Medical paper trail helpful in chronic pain claims

Advocate DailyPeople suffering from chronic pain need to help their lawyers by leaving a medical trail, says Toronto personal injury lawyer Darryl Singer.

Singer, principal of Singer Barristers Professional Corporation, says the odds are often stacked against people who suffer from chronic pain because conditions such as fibromyalgia can be hard to prove and don’t leave a physical trace like broken bones.

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Nothing less than liberty is at stake

Were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter.

Educate and inform the whole mass of the people…They are the only sure reliance for the preservation of our liberty.

Whenever the people are well-informed, they can be trusted with their own government.

These three quotes by Thomas Jefferson, one of America’s Founding Fathers, came to mind this morning as I reflected upon the concept of “alternate facts” put forth by President Trump’s spinmeisters. Now, politicians have long had spokespeople whose job it was to “spin” the truth in a favourable way. But never before has there been an American president or his team that has so boldly and blatantly lied, and then doubled down by concocting the term “alternate facts” to discredit the actual truth and sell its version as the real deal. Sadly, this is the reality of what has been called the new post-fact world. There has been much blame of Trump and his minions. But they in fact didn’t create it. They merely mastered the art of it.

Read moreNothing less than liberty is at stake

Paralegal Cup Mock Trials Showcase Student Skill, Competency

The Paralegal Cup showcases the skill and competency of paralegal students — and lawyers should take notice, says Toronto personal injury lawyer Darryl Singer.

The 2016 intercollegiate mooting competition on Nov. 19 and 20, 2016 is the only event of its kind in Ontario for paralegal students, providing an opportunity for teams to demonstrate their advocacy, research and writing skills.

“I firmly believe there’s a role for paralegals in our justice system and this competition makes it abundantly clear they are properly trained, hardworking and competent,” says Singer, principal of Singer Barristers Professional Corporation, who has participated on the judging panel every year since the event started in 2013.

“It also gives me hope for the future of the legal profession,” he says. “There’s an optimism about the Paralegal Cup that I just love.”

Mooting, a popular form of mock legal argumentation at law schools, involves two student teams identifying and addressing legal issues in a selected case. The teams present 10-minute oral submissions before a panel of judges.

Singer, who has developed a network with paralegals over the course of his career, says when he was asked to take part three years ago, he didn’t realize the quality of talent he would encounter.

“I was absolutely blown away by the quality of the students and the calibre of their arguments,” he tells AdvocateDaily.com.

Singer says there is a general perception among lawyers that paralegals have “second rate” advocacy skills, but the event proves that is not true.

“The vast majority of these students participating in the Paralegal Cup will be just as good as any lawyer,” he says.

This year, the event is being hosted by the Law Society of Upper Canada in conjunction with Humber College at Osgoode Hall, another signal of the growing synergies between lawyers and paralegals, Singer says.

“I would invite any lawyer to watch a couple of these sessions,” says Singer, who sees the event as an opportunity to scope out talent and offer internships that often turn into full-time jobs.

Doug Taylor, member of the 2016 Paralegal Cup steering committee, says the competition strengthens students’ advocacy and critical thinking skills.

“It gives them the opportunity to argue complex pieces of law in a learning environment, while interacting with senior mentors from the legal community,” Taylor tells AdvocateDaily.com. “The calibre of participating students is strong. Many put in long hours preparing for the event and capitalize on their chance to demonstrate their abilities in front of industry professionals.”

Paralegals are an integral part of Singer’s law firm, he says. Delegating work to paralegals is more cost-effective than hiring an associate lawyer, savings he can then pass on to his clients. For small claims court and other less-involved matters, it often makes greater business sense to have paralegals handling the case, he says.

From a broader perspective, Singer says a strong paralegal community opens access to justice for individuals and may prevent people from feeling as though their only option is self-representation.

“Paralegals can offer competent service in areas of law that are underserved by lawyers or too expensive for people to hire lawyers,” he says. “They provide that piece of the puzzle.”

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LAT Hearings Held in Writing 'Fundamental Denial of Justice'

Some of the first decisions from the Licence Appeal Tribunal (LAT) dealing with applications for accident benefits are reinforcing concerns that injured people aren’t getting fair access to justice under the new system, says Toronto personal injury lawyer Darryl Singer.

Recent decisions were rendered without oral hearings, a new option since the Ontario government shifted responsibilities from the Financial Services Commission of Ontario, says Singer, principle of Singer Barristers Professional Corporation.

