Blog – Neinstein Personal Injury Lawyers
The City of Toronto has a persistent road safety problem, despite continuing and vocal public concern and the implementation of the ambitious Vision Zero road safety plan. Toronto car accident lawyers have witnessed the issue firsthand: between 2013 and 2018, collisions in the city rose from roughly 55,000 a year to roughly 80,000 a year. In 2019 alone, 48 road users have been killed, including 35 vulnerable road users (cyclists and pedestrians).
Many Toronto car accident lawyers supported the implementation of Vision Zero. The program, which originated in Sweden, has helped cities like New York reduce fatalities to record lows. It is, by nature, ambitious – the most successful Vision Zero strategies include reduced speed limits, redesigned roads, and other radical initiatives. Toronto’s version is less ambitious and has been generally ineffective.
Last month, police Chief Mark Saunders announced the creation of a new eight-person traffic enforcement task force. The team, which will hit the streets in early 2020, has a mandate to protect pedestrians and reduce dangerous driving – both Vision Zero goals.
City councilors and concerned citizens expressed support for the initiative to CBC Toronto.
“[Drivers] think there’s not going to be any consequence and they’re right,” said Toronto-St. Paul’s councilor Josh Matlow. “There is virtually no police presence in those neighbourhoods. And residents are saying enough is enough. If they think they could get caught that day, then they may change their behaviour. And that’s what we’re after.”
Heather Sim, whose father, Gary, was killed by a distracted driver in 2017, agreed.
“This is something we’ve known we’ve needed for a while now. So it’s about time,” she said. “It’s not going to fix everything but they finally admitted and recognized that there is a problem and something needs to be done.”
A similar police team, the Strategic Targeted Enforcement Measures force, roamed Toronto’s streets from 2003 to 2012. The unit, according to a report presented to the Toronto Police Services Board, was “highly visible, pro-active and focused on high collision locations, community safety zones, high speed areas and other locations where the public was at risk.” Collisions in the city decreased 24 per cent during their tenure.
Additional law enforcement wasn’t part of the initial Vision Zero plan, but if the new task force is as effective as the one that was dissolved in 2012, it may help the city inch closer to its goals.
Image credit: PvOberstein/Wikimedia Commons
Over the last several months, Canadian health experts and personal injury lawyers have become increasingly concerned about the growing popularity of e-cigarettes among young Canadians. Research indicates that teen vaping rates have doubled since e-cigarettes were legalized in the country, and as many as 40 per cent of Canadian 16- to 19-year-olds have tried vaping with an e-cigarette at least once.
Vaping industry stakeholders insist that current tobacco users, not young people and non-smokers, are their target demographic. While e-cigarettes do contain nicotine – sometimes in alarmingly high doses – they do not involve tobacco leaf combustion and are generally seen as safer than tobacco cigarettes. In this way, they may be effective in helping current tobacco smokers quit.
However, as a recent Globe and Mail editorial articulates, JUUL’s marketing and advertising initiatives have little to do with helping smokers transition away from cigarettes. Instead, they appear to court a new generation of nicotine users with fun, teen-friendly flavours like bubblegum and birthday cake; endorsements from hip social media influencers; and little to say about the product’s potential risks.
“The American company JUUL, which makes the world’s most popular e-cigarettes, had US$2-billion in sales last year,” the editorial reads. “Its product was not designed to be a medical prophylactic; it was designed to be a cool device that provides a big nicotine hit.”
As personal injury lawyers call for increased regulation, vaping industry spokespeople claim restrictive e-cigarette laws would limit access for former tobacco smokers – and possibly even push them to the black market. But the risk of a generation of addicts is far more pressing, especially considering our limited understanding of nicotine’s impact on the adolescent brain.
In British Columbia, lawmakers recently proposed a series of vaping and e-cigarette regulations, including a substantial sales tax hike on vaping products, a cap on nicotine content, a ban on certain youth-friendly flavours, and a halt to advertising in youth-friendly locations. Numerous other jurisdictions in Canada and the United States are expected to follow suit. But it could be too late – through inappropriate marketing and deceptive messaging, JUUL has already gained a foothold with young, impressionable users.
