« Back to DSF Blog

Archive for Category: ‘Personal Injury’:

All Archives by Month:

Archive for the ‘Personal Injury’ Category

August 30th, 2012

David Derfel, a partner in our Personal Injury Group, has recently been certified as a member of the Million Dollar Advocates Forum.

The Million Dollar Advocates Forum is recognized as one of the most prestigious groups of trial lawyers in North America. Forum membership acknowledges excellence in advocacy and is limited to lawyers who have won million and multimillion dollar verdicts, awards and settlements. The organization has approximately 4000 members located throughout the United States and Canada.
Congratulations to David!

CATASTROPHIC IMPAIRMENT FOR ALL!

February 2nd, 2012

The Ontario Court of Appeal’s recent decision in Kusnierz v. Economical Mutual Insurance Company confirmed that psychological impairments should be combined with physical impairments to determine whether a car accident victim has suffered a catastrophic impairment.
This is an important decision for all victims of motor vehicle accidents in Ontario, who, according to current motor vehicle legislation generally fall into two categories: those who receive minor injuries, and those who are catastrophically impaired. Accident victims who meet the definition of catastrophic impairment are entitled to claim greater accident benefits, and for a longer period of time.

Writing for a unanimous Court of Appeal, Justice MacPherson, ruled that the proper interpretation of section 2(1.1.)(f) of the Statutory Accident Benefits Schedule (the “SABS”) is consistent with allowing the combination of both psychological and physical impairment scores to determine an injured person’s WPI score. Referencing the American Medical Association’s Guides to the Evaluation of Permanent Impairment, which is explicitly designated as the frame of reference for the relevant sections of the SABS, Justice MacPherson writes:

In my view the trial judge erred by concluding that combining physical and psychiatric impairments “would contradict the express purpose of the Guides, which is to provide a system for evaluating impairments that is objective and standardized”. With respect, this ignores the Guides’ parallel aim of assessing the total effect of a person’s impairments on his or her everyday activities. An objective, standardized system of assessment is only useful to the extent that it can reflect persons’ actual levels of impairment. To disregard the mental and behavioural consequences of a person’s injuries because they are too hard to measure would defeat the purpose of the Guides.

The Court determined that combining scores produces results that are consistent with the purposes of the SABS and that allowing combination promotes fairness and the objectives of the statutory scheme.

This is a positive outcome for all victims of motor vehicle accidents in Ontario as it means that people with severe psychological and physical impairments may get easier access to the medical benefits recommended by their doctors and hasten their recovery and improve their quality of life.

Slip and Falls: Winter’s around the corner, so watch your step!

December 13th, 2011

Slip: A sliding motion where the foot (shoe) loses traction with the floor/ground surface resulting in a loss of balance.

Trip: Involves a loss of balance when the natural movement of the foot is interfered with momentarily.

Fall: A drop in height of the human body.

Slips and falls are a very common cause of injury, especially during our wonderful Canadian winters. While it is our recommendation that you should always maintain a sense of caution while walking around, you should also be aware of your rights, should you find yourself off your feet!

A 2005 slip and fall case, Cooney v. Kingston (City), demonstrates that cities can be found to share the burden in recompensing slip and fall injury victims. The plaintiff in this case was a newspaper delivery man, who was familiar with the location in which the accident occurred. Though the plaintiff was wearing winter-appropriate footwear, he slipped on a piece of ice that had formed on a city sidewalk. The resulting injury to the plaintiff’s ankle, tibia and fibula had him in a cast for over six weeks, and forced to use a cane for two months.

The plaintiff took the City of Kingston to court, claiming the City was negligent in its sidewalk icing operations. The Court determined that the City was grossly negligent in failing to maintain a safe sidewalk, but also found that the plaintiff was partly responsible, for failing to keep a proper lookout. At the end of the day, both the City and the plaintiff were found to be equally negligent, and so the plaintiff’s damages were cut in half. The damage award was $40,000, so the plaintiff received $20,000 in total.

If you are injured as a result of a slip and fall, and you believe that part, if not all, of the blame lies with the person or organization responsible for the area you fell in, contact one of the Personal Injury lawyers at Devry Smith Frank LLP for a free assessment of your case.

