or is still in a coma in the hospital It has been our experience that even when someone is clearly

Transcription

1 BRAIN INJURED CLIENTS IMPACT ON THE TORT AND ACCIDENT BENEFITS FILE Prepared by M Steven Rastin Lee Ann M Fournier Litigation Law Clerk Tracy M McColligan Accident Benefits Law Clerk McCarthy Rastin Kerr In The Beginning You receive a new file and your client may have a head injury Family members are stating that the injured person is forgetful not themselves keeps losing their train of thought cant remember phone numbers anymore or is still in a coma in the hospital Acquired brain injury files are perhaps the most rewarding and at the same time challenging sort of case that will be dealt with by a clerk in a personal injury law firm When dealing with an insurance company that may be taking positions that are less than reasonable there is no one that needs the assistance of an knowledge law clerk more than an ABI victim It is unfortunately often the case that someone with an acquired brain injury will not know what services to ask for It has been our experience that even when someone is clearly entitled to case management services the insurance company will sometimes not make its insureds aware of this right Upset and confused a victim suffering from an acquired brain injury will often turn to the person he or she works with most the law clerk to assist her with sorting out the confusion of no fault automobile insurance The needs of an ABI victim are significant both on the Accident Benefits and the Tort sides of a motor vehicle litigation file We will discuss each in turn

2 2 The Impact on the Accident Benefits File It is now apparent that the majority of victims of motor vehicle accidents are only able to access limited medical and rehabilitation benefits from their accident benefits carrier Pursuant to the legislation as it exists now the vast majority of victims suffer injuries which the legislation would consider non catastrophic However acquired brain injury cases fall within that small category of injuries that may meet the criteria for catastrophic impairment The difference between catastrophic and non catastrophic injuries is really quite simple If your client has suffered a catastrophic brain injury it can bring the maximum medical and rehabilitation benefits limits to from Further Attendant Care Benefits will increase from to Additionally your client will be entitled to Case Management Services and housekeeping home maintenance services beyond the 104 week mark of the accident If your clients brain injury is not catastrophic and classified as mild the actual impact may be the amount of work you will complete or assist with on the Accident Benefits portion of the claim Starting from the actual AB application your client will more than likely require assistance with completing all accident benefits related forms and obtaining the necessary treatment they will require How do you determine if they have a brain injury and just how serious is it One of the first places to start in making a determination as to the severity of the brain injury is the Ambulance Call Report This should be one of the first documents or medical

3 3 reports that you attempt to obtain as it will give you a place to start On the second page of the Ambulance Call Report look for something called the Glasgow Coma Scale Score or GCS Score The GCS is a measurement of the impairment of the person as identified by the paramedics who attend at the scene of the accident While it is not necessarily meant to be used as a diagnostic tool the legislation has specifically indicated that the GCS is one of the criteria for determining catastrophic impairment A score of 9 or less will indicate a catastrophic brain injury A score of may still indicate a brain injury but not necessarily a catastrophic brain injury You should advise your lawyer when the report comes in what the clients GCS score was In addition to looking at the GCS score as identified in the Ambulance Call Report it may also be worth looking for the GCS score in other records such as the hospital emergency room or trauma assessment records It is sometimes possible for someone to have a GCS score of 10 or higher at the scene of the accident but have the victim worsen shortly after the accident and meet the criteria by the time they arrive at the hospital Further when you obtain the hospital records notify the Accident Benefits carrier that you are in receipt of those records and they will usually reimburse you for them You may want to organize the Accident Benefits portion of your file into several sub files such as Expenses submitted to keep track of payments received and denied and limitation dates for the denials if any Attached as Exhibit A is a copy of our AB Expense Limitation Sheet that enables us to keep track of and diarize all payments and denials one folder for the complete file when you receive it

