizure disorders, auras and strange reveries

The Cerebellum:

Function: The cerebellum is involved in coordination and control of voluntary movement, balance and muscle tone.

Symptoms of Impairment:

  • Tremors
  • Involuntary movement of eye (nystagmus)
  • Lack of coordination (ataxia)
  • Weak muscles (hypotonic)
  • Inability to judge distance (dysmetria)
  • Inability to perform rapid altering movements
  • Slurred speech (ataxic dysarthria)

The Brain Stem:

Function: The brain stem plays a role in heart rate, swallowing, reflexes to sight and sound, seating, blood pressure, digestion, temperature, levels of alertness, ability to sleep, and balance.

Symptoms of Impairment:

  • Decreased breathing vital capacity
  • Difficulty swallowing food and water
  • Difficulty with organization/perception of environment
  • Problems with balance and movement
  • Dizziness and nausea
  • Sleeping and nausea

Aaron Waxman & Associates is a Toronto Personal Injury Law Firm handling various types of personal injury claims including catastrophic claims, car accident claims, critical illness claims, long term disability claims, slip and fall cases and wrongful death claims.

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Ontario Coroner’s Report on Pedestrian Deaths: No Jaywalking and Reduce Speed Limits

Thursday, September 20th, 2012

Ontario’s Deputy Chief Coroner, Dr. Bert Lauwers issued his report on pedestrian deaths on Wednesday, September 19, 2012, in collaboration with the Office of the Coroner.

The Report reminds us that we are all pedestrians.

According to the Coroner’s office, approximately 113 Ontarians die annually from pedestrian accidents.

The Coroner’s office suggested the following:

  1. Pedestrian deaths are more likely to occur during the months when daylight is shorter. (e.g. November to March).
  2. Pedestrian deaths are more likely to occur when a pedestrian and/or driver is using a mobile entertainment/communication device. (e.g. cell phone, ipod, etc.).
  3. Pedestrian deaths are more likely to occur when one or more persons involved in the collision are under the influence of alcohol and/or drugs.
  4. The vast majority of pedestrian deaths are preventable.

According to the Review on Pedestrian Deaths, in Canada, characteristics of pedestrian traffic are as follows:

  • 75% of pedestrian traffic fatalities occurred on urban roads;
  • 60% of pedestrians killed in traffic crashes were trying to cross the road;
  • 35% of fatally injured pedestrians were aged 65 or older even though they represent only 13% of the population;
  • 63% of pedestrians killed at intersections were 65 or older;
  • 6% of fatally injured pedestrians were under the age of 16 and of these, 20% ran out into the street;
  • 33% of fatally injured pedestrians acted in a manner which caused or contributed to the crash;
  • 33% of fatally injured pedestrians were struck by a driver who had committed a traffic infraction prior to the crash;
  • 60% of pedestrians were killed at night or during dim light conditions when they were not seen by drivers; and
  • 40% of fatally injured pedestrians had been drinking

The Coroner’s Office made 26 recommendations in the Report. Highlights of the recommendations include:

  • lowering speed limits in residential areas to 40 km/h
  • installing side guards on heavy trucks to help prevent people from falling beneath and getting crushed by the rear wheels
  • implementing a complete streets approach to guide the development of new communities and redevelopment of existing ones
  • creating an educational program for senior citizens and other adult pedestrians
  • creating an educational program for drivers

The Coroner found that 67% of pedestrian fatalities occurred on streets with a posted speed limit of above 50km/h.

Other significant factors for pedestrian deaths included jaywalking, inattentive motorists and distracted walkers.

It was found that nearly one third of pedestrians died while jaywalking.

The Report notes that in 14% of the deaths, driver inattention was noted.

Pedestrian distractions including dogs, smartphones and cellphones may have contributed to 20% of the fatalities.

