In being certified as a specialist, Charles joins a realtively small group of lawyers in Ontario who have acheived this distiction.  He also joins his father, Bernie Gluckstein, as the second member of our firm to be indentified as a specialist in civil litigation!

Congratulations Charles!

The crux of the dispute between Mr. Kusnierz and his insurer was whether or not it is permissible to combine physical and psychological impairment ratings in order to achieve the 55% whole person impairment threshold to be entitled to catastrophic benefits. Ultimately this was a case that came down to statutory interpretation of the catastrophic impairment provisions under the SABS.

The judge hearing the matter at trial  concluded that it was not permissible to combine psychological and physical impairments.
The trial decision was a major blow to the Plaintiff’s bar and to accident victims since the practice of combining physical and psychological impairments to achieve a catastrophic determination had been commonplace since the Court’s decision in the matter of Desbiens v. Mordini 2004 CanLII 41166 (ON SC), back in 2004; this was the case even though the SABS, as written, do not expressly permit or forbid the practice of combining physiological and psychological impairments to achieve a 55% whole person impairment.

The trial judge’s conclusion was successfully challenged and reversed by the Court of Appeal in a judgement released on December 23, 2011. In reversing the decision the Court of Appeal expressed a desire to revert back to the analysis outlined by Justice Spiegel in the Desbiens decision.

Intuitively the Court of Appeal’s decision makes sense. Catastrophic benefits were put in place to assist the most seriously injured accident victims, and as such it does not seem fair to deny an individual benefits simply on the basis that the whole of their impairment does not fit neatly into either a physical or psychological category. In fact, it is likely those individuals with complex needs that involve both physical and psychological injuries that are in need of additional funding for treatment.

This is certainly an important victory for seriously injured accident victims in Ontario and one may argue it is even more important today given the reduced benefits available to non catastrophic accident victims post September 1, 2010.  We certainly hope that the gains made by this decision and the comments by the Court of Appeal are carefully reviewed and taken into account by the Ministry of Finance which is in the midst of deciding whether or not changes should be made to the definition the catastrophic impairment. A FSCO committee recently submitted a report  to the Ministry with recomendations for changes to the defintion. A change to the defintion that would forbid the combintation of physical and psychological impairments would eliminate benefits to seriously injured individuals like Mr. Kusnierz and would certainly be an unfortunate and unfair amendment.

Gluckstein and Associates would like to extend their congratulations to the Appellants’ counsel and to counsel who assisted the Ontario Trial Lawyers Association as interveners in this case on all their efforts with respect to this successful appeal.

Today’s blog entry focuses on ABI in children and some of the strategies and therapies that are available to assist them and their families in dealing with the devastating impact of ABI.

We were fortunate to gain some insight into the unique challenges of working with children with ABI by having an an opportunity to chat with the therapists from blueballoon Health Services . blueballoon Health Services specializes in pediatric assessment and treatment for children and young adults (ages 0-18) with mild to severe developmental delays, learning disabilities, and children that simply learn differently. They operate four facilities across Ontario in Toronto, Burlington, Aurora and Waterloo.

Q. What is unique about helping children with ABI as opposed to helping adults who present with ABI?

A. Treatment goals and therapies can differ depending on whether or not you are working with a child or an adult.

One main difference, depending on the age of child, is that a child (as opposed to an adult) may not have developed certain skills (ie: social skills, physical skills or aspects of emotional development) prior to the injury and therefore would be working on brand new skills post injury where they may face ABI related impairments or difficulties. The focus in adult treatment is generally rehabilitation ie: working on modifying or relearning skills, skills that the body may have muscle memory for and skills that the brain has made previous connections for. The situation is much different with a child since you’re often working with brand new skills.

It always depends on the person and the injury, but the goal is usually to get an individual back to their occupation, so with adults it would be getting them back to their workplace. With children, school, learning and development is their occupation and a brain injury may affect their performance in some of these areas. It may be difficult to form friendships, play games, follow instructions, communicate, or perform at school.

In addition, depending on the cause of the brain injury, there may be cognitive and psychological effects, such as overcoming fears, that need to be dealt with. For example, if the child was injured after he or she fell on the monkey bars there may be a fear of the playground, and without treatment this phobia or avoidance of playgrounds could impair other key areas of development, such as developing muscle tone, and/or social skills.

Q. What therapies or combination of therapies are available to help children with ABI?

A. At Blue Balloon we offer several therapies depending on the specific needs of the individual child. A child with ABI may need Occupational Therapy, Physiotherapy, Behavioural Therapy, or Speech Therapy and an assessment would determine which would be most beneficial to the child or if a combination is needed. Other disciplines, such as, Music Therapy and Psychology may also be used. There is an advantage in having an interdisciplinary team so that it is possible to combine many areas of expertise, to create an effective treatment plan that best serves the needs of the child.

Q. How do you involve the child’s family or school in their therapy?

A. Collaboration with families, teachers, and other therapists involved in the child’s care is essential to effective treatment and it helps to establish treatment goals and priorities.

