Halifax Personal Injury Lawyer Blog

Fewer Brain Injuries But More Time Lost

This month’s issue of the Canadian Medical Association Journal contained a study of NHL hockey players over 7 seasons. The study indicated that while the number of concussions has leveled off the time that players were loosing as a result of the concussions appears to be increasing.

More Severe Injuries or Better Treatment?

The authors of this study question whether the increase in time off is because players are suffering more serious concussions or whether trainers and team physicians are being more cautious in their treatment of mild traumatic brain injuries.

Better Predictors

The authors pointed to a number of factors which tended to increase the amount of time off the players needed before returning to the ice. The factors included the presence of:

Headaches;

Low Energy or Fatigue;

Memory Loss;

Abnormal Neurological Findings.

The authors of the study conclude:

“Our findings also suggest that more conservative or precautionary measures should be taken in the immediate post-concussion period, particularly when an athlete reports or experiences a post-concussion headache, low energy or fatigue, amnesia, recurrent concussion or many different post-concussion symptoms, or when the athlete has an abnormal neurological examination.”

The findings are similar to the practice guidelines for managing mild traumatic brain injuries due to concussion published by the American Academy of Neurologists.

Spotlight on Concussions

The NHL has drawn attention to the problems of concussions in sports; particularly Zdeno Chara’s hit on Max Pacioretty that caused a severe concussion and a fractured neck as well as Sidney Crosby’s concussion which has put him off the ice for almost 3 months.

In March the NHL announced new concussion rules requiring trainers to conduct a neurological test of players immediately after taking an on ice hit.

Recent research has also revealed that up to 25% of all junior hockey players suffered a concussion.

Better Enforcement-Better Training-Better Testing

The public is slowly becoming aware of the dangers of concussions. People are finally starting to realize that a concussion is a brain injury and the damage from mild traumatic brain injury due to a concussion is cumulative and can be permanent and significantly disabling.

How Can We Protect Athletes?

Referees need to strictly enforce the rules against cross checking and head shots. Coaches, trainers and parents need to have a better awareness of the signs and symptoms of mild traumatic brain injuries.

New and more accurate testing such as the rules introduced by the NHL recently to detect brain injury need to be implemented at all levels of the sport and in any sport where head injuries are prevalent (hockey, football and rugby to name a few).

If there is one thing that everyone knows it's that wearing a helmet reduces the risk of head injury. Or does it?

Risky Business?

New research published by Mikael Colvill-Andersen suggests that people who wear helmets are more likely to engage in the type of risky behavior that results in head injuries.

Colvill-Anderson claims:

“There are actually scientific studies that show your risk of brain injuries is higher when you’re wearing a helmet, and that you have a 14% greater chance of getting into an accident with a helmet on…”

Controversial...or Just Dangerous?

Needless to say, Colvill-Anderson's statements have raised a storm of controversy among doctors, brain injury organizations and sports organizations.

Helmet Laws Reduce Injuries

Most provinces have laws requiring people to wear helmets when they ride bicycles. Ontario’s helmet law was passed in 1995 and a test conducted by Toronto’s Hospital for Sick Children found that bicycle fatalities among children dropped after the legislation was introduced. However, bicycle fatalities among adults (who were not covered by the helmet law) remained the same.

Colville-Andersen’s research is based on the “risk homeostasis” theory that everyone has a "preset" level of risk tolerance. The theory suggests that when you do something to decrease your risk of injury you compensate by engaging in more risky behavior.

For example, the risk homeostasis theory states that if someone decreases their risk by wearing a seat belt they may unconsciously drive faster.

It appears that the weight of scientific evidence is critical of the risk homeostasis theory.

Helmets or No Helmets?

While some sports require helmets as a condition of playing (hockey and football are obvious examples) other sports that some might consider equally violent actually ban helmets, rugby and lacrosse for example.

What Do You Think?

If you wear a helmet are you more likely to engage in risk taking behavior? Or are helmets just a common sense way of preventing concussions and brain injury?

Defendants are becoming more and more aggressive about trying to get information from social media sites like Facebook.

In what has to be one of the most egregious invasions of privacy that I have ever seen, an insurance company in New Brunswick made an ex parte (secret) application to court requesting a judge to order a plaintiff to turn over copies of all the information contained on her social networking sites like Facebook, LinkedIn, Twitter and My Space.

The most unbelievable part of the decision is that the plaintiff’s lawyer was ordered by the judge to take part in the deception.

Trust

One of the foundations of our entire legal system is the relationship of trust and full disclosure that must exist between a client and his or her solicitor (lawyer).

Lawyers and clients have to be able to communicate truthfully and openly. Clients must be able to rely upon the lawyers advice

Consider the damage that would be caused to the solicitor-client relationship if courts are able to order plaintiff’s lawyers to deceive or mislead their clients.

