Brain Injury and the Glasgow Outcome Scale:

Traumatic brain injuries can occur as a result of many unfortunate and unexpected accidents. These include but are not limited to sporting accidents, slips, trips and falls, assaults, and motor vehicle accidents.

In Ontario, individuals who suffer a brain injury as a result of motor vehicle accident are usually able to access benefits through their own auto insurance company to help with their recovery. These benefits can include medical and rehabilitation benefits, attendant care benefits, income replacement benefits, and others.  For those who have been very seriously injured in car accidents, the benefit limits may be as high as $1,000,000 for med/rehab and $1,000,000 for attendant care if it is confirmed that the injured person is catastrophically impaired.

There are several ways that a person might be declared catastrophically following a car accident.  The legislation confirms one of the catastrophic application criteria as related to brain injury: if a person suffers brain impairment that results in a score of 2 (vegetative) or 3 (severe disability) on the Glasgow Outcome Scale (GOS) according to a test administered more than six months after the accident, by a person trained for that purpose, then they will be declared catastrophically impaired.

The GOS is a test designed to consider the outcomes of people who have suffered traumatic brain injuries. A person who has suffered brain injury will be scored within one of the five following categories:

1. Dead
2. Vegetative State
3. Severely Disabled
4. Moderately Disabled
5. Good Recovery

As noted above, for the purposes of pursuing a catastrophic application a person must either be found to be in a vegetative state or to have a severe disability as a result of brain impairment.

A vegetative state is a state in which a person is alive, but unresponsive. This person would not be able to speak or obey even simple commands, but may have some spontaneous actions such as breathing, reflex responses, and eye-opening.  Experience tells us that catastrophic applications are not frequently pursued on the basis of this score as, with this significance of the injury, there are often other, more immediate, avenues for application available.

It is with greater frequency that catastrophic applications are pursued on the basis of brain impairment that results in a GOS score of 3 (severe disability). In contrast to the vegetative state category, a person with a severe disability is conscious but requires assistance for daily activities. The extent of the need for support can range from total dependency to a much less significant dependency, but the score does require that the assistance be needed on an everyday basis. 

Otherwise, the moderate disability category, a score of 4 on the GOS scale, would be applied to someone who does not require assistance in his everyday life. This person might return to school or work but may require accommodation.

By: Michelle Baumann

Safe Tobogganing

In early January, news broke across the continent that various municipalities were banning tobogganing.  The CBC reported that Hamilton has already banned tobogganing on all municipal property, with fines of up to $5,000. 

Tobogganing involves some risk.  The National Post reported recently that seven people were killed in Canada while tobogganing between 2003 and 2007.  In 2013, the City of Hamilton entered into a $900,000 settlement with an adult who suffered a spinal cord injury while tobogganing on a municipal hill – despite the tobogganing ban.  There is no doubt that municipalities wish to take steps to limit their risk of exposure to expensive law suits and increased insurance premiums.

It is reasonable that all parties take steps to make tobogganing as safe as possible.  Responsible restrictions or prohibitions of tobogganing on dangerous hills (for example with trees or other obstacles) make sense.  So does removal of the obstacles.  Parents can take steps to protect their children as well.  Supervision is important.  Helmets should be worn.  The hills should be appropriate to a child’s level of ability, and scanned for obstacles or dangerous conditions.

The lawsuits relating to tobogganing have encouraged municipalities and parents to take reasonable precautions to prevent injury. However, bans on tobogganing are not a substitute for taking reasonable precautions.  Further, it is doubtful that bans, in the absence of reasonable precautions, will protect municipalities from liability in any event.  Moreover, it would be unfair to externalize, onto our children, the costs of failing to take reasonable precautions to protect them in what should be a safe and thoroughly enjoyable Canadian activity.

By Geoffrey Duckworth 

When is a Traumatic Brain Injury Considered “Mild”?

“Mild” traumatic brain injuries can often cause significant emotional, physical, and cognitive impairments.  Associated outcomes can include depression, post-concussion symptoms, disability, underemployment, low income, and marital instability.  Yet, mild traumatic brain injuries often go undetected because of the inability of conventional imaging tests to identify them. 

