Law Times

LaW TIMeS • SePTeMBeR 14, 2015 Page 11 www.lawtimesnews.com Lawyers ready for new battles over catastrophic impairment BY MICHAEL McKIERNAN For Law Times ersonal injury lawyers are gear- ing up for a fresh round of cata- strophic impairment litigation after the provincial government finally overhauled its definition of the term in the statutory accident benefits schedule follow- ing years of discussion. Late last month, the Financial Services Commission of Ontario unveiled the new definition in regulations implementing provisions of the 2015 provincial budget. The regulations will only apply to auto in- surance policies issued or renewed from June 1, 2016, which Charles Gluckstein says will be "a very unfortunate day" for severely injured accident victims. "We're entering a whole quagmire of le- gal analysis and case law that is going to de- velop over the next few years," says Gluck- stein, a former president of the Ontario Tri- al Lawyers Association. "You could say that it's great news for lawyers but it's terrible for accident victims." Najma Rashid, a personal injury law- yer with Ottawa firm Howard Yegendorf & Associates LLP, says the new definition is an even more complicated version of an already-labyrinthine concept. "You need a medical professor to decode it," she says. If anything is clear about the definition, according to Rashid, it's that the new ver- sion is "much stricter." "It has become progressively more re- strictive over the years, but this is like a step up. Far fewer individuals are going to qualify after being involved in an ac- cident," she adds. According to Gluckstein, personal injury lawyers are par- ticularly unhappy about the elimination of the Glasgow coma scale as a method for determining whether a brain injury meets the threshold for catastrophic impair- ment. The test, typically administered by front- line health workers, translates observations about a patient's con- sciousness and brain function into a simple numerical score out of 15. Currently, those scoring nine or less on the scale during a test administered "within a reasonable period of time" after the ac- cident satisfy the definition of catastrophic impairment. An expert panel recommended the coma test's elimination from the statu- tory accident benefits schedule in 2011. In its final report on the issue, the panel highlighted doubts about the test's long- term predictive accuracy. Gluckstein concedes the test has limita- tions but says lawyers and their clients loved the certainty that came with a score. "It's a bright-line test, and you can tell immediately whether this individual qualifies," he says. As of June, a number of other measures for determining whether a brain injury results in catastrophic impairment will re- place the coma test, but none are as straight- forward. "This is a test that we've had for 20 years and has been interpreted by the courts over all of that time," says Gluckstein. "This has taken what- ever certainty we had and made it uncertain again. It's all well and good to talk about updat- ing medical terminology, but the real reason why they wanted to eliminate the test isn't because it's not medically accurate; it's because they want to get rid of half the people who qualify as cata- strophically impaired." The new definition also clears up any lin- gering confusion about when psychological im- pairments will qualify as catastrophic. In 2012, in the case of Pastore v. Aviva Canada Inc., the Ontario Court of Appeal ruled claimants only had to show a "marked im- pairment" due to a mental or behavioural disorder in one out of four categories listed by the American Medical Association: ac- tivities of daily living; social functioning; concentration, persistence, and pace; de- terioration or decompensation in work or work-life settings. As of June, the amended benefits schedule specifies that claimants must show a marked impairment in at least three of the four categories, a standard that Gluckstein says is "pretty much im- possible" to meet "unless you've been committed to a hospital psychiatrically." For those claimants who do manage to cross the catastrophic threshold, the government has cut the potential benefits available to them in half. The previous re- gime allowed for a $1-million limit on at- tendant-care benefits, plus a further $1 mil- lion for medical and rehabilitation benefits. The new one combines the two categories and caps both together at $1 million. William Goldstein, a founding partner of Windsor, Ont. personal injury law firm Goldstein DeBiase, says he was "amazed" by the reduction to benefits for the most seriously injured accident victims but he sees the change as part of a larger trend in auto insurance. "Coverage continues to narrow and narrow," he says, pointing to additional amendments announced by FSCO last month. Apart from the catastrophic impair- ment changes, the new regulations also confirmed further changes. They include a cut to the combined