But that is just what happened in Sparks v. Dubé. The court considered the trust relationship that exists between solicitors and their clients. However, ultimately the court decided that the defendant’s right to full disclosure outweighed the trust relationship between solicitor and client.

Plaintiff Appealed

Counsel for the plaintiff appealed the judge's decision. Unfortunately, the insurance company settled the plaintiff's case shortly before the appeal was scheduled to be heard by the New Brunswick Court of Appeal. Perhaps the insurance company was worried about what the Court of Appeal might have to say about the insurers interference in the plaintiff's solicitor client relationship?

Facebookers Beware

I have said it before and I will say it again. Anything that you post to the Internet can, and possibly will, be used against you in future litigation.

If you are engaged in litigation or considering filing any kind of compensation claim, you would be well advised to consider what information is floating around the Internet that might damage your claim.

What Do You Think?

If you post information to a social media site should defendants have access to the information? Is anything you post to Facebook "fair ball" in litigation or are there some things that should just be kept "between friends"?

The $2,500.00 cap on so called “minor injuries” that was introduced in Nova Scotia in 2003 is still having ramifications to innocent victims 7 years later.

The recent decision of Awalt v. Blanchard is a case in point.

Linda Awalt is a 52 year old personal care worker who was injured in a car accident in September 2004.

Mr. Awalt claimed that, as a result of her injuries from the accident, she suffered a tear to the rotator cuff in her left shoulder. She required surgery to repair the injury which prevented her from being able to work for 9 months after her shoulder surgery.

The defendants claimed that the impact of the collision was insignificant and not severe enough to have caused the rotator cuff injury to Ms. Awalt’s shoulder.

In his reasons, Justice Coady stated at paragraph 68:

"I have carefully reviewed all the evidence of the 2004 accident and the events that followed. When Mr. Blanchards truck entered the intersection Ms. Awalt followed and stopped. He turned left and she started to follow him. He suddenly stopped and backed up into her vehicle. The evidence clearly establishes that Ms. Awalt was moving slowly (10km) when contact occurred. While the speed of the truck is not in evidence, I have concluded that its speed was relatively slow. The damage to Ms. Awalt’s vehicle was minimal. The truck had only limited space to pick up speed. Ms. Awalt’s vehicle was pushed back one car length. At no time was Ms. Awalt subjected to a forceful or jarring impact with the interior of her vehicle. In making these remarks I am well aware that serious injuries can result from low speed collisions."

Justice Coady went on to determine that Ms. Awalt did indeed suffer "whiplash" injuries in the car acident. But the injuries were not serious enough to get over the "minor injury" threshold.

Justice Coady concluded that:

“Ms. Awalt’s whiplash injury is caught by the minor injury regulations which were enforced on September 20, 2004.”

As a result, Justice Coady concluded that the plaintiff’s injuries caused by the accident were minor and that her award for compensation for non-pecuniary damages (pain and suffering) should be capped at $2,500.00.

MIST Defence

What Ms. Awalt ran up against is what is commonly referred to as the “Minor Injury Soft Tissue” (MIST) defence.

Essentially the defence argues that the impact of the motor vehicle collision was so insignificant that the forces involved could not have possibly caused the injuries suffered by the plaintiff. Some jurisdictions also refer to this as the “no crash, no cash” defence.

How to Prove MIST Claims

In light of Justice Coady’s decision I think it might be useful to provide some comments on how to deal with MIST cases:

Know the scientific and medical literature: Insurance companies will argue that the force of the impact was not sufficient to have caused the type of injury that the plaintiff suffered. We need to be familiar with the medical literature and scientific literature that has conclusively established that even comparatively insignificant collisions can cause serious lasting and significant injuries.

Inspect the Vehicles: An insurance company’s estimate of the physical damages may not be an accurate estimate of the true force involved in the collision because of “hidden damage”. (In other words, damages to the vehicle that cannot be seen without the car being pulled apart, the bumper being taken off etc.)

Sometimes insurance estimates are low because the plaintiff was driving an older car that is a total loss. Make sure the client gets an independent estimate from a body shop to confirm that you have an accurate picture of the full extent of the damages to the vehicle.

Talk to the Family Doctor: In MIST cases the treating physician, usually the family doctor, is going to be the most important witness. The doctor needs to know what type of defence the insurance company is going to raise and the types of arguments that are going to be made to limit the injured victim's compensation.

Family doctors are all extremely busy but it is worth while paying the doctor for an appointment to discuss the client’s claim and to specifically educate the doctor about the minor injury legislation and the threshold that the plaintiff is going to need to meet in order to receive full and fair compensation.

Further Resources:
Common errors in determining impact speed and occupant injury propensity.

Settling and Trying MIST Cases

Continue reading " Accident Victim’s Claim Capped by Nova Scotia's “Minor Injury” Law - Awalt v. Blanchard " »