If you currently JUUL or have used a JUUL in the past, you may be entitled to financial compensation. Neinstein Personal Injury Lawyers is accepting clients for a mass tort lawsuit against Juul Labs, the manufacturer of JUUL e-cigarettes. Contact us for more information or fill out a free and confidential case review today.
More than 11 years ago, in March 2008, Thomas Waldock was hit by a car while helping a stranded motorist on the side of an Ontario road. Waldock suffered the kind of serious injuries that are familiar to any car accident lawyer in the province, injuries that his legal team expected to become more severe over time.
Unfortunately, when Waldock applied for statutory accident benefits, his insurer, State Farm, disputed whether his injuries were catastrophic. What followed was more than a decade of legal skirmishes that prevented Waldock from accessing the benefits he was owed, according to a recent article in Law Times.
Waldock v. State Farm Mutual Automobile Insurance Company, which was finally decided in Waldock’s favour this October, is a classic example of a powerful organization leveraging its financial and legal resources to wear down plaintiffs. The Financial Services Commission of Ontario (FSCO) arbitrator who was assigned the case agreed that Waldock’s injuries were catastrophic. State Farm appealed, and the case was reassigned to the arbitrator, who awarded benefits, expenses, and a special award in 2015. State Farm appealed this decision as well and launched a variety of motions. Eventually, Waldock’s legal team launched a judicial review application, which was heard by the Superior Court in October 2016. The arbitrator released another decision the next year to clarify his expenses decision, which State Farm successfully appealed to the Director’s Delegate. Waldock’s team once again applied for judicial review. The case eventually appeared before a Divisional Court panel who finally ruled that Waldock should receive accident benefits for attendant care and housekeeping, plus the special award. State Farm could still appeal the decision.
Was that difficult to follow? Imagine the pain and suffering of the injury victim as the case wound its way from the FSCO to the Director’s Delegate, the Superior Court, and the Divisional Court panel. In the time it took the courts to reach their decision, the province’s auto insurance system and insurance dispute resolution process have undergone fundamental changes. The FSCO no longer even presides over insurance disputes; that responsibility now lies with the Licence Appeal Tribunal (LAT).
Unfortunately, State Farm’s war-of-attrition-style approach to the Waldock case was not an outlier. Personal injury lawyers in Ontario often face insurance companies and other influential organizations that aim to wear down less-powerful opponents. In the medical malpractice field, for example, the Canadian Medical Protective Association (CMPA) is known to apply scorched earth tactics in defence of physicians. This strategy puts Ontario’s injury victims at risk.
If you’ve been injured in a car accident, contact Neinstein Personal Injury Lawyers today to schedule a free, no-obligation consultation with an experienced car accident lawyer. Our team can help you file your insurance claim and represent you in any legal disputes that might arise.
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Road safety experts are desperate to address distracted driving in Ontario. There have been more deaths linked to distracted driving (44) than impaired driving (34) this year, according to a report from the Ontario Provincial Police (OPP), and car accident lawyers are fielding calls from a growing number of clients who believe the dangerous behaviour caused their injuries.
“We literally are running into a crisis proportion of pedestrians getting hit, struck, killed and hurt,” one founding member of Coalition for Vulnerable Road User Laws told the CBC. “We don’t always have to be last in safety.”
The situation has become so dire that some safety activists are calling for experimental law enforcement techniques, including using new technology that can detect whether drivers have been texting behind the wheel. The Textalyzer was developed by Israel-based manufacturer Cellebrite and is being trialed in New York, Chicago, and the State of Nevada. It allows police to conduct roadside tests of motorists’ mobile devices.
“If a driver was using the hands-free option to talk via their mobile phone, the Textalyzer would also be able to determine that,” the company explained in a post on its website. “Much like the breathalyzer, from which the device received its name, its prime-use cases are for situations where either there is a suspicion of distracted driving or at the scene of an accident.”
News of the Textalyzer has been met with privacy concerns. Canadians store vast troves of personal data and sensitive information on their phones, and it’s unclear whether police should be able to access the devices on the suspicion of distracted driving, alone. The provincial government said in a statement to the CBC that it considers these concerns when reviewing new enforcement technology.
“Any new or enhanced enforcement tools are reviewed as part of this ongoing monitoring and evaluation process,” the statement read. “Such a review would include addressing any privacy concerns, as many individuals store personal information in cellphones.”
