Kotak Law Firm helps Niagara Falls clients like you that have had their disability benefits denied, prematurely terminated, or that would like to make a long term disability claim.
After a disability has forced you out of work, it is natural to turn to your insurance company for assistance – but many Niagara Falls claimants are disappointed to find that their insurer may not have their best interests in mind. That’s why it is vital to hire a disability lawyer who will fight for the settlement that you deserve.
If you think you may have a long term disability claim in the Niagara Falls area, call Kotak Law Firm. We will meet with you at a convenient location and fight for your rights every step of the way.
Niagara Falls Disability Cases in the News
Depression is more than an up-and-down reaction to an unfavourable event. Clinical depression or major depression is a serious mental condition or illness that impacts every aspect of a person’s life and not only affects the mind of the sufferer, but can also affect the entire body and cause physical symptoms such as fatigue and joint pain. The Statistics Canada Canadian Community Health Survey on Mental Health (2012) reported that about one in eight Canadians report suffering a mood disorder, notably depression or bipolar disorder, at some point in their adult lives.
Causes of Depression
The Public Health Agency of Canada’s report on depression identifies a number of causes for the clinical symptoms of mood disorders such as depression. There is often a history of suffering these disorders among close family members. Also, a person who has suffered an episode of major depression is more likely to become depressed in the future; more than 50 per cent of people have a recurring episode. Stress is a major risk factor in the initial episode of depression. Also, some individuals are more susceptible to suffer depression after traumatic life events, such as serious car accidents or injury. Chronic medical conditions are also known to contribute to depression, such as arthritis and cancer. It is thought that the association between medical conditions and depression may arise from changes in neurotransmitters, the immune system and/or hormones, or from disability and a reduced quality of life. Not surprisingly, people who must cope with multiple physical conditions or injuries are more likely to suffer from depression. Unfortunately, some medications that are prescribed to treat physical illnesses can also cause depression as well.
The symptoms of depression differ between each individual, but it is generally thought that if symptoms persist for more than three weeks, the suffering person should consult with a doctor or a mental health professional. According to The Public Health Agency of Canada, the most commonly occurring symptoms are as follows:
- Depressed mood
- Loss of interest or enjoyment in normal activities that were previously enjoyed
- Feelings of worthlessness, hopelessness, guilt and/or helplessness
- Reduced energy level or chronic fatigue
- Difficulty sleeping or waking up
- Poor concentration and difficulty in decision making
- Weight or appetite changes
- Contemplating death
Depression and chronic pain
Depression and pain are very closely related. Pain can cause depression and depression can also result in pain. In addition to fatigue and joint pain, major depression can cause other physical symptoms such as back pain, stomach aches and muscle pain. According to the Mayo Clinic, pain and depression can sometimes result in a vicious cycle where the pain intensifies the symptoms of depression and the resulting depression then worsens the feelings of pain. Also, anyone in Niagara Falls who has suffered with persistent pain for any length of time knows that pain wears you down over time and inevitably impacts mood. When chronic pain is combined with a disability or diminished ability to function, the likelihood of suffering symptoms of depression is even greater.
There many types of injury that may result in chronic or persistent pain, but pain is particularly a problem for persons who suffered a spinal cord injury (SCI). In fact, most patients who suffer a spinal cord injury report ongoing pain. Chronic pain associated with SCI often last months or even years. The direct they cause of the pain cannot always be identified but is often due to nerve damage or musculoskeletal problems associated with a SCI. The pain often interferes with an ability to participate and function in normal daily activities as well as recreational pursuits that the injured person previously enjoyed.
A car accident injury claim involving serious psychological symptoms: McDonald v. Kwan
A recent case that was tried before the Ontario Superior Court concerned a man, James McDonald, who was injured in rear-end collision and as a result, suffers from chronic pain, major depression and anxiety. The man whose vehicle struck Mr. McDonald’s car admitted liability for the accident. The defendant struck the plaintiff’s car while he was stopped at a traffic light, propelling his vehicle into the cars ahead of him. Prior to the collision, the 36-year-old plaintiff was an exemplary TTC employee with excellent career prospects and was both physically and socially active. Less than a year after the April 2000 accident, his poor performance placed him at risk of losing his job and soon after, he went on long-term disability for some years.
A determination of damages for the plaintiff’s injuries resulting from the above accident was complicated by two subsequent accidents in which Mr. McDonald was involved. The plaintiff took the position that these two later accidents may have aggravated his condition but had no meaningful affect on his disability. However, the defendant (i.e. the at fault driver for the first accident) argued that the plaintiff would have recovered sufficiently enough to return to work and his previously-enjoyed activities if the second and third accident had not occurred two years and three and a half years, respectively, after the first.
In the hours following the accident, the plaintiff experienced neck pain, pain in the back of his head and left knee pain (due to the fact that his knee struck the dash). He was diagnosed with whiplash ten days after the accident, and complained of constant pain and stiffness throughout his neck, lower back and left knee. He also experienced constant headaches which sometimes caused vomiting. His movements were restricted and upper body strength was diminished due to pain. The pain and problems moving caused difficulty coping at work. Although the plaintiff’s mobility improved in the following months, his general condition worsened with respect to suffering constant pain, headaches, anxiety, difficulty sleeping, fatigue and memory problems. His doctor placed him on an anti-depressant. As time went on, the plaintiff’s job performance plummeted; he had difficult dealing with customers, assimilating information, remembering instructions and skills information, and he was informed that he would be dismissed in six months if he did not meet expectations. At the suggestion of his supervisor, the plaintiff went on long-term disability.