Parents may be directly involved with sessions, through observation or participation, and there is constant communication, check-in and up-dates with families. We also provide parents with training and coaching, so that they have the skills to reinforce therapy goals at home.
Therapists must also consult with teachers at schools, and may assist in creating individualized education plans, or make suggestions to help the child perform better in the classroom. They can also work with school therapists to ensure that all therapy goals are consistent and effective.

Q. What signs should parents look for if they suspect their child has suffered from a head injury?

A. Parents should watch for reports of severe headache, dizziness, or any changes with vision. There may be extreme or abnormal changes in mood and speech function may be impaired or out of the ordinary. There can also be nausea, vomiting, fatigue and abnormal difficulties with concentration and speech production. If there is any combination of these signs it is recommended to see your doctor or paediatrician immediately or attend the nearest emergency room.

We would like to thank blueballoon for providing us with the above information. If you would like more information about any of their services, please take a look at their website.

In recognition of the receipt of the grant, BIST will be holding a grant launch party on Monday, January 23, 2012 at 6:00 p.m. at the Northern District Library located at 40 Orchard View Blvd., Toronto in Room 200 on the second floor. The BIST board will be joined by MPP Mike Colle, MPP Kathleen Wynne and a representative from the Ontario Trillium Foundation.

Gluckstein and Associates has been a supporter of BIST for some time now and we are very proud to have our own Jonathan Burton  currently sit as the board chair of this very fine organization.

We wish BIST all the best at their celebration and look forward to seeing the good work that they will be able to do for the community with the help of the Trillium Grant.

If you are interested in learning more about BIST and the very valuable services they provide, please take a look at their website.

 

S e a s o n’ s    G r e e t i n g s . . .

May peace, joy and happiness be yours

during this holiday season and in the new year!

 

From Gluckstein & Associates LLP

We came across this article that was originally published on the New York Times online regarding the tragic life and death of hockey’s Derek Boogaard.   It is a heart breaking account of a young man with a promising future who lost everything at the age of 28. 

Boogaard’s untimely death is helping researchers who are trying to discover the effect of trauma on the brains of former athletes involved in contact sports (ie: boxing, hockey, football).

Following his death, Boogaard’s brain was donated to researchers working  through the Centre for the Study of Traumatic Encelopathy. Upon examination Boogaard’s brain revealed tell-tale signs of Chronic Traumatic Encelopathy, C.T.E., a degenerative brain disease that is closely linked with Alzheimer’s disease and is believed to be caused by blows to the head.  It is believed that C.T.E. affects the brain by causing symptoms of impulsivity, memory loss, mood swings and addiction.

Research programs like this one are highly valuable to all of us in understanding the role of trauma and brain function. The goal of the Centre for the Study of Traumatic Encelopathy to help establish a test for C.T.E. in living people (currently it can only be definitively diagnosed posthumously), identify genetic risk factors and environmental risk factors and develop treatment for those suffering from C.T.E.

In time one hopes that their work can change the discussion around head trauma in sports and make tragic stories like that of Derek Boogaard a thing of the past.

Please note a print version of the article linked above appeared on December 6, 2011, on page B13 of the New York edition with the headline: A Brain ‘Going Bad’.

Back in 2006, the Supreme Court of Canada dealt with the issue of social host liability in the matter of Childs v. Desormeaux [2006] 1 S.C.R. 643, 2006 SCC 18. Unfortunately for the injured Plaintiff, Ms. Childs, the court was not prepared to create a new tort of social host liability on the facts of the case; however they did leave the door open for liability to be found on a social host given the right circumstances.

Even though the legal obligations of a social host may not be well settled it can be argued that there are certainly moral obligations that arise when mixing guests and alcohol in your home.

All legal arguments aside, nobody wants to have any role to play in a preventable alcohol related tragedy; especially when there are so many simple ways to help keep your guests safe at your party.

The LCBO has prepared a great list of tips for being a responsible host and keeping your guests safe. Some of their tips include:

• Serve food to help offset the consumption of alcohol
• Provide alcohol free beverages – the LCBO website has a fantastic “mocktail” guide that you can access by clicking here; not only are mocktails delicious but the cost of providing them may even be a little easier on your party planning budget!
• Be prepared for your guest to stay overnight.
• Keep some cash on hand and the numbers of local taxi companies handy so that your guests have no excuse not to have a safe ride home.
• Ensure that you keep an eye on your guests by not over consuming alcohol yourself.
• Speak up! If you suspect a guest is not safe to make it home on their own let them know and encourage them to make responsible choices ie: call a taxi, stay the night, get a ride home with a sober driver etc.

Check them out the full list of the LCBO’s responsible hosting tips by clicking here.  

You can also consider engaging a service like Operation Red Nose to help ensure your guests arrive home safely.

At Gluckstein and Associates LLP www.gluckstein.com we hope that you have a safe and happy holiday season and the only legacy from your holiday party are merry memories!

