THE POST-ACCIDENT CONCUSSION DILEMMA Establishing conclusive evidence of a mild traumatic brain injury, or concussion, is one of the most challenging issues for many of our clients as they seek ongoing care following a motor vehicle accident. It is well-documented that concussion symptoms can occur in relatively low speed collisions, and even without direct head trauma. If identified and treated appropriately, concussion sufferers often experience excellent recovery. On the other hand, the impact of an untreated brain injury, “mild” or not, can be widespread, devastating and permanent. Despite this, your own insurance companies, paid by you to protect your interests,...
In Aviva Insurance Company of Canada v. Dittmann, released on March 15, 2018, the Supreme Court of Canada dismissed a leave to appeal application by Aviva and ordered the insurer to pay Ms. Dittmann’s legal costs. Several years earlier, Ms. Dittmann suffered serious burns while attempting to place a drive-through coffee into her cup holder. She applied for accident benefits from Aviva under her automobile insurance policy. Aviva denied the claim because it felt that the injuries were unrelated to her operation of the car. Under the Statutory Accident Benefits Schedule (SABS), an accident is described as, “an incident in...
We have begun recommending that our clients consider purchasing legal cost protection from companies like BridgePoint Indemnity Co. We believe that this empowers our clients, and removes one of the obstacles to achieving fair compensation from the defendant insurance companies. Typically, insurers have used the threat of legal costs against the plaintiff as a means of intimidating our clients into accepting lowball settlement offers. When a client has realizable assets at risk, the threat of losing at trial and being held responsible for a portion of the defendant’s legal costs (which can be many thousands of dollars) is a...
Concussions (aka: mild Traumatic Brain injuries) are in the news a lot in sports-related injuries- especially hockey and football as high-profile athletes suffer repeated head injuries that can shorten their careers and permanently impact their lives. As a result, more attention and money has been devoted recently to understanding the diagnosis and treatment and long-term effects of concussions. Despite this recent attention, however, concussion and particularly post-concussion syndrome remains a gray area medically. Several misconceptions exist amongst the general population, but also in within the medical and rehabilitative community and the automobile insurance industry.
On September 27, 2012, the Ontario Court of Appeal released its landmark decision in Pastore vAviva. Mrs. Pastore was successfully represented by Joseph Campisi, the founding partner of Campisi LLP. It was a long and challenging fight over several years and multiple appeals. The stakes were very high for the insurance industry, and Aviva did not want to lose. At issue was the definition of “catastrophic impairment” under the Statutory Accident Benefits Schedule (SABS), and whether Mrs. Pastore qualified for enhanced benefits under that definition. As the difference in benefits entitlement was nearly an additional $2 million, Aviva was strongly...
G.P. v. Cumis General Insurance Company, a recent claim before the Licence Appeal Tribunal (LAT), concerned G.P.’s application for a determination of catastrophic impairment and several denied treatment plans. G.P. had been injured in a motor vehicle accident in November 2013. She sought treatment from her automobile insurer, Cumis, under the Statutory Accident Benefits Schedule (SABS). After agreeing to fund her initial treatment, Cumis denied several treatment plans. G.P. commenced an application to dispute the denials with the LAT. Around the same time, she submitted an OCF-19 (“Application for Determination of Catastrophic Impairment” or “CAT application”) prepared by her physician,...
When you (or someone you love) has been seriously injured in a car accident, the impact on your life is devastating. It can be difficult pushing ahead with rehabilitation, striving to establish your best new “normal” in the face of physical, psychological or cognitive obstacles which seem overwhelming. It is essential to your recovery that you hold on to hope and continue to believe that progress is possible. Medical and technological breakthroughs are occurring all the time, and are providing opportunities that were unthinkable as little as 10 years ago. Advances in robotics, pharmaceuticals, and computer technologies can radically alter...
Many of you do not know that our legal system is prejudiced against plaintiffs who are injured in car accidents. In response to pressure from the Insurance industry, our Insurance Act has built-in relief for defendant insurance companies from paying damages to plaintiffs. Briefly, damages under a certain amount are subject to an automatic deductible which stays in the defendant insurer’s pocket. So, if a jury awards you $70,000 for pain and suffering, you will only receive $40,000. The jury is not told that this happens. Grossly unfair though this is, at least for many years the deductible amount was...
As we have discussed at length in recent posts, initial concerns regarding the competence of the Licence Appeal Tribunal (LAT) may have been somewhat overstated. This is not to say that accident victims are uniformly receiving appropriate adjudication at the LAT, as many decisions have come under fire for “cookie-cutter” responses and other failures. However, as the recent Reconsideration of 16-002325 v Aviva Insurance Canadashows, when such failures do occur, there is hope that a correct result can still be achieved. The Applicant, M.B. was injured in a motor vehicle accident on November 21, 2013. Despite the accident, she continued...
In Applicant v TD Insurance, a recent decision of the Licence Appeal Tribunal (LAT), Member Sewrattan had to consider whether an insurer could use causation as grounds for refusing to fund rebuttal assessments requested by the unnamed applicant to determine whether he had suffered a catastrophic impairment (CAT) under the Statutory Accident Benefits Schedule (SABS). The applicant struck his head on a window as a passenger in a rear-end collision. He denied suffering significant physical injuries. He claimed that his ongoing psychiatric and cognitive impairment was caused in part or whole by the collision.