Toronto safety activists, and even some aggressive car accident lawyers, believe privacy risks are a fair price to pay for safer streets.
“It’s total garbage,” said Friends and Family for Safe Streets spokesperson Jessica Spieker, regarding the privacy concerns, to the CBC. “It’s no more invasive than a breathalyzer, and we’ve come to accept breathalyzers as a due matter of course when impaired driving is suspected. All [the Textalyzer] tells you is if you’re distracted by your phone or not.”
The Province of Ontario hasn’t expressed any interest in using the Textalyzer or similar smartphone-testing technology to reduce distracted driving. However, if the problem continues to cause serious injuries and deaths around the province, the government will be forced to take action.
If, in the meantime, you or a member of your family is injured in a motor vehicle accident involving distracted driving, contact Neinstein Personal Injury Lawyers today to learn how we can help. Our experienced team of car accident lawyers can provide guidance and advice as you consider your legal options.
Image credit: Flickr/dwightsghost
Winter is the season that most Canadian drivers – and car accident lawyers – fear, but autumn presents its own challenges. According to the City of Toronto, motor vehicle accidents involving pedestrians increase by upwards of 30 per cent during evenings from November to March. With that in mind, the city launched a road safety initiative coinciding with the end of daylight saving time.
“I think people know that this time of year is one of the most dangerous times for pedestrians and cyclists,” said Toronto Mayor John Tory at a press event on November 1. “It is going to require people to change their behaviour, for drivers in particular to pay closer attention, if we are going to achieve our goal of reducing the number of people seriously injured and lives lost as a result of pedestrian- and cyclist-related collisions.”
Thirty-four pedestrians have been killed in Toronto so far this year, up from 42 all of last year, according to analysis by the Toronto Star.
The safety campaign will aim to reduce distracted driving, dangerous driving, and speeding through a series of ads online, in public spaces, and on TV and radio. Toronto Police also conducted a week-long safety blitz, and the city plans to reduce speed limits on hundreds of kilometres of road by 2020 as part of its Vision Zero 2.0 strategy. It may also introduce automated speed enforcement next month
What You Can Do to Prevent Traffic Injuries
As all car accident lawyers know, awareness initiatives and enhanced law enforcement are only successful when they lead to meaningful changes in driver behaviour. Here are a few tips that can help you contribute to safer streets this fall.
Be aware of the weather. Fall weather can be tumultuous in Ontario. Check your local forecast for fast-moving storm fronts and sudden temperature swings.
Watch out for leaves! According to the CAA, “wet leaves can be as slippery as ice to drive on… If you must drive on them, reduce your speed and proceed with caution – and avoid braking hard as it can cause your car to slip. Leaves may also hide road lines and other markings, so pay attention to the edge of the road and stay in your lane.”
Lighting conditions are changing. It’s not just earlier nightfall that affects road safety; the position of the sun can put drivers at risk, as well. Glare tends to worsen during autumn commutes, so keep your sunglasses on deck.
Obey the rules of the road. The most important thing you can do to keep the roads safe is to follow common road safety practices. Never drive while distracted or under the influence of drugs or alcohol, avoid speeding, and don’t drive aggressively.
Contact an Experienced Personal Injury Lawyer
If you’ve been injured in a motor vehicle accident, contact Neinstein Personal Injury Lawyers today to schedule a free, no-obligation consultation. Our experienced team of Ontario car accident lawyers will explain your legal options and provide guidance and advice as you consider a legal claim.
Neinstein Personal Injury Lawyers is now accepting clients for a mass tort claim against e-cigarette manufacturer Juul Labs Inc., creator of the JUUL e-cigarette. Nicotine vaping products have been linked to a wide range of health problems, including a nicotine addiction crisis among North American youths. For important information about vaping, JUUL, and our vaping lawsuit, please read on.
What is Vaping?
Vaping is the practice of inhaling and exhaling aerosol – usually referred to as “vapor” – produced by an e-cigarette or similar vaping device. The devices work by heating an e-liquid – which generally contains propylene glycol, glycerine, nicotine, and flavouring – until it has atomized. These products differ from traditional cigarettes in that they do not contain tobacco or produce tobacco smoke. They also contain fewer and different chemicals than tobacco products.
What is JUUL?