According to the International Brain Injury Association, few patients with mild traumatic brain injuries have visible injuries such as fractures, contusions, and hemorrhages found in a head CT scan.      

There is still some debate about what defines a mild traumatic brain injury.  The most widely accepted definition was set out by the American Congress of Rehabilitation Medicine.  It is a patient “who has had a traumatically induced physiological disruption of brain function, as manifested by at least one of the following:

1.    any period of loss of consciousness;

2.    any loss of memory for events immediately before or after the accident;

3.    any alteration in mental state at the time of the accident (e.g., feeling dazed, disoriented, or confused); and

4.    focal neurological deficit(s) that may or may not be transient;

but where the severity of the injury does not exceed the following:

·         loss of consciousness approximately 30 minutes or less;

·         after 30 minutes, an initial Glasgow Coma Scale (GCS) of 13-15; and

·         post-traumatic amnesia (PTA) not greater than 24 hours”.

Recent technological advancements have improved our ability to detect mild traumatic brain injuries.  These advancements include positron emission tomography (PET), single photon emission computerized tomography (SPECT), functional magnetic resonance imaging (fMRI) and diffuse tensor imaging (DTI).

Anyone who sustains a head injury should be assessed by a medical professional with expertise in assessing traumatic brain injuries. Early symptoms of a mild traumatic brain injury include headache, vomiting, nausea, dizziness or vertigo, and problems with memory. 

By Geoffrey Duckworth 

Traumatic Brain Injury – The Positive Message of Kevin Pearce

While attending the UHN Toronto Rehab Institute 2015 Conference on Traumatic Brain Injury, I had the pleasure of hearing Kevin Pearce speak. Kevin is a former professional snowboarder. While training for the Vancouver Winter Olympic trials in December of 2009, Kevin suffered a near fatal traumatic brain injury. His remarkable experience and recovery was captured in the 2013 HBO documentary “The Crash Reel”.

Kevin’s message is inspirational; it is positive and hopeful and it is absolutely one that needs to be heard. He spoke of his rise to athletic excellence, his devastating fall, as well as his ongoing recovery.

It is very clear that Kevin has chosen to be a positive person. He has chosen to educate and inspire; he is a leader in the world of traumatic brain injury. Kevin promotes the importance of leading a “brain healthy lifestyle” and, in this regard, he spoke of the Love Your Brain Foundation which is a non-profit organization that he created with his brother Adam Pearce.  The Foundation is one that aims to improve the quality of life of people affected by brain injury. I would encourage visitation to his website at www.loveyourbrain.org.

By: Michelle Baumann 

How Safe Does Your Child's School Have to Be?

If you have children in school, it is likely, at one time or another, you have thought about your child’s safety at school and how safe your child’s school actually is.  The law does not require perfection, and Boards of Education will not be liable for every injury that occurs on school premises or during school activities.  The standard is reasonableness, and what a careful or prudent parent would do to ensure safety.

The duties owed by educators to maintain safety in Ontario’s elementary and secondary schools are prescribed under the Education Act and its regulations, but also by the Occupiers’ Liability Act and the common law.

Teachers are responsible for ensuring that all reasonable safety procedures are carried out.  They must maintain, under the direction of the principal, proper order and discipline in the classroom, as well as on duty in the school and on the school ground.  They must carry out their assigned supervision duties and instructional programs.

Principals are required to maintain proper order and discipline in the school.  They must give “assiduous attention to the health and comfort of the pupils, to the cleanliness, temperature and ventilation of the school, to the care of all teaching materials and other school property, and to the condition and appearance of the school buildings and grounds.”  Principals are responsibility for the instruction and discipline of pupils in the school, and for the organization and management of the school.  They must provide for the supervision of pupils when school buildings and playgrounds are open to pupils, and during any school activity authorized by the Board.

The Boards of Education are to ensure that all schools under their charge comply with the Education Act and the regulations.

The Boards of Education are also compelled, as “occupiers” under the Occupiers’ Liability Act, to take such care as in all the circumstances is reasonable to see that persons are reasonably safe while on the premises.

If you or someone you know has suffered an injury on school premises or during school activities, you should call an experienced and recognized personal injury lawyer immediately.  