4 4 FSCO Mediations FSCO Arbitrations Keeping a separate brad for your Accident Benefits correspondence is definitely an asset Benefits Available One of the next steps is to obtain all the of the necessary information you will require to assist your client with obtaining the benefits they will need They will usually require the following a Attendant Care b Housekeeping Home Maintenance c Income Replacement Benefits d Rehabilitation and Medical Benefits and e Case Management Services if you think your client has suffered a catastrophic brain injury The easiest way to determine your clients initial needs is to obtain the services of an Occupational Therapist to go in and complete an In Home Assessment where they can assess the Activities of Daily Living at the same time and prepare a Form 1 for the Attendant Care This first assessment is an asset in determining how serious your client is injured It is worth noting that under the current legislation you can have the accident benefits insurance company reimburse you for the cost of these assessments pursuant to section 24 of the SABS

5 5 Obtaining Benefits Often with brain injured clients it is simply easier to write away for all the information you require by having them execute several authorizations then leaving it in their hands to obtain the specifics you want For example the following are necessary documentation you need for the Accident Benefits file 1 Insurance Information not only do you require your clients own insurance information but you need their collateral benefit insurance information as well 2 Employment Information you require your clients employment file as well as a detailed letter from the clients employer regarding their earnings Pursuant to the Howden and Pembridge Appeal Decision you need the employer to state the following a Life insurance premiums if any b Weekly indemnity insurance premiums if any c Private pension plan contributions if any d Uniform allowance if any e Pay equity adjustments if any Employer paid CPP contributions and g Employer paid El contributions All of these amounts are necessary for making the proper calculations for the Income Replacement Benefit Additionally this information will be an asset on the tort portion of the file when it comes to making any calculations for loss of income

6 6 3 Your client may be suffering from other injuries as well as a brain injury Obtaining all necessary medical and rehabilitation reports is important in determining your clients progress and recovery if any You may need to spend more time with a brain injured client explaining how treatment plans are submitted and then approved or denied and what their options are under all circumstances It is in these circumstances that it is best to have the Litigation Guardian present during these discussions or to speak directly with family members who can understand the process of obtaining treatment Further with brain injured clients it is additionally important to follow up in writing with respect to all stages of their accident benefits claims process 4 You may need to provide a Statutory Declaration to the Accident Benefits carrier Depending on the severity of the brain injury you will be able to determine whether the Litigation Guardian should sign it or whether your client can understand the contents of the Declaration 5 If your client has suffered a Catastrophic brain injury one of the first forms you should have completed is the Application for Catastrophic Determination and have it submitted to the insurer for consideration More often than not when the medical documentation is clear that it is a catastrophic impairment your client will have to undergo the CAT DAC process In explaining this process to your client it is a wise choice to have a family member present or the Litigation Guardian This process is important because if your client is Catastrophic you can implement the services of a Case Manager A good case manager will take the bull by the horns and basically take the accident benefits portion of the file out of your hands

7 7 implement the rehab team and provide you with all necessary updates and recommendations for the treatment Further the Case Manager will schedule team meetings or family conferences which are a must for the lawyer or law clerk to attend These meetings give you an up to date status of your clients condition progress and problems they are encountering They will welcome your friendly face and presence in the company of the insurer Assessing Your Clients Brain Injury The actual beauty of Bill 59 at the present time is you can assess your clients injuries at the expense of the insurer Do you have positive indicators of a brain injury One of the first places you can start is with cognitive testing with an Occupational Therapist that specializes in head injuries This report and assessment can be submitted to the insurer pursuant to section 24 Perhaps the next place to start is with a neuropsychological assessment This will further determine the severity and extent of your clients brain injury and again submit the invoice to the AB insurer for payment How old is your client One of the next places to turn to in assessing the extent of the brain injury is obtaining school records and again looking at the employment file What kind of student were they before and after the accident What kind of employee were they before and after the accident Both of these files either the OSR or the employment file will provide useful information in assessing the brain injury Additionally usually either the AB carrier or tort insurer will want a copy of these records and will be willing to pay for them