The Gluckstein and Associates LLP Neurological Rehab lounge is located on the neurotrauma floor on 3EC in West Park’s Main Building. The lounge provides a calming space for patients, their families and staff on the neurotrauma floor to relax and unwind.

Photo Album >  Slideshow    Video >  West Park Opening Ceremony

The lounge was officially opened on July 6, 2011. During the opening ceremony, James C. Murphy, Foundation Executive Director, kindly thanked Gluckstein and Associates by saying,

“This gift will help West Park optimize our care environment and it will help patients fulfill that ambition, their highest hopes of going home rehabilitated and well.  So thank you Gluckstein and Associates for helping West Park patients on the road to recovery.”

We were fortunate to be joined at the lounge unveiling by a number of West Park staff including:

John LaFramboise, President and CEO, West Park Healthcare Foundation
Mike Fenton, Director, Principal Gifts
James Murphy, Foundation Executive Director
Dave Ursomarzo, Director, Donor Relations
Jennifer Tasca , Development Officer, Signature Events
Henry Zajac, Sen. Development Officer
Dr. Peter Derkach
Pamela Madan-Sharma, Manager, Amputee Services
Anne Rendall, Development Officer, Database Management
Lijeanne Lee, Development Officer, Communications
Jackie Monahan, Development Officer, Recognition
Lori Cardillo, Manager, Research

The balcony (shown above) has been outfitted with tall planters which showcase ‘The Tree of Life’, a beautiful sculpture by Canadian artist Cathy Mark. The sculpture stands 32” high and is 20’’ wide, with a tree made of metal and anchored to a piece of granite from the Canadian Shield.

In discussing the inspiration to become involved with this project at West Park, Charles Gluckstein said:

“The Gluckstein gift to West Park is a patient visitor lounge on the floor that deals with neuro rehabilitation. It is very important for our company to appreciate the services that West Park has provided to our clients over the years. We’re thrilled to be able to give something back. When we heard that West Park was raising some money to increase their facilities and improve the services for their clients, we wanted to be involved and provide a special place for patients and families and even staff to be able to step out of the hospital environment.”

The redevelopment of the lounge was a huge project and we appreciated the guidance and patience of everybody at West Park who assisted us during the renovation process.  We would like to express an extra special thank you to the following individuals who were a big help to us along the way:

The design team of Nathalie Gluckstein and Letizia Petti
Dave Ursomarzo, Director, Donor Relations
Henry Zajac, Senior Development Officer, Corporate Giving
Albert Browne, Earthwork Floral Design, Toronto
Furniture Consultants: Kristi Schultz, Sue Umlauf, Gary Roberts
Karin Kriekaard, Eclipse Art Gallery, Huntsville

We hope that patients and their families will be able to enjoy the amenities in this lounge and we also hope that they will find that it provides them with some respite when dealing with all of the challenges inherent in brain injury recovery.

The Think First Foundation  has a very useful guide  on choosing the proper helmet for all types of sport.  The Ski Canada Website also has some great advice for choosing a helmet, you can check them out here.

We’ve highlighted some of their excellent tips below:

• Make sure your helmet has been safety tested and approved! Look for these safety labels on your helmet:

For Hockey Helmets: CSA (Z262.1 – ice hockey helmet; and Z262.2 – face protection)

For Ski and Snowboarding Helmets: CSA Z263.1, ASTM F-2040, Snell (RS-98, S-98)

For Tobogganing Helmets: CSA (Z262.1 , Z263.1, ASTM F-2040, Snell (RS-98, S-98)

For Ice Skating Helmets: CSA (Z262.1))

• Make sure the helmet sits properly on your head with these 3 easy steps:

Generally the front part of the helmet should sit two finger lengths above your eye brows.

The side straps should form a “V” buckles should fit just below your ear lobes and slightly behind your jaw line

The chin strap should be tight enough to only fit one finger width between your chin and the strap

• When purchasing helmets for kids make sure the helmet fits on their head properly today – don’t purchase a size up hoping to stretch out the helmet use for a few years.

• For Ski/Snowboarding helmets make sure you bring your ski goggles shopping with you – this way you can ensure that your helmet is compatible with your goggles.

At Gluckstein and Associates LLP we hope that you have a safe and fun winter sports season!

If so, you’ll want to mark your calendar for the evening of November 30, 2011. Sunnybrook Hospital is presenting a panel discussion on concussion prevention and management at its Bayview Campus in the McLaughlin auditorium which is located on the ground floor in the E-Wing. The discussion starts at 6:30 p.m. Admission is free.

This is a great opportunity to learn the latest in concussion management from the experts at Sunnybrook. Former NHL player, Keith Primeau will also be involved in the discussion, via skype, to discuss issues related to concussion from a patient’s perspective.

Take a look at this link for more information on the speakers and to register for the event.

If you can’t attend this event in person, there will be a live webcast of the discussion available.