By Geoffrey Duckworth 

Expediting a Catastrophic Application:

When someoneis in a motor vehicle accident and is seriously injured, costs for medical, rehabilitation, and attendant care services are often substantial. In most cases in Ontario, individuals who suffer a catastrophic impairment are able to access up to $1,000,000 for medical and rehabilitation benefits, and up to $1,000,000 for attendant care benefits through accident benefit claims with their own automobile insurer. Having access to such benefit limits can help an injured person with financial security during their recovery process.

There are many ways that an injured person can be deemed catastrophically impaired. Some people are declared catastrophic immediately; immediate opportunity is afforded to those who suffer paraplegia or quadriplegia, amputation, or total loss of use of either an arm or a leg, total loss of vision in both eyes, or brain impairment resulting in a score of 9 or less on the Glasgow Coma Scale.

Those who suffer brain impairment that results in a score of 2 (vegetative) or 3 (severe disability) on the Glasgow Outcome Scale may also be declared catastrophically impaired if the test is administered after at least six months have passed since the accident.

Often times there can be delays in pursuing a catastrophic declaration for those who suffer serious injuries but who don’t meet any of the above noted criteria.  As a result of such delays, and with only $50,000 and $36,000 being otherwise available for med/rehab and attendant care benefits, people often use up their non-catastrophic limits long before being declared catastrophically impaired.

After a two year waiting period, the Statutory Accident Benefits Schedule confirms that an individual can apply for a catastrophic declaration if they have an impairment or combination of impairments that, in accordance with the AMA’s Guides to the Evaluation of Permanent Impairment, 4^th edition (1993), results in 55% or more impairment of the whole person.  A person can also make application in accordance with the Guides if, again after two years, they suffer an impairment that results in a class 4 (marked) or a class 5 (extreme) impairment due to mental or behavioural disorder.

Fortunately, this two year waiting period can sometimes be bypassed.The Schedule confirms that the two year waiting period need not be applied to an injured person who suffers an impairment that is “unlikely to cease to be catastrophic”. In such cases, an application can be pursued so long as a physician, or a neuropsychologist in limited cases, confirms in writing that the impairment is indeed unlikely to cease to be catastrophic.

Particularly for those that will exhaust, Being declared as catastrophically impaired at the first opportunity is vitally important for those that will use their non-catastrophic benefit limits quickly.  The timing and justification of a catastrophic application requires thoughtful and careful consideration.  Having the support of expert medical and rehabilitation professionals, as well as having access to a knowledgeable personal injury advocate, is highly recommended for those dealing with serious injuries.

By: Michelle Baumann

Confronting Impaired Driving Together

As a personal injury lawyer, I get great satisfaction from seeking justice and compensation for victims of preventable tragedies, such as impaired driving.  Talking to parents, children, wives and husbands who have lost loved ones because of drinking and driving never gets any easier.

Here are some of the most recent statistics:

• An estimated 1,082 impairment-related fatalities occurred on Canadian roads in 2010, according to MADD Canada;
• Over one-third of all traffic fatalities were impairment-related in 2010; 
• In 2011, the rate of impaired driving increased for the fourth time in five years, up 2%, according to Statistics Canada;
• Police reported 90,277 impaired driving incidents in Canada in 2011;
• 82% of persons charged with drinking and driving are male;
• Impaired driving rates reported by police are substantially higher in rural than in urban areas, with a rate of 436 per 100,000 population in rural areas, as compared to 181 per 100,000 in urban areas (2011);
• Persons between 16 and 25 years of age comprised 13.6% of the population in 2010, but composed almost 33.4% of all alcohol-related traffic deaths that year;
• Drivers under 35 accounted for two-thirds of those accused of impaired driving causing death and injury in 2011;
• In 2008, more people were killed in impairment-related auto crashes than by homicide, at 635 to 611;
• Two-thirds of all reported impaired driving incidents occurred on weekends in 2011;and 
• 50% of impaired driving incidents reported by police took place between 11 p.m. and 4 a.m.   

