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Prepared by M. Steven Rastin, Lee-Ann M. Fournier (Litigation Law Clerk), Tracy M. McColligan (Accident Benefits Law Clerk)
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", "can't 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.
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 $1,000,000 from $100,000. Further, Attendant Care Benefits will increase from $72,000 to $1,000,000. 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 client's 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 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 10- 15 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 client's 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;
• FSCO Mediations;
• FSCO Arbitrations;
• Keeping a separate brad for your Accident Benefits correspondence is definitely an asset.
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 client's 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.
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 client's own insurance information, but you need their collateral benefit insurance information as well.
2. Employment Information - you require your client's employment file as well as a detailed letter from the client's 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;
f) 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.
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 client's 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, 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 client's condition, progress, and problems they are encountering. They will welcome your friendly face and presence in the company of the insurer.
Assessing Your Client's Brain Injury
The actual beauty of Bill 59 at the present time, is you can assess your client's 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 client's 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.
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 271(1.1) and (1.2) of the Insurance Act.
A Law Clerk's 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.
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:
• Medical/Rehabilitation Documents
• Out-of-Pocket/Special Damages
• Accident Benefits, if required
• Trial Prep
Once the file starts moving forward we add further sub files, as needed, such as:
• FSCO Mediation
• FSCO Arbitration
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 cnr's, 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 clerk's 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 lawyer's attention. In our office, the lawyer reads the medical and rehab reports. However, it is the law clerk's 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.
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.
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.
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.
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 don't 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.
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 hasn't been requested, outstanding, or given to defence counsel.
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 client's brain injury, you may want to provide them with a copy of the Mediation Summary, including Defence counsel's, prior to the Mediation.
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 audience's 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.
A law clerk's 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, family, etc., to assist in the emotional aspect of being at trial and the impact of hearing disturbing evidence.
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!