Posts Tagged ‘toronto personal injury lawyer’

Chronic Pain in the News

Monday, November 19th, 2012

A small British study has shown that laughter can increase your tolerance of pain. The study, called ” Social laughter is correlated with an elevated pain threshold”, confirmed that social laughter, laughter in the presence of others release endorphins, the same feel-good brain chemicals that are released during exercise.

Laughter is useful and helpful when you are hurting because it is work for the body. The release of endorphins through the body masks pain. It is a work out for the chest and lungs. The study was led by Robin Dunbar, PhD, a professor of evolutionary psychology at Oxford University.

The Scientific American recently posted an article entitled “How Chronic Pain Affects Memory and Mood”.  Sufferers of chronic pain also experience faulty memory, depression and anxiety. According to new research from Northwestern University, the reasons for these symptoms could be that people who experience chronic pain suffer from an impaired hippocampus. The hippocampus is the region of the brain responsible for learning, memory and emotional processing.

Researchers at Northwestern University used anatomical brain scans to study the brains of people suffering from chronic back pain or complex regional pain syndrome and found that they had a smaller hippocampus than healthy people. The study turned to mice for more clues about how the hippocampus worked. Mice in chronic pain displayed greater anxiety like behaviours. The mice were unable to produce new neurons in the hippocampus, which is one of the few brain areas where adult mice and humans can grow new neurons.

The lead study researcher suspects that the hippocampal size difference seen in humans could be a reflection of the lack of neuron growth and other problems that were seen in the mice. Without the formation of new neurons, memory and emotional processes would also become impaired.

The study author believes that the study underlines the importance of treating chronic pain as a brain based disorder, in addition to targeting its perceived source in the body.

In technology news, an iPhone/iPad App called My Pain Diary has won awards and has found to be beneficial to those who suffer with chronic pain.

The app was originally released for iPhones, and is now avaialable for iPads, called My Pain Diary HD. It was created by a chronic pain sufferer. It helps patients and chronic pain sufferers track their pain and easily report it to caregivers and doctors. Features include an automatic weather tracker, the ability to attach photos, and the ability to track and compare multiple chronic conditions within one app.

Other features include the ability to create custom PDF doctor’s report to share with doctors, or to store in the app, private entries, which can be flagged as private so as not to be shared, a reminders feature, and a passcode option. There is also a Dropbox Backup option to back up data as well as iCloud syncing between devices.

 

 

 

 

 

 

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.

Pastore v. Aviva Canada Inc. – Definition of Catastrophic Impairment broadens, victory for the plaintiff’s bar

Thursday, October 11th, 2012

The Ontario Court of Appeal finally released its decision in Pastore v. Aviva Canada Inc. It’s been referred to as a “landmark decision on chronic pain”.

The OCA ruled that chronic pain is a psychological condition that can produce a catastrophic impairment, thereby entitling accident victims to enhanced medical benefits.

The unanimous decision of the Court means will allow claimants with severe psychological impairments to access much-needed benefits beyond standard accident benefits.

The Court of Appeal overturned the lower court’s decision that would have denied the plaintiff, Anna Pastore access to extended benefits.

Pastore v. Aviva concerns a woman who was struck as a pedestrian in November 2002 and injured and broke her left ankle, which never healed properly, leading to numerous surgeries and an eventual knee replacement.

Prior to the accident, she was the primary caregiver to her husband of over 35 years, who was receiving chemo-dialysis.  The decision states that she is almost completely dependent on others for her most basis personal care needs.

Pastore applied for catastrophic determination in May 2005.

Pastore was assessed by a team of medical assessors to determine if she was catastrophically impaired. It was found that she had catastrophic impairment due to mental or behavioural disorder. She had class 4 or ‘marked impairment’ in terms of her activities of daily living and assigned her a class 3 (moderate impairment) with respect to social functioning, concentration, persistence and pace and deterioration or decompensation in work or work-like settings.

Aviva did not accept the findings of the assessment centre and this led to mediation and arbitration.

One major issue was whether marked impairment in one category was enough to lead to a catastrophic designation.