The good news is, in 2011 the impaired driving rate was less than half of what it was in 1986.  The overall trends in impairment related injuries and fatalities are down substantially in the same 25-year period.  Still, with over 90,000 incidents of impaired driving in 2011 alone, there is obviously much work to be done.

High-risk, repeat offenders make up roughly 30% of impaired drivers.  They are typified by high-Blood Alcohol Contents, histories of prior convictions, drinking problems and frequent impaired driving. Strategies for dealing with high risk offenders include a combination of punishment, surveillance, and treatment.  Behaviour change can be encouraged through the reinforcement of positive behavior.

I cannot help but think about the many people I have encountered working in personal injury law who have lost friends and family because of impaired driving. 

The debate about proper strategies for confronting impaired driving is likely to continue for some time.  A good place to start is to remember the victims, including those who are left behind.  My hope is that if we all remember, and talk about it, there won’t be as many new ones this year.

By Geoffrey Duckworth

Spinal Cord Injury Awareness - 2015 Events in Ontario

Every single day there is at least one person in our province that suffers a spinal cord injury. Year after year, we see amazing fundraising efforts and campaigns organized in Ontario that help with creating more awareness around spinal cord injury. As we move a little farther in to 2015, let’s take a moment to consider some of the events that are currently “in the works” at   Spinal Cord Injury Ontario (SCIO).  Let’s all make effort to be involved this year!

February 12, 2015

There will be the 15^th Annual Ski & Snowboard Day at Craigleith Ski Club in Blue Mountains. This event includes fun races, demonstrations, lunch, complimentary beginner lessons, an apres-ski reception, auctions, prizes, and awards.  Contact Lynn Mineque at 1-877-422-1112 x221 with any questions or to register.

March 18, 2015

An education session will take place in London regarding Bladder and Bowel Info with Coloplast. The session will address bladder and bowel function, and new products available to help in their management.  The presentation will be led by Sarah Bain from Coloplast Canada.  To register, you can contact Dan Harvey at 519-433-2331 x224

March 26, 2015

There will be a comedy night held at TRI Lyndhurst Centre in Toronto. Contact Christine Selinger at 416-422-5644 x265 to register.

April 22, 2015

There is a presentation on Nutrition, Food and SCI in London. The session will be put on by Chris Fraser, a registered dietician, and will provide knowledge that will help to maintain quality of life. Dan Harvey can be contacted at 519-433-2331 x224 for registration.

September 20, 2015

The Wheelchair Relay Challenge and Stroll event will be held at Monarch Park Stadium in Toronto. This is a fun and friendly event designed for people with and without disabilities. The competition involves relay teams racing around a track to win awards such as Fastest Team, Most Spirited Team and Top Fund Raiser.  With entertainment, children’s activities and a complimentary lunch, this is truly a family affair. Registration is available online.

For more information on any of the above events, or to learn more about Spinal Cord Injury Ontario, visit http://www.sciontario.org.

By: Michelle Baumann

Concussions in Amateur Hockey

Canadian parents know that there are few better opportunities to teach their children the virtues of hard work, commitment, determination, excellence, and team building than on the ice.  Hockey is an important part of our culture and who we are as Canadians. 

In recent years, we have all learned about the seriousness of the head injuries that have cut the careers of some of the greatest hockey stars short.  Some people theorize that today’s players are bigger, faster, and stronger than players in the past, but the real problem may be that, until recently, we have not been able to detect mild traumatic brain injuries (mTBI) through the use of conventional imaging tests which likely have resulted in injuries being undiagnosed.

Increasingly, there is also evidence that mild traumatic brain injuries are occurring in amateur hockey, in addition to the NHL. 

Concussion symptoms include headaches, vomiting, sleep disturbance, balance disorder, cognitive impairment, fatigue, and mood changes.  Anyone who sustains a head injury should be assessed by a medical professional with expertise in assessing traumatic brain injuries, such as a neurological surgeon, neurologist, or emergency medicine physician.

Developing a better understanding of the impact of concussions may ultimately lead to changes in the way hockey and other contact sports are played, particularly at the amateur level. 

If you or someone you know has been diagnosed with a concussion or a brain injury, you should consult an experienced personal injury lawyer immediately.

By Geoffrey Duckworth