JUUL is a popular brand of e-cigarette that has come under scrutiny for questionable early marketing campaigns that appeared to appeal to young people. It has also been accused of failing to provide accurate information or sufficient warnings with respect to its nicotine content and the possible health complications associated with vaping.
Despite this scrutiny, the brand is extremely popular. It held a 72 per cent market share in the United States as of September 2018. In an interview with the CBC, University of Waterloo public health professor David Hammond attributed JUUL’s success to its use of nicotine salts, which allow for a higher concentration of nicotine.
“It used to be that if the nicotine concentration was too high, it would give you a harsh or aversive feeling on your throat,” Hammond said. “Juul solved that. That’s why Juul is somewhere around half the market. That’s why most of the other major brands in Canada, including Vype and smaller ones, have switched to nicotine salts.”
Another factor in JUUL’s success is its popularity among young people. A 2018 study led by Hammond found that the number of Canadian teens who said they’d vaped in the last month jumped from 8.4 per cent in 2017 to 14.6 per cent in 2018, a 74 per cent increase. In the United States, data from the U.S. National Institute on Drug Abuse shows one in four Grade 12 students, one in five Grade 10 students, and one in 11 Grade 8 students had vaped.
“What we’re seeing now is rapidly increasing rates of e-cigarette use in teens and young adults,” said Dr. Nicholas Chadi, an addiction medicine specialist and pediatrician at CHU Sainte-Justine in Montréal, also to the CBC. “They’ve been very aggressively marketed in all sorts of forms – on social media and big billboard ads – to target young people, even though companies will say the contrary. The marketing strategy has worked very well.”
Health Canada has linked vaping with nicotine to a wide variety of health issues, including:
- Nicotine dependence, including addiction among users who would otherwise not have started using nicotine products
- Memory and concentration issues among youths
- Altered brain development and reduced impulse control among adolescents.
The long-term impacts of vaping with nicotine remain largely unknown. Health Canada notes that “the long-term safety of inhaling [vegetable glycerine and propylene glycol] is unknown and continues to be assessed,” and that the chemicals used for flavour in vaping products are considered safe to eat but “have not been tested to see if they are safe to breathe in.”
In the United States, the Centers for Disease Control and Prevention (CDC) have reported hundreds of confirmed and probable cases of lung injuries related to e-cigarettes, including several deaths. Toronto Public Health also reported encountering patients with potential vaping-related illnesses last month. E-cigarettes have been blamed for strokes, seizures, and a range of respiratory issues.
“Of course, e-cigarette use is never safe for youth, young adults, or pregnant women,” the CDC’s Dr. Dana Meaney-Delman told Yale Medicine.
“Based on clinical and laboratory evidence to date, we believe that a chemical exposure is likely associated with these illnesses,” she continued. “However, and I really want to stress this, more information is needed to determine which specific products or substances are involved.”
The Yale Medicine article stresses one point on which “Yale health researchers who study the health effects of vaping and e-cigarettes agree: Vape devices have not been proven to help adult smokers quit smoking. Moreover, vaping increases the risk a teen will smoke regular cigarettes later.”
There have been several lawsuits launched against JUUL and other e-cigarette companies in Canada and the United States. Each vaping lawsuit focuses on different issues, including:
- JUUL’s targeting of minors with misleading advertising
- JUUL’s claims that its products are safer or healthier than smoking
- Health issues linked to e-cigarette use, including shortness of breath, chest pain, coughing, increased nicotine addiction, stroke, and seizures
- JUUL’s failure to provide accurate information or warnings regarding the inherently dangerous nature of its product
- JUUL’s claims that their product is designed to help people quit smoking.
If you have used JUUL and experienced any physical, emotional, or behavioural symptoms, contact Neinstein Personal Injury Lawyers to learn more about our mass tort vaping lawsuit. You may be entitled to compensation for the injuries you have suffered.
If you live in a medium- or large-sized city in Canada, you’re probably aware of e-scooters. These small, electronic transportation devices have become immensely popular in many US markets and are already available in Calgary, Edmonton, and Montreal. They travel at a maximum speed of around 25 km/h and operate similarly to the public bike share programs that have found success in Toronto and Montreal: users sign up online and use the scooters for a small fee. However, unlike bike shares, e-scooters don’t need to be returned to designated docking stations; they can be left wherever the rider’s journey comes to an end.
