Law Times

Law Times ��� March 25, 2013 Page 13 BRIEF: STRUCTURED SETTLEMENTS Impairment ruling positive for personal injury lawyers BY YAMRI TADDESE Law Times T he Financial Services Commission of Ontario has chosen a broad definition of brain impairment and what���s considered a reasonable time period to test for it in a ruling that may affect future personal injury cases. In Security National Insurance Co./Monnex Insurance Management Inc. v. Hodges, an insurance company appealed the decision of an arbitrator who declared the victim of a car accident to be ���catastrophically injured,��� a finding that would make Manos Hodges, a 31-year-old Goderich, Ont., man, eligible to apply for significant benefits from his insurer. The insurance company argued Hodges��� rating on the Glasgow coma scale, a tool used to measure unconsciousness, was inaccurate as it was taken after he received drugs that affected his awareness. The insurance company also claimed test scores obtained more than 24 hours after the accident were outside the rule requiring them within a reasonable time. But in a recent 20-page decision that���s sure to help personal injury lawyers make their case, delegate Lawrence Blackman dismissed the appeal and instead chose to adopt a more expansive application of the rules. The law says a Glasgow coma scale rating of nine or less within a reasonable time after an accident denotes catastrophic brain impairment. For Hodges, the rating meant the difference between receiving just $100,000 or being eligible to apply for benefits that could get him as much as $1 million, according to his counsel. Blackman found the description of a head injury that would deem a patient���s brain impairment catastrophic doesn���t have qualifiers such as ���moderate to severe��� or ���moderately severe.��� He dismissed those factors as irrelevant. ���The definition does not refer to ���serious traumatic impairment of brain function��� but simply ���brain impairment��� resulting in a GCS score of nine of less,��� he wrote. Blackman also said accident victims shouldn���t have to prove that only their brain impairment and not other factors, such as consciousness-lowering medications, resulted in a score of nine or less. ���A brain impairment need not be the only or sole cause of a GCS score of nine or less, with no contributing factors,��� he wrote. ���If the impaired consciousness measured by the GSC score would not have occurred but for the impairment, then causation is established.��� In the days following the Aug. 5, 2009, accident, Hodges recorded fluctuating scores of nine, 10, 11, 12, and 15. Blackman found the presence of ratings other than nine doesn���t change the reality that Hodge scored at that level at one point or another. ���The fact that there may have been other higher scores also within a reasonable time after the accident is irrelevant,��� he wrote. ���Provided that there is a brain impairment, all that is required is one GCS score of nine or less within a reasonable time following the accident.��� Blackman���s decision clarifies the law for personal injury lawyers and insurers, says Tammy Ring, Hodges��� counsel. ���This decision sets out 22 points specifically on the law relating to this specific area around the Glasgow coma scale,��� she says. Blackman ���is very clear,��� she adds. ���If you have one GCS of nine or less after the accident, that���s sufficient to satisfy the test.��� When it comes to what���s a reasonable time to administer a test, Blackman said it depends entire- ly on whether doctors felt there was a medical reason to take it. The reasonable time requirement, he found, was meant to be more inclusive than exclusive. Ring says in earlier cases, insurers had tried to argue the opposite: that the test was taken too early. ���They were saying the Glasgow coma scales weren���t low enough for long enough,��� she says. ���And now they���re saying these Glasgow coma scales are being recorded too late.��� A neurological expert called by the insurance company also questioned the validity of the Glasgow coma scale as a sole tool to determine consciousness. Imaging tests, and not the Glasgow coma scale alone, will effectively point to a person���s level of awareness, the expert said. But if the Glasgow coma scores are in fact unreliable, the right thing to do would be to convince lawmakers of that, said Blackman. LT Yields higher than GICs Continued from page 12 says lawyers shouldn���t provide financial advice but can ���explain the consequences of a certain action.��� That may involve taking into account a client���s relationship status. They���re also ���obliged to figure out what the yield is��� for different structures before putting them forward as an option for the client to consider, he says. Many lawyers fail to do this, he suggests. While yields from structures can be lower than equities, particularly in the current climate of low interest rates, Fenik notes: ���You���re being pensioned off in many instances, so you need regular, secure payments by which to make day-to-day living expenses as well as [medical costs]. You can���t support cash flow on the basis of equities or other types of investments.��� Yields are normally about 25 per cent higher than those offered by guaranteed investment certificates, a type of fixed-term deposit. The temptation to put settlements into property is easy to understand, says Fenik. ���It���s fair to say that most Canadians value home ownership and see it as a benefit to them being able to pay off their mortgage early to [remove] that millstone from around their necks.��� Fenik recalls a case in which a client received a $1-million settlement and built an $800,000 house with it. ���No sooner was the house built, then the marriage broke down and the spouse got half the house,��� he says. And with rates of relationship breakdown running high ��� 43.1 per cent of couples are expected to divorce before their 50th anniversary ��� it���s prudent to consider clients��� future financial security. LT PAM LeJEAN Graduate Dalhousie University The McKellar Structured Settlement��� Financial security. Guaranteed payments. 100% tax free. Some decisions are easy. Untitled-3 1 www.lawtimesnews.com 12-04-30 4:30 PM

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