“These people are not being given the opportunity to come before the tribunal and have their credibility assessed, have their doctors testify and have their lawyers cross-examine the insurance company’s doctors,” Singer tells AdvocateDaily.com. “Instead, it’s all done in writing.

“There’s a fundamental denial of natural justice.”

In K.P. v Aviva Canada Inc., 2016 CanLII 60727 (ON LAT), the tribunal’s vice-chairman found that the applicant suffered predominantly minor injuries and was therefore not entitled to payment for the balance of a physiotherapy treatment plan.

The applicant disclosed a number of conditions and symptoms, including tendonitis, whiplash, neck, back and hip pain.

“While the above list is extensive, the difficulty faced by me is that there is no medical evidence that either ties any specific condition to the accident, or that indicates that any specific condition or symptom is anything more than a soft tissue injury or a condition arising out of a normal lifestyle that arose independent of the accident,” the vice-chairman wrote.

In 16-000080 v RBC General Insurance Company, 2016 CanLII 67138 (ON LAT), the tribunal found after a hearing in writing that the applicant was not entitled to the full treatment plan as outlined by an occupational therapist.

The insurance company argued the disputed items were actually “housekeeping and home maintenance expenses ‘dressed up’ as rehabilitation expenses,” according to the decision. In the end, the adjudicator ruled that some of the expenses should be paid for — including the installation of a handrail — while others, including a bathroom fan repair, should not.

Singer says both cases would likely have completely different outcomes if in-person hearings were held.

“We don’t know what would have happened to these people if oral hearings were held,” he says. “Perhaps they would have been successful, but we’ll never know because they weren’t given the opportunity.”

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Assessing Damages in a Personal Injury Lawsuit More Art than Science

When choosing a personal injury lawyer, you may be tempted to select the lawyer who promises to get you the most money in the least amount of time. Resist the temptation to make your choice in that manner, as you will surely be disappointed.

The two most common questions I am asked by potential new personal injury clients (and my answers) are:

How much money is my case worth? (I don’t know).
How long will it take until we settle? (I don’t know).

You may advise me that another lawyer — or worse, your friend who had his own personal injury case — told you your case was worth a particular amount, and you want to know if I will get you that or more.

I will tell you, without knowing any of the facts, that the other lawyer (or your friend) is wrong. At the initial client interview, it is impossible to know. And you should be wary of any lawyer prepared to answer those questions with any certainty.

I will only know at the beginning of your case what you tell me. I will not have heard the position of the other party you wish to sue. I will not have reviewed your medical history. I will not have had the benefit of reviewing your income tax returns or other supporting basis. What you tell me is less important than what the actual documents prove.

There are many factors that go into determining the value of a personal injury case. Assessing damages in a personal injury case is more art than science and oftentimes it appears to be abstract art at that.

Here are just some of the factors at play in determining the value of your lawsuit:

1. The nature and extent of your injuries — Under the Insurance Act in Ontario, not all injuries are compensable. The law expects that some injuries, or some level of pain, is something you will simply have to live with and for which nobody has to compensate you. Recent case law from the Superior Court of Justice indicates the level to which your injuries must rise to in order for you to be compensated is on an upward trend. This is good news for insurers, but bad news for you when you show up at my office and think your sore neck and back pain is worth six figures when your income has not been affected.

2. What your own medical practitioners write in their notes about your injuries — For example, you may feel constant pain, but your family doctor may use words such as “minor” in her clinical notes. This will definitely hurt your case. Sadly, soft tissue injuries that cause real pain do not show up on diagnostic imaging or other objective tests.

3. How often you attend treatment — Many of my clients stop going to doctors and rehab clinics after a few months either because (i) the treatments are no longer effective; (ii) they simply do not have time; or (iii) they can no longer afford to cover the out of pocket cost of non-OHIP covered treatments, such as physiotherapy and massage therapy. Your failure to continue treatments for whatever reason may impact what an insurer has to pay at a later stage in the proceeding.

4. If you are claiming lost income, the amount of income you filed for tax purposes in previous years — This is especially important if you are in the service industry, as a large portion of your real income is derived from tips, yet your income tax returns rarely reflect this. Similarly, the true income of self-employed small business owners is significantly less than would appear from the pre-accident income tax returns.

5. The statutory deductible — The Insurance Act mandates that if your personal injury case arises from a car accident (as opposed to a slip and fall), the first $37,000 (approximate) in damages for pain and suffering is deductible. This means simply that the insurance company does not have to pay any amounts up to the deductible. Since the majority of soft tissue injury cases are worth less than $50,000 for the pain and suffering component, you can see how this deductible has a very real impact, often to the point of deserving parties obtaining nothing more than a negligible amount.