The arbitrator and the Director’s Delegate upheld the decision of the assessment centre and found that Pastore was catastrophically impaired. Aviva appealed this decision and the Divisional Court sided with Aviva, stating that the Guides portion of the Statutory Accident Benefits Schedule (SABS)  requires all four categories to be considered as marked impairments in order for a person to be deemed as catastrophically impaired.

The Ontario Court of Appeal disagreed and overturned the Divisional Court’s decision, siding with the original decision, stating that the American Medical Association’s Guides to the Evaluation of Permanent Impairment language did not specifically require all four categories to be considered marked impairments for a catastrophic impairment designation.

The role of pain was addressed within the context of the marked impairment test. The OCA concluded that a cumulative approach should be taken where it is not possible to factor out the impact of discrete physical impairment and associated pain limitations.

What the court is saying, is that pain can be considered within the marked test in cases where the pain is not cleared related to physical causes, but may be related to a mental disorder.

Aaron Waxman & Associates is a Toronto Personal Injury Law Firm that handles personal injury claims, including catastrophic cases.

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.

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.

 

 

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.

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.

Road Trips – Do You Drive Fatigued?

Saturday, July 28th, 2012

Road trips are very popular, especially in the summer.

Fatigued driving is known to be just as dangerous, if not more dangerous than driving while under the influence.

Angus Reid conducted the survey, known as the “Neglected Drive Survey’ and polled 1003 parents online from June 19-23, 2012 and found that 30% of men nod off behind the wheel, compared to only 14% of women. According to the poll, one quarter of men have swerved because they were tired, one third were worried about getting their family into a car accident because they were tired while driving.

These are frightening statistics, because you are only in charge of your own vehicle. The statistics are as follows:

  • 64% of men have continued driving on a road trip when tired
  • 24% of men said they have not paid close attention to the road because they were tired
  • 17% of men said they hoped they wouldn’t get into an accident and kept driving even though they were exhausted
  • 10% of men almost got into an accident because they were tired

When you notice your eyes are getting heavy, you  have to recognize the signs of fatigue and consider the safety of your family, and other drivers on the road.

Don’t fill up on coffee or short breaks. Caffeine is simply not a solution.

The survey results also noted that younger parents are more likely to continue driver vs. older parents, especially if their children aren’t in need of a break. Dads do most of the driving and are not keen on stopped unless a break is needed.

Aaron Waxman and Associates is a Toronto Personal Injury Law Firm. Contact us today for a free no obligation consultation.

 

In the News: Developments in Depression

Wednesday, June 27th, 2012

Depression can happen as the result of a traumatic experience. Long term depression can make it difficult to perform the duties of day to day employment and activities of daily life.

Researchers in Copenhagen have discovered that plant compounds from South African Daffodils may in time be used for treatment for depression. The plant compounds seem to be able to pass through the blood brain barrier, which is a significant finding. Typically, drugs for “diseases of the brain” are not able to pass the blood-brain barrier.

There is a new research network in Ontario attempting to boost efforts for treating depression. A former lawyer, Phil Upshall, profoundly affected by mental illness and a neuroscientist from the University of Ottawa/ Royal Ottawa Mental Health Centre have joined forces and made a pitch to the federal Conservative government with their proposal for a new research network of 80 scientists working together to find ways to help Canadians with depression. The government granted a $5 million dollar initiative, for the Canadian Depression Research and Intervention Network. This is a recognition by the government that mental illness and depression is a serious issue in Canadian society.

The network will focus on youth suicide and post traumatic stress disorder. According to Mr. Upshall, suicide is the leading cause of death in youth after motor vehicle accidents. PTSD is an anxiety disorder but it is also linked to depression, amongst other factors.

CBC.ca recently posted an article stating that teens and youth with anxiety and depression in Ontario can have faster access to mental health care and can skip doctor referrals. Up to a quarter of teens and youths experience anxiety, depression and other forms of mental illness that go undetected due to the long wait times to see specialists.  The London Health Sciences Centre is offering a program where youth between the ages of 16-26 can pick up a phone and get a mental health assessment, thereby bypassing the need for a referral or long waiting list. Early treatment can prevent mild or moderate illness from becoming more serious.

