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$100,000 Non-Pecuniary Assessment for Central Neuropathic Pain With Poor Prognosis

Reasons for judgment were published today by the BC Supreme Court, Nanaimo Registry, assessing damages for central neuropathic pain caused by a vehicle collision.

In today’s case (Laliberte v. Jarma) the Plaintiff was involved in a 2015 vehicle collision.  She was a passenger in a vehicle driven by the Defendant that lost control “went through a fence and over a bump and landed in a field”.  Liability was admitted.

The collision caused various soft tissue injuries resulting in central neuropathic pain.  The prognosis was for symptoms to continue.  These were largely controlled with medication.  In assessing non-pecuniary damages at $100,000 Madam Justice Russell provided the following reasons:

[28]         The parties agree that the plaintiff suffered soft tissue injuries to her lower back, and was diagnosed with CNP. The parties also agree that the plaintiff’s prognosis for this injury is ongoing chronic pain. The plaintiff continues to suffer symptoms daily, although they are now at a tolerable level when the plaintiff is on medication.

[29]          The plaintiff described her pain at trial as “more of an irritation”. She testified that the medication she takes, Topiramate, reduces her pain by 80-90%. However, if she runs out of Topiramate, her serious symptoms immediately resume and she runs the risk of being bedridden with pain.

[30]         The plaintiff’s position is that she will require medication for her symptoms long term and possibly for the rest of her life, and that she faces the possibility of aggravating her injury by engaging in moderate or heavy physical activities regardless of how effective the medication may be.

[31]         The plaintiff’s evidence was that she had suffered some episodes of depression and anxiety as a teen, and had taken some medication for this but had discontinued use prior to the accident. After the accident, the plaintiff was referred to a counsellor by her family physician but did not attend any such counselling sessions or seek any other help concerning her psychological symptoms.

[32]         The plaintiff had no prior history of low back pain. She described suffering low back pain starting the day after the accident. I note that the plaintiff went into labour three days after the accident. Her mother had to help her into the shower and off the toilet, and she could not climb stairs without significant pain. Prior to the accident, the plaintiff enjoyed longboarding, drawing and art, and played basketball in high school. The plaintiff testified that her level of activity has increased since the date of the accident and she is now at a similar level than she was pre-accident, although she engages at a less intense level…

[48]         The plaintiff’s young age, the potentially lifelong duration of her injury and its impact on her physical ability, the severity of her pain before she went on medication, the emotional suffering caused by her aggravated depression, the impact her pain and depression had on her ability to raise and bond with her newborn son in the crucial months immediately following his birth (as well as the increased pain during the birth itself), and the strain her injuries put on her relationship with her parents, all stand in favour of a higher award.

[49]         I consider the loss of her ability to cradle her baby in her arms and to breastfeed without pain to be serious losses.

[50]         Should she wish to have more children, she faces a difficult choice:  to go off her medication for the duration of the pregnancy and suffer serious pain, or to deny herself the opportunity to bear more children. As a corollary of this issue, she must not allow herself to become pregnant again without carefully considering the consequences.

[51]         On the other hand, the plaintiff’s ongoing injury is not a disabling injury because its effects can be managed through the use of medication, the injury is limited to her lower back, and the injury has not caused a substantially material loss or impairment of her life or lifestyle as compared with her level of activity, recreational pursuits and social inclinations before the accident.

[52]         I also find that her injuries have not necessarily caused any marked impairment of her mental abilities  so long as she is on medication controlling her chronic pain, her academic performance does not stand to be affected. These factors favour a more limited award…

[56]         Having regard to the Stapley factors, and the relevant cases cited by the parties, I award the plaintiff $100,000 in non-pecuniary damages.

bc injury law, Central Neuropathic Pain, CNP, Laliberte v. Jarma, Madam Justice Russell

How changes to EI region boundaries could affect workers

Jordan Press, The Canadian Press

OTTAWA — A federal department is reconsidering the boundaries that determine how workers in different areas qualify for employment insurance.

Changes to the 64 EI regions, as they’re known, would send political ripples through the country as some workers benefit while others find themselves with tougher hurdles to clear to get benefits.

Documents obtained by The Canadian Press under the access-to-information law show how fraught the process can be, noting complaints that haven’t subsided after the last change five years ago.

Employment and Social Development Canada is working on a fast-tracked review of the current boundaries that help decide the number of hours workers need to put in to qualify for EI benefits and how much they can receive depending on where they live.

In general, the idea is to make benefits more generous in parts of the country where it’s harder to get work, though a quirk of the system is that it’s based on residency, not where jobs are. Two people who get laid off from the same company at the same time could have different benefit entitlements because they live on opposite sides of an EI-region boundary.