In Toronto, where market leader Bird has run small-scale tests, personal injury lawyers are concerned about e-scooters’ impact on road safety and potential liability issues stemming from accidents. Is their fear justified?
E-Scooters: A Brief History
Bird launched in 2017 in Santa Monica, California, and quickly expanded to 120 cities around the world, according to Inc.com. Competitors emerged within months, most notably Lime, previously a bike-share company, and Uber and Lyft, both of which have experimented with e-scooter programs.
“Bird might be the fastest-growing company ever,” one investor told Inc. “It could be the fastest-growing company to a billion-dollar run rate in history.”
Proponents of e-scooters call them a flexible, efficient, and emission-free alternative to driving or taking public transit downtown. Yet they remain illegal on public streets in Ontario.
Critics of e-scooter programs, including some personal injury lawyers, believe they make public roads more dangerous for pedestrians, cyclists, and drivers. Helmets are not mandatory. They travel too fast to be safely used on sidewalks and too slowly to be safely used on streets. They are known to create chaos in bike lanes. And they are particularly vulnerable to potholes and large cracks, which Toronto and other seasonal cities struggle with. According to the Globe and Mail, e-scooter accidents caused more than 540 emergency room visits between July and mid-October 2019.
Then there is the question of liability: who is to blame for these injuries, and where will compensation come from? While the e-scooter operators and host cities tend to be robustly insured against accident damages, individual users don’t have the same luxury.
“I think there’s no question that if you’re on a scooter and you injure somebody through your own negligence, you’ll be liable for that accident and that injury,” one Calgary-based personal injury lawyer told the Globe.
“With respect to the rider, it’s no difference if they have an accident on their personal bicycle, while on a skateboard, or even while running,” added Bird Canada chief executive Stewart Lyons. “If the rider is negligent, then they are negligent – and that doesn’t change just because they are on a scooter.”
Contact a Personal Injury Lawyer
While e-scooters remain illegal in Ontario today, this may not be the case for long. The provincial Ministry of Transportation is considering changes to allow Bird, Lime, and other operators access to major cities. When this occurs, it will be left to personal injury lawyers and the court system to sort out complex liability issues.
If you or a member of your family has been injured in a traffic accident, contact Neinstein Personal Injury Lawyers today to arrange a free, no-obligation consultation with an experienced accident lawyer.
Losing a loved one is devastating under any circumstances, but when that loss occurs due to the negligence or carelessness of another person, it can be even more heartbreaking. In personal injury law, an untimely death caused by an accident is known as a “wrongful death” if your family has recently experienced such a loss, contact Neinstein Personal Injury Lawyers today to learn how an experienced wrongful death lawyer can help.
Should I File a Wrongful Death Claim?
If a member of your family has been killed as a result of someone else’s actions, you have every right to seek compensation for your loss. At Neinstein, we understand the profound grief that accompanies the loss of a family member, and it is our goal to manage the legal process while you focus on recovery.
If you are interested in filing a wrongful death claim, please note that there is a two-year time limit from the date of death for filing all necessary documents. Talk to a wrongful death lawyer today to initiate this process.
Under Ontario’s Family Law Act, the following relatives of a deceased person are eligible to receive compensation:
- Spouses and children
- Parents and grandparents
- Brothers and sisters
The plaintiffs in a wrongful death claim may pursue compensation for the following damages:
- The cost of caring for a deceased person after they are injured and before they pass away
- Funeral and burial expenses
- Additional expenses incurred by the plaintiffs as a result of their family member’s death
- Loss of guidance, care, and companionship
- Loss of housekeeping services
- Loss of shared family income
Burden of Proof
In order for a wrongful death claim to be successful, the plaintiffs must prove the following:
- That they are related to the deceased in one of the ways listed above
- That the deceased died as a result of the fault of another party
- That the death occurred under circumstances that would entitle the deceased to compensation if he or she had survived, and
- That they suffered damages as a result of the death.
Partial liability: the family of a deceased person may file a wrongful death claim even when the deceased is partially responsible for his or her death. As in other personal injury claims, liability in wrongful death cases may be split among several parties. If your loved one and another party were jointly responsible for the death, you may still be eligible for financial compensation.