Canada has a Road Safety Strategy according to the Report. The vision of the Strategy is to make Canada’s roads the safest in the world. Currently, Canada is ranked 10th in terms of fatalities per billion vehicle kilometers travelled compared to other member countries of the Organization for Economic Cooperation and Development.

The key elements of the Strategy are:

  • a downward directional trend in fatality and serious injury rates over the 2011 to 2015 period;
  • jurisdictions will adopt a holistic (Safer System) approach addressing the vehicle, the road infrastructure, and road users based on the primary risk groups;
  • an evidence-based Best Practice Framework will be adopted in choosing interventions;
  • a fluid and flexible approach will allow jurisdictions to adopt best practices appropriate to their situation; and
  • jurisdictions will own their road safety plans.

To achieve this, the Strategy seeks to target:

  • young drivers (16 to 24);
  • medically-at-risk drivers (e.g. those with heart disease or cognitive disorders such as Alzheimer’s Disease);
  • vulnerable road users (i.e. pedestrians, motorcyclists, bicyclists);
  • motor carriers (e.g. managers of carrier operations, truck and bus drivers);
  • high risk drivers (e.g. those who don’t wear seat belts or who speed, drive impaired, or drive without a valid license) and the general population.

Dr. Andrew McCallum, Chief Coroner for Ontario stated “A road safety paradigm shift will be necessary”, acknowledging that the rising cost of fuel will result in an increase in cyclists and pedestrians.

 

Aaron Waxman and Associates is a Toronto personal injury law firm. We handle various types of personal injury claims including motor vehicle accident, pedestrian, long term disability and critical illness claims.

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Slip and Fall outside of Car not an accident according to FSCO- Reversal of controversal slip and fall case

Tuesday, September 18th, 2012

Webb and Wawanesa involves the case of a woman, Daphna Webb who slipped on ice outside of her car. She parked her vehicle in a residential neighbourhood, near a snow bank where access points had been cleared. When she exited her vehicle, and walked around the front of her car, she fell backwards and broke 4 bones in her foot.

A May 2011 decision from Arbitrator Joyce Miller found that Webb was still in the process of exiting her vehicle when she fell, therefore the incident constituted an “accident” under the Statutory Accident Benefits Schedule (SABS).

The SABS defines “accident” is defined in section 2 of SABS as: “An incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device.”

Arbitrator Miller found that that the use of a motor vehicle caused an uninterrupted chain of events ending in Webb’s injuries.

Wawanesa appealed the decision, stating that the use or operation of an automobile did not cause Webb’s injuries.

The July 18, 2012 decision of Director Delegate Lawrence Blackman rescinded the decision of Arbitrator Miller and found in favour of Wawanesa, holding that the chain of causation was broken. There was an independent source, the ice and snow at a pedestrian access point resulting from the weather conditions.

Director Delegate concluded that Webb’s injury falls outside of the scope of the applicable definition of accident.

Aaron Waxman and Associates is a Toronto Personal Injury Law Firm. We handle disability claims, automobile accident claims, long-term disability claims and other types of personal injury claims.

 

 

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Rakosi and State Farm – Claimant’s appeal dismissed (social media warning)

Thursday, September 13th, 2012

Eniko Rakosi was involved in a car accident on May 5, 2008. She applied for accident benefits through her accident benefits insurer, State Farm.

State Farm denied various benefits including income replacement benefits, attendant care and medical benefits. The issues failed at mediation and the claimant filed for arbitration.

At the pre-hearing, State Farm asked for productions from Ms. Rakosi’s Facebook account. The arbitrator hearing the case, Arbitrator Bujold ordered Ms. Rakosi to produce all photographs (with her in it) posted to her Facebook profile, included any limited access or private portion of her profile from the date of loss to May 5, 2010.

Arbitrator Bujold held that the test for production was a “semblance of relevance” test.