Did you know that how you use the Internet is a reflection of your mood? Internet use can be a sign of whether or not you are depressed, according to a recent study. Time Magazine recently posted an online article about this, “The Internet Knows You’re Depressed, But Can It Help You?”.  The study examined the internet use of college students and tracked their behaviours. Depressed students typically compulsively check e-mail, watch many videos, spend a lot of time playing games and chatting, and frequently switch back and forth between applications. 30% of the students had low mood, symptoms of anxiety and difficulty with concentration.

Did you know that chronic stress blocks a gene that guards your brain from depression? It turns out that chronic stress appears to block a gene that guards against brain atrophy associated with depression.  The gene is known as Neuritin and appears to be responsible for maintaining healthy connections in particular parts of the brain. The study is published in the Proceedings of the National Academy of Sciences. Rats, whose genes were suppressed, were found to be more anxious and depressed. Activating Neuritin led to an antidepressant response. This research adds evidence to the idea that depression may result from atrophy in the hippocampus, that brain’s centre responsible for mood and memory.

Aaron Waxman and Associates is a Personal Injury Law Firm in Toronto that handles only personal injury claims. We handle long term disability claims. If your claim for long-term disability has been denied, contact us today.

 

 

Difficulties in the land of Accident Benefits

Sunday, June 10th, 2012

Recently, Ontario’s Standing Committee on General Government held public hearings on Ontario’s auto insurance industry practices in Queen’s Park. This committee doesn’t have the power to make changes, but it has the power to recommend them.

The Committee heard from the Insurance Industry, health professionals, personal injury lawyers, Financial Services Commission of Ontario (FSCO) and the Auto Insurance Anti-Fraud Task Force

Personal Injury Lawyers in Ontario can certainly speak to a number of growing concerns when it comes to auto insurance. Especially since the September 1, 2010 reforms.

Accident victims have to contend with the Minor Injury Guideline and a maximum of $3500 of medical/rehabilitation benefits.

Insurance adjusters must provide a medical reason for denying a treatment plan. But why are they being allowed to make medical decisions?

The accident victims who are denied treatment, whose rehabilitation is put on hold are at a serious disadvantage.

It certainly seems as if more and more treatment plans are being denied. And with the MIG in existence, it is harder for people who are placed in that category to achieve full recovery if they require further treatment after the $3500 has run out.

Applying for mediation is they way to appeal an insurer’s decision, however there are over 30,000 applications waiting to be processed and mediated at FSCO. That is very telling.  It is estimated that an additional 3000 applications are being submitted each month.

And what might these applications be for? Denials of benefits – medical benefits, weekly benefits, attendant care benefits, housekeeping benefits….benefits accident victims require to recover and rehabilitate.

Legislation requires that FSCO mediations are to be completed within 60 days of the filing of an application. The reality now is that mediations are taking place 10 to 12 months later, or even longer.

So what did the Insurance Bureau of Canada (IBC) have to say to the Committee?

According to an article posted on CanadianUnderwriter.ca   IBC’s VP for Ontario, Ralph Palumbo said “While the September 2010 reforms were a needed first step in reducing the pressure on no fault injury costs, claims costs are still out of control..”

Mr. Palumbo listed the following reasons for high costs:

1.Mediation Backlogs

2. Increase in Catastrophic Injury Claims

3. Increase in Bodily Injury Costs

4. Persistence of Auto Insurance Fraud

 

With respect to catastrophic injury claims, Palumbo noted that hospitalizations from car accidents decreased by 12% while the number of CAT claims increased.

He further noted that  on the tort side of things, bodily injury claims are increasing drastically. Both the frequency and cost of these claims has been rising. BI claims represent more than $2 billion in annual costs.

Palumbo had this to say: “BI is on the same track accident benefits were before the 2010 reforms and more needs to be done to assess the causes and what can be done to alter this concerning trend.”


Aaron Waxman & Associates is a Toronto Personal Injury Law Firm dedicated to serving the needs of their clients.