Insurance Benefits: When an insured driver is killed in a motor vehicle accident, his or her family is entitled to certain benefits under Ontario’s Statutory Accident Benefits Schedule. These benefits are available regardless of who is liable for the accident, and may include:
- A spouse’s benefit of $25,000
- Dependents’ benefits of $10,000 per dependent. If nobody is eligible to receive the spouse’s benefit, that $25,000 is divided equally among dependents.
- A funeral benefit of $6,000
Neinstein Personal Injury Lawyers Can Help
If you have lost a loved one due to the negligence of another party, contact Neinstein Personal Injury Lawyers to schedule a free, no-obligation consultation with an experienced wrongful death lawyer. Our team will outline your legal options and provide guidance and advice as you navigate this difficult period in your life.
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Neinstein Personal Injury Lawyers has represented seriously injured Ontarians for over 40 years. Some of the most discouraging cases we’ve managed in that time involved insurance providers denying benefits to individuals whose lives had been seriously disrupted by an accident. Our long-term disability lawyers work tirelessly to protect clients who require financial benefits to fund their recoveries and provide for their families.
What is a Long-Term Disability and how are they Caused?
In general, a long-term disability (LTD) is an injury or illness that prevents you from working and earning a living. Long-term disabilities can come in many forms, from physical conditions like paraplegia, quadriplegia, and chronic pain to mental health issues such as PTSD and anxiety.
Long-term disabilities can be caused by any traumatic injury or illness. Many of our LTD clients were injured in motor vehicle accidents, but we have also represented clients injured in boating accidents, bicycle accidents, slip and falls, and by medical errors.
What Are Long-Term Disability Benefits?
Long-term disability benefits are available to Ontarians who own long-term disability insurance, which can be acquired through an insurance broker, directly from an insurance provider, or through some workplace policies. Disability insurance is a form of income replacement that generally covers 60-85 per cent of your regular income, up to a maximum amount.
If you have been injured and are no longer able to work, you have every right to file a long-term disability benefits claim with your insurer. A long-term disability lawyer from Neinstein Personal Injury Lawyers can help you file your claim and resolve any disputes with your insurer.
Filing an LTD claim with your insurer does not guarantee access to LTD benefits. Insurance providers are reluctant to pay out large sums of money and may contest your claim by suggesting that you are not disabled, not sufficiently disabled, or have mispresented your condition.
In this situation, a long-term disability lawyer may be able to defend your claim and help secure access to fair and reasonable benefits. A person should not be punished for being unable to work following an accident. Denial of a seriously injured accidents victim’s LTD claim puts that victim and their family in an extremely vulnerable position. Recovery from a traumatic personal injury can be costly; LTD benefits help pay for medical care, rehab, therapy, home renovations, lost income, and a wide range of other costs and expenses.
Contact an Experienced Long-Term Disability Lawyer
If you’ve been injured and are having difficulty accessing long-term disability benefits from your insurer, contact Neinstein Personal Injury Lawyers today to arrange a free, no-obligation consultation. Our team will assess your claim and provide guidance and support throughout the legal process.
This article was originally published by The Lawyer’s Daily
Components of a Brain Injury: Apportionment, Double Counting and Allen
Under both the old and new legislation, an Applicant will meet the legal definition of catastrophic impairment pursuant to the SABS if it is determined that he/she has suffered a combination of physical and psychological impairments that amount to a whole person impairment (WPI) in excess of 55%.
The AMA Guides provide direction when assigning impairment ratings to calculate a WPI. When combining physical and psychological impairment ratings for brain injury, the relevant chapters are Chapter 4 (nervous system) and Chapter 14 (mental and behavioural disorders).
The Overlap of Psychological and Physical Injuries in Brain Injury
The inherent difficulty with brain injury is the interplay between the physical and psychological components of the injury. To simplify, it is clinically indistinguishable to determine whether an applicant’s brain injury causes depression or whether the depression results from other symptoms of brain injury such as sleep deprivation or headaches.
In the 2014 decision Moser and Guarantee, the Arbitrator commented on the overlapping analysis of determining impairment ratings:
“In Chapter 4, the evaluator assesses activities of daily living, daily social, and daily interpersonal functioning. In Chapter 14, the evaluator assesses activities of daily living, social functioning, concentration, persistence and pace, and adaptation (at page 320). The wording, descriptors, and text anchors suggest that the assessment of Chapter 14 is indeed wider than that of Chapter 4.”