8 8 Resolution of the Accident Benefits File If your client has a severe brain injury most likely your Accident Benefits settlement will need to be approved by the Court This can be done by providing the insurer with an Affidavit of the Litigation Guardian pursuant to section and 1 2 of the Insurance Act A Law Clerks Skills You need to understand that clients who have suffered a brain injury will require more of your time and mostly your patience They most likely need someone to hold their hand and simply to listen to them Be prepared for phone calls when you have just met with the client or have just spoken with them They may forget what you have just told them they may forget dates you have just given them or they may forget they have spoken with you at all Plan for the unplanned phone calls unplanned visits to the office and unusual demands And as always smile The Impact on the Tort File Intake File Set Up Once the call comes into the office make every effort to have a lawyer go and meet with the injured person and family members immediately You as a law clerk may want to attend with the lawyer to ensure that all paper work is filled out and the appropriate authorizations are executed

9 9 Once everything has been signed you can go to work and start requesting medical rehab and insurance documents Attached as Exhibit B is a copy of the New File Checklist we use on every personal injury file that comes into our office Files that involve brain injured clients ALWAYS grow at a tremendous speed You want to be sure that your file is organized at all times In our office we have separate sub files within our file for example Pleadings Medical Rehabilitation Documents Investigation Out of Pocket Special Damages Accident Benefits if required Accounting Trial Prep Once the file starts moving forward we add further sub files as needed such as Undertakings FSCO Mediation FSCO Arbitration CPP Once productions start coming into the office and to ensure that your file remains current a medical rehab brief should be started immediately Take the time to review all medical reports hospital records and cnrs as you want to become extremely familiar with pre accident health status and all injuries sustained in the accident Any pre accident injuries should be red flagged and you need to immediately advise the lawyer A law clerks job among others is to manage the documents on the file It is their job to read every single piece of paper to file it in a way that we can get to it if we need it and to bring everything relevant to the lawyers attention In our office the lawyer reads the medical and

10 10 rehab reports However it is the law clerks job to read EVERYTHING and to make sure that the lawyer knows what he she needs to to properly handle the case Prior to any trial or mediation the lawyer and law clerk will bury themselves in the file to make sure that they have mastered every part of it On some motor vehicle accident files there may be a criminal proceeding against the at fault driver It is very beneficial to have the law clerk attend all hearings preliminary pretrial and trial This will give you an idea of what witnesses there are and the evidence they will give what investigation reports are available and you can establish a rapport with the investigating officers and Crown Attorney Client Contact It is very important to communicate with your client over and above what you normally do with your other clients as there will always be some sort of communication problems either forgetting what you said to them misunderstanding etc After each telephone call or attendance at your office you should follow up in writing No matter how trivial This will give you a paper trail to fall back on if needed Most of the time your brain injured clients will be angry and frustrated and not know how to deal with their lawsuit not to mention their injuries numerous appointments and treatments You will want to ensure that you keep your cool when speaking with them not belittle them or lose your patience You will also want to make sure that they have the proper support put in place to help them deal with these issues i e psychotherapy case manager etc

11 Encourage your client to keep a daily journal listing their appointments medications aches and pains and there general overall feeling of the day This is a valuable tool later on in the course of litigation Docketing When docketing be sure to be specific as to each task and where it falls either tort or accident benefits Try to break up your dockets under each of those two sections Pleadings When you have a brain injured client you want to make sure that someone close to them either a parent spouse friend or guardian is with them and can assist in helping them make decisions with respect to their lawsuit This person will in turn become their Litigation Guardian In our office we try not to meet with brain injured clients on their own as they often become confused and dont understand what you have just said to them or they misinterpret your conversation all together Our normal practice is to have their Litigation Guardian attend with them at all lawyer meetings After any and all meetings an immediate letter should be sent to your client with a carbon copy going to the Litigation Guardian Before drafting the claim you want to ensure that an Affidavit of Litigation Guardian is executed As mentioned above this person can be a parent spouse friend etc Attached as Exhibit C is a copy of a sample Affidavit of Litigation Guardian with respect to a person under a disability Also attached as Exhibit D is a sample Statement of Claim

