As we all know, mediation isn’t the end of the line. Many cases are not resolved after mediation and need to progress on towards the next step in the dispute resolution process; either arbitration or a court action. However by law, one must complete the mediation process before moving onto these next steps in the dispute resolution process, therein lies the rub.
FSCO has offered some hint of relief with the introduction of the consent to fail option and promises of new internal measures designed to streamline the dispute resolution process – but this is little comfort for those stuck in the queue right now.

However those stuck waiting may find some assistance by way of a recent Superior Court decision (Cornie v. Security National et al.: 2012 ONSC 905) out of Kitchener that offers an additional option for dealing with this FSCO mediation backlog…simply skip the mediation.

Perhaps it’s not as simple as just skipping the mediation, here is the background on the case:

Plaintiffs’ counsel represented four separate plaintiffs who had each been denied accident benefits. He applied for mediation. These matters joined the mediation queue, but the 60 day time period came and went without a mediation being scheduled by FSCO. As a result counsel escalated the dispute resolution process and issued Statements of Claim for the denied benefits. Defence counsel brought a motion to have each of these claims stayed on the basis that they had not first been mediated and therefore the Court had no jurisdiction to entertain the claims.

The motion was heard on January 17, 2012. Justice Sloan reviewed the matter, noted the history of FSCO backlogs and the relevant case law and legislation and he concluded that the failure to have a mediation session within the 60 day time limit was, in effect, a statutory “failure” of the mediation. By deeming an inherent failure of the mediation these matters were ripe to proceed onto a court action.

FSCO has taken notice of this decision and has indicated that they will comment on its effect after the appeal period (or the appeal itself if it is pursued) has been exhausted.

Gluckstein and Associates would like to congratulate fellow OTLA member Bruce Kelly for pursuing this interesting claim on behalf of his plaintiff clients.

From the outside they look exactly the same but on the inside they are somehow different; they may not recognize you, they may do seemeingly strange things and all of it changed in an instant.

This is not the premise of a science fiction film, but rather the reality that family members of brain injury survivors face every day.

Acquired brain injury, while devestating for the victim in and of itself, is an affliction that affects the whole family. We invite you to take a look at this blog written by a lady named Nancy who chronicles the ups and downs of life after her husband suffered a traumatic brain injury back in 2008.

Her courage is inspiring and her family’s expereinces and triumphs should be comforting to anyone who finds their own family in a position similar to the one Nancy found herself in.

We hope that you take the time to check in with Nancy and follow her story and we wish Nancy and her family all the very best!

This is an excellent and fun event to help raise funds to continue the work that the BIAPH does for the brain injury community in Peel Halton.  The BIAPH provides services such as brain injury education and awareness, respite care for families and support groups for brain injury survivors.  Our own Sandev Purewal is president of this very fine organization.

This year’s even will have feature a Silent Auction, 50/50 Draw, Raffle Tickets, Bowling Prizes and Face painting & Clowning,
courtesy of Party California for the kids.

Here are all the details if you’d like to take part:

When: Thursday February 16th, 2012 6:30 PM – 9:00 PM

Where: Classic Bowl 3055 Dundas Street West Mississauga,ON., L5L 3R8

How: To Register send an e-mail to biaph@biaph.com or fax to : 905.823.9960 with your name as Team Captain and the name of your team mates.

Hope to see you out at this wonderful event!

We first met Françoise when she was the keynote speaker at our very first Compassion Fatigue Seminar  several years back. Her presentation was fantastic and the success of that first event lead our firm to turn the Compassion Fatigue Seminar into an annual event. This year’s event will be our 7th annual conference!

Françoise will be hosting a book launch and free public lecture this week on February 2, 2012 in Kingston, Ontario. Take a look at the following link for location and details.

If you can’t make it up to Kingston she will also be holding a book launch in Toronto on March 1, 2012. Take a look at this link for complete event details.

Congratulations Françoise!

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’.