How the department determines where to draw the lines separating EI zones will be different from previous reviews, with the internal documents detailing a plan to emphasize some factors over others, including putting less reliance on unemployment rates.

If all goes according to plan, the department anticipates making recommendations by September 2020 — one year after this fall’s federal election.

“Changes in boundaries need to be made in a very thoughtful manner because any change in boundaries will involve losers and winners,” Social Development Minister Jean-Yves Duclos, who oversees the EI system, said in a recent interview.

Duclos said the objective needs to be making the EI system better and not about picking “who wins and who loses. That would be a political objective.”

Where the lines go can make a big difference in local politics. Alberta has zones centred on Edmonton and Calgary that include some suburban and surrounding rural areas but not others. After oil prices crashed, the Edmonton region was at first excluded from a 2016 boost to EI benefits, leading to complaints from people who worked in the oilpatch but had permanent addresses in the city.

The 2014 review split P.E.I. into two EI zones with boundary lines drawn in a way that benefited the lone Conservative riding in the province: The entirety of the riding of Egmont, covering the western end of the Island, fell into an EI zone where workers needed fewer hours of work to qualify for benefits.

Tory cabinet minister Gail Shea nevertheless fell to a Liberal challenger the next year. Changing the boundaries so P.E.I. is again one region — as the Liberals once pledged to do — could be problematic for rookie Liberal MP Bobby Morrissey, who holds the Egmont seat, where residents would suddenly lose their advantage.

“It’s extremely unfair, but the dilemma — and I can understand this from my colleague Bobby Morrissey’s point of view — is if you go to one system, then there will be a loss to P.E.I.,” said Wayne Easter, a long-time Island Liberal MP. His riding of Malpeque is partly in the EI zone with more generous benefits, partly in the zone centred on Charlottetown that has less generous benefits.

Any time he goes to an event, people in his own party like to point out the Liberals committed to reverse the changes and tell him that if “it isn’t changed, I’m not going to be able to support you.”

Federal officials, Easter said, must ensure there is a “better understanding of how and why” any changes are made.

The last two-year review wrapped in 2018 without any changes, and provided a set of lessons the department plans to apply this time around. A presentation to the department’s top official noted the unemployment rate should be considered separately from other factors when deciding the borders of an EI region.

The documents say that other labour-market factors — such as the kinds of industries, local demographics and the number of seasonal jobs — would provide a better understanding of the differences between neighbouring regions with similar unemployment rates.

Officials discussed using unemployment rates in the review by looking at long-term trends rather than at a single point in time.

The department said the current review started in October 2018, but there is no requirement at the end for the Canada Employment Insurance Commission, which is responsible for the boundary review, to make any changes.

Tornado victims fear rising insurance rates

Sunday’s twister damaged homes, downed trees

Robyn Miller · CBC News

Kim Lussier has had some bad luck with her car lately.

Lussier’s Hyundai sedan has been rear-ended three times in the last year. Then, during Sunday’s tornado in Orléans, a tree fell on it, smashing its rear window.

Now the car sits partly covered by a blue tarp in her driveway, and Lussier is fretting over much her insurance coverage will cost after this latest claim.

I don’t want to be a hostage of the insurance policy.- Kim Lussier, Orléans resident
“It’s hard because you don’t have a choice,” she said Tuesday. “You need insurance, and if you apply elsewhere they want to know your history of claims, so there’s no getting around that…. I don’t want to be a hostage of the insurance policy.”

Some of Lussier’s neighbours on Wincanton Drive have similar concerns about their insurance rates. On Tuesday, fallen branches and other storm debris still lined the quiet residential street off Jeanne D’Arc Boulevard N., near Petrie Island and the Ottawa River.

A large tree on Lussier’s property leaned precariously toward her neighbour’s.

“I’m supposed to retire in a couple of years and I’ve had all of this [bad] luck with extra expenses that impact my savings and my future,” Lussier said.

Waiting ‘all we can do’

Nearby, Mike Mullen was surveying the hole in his roof left by Sunday’s sudden storm. He said he contacted his insurance provider right away.

“We’re just kind of cleaning up and waiting, really. That’s all we can do,” Mullen said.

He was taking a more fatalistic approach to the possibility of rising insurance rates. “It’s an extra cost every month, right? But I don’t know what else we can do. It’s what it is.”

On nearby Lawler Crescent, Debbie Harris said she and her husband are also awaiting quotes regarding their damaged roof.

“I’m not overly concerned at this point, though I am hearing more tornados and things like that [could strike the area], so I would imagine at some point we’re going to see differences,” she said. “Definitely, I would think they’d go up before they’d go down.”