While he was on disability, a psychiatrist at North York General Hospital diagnosed Mr. McDonald with post-traumatic stress disorder (PTSD) in addition to depression. During this time, the plaintiff consulted with many physicians and mental health professionals for depression symptoms, PTSD, headaches, chronic neck and back pain, and neurological symptoms. One of the treatments for his chronic headaches entailed 129 nerve block treatments which involved inserting a needle into the back of the patient’s head. For a time, the plaintiff was also admitted as a patient at North York General Hospital, due to extreme feelings of depression, anxiety and thoughts of suicide, and he was diagnosed with major depression.
In the two years following the accident and despite his injuries, the plaintiff managed to complete his degree at Ryerson with accommodation by his professor, and was engaged as a manager of a credit union. Unfortunately, in February 2002, a car in which McDonald was travelling as a passenger was rear-ended at an intersection. His treating physician testified that the plaintiff’s injuries were aggravated by this accident as were his headaches. In his recovery, he continued to consult with a number of health care professionals, including a psychologist, orthopaedic surgeon and a chiropractor. His symptoms were diagnosed as being consistent with fibromyalgia.
Within six months of the second collision, Mr. McDonald felt well enough to return to work part-time at the TTC but was told that they could not accommodate him. He then attempted to work as a driving instructor, but was soon forced to quit due to panic attacks associated with being in a car with an inexperienced driver. Another blow to the plaintiff came when he was informed that his TTC disability payments were being terminated, which forced him to liquidate all his assets including his RRSPs. The inability to return to work and other stressors further aggravated his depression symptoms, PTSD and avoidant personality disorder.
Then, in August 2003, the unfortunate man was again rear-ended at a stoplight while travelling as a passenger. He was immediately released from hospital following the accident, however, his doctor concluded that the accident exacerbated his whiplash symptoms, including an increase in pain to his cervical, lumbar and thoracic spines and also, increased depression. For two weeks after the accident, he also experienced numbness in his shoulders, but this passed. Mr. McDonald received medication for anxiety and depression, that had some success in alleviating his symptoms, and he was also receiving pain medication.
Although he was working as a dog walker at the time, two years after his third accident, the plaintiff’s physician made the prognosis that Mr. McDonald would be unable to work again at a normal job. In addition to chronic neck and back pain, feelings of hopelessness, anxiety, panic attacks and sadness, the fact that the plaintiff could not tolerate stress, had difficulty focusing and a low energy level would substantially interfere with his ability to perform any job. As a result, his physician helped him apply for a disability pension from the Canada Pension Plan.
Unfortunately, in the years until the trial in 2010, Mr. McDonald’s symptoms seemingly worsened. He experienced panic attacks that twice required him to be hospitalized. Headaches, frequent nightmares, persistent pain in his neck and back, chronic fatigue and an avoidance of all social interactions are just some of his life-altering symptoms.
In Mcdonald v Kwan, the defendant argued that Mr. McDonald would likely have continued to recover until he was able to return to work, if the second accident had not occurred. He further argued that the first accident did not lead to a “permanent serious impairment of an important physical, mental or psychological function” as per the Insurance Act, section 267.5(5), which defines the threshold for general damages (for pain and suffering). However, in his assessment of the relative impact of the first, second and third accident on the plaintiff’s health, the Superior Court judge concluded that the first accident caused Mr. McDonald to become disabled and the latter accidents simply aggravated his condition. Further, although the judge acknowledged that the diagnosing of pain is not an exact science and skilled medical practitioners may disagree in their diagnosis, he is satisfied that the plaintiff’s impairment is permanent, serious and important, as it interferes with his ability to function in day-to-day activities and work.
In McDonald, the judge globally assessed the impact of all three accidents on the life of the plaintiff. It was concluded that the second and third accident contributed 10 and 20 per cent, respectively, to his pain and suffering as well as to his future housekeeping and home maintenance expenses. The plaintiff was awarded $140,000 in general damages (for pain and suffering) and $95,000 for future housekeeping and home maintenance, both of which were reduced by 30 per cent. However, the judge concluded that the plaintiff’s future loss of income is entirely the result of the first accident and this loss was assessed at $681,896 minus a 15 per cent reduction for contingencies. The plaintiff’s sister and mother also received $8,000 and $4,000 respectively, in damages under the Family Law Act.
Mr. McDonald clearly experienced a devastating impact on his life as a result of the persistent pain and serious psychological symptoms that resulted from his motor vehicle accidents. The medical expert for the defence argued that there was no objective medical evidence presented for the plaintiff’s chronic pain. However, the trial judge stated that he is not obligated to decide which medical opinion is more reliable because “objective findings are not necessary for a finding of chronic pain”, as the Supreme Court of Canada decided in Martin v. Nova Scotia Workers’ Compensation Board. In Martin, it was explained that chronic pain is simply pain that “persists beyond the normal healing time for the underlying injury or is disproportionate to such injury, and whose existence is not supported by objective findings at the site of the injury under current medical techniques”.
In McDonald, the judge concluded that it is clear that chronic pain patients are suffering and in distress and their experience and disability are real, and based on the evidence presented in McDonald, the plaintiff genuinely suffers from chronic pain syndrome.
If you are in the Niagara Falls area, and suffering from chronic pain or psychological symptoms resulting from an accident caused by a negligent party, you are entitled to seek damages from the person responsible for causing your injury. Although psychological injuries and persistent pain can be more difficult to measure by use of conventional medical tests than physical injuries such as broken bones, the medical community accepts and understands that such injuries often have a huge impact on the life of a sufferer and their family.
The Public Health Agency of Canada’s report on Depression:
Public Health Agency report on depression
Mayo Clinic on depression and pain
Model Systems Knowledge Translation Centre fact sheet on pain