Previously, State Farm had accessed Rakosi’s Hi5 account (another social networking site) and found photographs which showed the claimant engaged in various social and recreational activities. State Farm believed that her Facebook account would show similar photographs. Since Rakosi’s claim was that she was unable to engage in employment and required help with personal care, State Farm wanted access to this information. They felt there would be a ‘semblance of relevance’.

Ms. Rakosi’s Hi5 site showed pictures of her being attached to a zipline and ziplining. State Farm was of the view that these pictures related to activities related to the disputed benefits. Since Hi5 and Facebook are both social media sites, State Farm made the argument that the Facebook content was relevant.

The Arbitrator was not persuaded by Ms. Rakosi’s counsel that there were reasons against production.

Ms. Rakosi appealed the decision, citing previous decisions that were in favour of claimants like Prete and State Farm, and  Leduc and Roman, where the appellant deemed the semblance of relevance test was correctly applied.

The appeal was heard by Director’s Delegate Blackman, who upheld the original decision that Ms. Rakosi should produce her Facebook account.

Director’s Delegate Blackman however found that the original arbitrator had erred by using the “semblance of relevance” test. This test was used in the court system, under the Rules of Civil Procedure (prior to the January 1, 2010 changes).  Relevance could be interpreted broadly. When the RCP changes came in January 2010, the rule,  Rule 30.02(1) was changed to reflect proportionality, changed from “relating to any matter in issue” to “every document relevant to any matter in issue in an action”.

The rules guiding arbitration stem from the Statutory Powers Procedure Act and instead use a test based on relevance and reasonableness.

Director’s Delegate Blackman felt that using the semblance of relevance test would undermine the alternative dispute resolution system and create a more complicated and costly system while the courts in tort matters are moving in the opposite direction.

Director’s Delegate Blackman found there was no error in extending the inference from one social media site to another and agreed it was likely that her Facebook site would likely contain similar photos.

Aaron Waxman and Associates is a Toronto Personal Injury Law Firm. We handle various types of claims, including accident benefits claims.

If you are involved in a law suit and have social media sites, remember to inform your lawyer you have social media accounts. Do not alter, delete or remove anything from your account during the course of your lawsuit.

Posted in Aaron Waxman & Associates, Automobile Insurance Claims, Car Accident Lawyers, Chronic Pain Claims, Disability Claims, Insurance News, Personal Injury Law, Personal Injury Lawyers, Personal Injury Lawyers North York | Comments Off

Pre-existing conditions and Critical Illness Claims – Duke v. Clarica Insurance

Wednesday, September 5th, 2012

The Alberta case of Duke v. Clarica Insurance involves the denial of a critical illness insurance claim.

Mr. Duke was diagnosed with Parkinson’s Disease. He applied for critical illness through Clarica in 2001 and purchased a policy for critical illness coverage in the amount of $500,000. He submitted a critical illness claim on May 15, 2003, accompanied by an Attending Physician’s Statement. The Statement was completed by a neurologist.

He was advised that his claim was denied in September of 2003.

Parkinson’s Disease was a covered critical illness under the policy. Clarica stated that according to reports they had received, Mr. Duke’s medical history revealed symptoms of Parkinson’s Disease as early as 1997,  before the policy came into force, therefore they were denying the claim.

The Court was faced with the task of deciding two crucial issues, which can be applied to critical illness claims:

1. Is the Exclusion Clause Ambiguous?

2. Does the Plaintiff Qualify for Benefits?

The Court found that neither Mr. Duke or any of his treating physicians or assessors had associated his earlier symptoms with Parkinson’s disease prior to issuing the policy. The Court also found that the Plaintiff had no obligation to disclose these physical concerns at the time. They were generalized symptoms. The wording of the exclusion clause was found to be ambiguous and the Court found that it did not apply and that Clarica improperly denied the CI benefit.

With respect to the second issue, the Court deemed that Mr. Duke required substantial assistance in order to perform his activities of daily living and satisfied the criteria needed to require a critical illness benefit.