Will rates go up?

Pierre Babinsky, director of communications and public affairs with the Insurance Bureau of Canada, confirmed the storm damage could impact rates, depending on the insurer.

“Generally, premiums will go up once the insurer needs to adjust them to compensate for whatever they have to pay to settle claims,” Babinsky said.

“If it’s a costly year for the insurer and he’s paid more than he’s collected in premiums, then there’s a fair chance that he will raise premiums.”

Babinsky said in 2018, insurers paid nearly $2 billion in settlements related to severe weather across Canada, a historically high amount.

He advises tornado victims to get in touch with their insurance companies as soon as possible and to carefully document everything.

Child’s emergency near takeoff time voids rebooking despite ‘Flex’ airfare

Family purchased Transat’s Option Flex, which allows flight changes up to 3 hours prior to departure

Kate Bueckert · CBC News ·

A family from Fergus, Ont., had a vacation dream dashed after a medical emergency and now they’re warning others to pay close attention to the differences between flexible tickets and travel insurance.

Mark and Nicole Ruzycki and their two children were at the airport early in the morning on May 22, set to celebrate their daughter’s 8th birthday in Cuba. But about an hour before boarding, 3-year-old Jake developed a rash.

Airport paramedics recommended they not fly and instead, go right to the hospital.

“This has never happened to us, it was quite the scare,” Mark Ruzycki said.

The doctor at the Toronto-area hospital where they first went said it appeared to be a virus and sent them home. On the way home, Jake’s conditioned worsened and his face swelled up. They went to the emergency facility at the Fergus hospital, where doctors determined it was an allergic reaction.

It’s unclear what Jake reacted to and he has recovered, but the family missed their flight.

When Ruzycki tried to rebook their flight, Air Transat said they couldn’t rebook without further payment.

Credit offered

Ruzycki says the family paid $5,000 for the trip, including $59 per ticket for Option Flex through Air Transat. Option Flex allows people to change their flight up to three hours before the scheduled departure.

Because Jake had to go to the hospital less than three hours before takeoff, Air Transat has said the family cannot rebook without payment and will not get a full refund.

“When you book your dream vacation, you want to make sure you enjoy the ultimate level of flexibility should something unexpected happen. Option Flex lets you,” the airline states on its web page.

Air Transat has offered the family a $2,000 travel voucher, which is equivalent to the tax and fuel surcharge from their unused tickets.

The website also notes, “Option Flex allows travellers to change their departure date, destination or hotel up to three hours before departure, or to transfer their vacation package to a family member or friend up to 30 days before departure. They can also cancel their trip and obtain a full refund.” A footnote explains that the three-hour notice period also applies to cancellations.

Not insurance

The airline declined an interview request with CBC but in a statement said it’s “important to distinguish” between travel insurance and the Option Flex service.

“Option Flex is not a travel insurance and does not replace such insurance coverage, both of which should be purchased prior to departure,” Air Transat’s marketing director of social media and public relations Debbie Cabana told CBC in an email.

“The purchase of travel insurance could have prevented these customers from losing the value of their package.”

They did not purchase travel insurance, Ruzycki said, because they didn’t expect they’d have to cancel for any reason and if something were to happen, they’d just want to rebook the trip.

‘Feels for the passengers’

Ruzycki said his wife worked part time to pay for the trip.

“My wife was in tears,” he said. “Every penny she saved for this has gone down the toilet.”

The family says it’s considering taking the $2,000 travel voucher so they don’t lose all their money.

Gábor Lukács, founder and co-ordinator of Air Passengers Rights, says he “feels for the passengers.”

But unless an illness happens while on board the flight or is caused by the airline, it’s not the airline’s responsibility. He said the airline is within its rights in this case.

Lukács also said this kind of situation would not fall under the new airline passenger bill of rights recently introduced by the federal government. Lukács has been critical of the new bill of rights, saying it favours the private interests of airlines over legitimate concerns of travellers.

‘It just breaks your heart’

The Ruzycki family took a smaller vacation to Collingwood to celebrate their daughter’s birthday.

Ruzycki says his daughter was upset about not going to Cuba, but she understood the situation.

“We keep saying, ‘Look honey, we will go another time. But right now we have to concentrate on your brother’s health,” he said.

“But even our boy, now that he’s getting better, he goes, ‘So are we going to go on a plane now?'” he said. “It’s hard. It just breaks your heart.”

Ruzycki says he hopes Air Transat will change its mind and allow them to rebook their tickets rather than giving them money back.

“We just want to go on our family vacation that our kids and my wife were just so ecstatic to go on,” he said.

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