6. Your own evidence — What you tell me is less important than what you eventually state “on the record” at examination for discovery or trial or in statements given to doctors or insurers.

For all those reasons, you can understand why it is almost impossible to give you an accurate picture of how your case will shake out when we first meet

As such, resist the urge to hire the lawyer who promises the largest payout. Instead, make sure your lawyer seems like he or she will empathize with your situation while also having the experience to give you the right advice at the right time.

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Accident Victims Left in Lurch by Changes to Ontario's Auto Insurance

People who insurers deem not seriously injured in motor vehicle accidents are finding it increasingly difficult to find lawyers to take on their cases, says Toronto personal injury lawyer Darryl Singer.

Singer knows because he’s one of those lawyers, he says.

“I used to take almost every file that came through my office, but now I probably take one out of every five,” says Singer, principal of Singer Barristers Professional Corporation.

“Five years ago, if someone had a real injury I could put money in the client’s pocket and it would be worth my time and out-of-pocket disbursements. But now, even genuine injuries that are at the lower end of the spectrum are not only not profitable but will costs me money to run. As such I can’t take their file.”

The selective nature of choosing files by most Ontario personal injury lawyers is a result of sweeping changes to Ontario’s no-fault accident benefits system as of April 1, 2016, with all accident benefit disputes now being heard by the Licence Appeal Tribunal (LAT) rather than the Financial Services Commission of Ontario.

The previous system was “loser-pay,” meaning if the injured party was successful at arbitration, the insurance company covered their lawyer’s legal fees. Now, the client must cover all legal fees — leaving little incentive for the lawyer to take on such cases, and leaving clients to either back down or represent themselves against an insurance company’s experienced lawyer.

Additionally, the reduction in benefits means that even if the client wins the case, there simply isn’t enough of an upside to justify the time and cost of disputing the matter through the LAT.

Singer says he is worried about the impact these changes will have on accident victims. He frequently sees people who need legal help but he knows they will have trouble finding it.

“It’s now been several months since these changes came into effect, but the issues aren’t going away, and they will only get worse with every passing day and every accident on the road,” Singer tells AdvocateDaily.com.

The difficulty finding legal representation combined with clawed-back benefits under the Statutory Accident Benefits Schedule (SABS) as of June 1, 2016, have a double-whammy effect for clients he says.

“Now, because of the maximum cap on treatments, many clinics where people would seek treatment with the understanding they would be paid by insurance companies either aren’t in business anymore, or are requiring the client to pay as they go. Even where the insurer is paying for the rehab treatments, the maximums under the SABS simply aren’t sufficient ” he says.

“Insurance companies understood full well that by driving down the benefits, it would correspondingly drive down incentive for paralegals and lawyers to pick up files and make it more difficult for people to get represented and get treatment.”

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Salmon Tartare Allergy Incident Best Handled by the Civil Courts

Criminal charges are unlikely in the case of a Quebec waiter who was arrested after serving salmon tartare to a man with severe allergies, says Toronto personal injury lawyer Darryl Singer.

“I can’t see charges being laid — there’s no possible way a criminal charge would survive,” Singer, principal of Singer Barristers Professional Corporation, tells AdvocateDaily.com.

The man, who ordered beef tartare, was served the fish even after the waiter was allegedly told several times about the customer’s severe seafood allergy, the Canadian Press reports. The man was sent to hospital and fell into a coma for two days.

Singer says there are two parts to any criminal charge: actus reus, meaning “guilty act,” and mens rea, which means “guilty mind.”

“We can assume that giving the poisonous thing is the alleged assault, but there has to be a mental intent to have done so,” he says.

“In this case, if it was clearly an accident, then there is no criminal charge.

“He could pursue a civil case in negligence, but I can’t possibly see how a criminal charge could be sustained.”

In civil law, however, negligence means there was a mistake, but you are still at fault and must pay damages, Singer says.

According to the news story, police said the 22-year-old waiter allegedly didn’t write down the man’s order even though he was apparently warned repeatedly about the allergy to ensure there wasn’t any cross-contamination in the kitchen.

The waiter was arrested and later released on a promise to appear in court at a later date.

The Toronto Star reports that the diner says he “has sent letters to the restaurant warning the owners that he intends to sue for damages.”