12 12 Examination for Discovery On catastrophic brain injury files it is extremely beneficial to have the law clerk attend at the examination for discovery This will ensure proper note taking and listing of undertakings As well this gives the lawyer a chance to sit back and watch how the client gives their evidence In addition the law clerk will know exactly what has or hasnt been requested outstanding or given to defence counsel Mediation As you know this type of case is usually resolved in one of two ways settlement or a trial Our experience has been that most clients would prefer to avoid a trial if possible A mediation is an effort by all sides to come together and see if a fair settlement can be reached and a trial avoided Both sides accident benefits and tort should participate in the mediation if accident benefits as not already settled independently Be sure that all your clients are in attendance especially the Litigation Guardian The Mediation Summary will likely be quite long and extensive due to the number of medical and rehabilitation reports that you are relying up and the issues in dispute with respect to accident benefits Depending upon the severity of your clients brain injury you may want to provide them with a copy of the Mediation Summary including Defence counsels prior to the Mediation

13 13 Prior to the Mediation the lawyer and yourself will want to meet with the clients and Litigation Guardian to explain the process and what will be discussed and said If your client is sensitive about what is going to be said about him her you need to forewarn them that the lawyer is going to paint as bleak a picture for them as possible They will probably not like what is going to be said about them and they will likely not appreciate what your experts have said A Power Point presentation is useful if used the right way Do not load your presentation with excerpts of medical reports etc Rather use this time to show the other side what your client was like before the accident and what type of person they are today Pictures statements video clippings etc are extremely effective Keep the text down to a minimum so you can keep your audiences attention Remember they have already been provided with your Mediation Summary in advance so there is no need to repeat it in your Power Point Presentation Trial A law clerks role in this section and like at any trial is to ensure that the demonstrative evidence lay witnesses expert witnesses and of course the clients all arrive on time Make sure you talk with your client to see whether or not they want to sit at the table with the lawyer or in the gallery where they are free to come and go as needed or even if their attendance is needed for the entire trial The lawyer will have an idea on how they will want this to run Again depending upon the client you will need to ensure that the appropriate support system is put in place for your client i e attendance of psychotherapist case manager

14 14 family etc to assist in the emotional aspect of being at trial and the impact of hearing disturbing evidence Conclusion With any brain injury file catastrophic or not you need to be patient with the brain injured client and be sure to respond to them as quickly as possible because what is a 1 2 hour to you seems like three hours to your client Ensure that a Litigation Guardian is in place and if necessary the appropriate case manager You need to be sure that your file is organized and up to date Follow up all client meetings and telephone calls in writing with a carbon copy going to the Litigation Guardian If the accident is a motor vehicle accident be prepared to be deal with the accident benefits insurer from the get go Make sure your dockets reflect either work on tort or accident benefits This is much easier to decipher if a Bill of Costs is required Most of all be prepared for the unexpected

15 15 Exhibit A DENIED REFUSED ACCIDENT BENEFITS File File DATE THAT ACCIDENT BENEFITS FILE WAS LAST REVIEWED EXPENSE BENEFITS Expense Amount Date Date Limitation Diarized Benefit Submitted Denied Expiry

16 16 Exhibit B NEW FILE TASK LIST File Name File No Matter DOL Task Date Done Diarized re F U Done By Initial Client Letter Write for a b file or get a b applicationin Write for MVA report investigation file witness statements Write for report and cnrs of family doctor Write for cnrs of other treating physicians rehab Write for hospital records Write for employment records Write for school records Write to client for Income Tax Returns Send Treatment Chronology Medication Schedule to client Put OHIP on notice do not if MVA Put Defendant s on written notice NOTES

17 17 Exhibit C Court File No ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN JOHN DOE and JANE DOE a person under a disability and TOM DOE a minor both by their Litigation Guardian LISA DOE Plaintiffs and and ROYAL JOHN SMITH BILL JONES Litigation Administrator for THE ESTATE OF MARY DOE SUNALLIANCE INSURANCE COMPANY OF CANADA Defendants AFFIDAVIT OF LITIGATION GUARDIAN I LISA DOE of the Town of Midland in the County of Simcoe MAKE OATH AND SAY AS FOLLOWS 1 I consent to act as Litigation Guardian in this proceeding 2 I have given written authority to M Steven Rastin to act as solicitor in this proceeding 3 Both myself and the Plaintiff JANE DOE are ordinarily resident in Ontario