attendant-care and medical and rehabilitation services for non- catastrophically injured victims to $65,000 from $86,000; a two-year limit on non- earner benefits that were previously avail- able following a six-month waiting period until claimants turned 65 and on a reduced basis after that age; and a reduction in the standard duration for medical and reha- bilitation benefits to five years from 10 years except for children. According to Goldstein, consumers are typically ignorant about the scale of the re- ductions to accident benefits or are focusing on the promise of lower premiums. "The public has absolutely no idea until they are in an accident and then they are absolutely shocked," he says. "A lot of the expense gets downloaded onto the health system. If something is not going to be covered by an insurer, people are going to turn to OHIP. Someone has to pick up the cost." LT By Gillian Mays, Bogoroch & Associates LLP S chool boards, coaches, teachers and athletic organizations have a duty to supervise children playing sports in the manner of a "prudent or careful parent," taking into account all the surrounding circumstances and the number of children under supervi- sion. This "careful parent" standard means that schools and coaches must: 1. Ensure that the activity is suitable for the chil- dren's age and condition; 2. Properly train and coach the children in the activity; 3. Provide adequate equipment and arrange it suit- ably; and, 4. Properly supervise the activity. For example, the school board Myers v. Peel County Board of Education failed to follow numbers 3 and 4 of the above list. In that case, a 15-year-old boy was injured while trying to dismount from the rings in gymnastics class. The Physical Education teacher had given Myers permission to practise on the rings without supervision. The teacher testified at trial that Myers had been taught the appropriate safety measures, such as having a "spotter" to break his fall. However, the Supreme Court of Canada held that the faculty should not have allowed students to use the rings without supervision. It was also found that the school did not provide adequate protective mats below the gymnastics equipment. However, schools and coaches are only liable for reasonably foreseeable risks of injury. They will not be held liable if the injury was unforeseeable, or if the injury could not have been prevented by taking reasonable precautions. Unforeseeable injuries include situations where a player demonstrates a deliberate intent to cause serious injury to another player, such as in Dunn v. University of Ottawa. In finding for the plaintiff, Cunningham J. stated that while a collegiate athlete expects to be hit, he "does not, however, consent to being headbutted or speared in the face by an onrushing 225 pound linebacker while in that vulnerable position" of catching a punt. On the other hand, the court in Thomas v. Hamilton (City) found that the plaintiff's injury occurred as a result of foreseeable, inherent risks of contact sports. The plaintiff broke his neck while tackling another player in a high school football game. His coach had taught the team the correct techniques for tackling, such as instructing players to slightly extend their necks and make initial contact with their shoulders rather than their heads. It was established at trial that the plaintiff did not follow the correct tackling technique. The Ontario Court of Appeal, therefore, held that the coach and school board were not liable for Thomas' injuries. The injury was sustained during a routine play and fell within the ambit of the inherent risks of contact sports. Thomas also argued that he had a neck condition (termed "long, lean swan neck") that made him more susceptible to neck injuries. It was alleged that the coach should have recognized this condition and warned Thomas about the increased risk. However, the court rejected this theory. It held that the "long, lean swan neck" theory was not widely known outside academic literature at the time, and coaches could not be expected to know of the theory, and recognize it in the player. Coaches are expected to demonstrate a higher level of skill and expertise in the sport than the average person, but they are not expected to know absolutely everything about the sport. Once a player has been injured, however, schools and coaches must provide prompt medical services. The coach in Poulton v. Notre Dame College was found liable for his player's injuries because he refused to let the player see a doctor. The player went on to develop severe hip infections that may have been prevented by prompt medical treatment. Sponsored by Who is liable when children are injured in sports? P 'We're entering a whole quagmire of legal analysis and case law that is going to devel- op over the next few years,' says Charles Gluckstein. Personal Injury and Medical Malpractice Lawyers BRIEF: PERSONAL INJURY LAW

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