Pain Clinic Conference

November 21st, 2011

DSF was a proud Platinum Sponsor of Toronto Rehab Pain Conference 2011 which was held on November 18th at the Hyatt Regence Toronto on King. Pain Management across the Continuum: Bridging the Gap from Acute Care to Rehabilitation and into the Community was a main theme and our lawyers: George Frank, David Derfel and David Schell presented Workshop 3: Barriers and Challenges, Providing Chronic Pain: A Lawyer’s Perspective.

Thin Skulled Plaintiffs may be able to Collect on Chronic Pain

November 14th, 2011

When someone gets injured in an accident, any claim for damages must stem from injuries that resulted from the accident in question. In Heyward v. Young, a Nova Scotia Supreme Court case decided in 2011, the Plaintiff, who was injured after the defendant driver t-boned his car, suffered from severe migraine headaches, and an MRI of his head post-accident revealed residual scarring to the inferior frontal lobe. At trial, the Defendant produced evidence to support, on a balance of probabilities, the fact that the sustained brain injury had resulted from an unrelated assault on the Plaintiff 15 years prior to the accident.

The Plaintiff’s pre-existing susceptibility to brain injury, making him a “thin-skulled” plaintiff in legal jargon, removed the causation element required to prove that, but-for the motor vehicle accident, he would not have suffered the brain injury. However, the Plaintiff’s migraine headaches, which did materialize after the accident, and developed into long-term chronic pain syndrome, were recognized to be directly attributed to the accident in question. Despite the fact that a pre-existing condition may have exacerbated the chronic pain, the Plaintiff was still awarded a sizeable general damage award, as well as a modest future care award.

Court of Appeal Upholds Damages for Mental Distress Against Insurer

November 4th, 2011

The Ontario Court of appeal in McQueen v. Echelon recently upheld a Jury’s award of $25,000.00 in damages for mental distress arising from the insurer’s improper handling of an insured’s Accident Benefits.

The Court of Appeal confirmed as follows:

…People purchase motor vehicle liability policies to protect themselves from financial and emotional stress and insecurity. An object of such contracts is to secure a psychological benefit that brought the prospect of mental distress upon breach within the reasonable contemplation of the parties at the time the contract was made….Ms. McQueen was entitled to that peace of mind and to damages when she suffered mental distress on breach.

At Devry Smith Frank we carefully consider what the Court of Appeal looks for in a claim for mental distress against an insurer such as: the number of denials, lack of information about reasons for the denials, reliance on inadequate Insurance Examinations, strong evidence of medical need for the benefits and the adversarial approach taken by the insurer in adjusting the file.

Teachers and Schools Beware – Kids are owed a duty of care

November 2nd, 2011

While physical education has been and will continue to be a critical part of grade school, teachers and administrators mustn’t forget their responsibility to care for their students beyond the boundaries of the classroom. In a 2009 Supreme Court of British Columbia case, Hussak v. School District No. 33 (Chilliwack), the court found that a gym teacher had failed to ensure that the injured plaintiff, one of his students, had been adequately trained in a sport that he was forced to participate in as part of the school curriculum. The plaintiff was partaking in a field hockey game, with no prior training in the sport, and was unintentionally struck in the face by another player. The plaintiff suffered a concussion, soft tissue bruising and swelling, and lacerations to several parts of his face. Unfortunately, these injuries persisted for years, and the plaintiff developed a serious chronic pain disorder, which included ongoing migraines, distorted vision, body tremors, muscle aches, and severe chest pain.

The main finding of this case was the establishment of a four-part test for determining whether or not a teacher meets a standard of care threshold:

a) whether the activity was suitable to the age and mental and physical condition of the student;
b) whether the student was progressively trained and coached to do the activity properly and to avoid the danger;
c) whether the equipment was adequate and suitably arranged; and
d) whether the performance, having regard to its inherently dangerous nature, was properly supervised.

The court found that the plaintiff student, having missed all the classes related to field hockey training, lacked the essentials skills necessary to participate in the sport, and that the gym teacher should have prevented him from participating with the class that afternoon.

As negligence on the part of the plaintiff was ruled out, and the injuries were found to be caused by the field hockey incident, the plaintiff was awarded substantial damages for pain and suffering, past and future income loss, and future care costs.

While school yard sports aim to be inclusive, and provide the opportunity for all students, regardless of athletic ability or interest, to participate, schools and teachers must remember their obligation to prevent students from falling behind and suffering the consequences.