Mr. Duke was awarded damages in the amount $500,000, the amount of the critical illness insurance claim benefit.

Clarica appealed the decision and lost.

The judgement states: “Finally, it is agreed that the respondent was completely honest and forthright in his disclosure and did not in any way misrepresent or conceal his condition or his general state of health from the appellant, nor did he attempt to mislead the appellant.”

The full case can be found here: http://www.canlii.org/en/ab/abca/doc/2008/2008abca301/2008abca301.html

Aaron Waxman and Associates is a Toronto Personal Injury Law Firm. We handle critical illness insurance claims. If your critical illness insurance claim has been denied, contact us for a free, no obligation consultation.

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FSCO Arbitrator upholds Leone decision: 60 day time limit for mediation elapsed

Friday, August 31st, 2012

On February 10, 2012, FSCO Arbitrator Jeffrey Rogers released a decision, Leone v. State Farm stating that mediation was deemed to have failed because it did not occur within 60 days of the application being filed and the parties could not extend the time limit on consent once the 60 days had expired.

Director’s Delegate David Evans upheld the decision and dismissed State Farm’s appeal, and found that mediation was deemed to have failed.

Leone had submitted an Application for Mediation, which was received by FSCO on October 8, 2010 and no mediator had been appointed by March 14, 2011. Leone then submitted an Application for Arbitration. State Farm argued that he needed to attach the Report of Mediator to his application.

Arbitrator Evans states “I agree with the arbitrator that Mr. Leone did not need to attach the report of mediator to his application for arbitration where mediation has failed by statutory definition, but no report of mediator is available…Mr. Leone should not be prevented from proceeding to arbitration where through no fault of his own, s.280(8) has not been complied with.”

S.280(8) is the requirement to issue a Report of Mediator if the mediation fails.

What is the impact of the decision?

FSCO has notified all lawyers, law clerks and paralegals who have submitted applications for mediations of the decision, provided them with a mediation file number and stated that the following two options continue to be available for those files waiting in the queue:

1. Complete a Consent To Fail Form

2. Complete an Extension Form

Both forms must be completed jointly with the insurer, and require the signature of the client.

The appeal of several court decisions,  Cornie v. Security National (and the other 3 cases heard with it) and Younis v. State Farm regarding the 60-day time limit issue was heard on July 19, 2012 at the Court of Appeal.

The Court of Appeal has reserved judgment and as a result, FSCO felt it was not yet time to change the dispute resolution processes without having heard the results of the Court of Appeal decision.

For those Applications for Arbitration where no Report of Mediator was issued, FSCO is holding them in abeyance pending the Court of Appeal decisions.

According to the FSCO website the current wait time for a pre-hearing date is 6-8 months.

FSCO is looking at outsourcing its mediations to private mediators to assist with clearing up the mediation backlog. It is hoping to have a contract in place by early September. FSCO hopes to hand off 2,000 mediation files monthly to private mediators.

The mediation backlog is frustrating for claimants. By the time the mediation takes place, their circumstances may have changed dramatically. They may have been forced to find work due to financial stress, or their condition may have worsened due to lack of treatment. Treatment needs to be delivered in a timely fashion, in order to be beneficial.

It is not in an insurer’s best interest to have a continued backlog in mediations. Insurers pay 2% interest on claims per month. The longer an application sits in the queue, the more interest accrues.

There are various consequences of Leone v. State Farm and Cornie v. Security National if the original decision is upheld.

In Leone, the arbitrator noted that State Farm did not receive an Application for Mediation from FSCO until a mediator had been appointed. Generally, plaintiff’s counsel sends 2 copies of the application to FSCO, the second copy to distribute to the insurer. If FSCO is backlogged, the insurer does not know until months down the road that there is a pending application.

If the Court of Appeal upholds the decisions in Cornie and finds that 60 days begins to run when the application has been filed, insurers may not know about the application or the dispute until they receive a statement of claim.

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