18 18 4 I am the lifelong friend and Power of Attorney of the Plaintiff JANE DOE who is mentally incapable of giving instruction or receiving advice 5 I have no interest in this proceeding adverse to that of the Plaintiff JANE DOE 6 I acknowledge that I have been informed of my personal liability to pay any costs awarded against me or the Plaintiff JANE DOE in this proceeding SWORN BEFORE ME at the Town of Midland in the County of Simcoe this day of 2003 LISA DOE A COMMISSIONER etc

19 DOE et al v SMITH et al Court File No SUPERIOR COURT OF JUSTICE PROCEEDING COMMENCED AT BARRIE AFFIDAVIT OF LITIGATION GUARDIAN McCARTHY RASTIN KERR Trial Lawyers Highway 12 P O Box 398 MIDLAND Ontario L4R 4L1 M Steven Rastin 36580M Tel Fax Solicitors for the Plaintiffs If

20 Exhibit D Court File No ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN JOHN DOE and JANE DOE a person under a disability and TOM DOE a minor both by their Litigation Guardian LISA DOE Plaintiffs and JOHN SMITH BILL JONES Litigation Administrator for THE ESTATE OF MARY DOE and ROYAL SUNALLIANCE INSURANCE COMPANY OF CANADA Defendants STATEMENT OF CLAIM TO THE DEFENDANT S A LEGAL PROCEEDING HAS BEEN COMMENCED AGAINST YOU by the plaintiff The claim made against you is set out in the following pages IF YOU WISH TO DEFEND THIS PROCEEDING you or an Ontario lawyer acting for you must prepare a statement of defence in Form 18A prescribed by the Rules of Civil Procedure serve it on the plaintiffs lawyer or where the plaintiff does not have a lawyer serve it on the plaintiff and file it with proof of service in this court office WITHIN TWENTY DAYS after this statement of claim is served on you if you are served in Ontario If you are served in another province or territory of Canada or in the United States of America the period for serving and filing your statement of defence is forty days If you are served outside Canada and the United States of America the period is sixty days Instead of serving and filing a statement of defence you may serve and file a notice of intent to defend in Form 18B prescribed by the Rules of Civil Procedure This will entitle you to ten more days within which to serve and file your statement of defence IF YOU FAIL TO DEFEND THIS PROCEEDING JUDGMENT MAY BE GIVEN AGAINST YOU IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU If you

21 21 wish to defend this proceeding but are unable to pay legal fees legal aid may be available to you by contacting a local legal aid office Date Issued by Local registrar Address of court office 114 Worsley Street Barrie Ontario L4M 1M1 TO Mr John Smith AND TO Mr Bill Jones AND TO ROYAL SUNALLIANCE INSURANCE COMPANY OF CANADA

22 22 CLAIM 1 The Plaintiffs claim as follows a as to the Plaintiff John Doe damages in the amount of b as to the Plaintiff Jane Doe damages in the amount of c as to the minor Plaintiff Tom Doe damages in the amount of d pre judgment interest in accordance with the Courts ofjustice Act e their costs of this action on a solicitor and client basis including any applicable Goods and Services Tax and e such further and other relief as this Honourable Court may deem just 2 The Plaintiff John Doe resides in the Township of Tay in the County of Simcoe At all material times he was the husband of the deceased Mary Doe the father of the Plaintiff Jane Doe and the grandfather of the minor Plaintiff Tom Doe 3 The Plaintiff Jane Doe is the daughter of the Plaintiff John Doe and the deceased Mary Doe and resides in the Town of Midland She is the natural mother of the minor Plaintiff Tom Doe At all material times she was a passenger in the vehicle being driven by the deceased Mary Doe hereinafter the Doe vehicle As a result of the injuries hereinafter described she is a mental incompetent but not so declared and she brings this action by her Litigation Guardian Lisa Doe 4 The minor Plaintiff Tom Doe date of birth October is the son of the Plaintiff Jane Doe and the grandson of the Plaintiff John Doe At all material times Tom was a passenger in the Doe motor vehicle He is a minor and brings this action by his