In Moser, the arbitrator subtracted 2% of the Applicant’s cognitive impairment due to closed head injury and then combined the remainder with the WPI based on the applicant’ s mental and behavioural disorders.
This type of apportionment of brain injury impairment has not been followed by LAT decision makers or the divisional court in subsequent decisions.
In fact, the case law has explicitly allowed for separate impairment ratings under chapters 4 and 14 where an injured individual suffers both a physical brain injury and a separate psychological impairment resulting in mental and behavioural issues. In the 2016 LAT decision of 16-00013 and Peel, the Arbitrator did not reduce WPI ratings because of any possible overlap:
“I acknowledge that it can be difficult to tease out psychological causes from neurological ones when assessing a mental status impairment. The overlap between Chapters 4 and 14 raises the possibility of double counting, and therefore overestimating the impact of an impairment. However, in this case I find the specific diagnosis of Cognitive Disorder as well as distinct psychological disorders supports a conclusion that the applicant’s mental impairments should be accounted for and rated under both chapters, as long as the ratings are apportioned between the two chapters. In this case, I find not including the 8% mental status impairment under Chapter 4, as Dr. Valentin has done, amounts to ignoring — and underestimating – the contribution of the concussion to her mental status impairment.”
The Peel decision is authority that the difficulty separating the effects of brain injury from those emanating from mental or behavioural disorders should not be construed as double counting.
The decision of Allen and Security National, further clarified the question of double counting in a case where an injured individual suffers both a physical brain injury and a separate psychological impairment.
In Delegate Blackman’s decision, upheld by the Ontario Divisional Court, the following was stated with respect to the question of double counting:
“A significant issue in this catastrophic impairment appeal concerns an insured person injured in a motor vehicle accident who suffers both a physical brain injury and a separate psychological mental and behavioural disorder. If both the organic brain injury and the psychological disorder separately result in emotional or behavioural impairments, are both the physical brain injury and the psychological disorder each to be rated for such impairments and then combined as provided for in the American Medical Association’s Guides to the Evaluation ofPermanent Impairment, 4th edition, 1993 (the “Guides”)?
My answer is yes.”
Allen therefore stands for the principle that where there is both a psychological disorder and a brain injury, those issues are to be separately rated and combined for the purpose of determining WPI.
Chapter 14 Impairments Should not be Apportioned
While the Divisional Court has provided some clarity with respect to combining chapter 4 and 14 impairment ratings, the issue of apportionment remains live. Particularly, when an applicant is provided impairment ratings in Chapter 4 Table 3, Chapter 4 Table 2 and Chapter 14.
However, an analysis of the Pastore decision stands for the proposition that Chapter 14 impairments should not be apportioned:
“In Pastore, the mental or behavioural disorder in question was a pain disorder associated with both psychological factors and a general medical condition. In that case, I was not persuaded, regarding a “mental or behavioural disorder,” that it was necessary to tweeze out of the mental or behavioural disorder those parts that were purely psychological from those that were not, when the pain disorder encompassed both.”
Brain injury cases are analogous to pain disorder cases in that there are overlapping mental/behavioural and neurological causes to impairment. Thus, following Pastore and Allen, to the extent that there is overlap between traumatic brain injury and a psychological disorder, there should be no requirement to distinguish them in Chapter 14. Doing so would be to underestimate the extent of an Applicant’s impairments from traumatic brain injury.
Pastore confirmed that the very definition of “catastrophic impairment’ was intended by the legislature to be “inclusive and not restrictive. “ Given the first party contract and associated duty to adjudicate an Applicant’s claim in good faith, it is incumbent on insurers to assess impairment ratings fairly.
Counsel for an Applicant must advocate for fairness and proportionality when asking Arbitrators to determine impairment ratings for brain injured applicants with overlapping psychological and physical impairments.
Moser and Guarantee FSCO A 13-000812 at page 43
Applicant and Peel Mutual Insurance Company 16-000013/AABS
Security National Insurance Co. v. Allen, 2017 ONSC 6779
Pages 16 and 17 ofAllen quoting Pastore
2012 ONCA 642
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