In Singer’s opinion, civil court is the right place for this kind of dispute.

“If it was a purely accidental situation, then it can’t possibly survive a criminal charge,” he says.

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Understanding Liability in Personal Injury Cases

If you are hurt in a slip and fall in a bank or from spilled hot coffee from a restaurant, that doesn’t necessarily mean you have a viable lawsuit, says Toronto personal injury lawyer Darryl Singer.

“Just because you’re hurt doesn’t mean you can sue the place where it happened,” says Singer, principal of Singer Barristers Professional Corporation. “Somebody other than you has to be at fault for the accident. There has to be an element of liability.”

It may seem like a simple concept, but Singer regularly receives inquiries from people who are eager to sue — even if they were injured as a result of their own clumsiness.

For example, Singer recently tried to help a man who slipped at a bank, resulting in very serious injuries. The man told Singer he fell because he thought there was spilled liquid on the floor.
Singer issued a notice of lawsuit to the bank, and an insurance adjuster contacted him a short time later, saying they had security camera footage showing the man’s fall.

After viewing the footage, Singer could see there was no spill or other reason for the fall. The man simply tripped over himself when he turned around.

“I explained to him that the bank was not at fault, notwithstanding the fact you had an unfortunate accident that caused you to have an injury,” Singer tells AdvocateDaily.com. “But there’s no possible way it’s the bank’s fault. You can’t sue the bank.”

It was difficult for the man to accept, he says. He believed the bank should pay for his medical rehabilitation, since that’s where the injury occurred.

“This is constant,” Singer says of the misconception around liability and slip and falls.

In another example, a woman tried to get his help after falling outside of a private building. But when his associate viewed the area, she couldn’t find any physical issues with the site. There was no construction at the time of the fall, the weather was fine and the sidewalk in good repair.

Singer believes the confusion around liability is exacerbated by stories coming from the U.S., such as the woman who sued McDonald’s and won a $2.86 million jury award (later reduced to $500,000) after suffering from third-degree burns in her pelvic area from a coffee spill.

In fact, Singer also has a client who was also burned by McDonald’s coffee. He says while she has a good case, she could never dream of winning millions in damages.

“Since the scale of damage awards in Canada is not the same as in the U.S., the case is not worth $2.86 million or even $500,000. It is worth significantly less.”

Singer says people need to realize there is a big difference between hurting yourself because of an accident and as a result of someone’s negligence.

“If you come to my house and fall down my stairs because you’re clumsy, you can’t sue me,” Singer says. “If you’re leaving, it’s winter and you slip because I didn’t salt the stairs, yes, you have a case.

“It’s all about liability.”

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Appeal Court Ruling Ensures Client Receives Assessment

The Ontario Court of Appeal’s decision to have an injured appellant’s fee agreements with two law firms reassessed shows that the court felt a need to step in and ensure the client was not deprived of his right to an assessment, even though he urgently needed the money, Toronto personal injury lawyer Darryl Singer tells Legal Feeds.

Clatney v. Quinn Thiele Mineault Grodzki LLP centred around the 2013 settlement of a man’s personal injury claim for $800,000, after he had been seriously injured in a 2008 crash, Legal Feeds reports.

The appellant originally pursued the claim with Bertschi Orth Solicitors and Barristers, but later switched to Quinn Thiele Moneault Grodzki LLP.

The first firm billed the man more than $117,000 for its work on the file, and the second firm initially told him it was owed more than $305,000, the article notes.

According to the ruling, the appellant ran into problems after asking for a release of $50,000 from his settlement, and ended up paying Quinn Thiele $210,000 and Bertschi Orth $100,000.

In the ruling, Justice Gloria Epstein said the appellant was “vulnerable” when he entered into the fee agreements with the firms, and “was permanently impaired by the brain injury he suffered in the car accident. He was under intense financial pressure. The appellant did not have independent legal advice when such was clearly called for. He expressed his dissatisfaction with the legal services rendered by both firms,” said the ruling.

The court ruled that all costs, fees, charges, and disbursements relating to the case be assessed and ordered $10,000 be paid to the appellant for costs of the initial application and $15,000 for the appeal, the article notes.

Singer, principal of Singer Barristers Professional Corporation, who was not involved in the case, tells Legal Feeds that;

“It appears that the Thiel firm used the client’s financial desperation to extract a settlement for itself, and the appeal court appears to have felt that it needed to step in and ensure that the client was not deprived of his right to an assessment just because he was in dire need of the money.”

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