23 23 Litigation Guardian Lisa Doe 5 The Defendant John Smith resides in the City of Toronto in the Province of Ontario At all material times he was the owner and operator of a 1997 Dodge Caravan bearing Ontario license plate number 395 RBM the Smith vehicle 6 At the time of her death the deceased Mary Doe resided in the Township of Tay in the County of Simcoe At all material times she was the owner and operator of a 1989 Ford Probe bearing Ontario license plate number 576 HMW the Doe vehicle Bill Jones is the Litigation Administrator for the Estate of Mary Doe 7 The Defendant Royal Sunalliance Insurance Company of Canada hereinafter referred to as Royal Sunalliance is a duly incorporated insurance company licensed to carry on business in the Province of Ontario At all material times Royal Sunalliance was the insurer of Mary Doe under a valid policy of automobile insurance namely policy number and was also the insurer of the Jane Doe under a valid policy of automobile insurance namely policy number Both policies provide for under insured coverage This policy was in full force and effect at all material times The policy incorporated as part of the contract a standard endorsement O E F No 44 which provides additional insurance coverage where an insured person is injured in a car accident involving a third party motorist having insufficient automobile insurance to satisfy the claims against them arising from the accident Specifically the endorsement provides that all eligible claimants may recover all damages they are legally entitled to recover from the inadequately insured motorists

24 24 8 The Plaintiffs state that the Plaintiffs claims could exceed the liability limits available to the Defendants John Smith and Bill Jones Litigation Administrator for the Estate of Mary Doe and therefore the Plaintiffs claim indemnification for their damages from Royal Sunalliance for any excess over the available limits 9 The Plaintiffs plead that they are insured persons pursuant to the terms of the policies with Royal Sunalliance and are entitled to insurance coverage under the said policies to the extent to which their damages exceed the Defendants liability limits of any insurance available to satisfy the Plaintiffs claims 10 On or about the 27th day of June 1999 Mary Doe was operating the Doe vehicle in a southbound direction along Old Fort Road in the Township of Tay in the County of Simcoe At the same time the Defendant John Smith was operating the Smith vehicle in the same direction behind the Doe vehicle Mary Doe stopped her vehicle and signalled her intention to make a left hand turn There was another vehicle stopped immediately behind her on the road Mary began to make a left hand turn into a private driveway when Smith attempted to pass the Doe vehicle and the vehicle behind her resulting in a violent crash causing considerable damage to all vehicles 11 As a result of the collision aforementioned Mary Doe suffered fatal injuries 12 As a further result of the collision aforementioned the Plaintiffs Jane Doe and Tom Doe sustained grievous injuries

25 25 13 The Plaintiffs claim that the aforementioned collision was caused by the negligence of the Defendant John Smith in that a He was travelling at an excessive rate of speed considering the circumstances b He was driving at such a rate of speed that he could not control the Smith vehicle within his range of vision c He failed to keep a proper lookout d He failed to keep the Smith vehicle under proper control e On the occasion in question he was an incompetent driver lacking in reasonable skill and self command and ought not to have attempted to operate a motor vehicle f He failed to give any warning of the approach of the Smith vehicle though such warning was reasonably necessary under the circumstances g He applied the brakes and used the steering wheel or apparatus of the Smith vehicle on wet or slippery pavement carelessly and incompetently thereby causing the vehicle to skid and go out of control h He failed to slow down or stop or turn to the left or the right so as to avoid a collision with the Doe vehicle i He failed to take reasonable care to avoid an accident which he saw or should have seen was likely to happen j He failed to exercise due care and skill in the management of the Smith vehicle k He had the last clear chance to avoid the collision I He made an unexpected manoeuvre without giving a proper warning m He failed to give the Doe vehicle the right of way to which it was entitled n He failed to allow the right of way to the Doe vehicle as is required under the circumstances o He failed to have the Smith vehicle in a fit and proper condition suitable for its safe