As tough as it is for most people to navigate the challenges associated with the current pandemic, it’s even more challenging for those dealing with injuries as the result of an accident, says Toronto personal injury lawyer Brian Goldfinger.
After someone has been injured, they are often assessed by an occupational therapist to see if any modifications need to be made to their living space to accommodate their new situation, he says. They also might be receiving treatment by a physiotherapist, chiropractor or massage therapist. None of that is happening right now.
“These people are certainly feeling the impact. They’re at home getting no treatment or care, and it’s not helping their physical health or mental wellness. It’s putting them at grave risk to be alone when they need some form of attendant care or supervision,” Goldfinger says.
Recovery from injuries hindered
The upshot is that people are not recovering as they should be, which will place an extra burden on OHIP, the provincial health care system, he says.
“There’s a reason family doctors make recommendations for active treatment. It keeps patients away from the hospital while allowing them to continue to work on their recovery. But if you’re not getting treatment, there’s a dangerous downward spiral in that person’s health, and that in turn can impact the health care and social security systems.”
Before a patient is released from the hospital, for example, an occupational therapist often visits their home to determine what needs to be done to make it safe and secure for their return, he explains.
“It’s not uncommon for them to recommend the installation of ramps, railings, elevated toilets and grab bars around the home to assist them with balance and mobility,” Goldfinger says. “Getting those devices delivered is still possible, but getting them installed is a different story. You need a contractor or professional installer to come in and do it properly, which goes against the protocol amid COVID-19.
“These people are already compromised due to their injuries, which are compounded further if they’re elderly or have pre-existing health issues. It means they’re very much alone.”
Bank on an extra burden
Accident victims who are either receiving ongoing benefits from their insurance companies or whose cases have settled are facing a different set of challenges, Goldfinger says.
“Often, the funds are advanced in cheque form, and not all clients have a mobile app that allows them to deposit electronically from home. Or if they do, there’s a limit on the amount they can deposit, so they have to go to the bank in person,” he adds.
Many banks have temporarily closed branches and reduced business hours at the ones that remain open. At many locations, long lineups extend outside the branch and people are waiting much longer than usual to see a teller to deposit their cheques, Goldfinger notes.
“It’s a zoo. I’ve been to several branches in the last few weeks, and the lineups are out the door and around the building,” Goldfinger says.
Rising to the challenge
On a bright note, Goldfinger says he’s seen some positive developments from insurance companies lately in the way they’re handling claims and payouts.“Some large long-term disability insurers have reached out to say that we can send statements of claim via email, rather than delivering them personally. They were proactive and didn’t wait for changes to the rules. Some have also said they want to make payments by way of direct deposits rather than by cheque, or they’re depositing settlement funds directly into a trust account,” he says.
Could virtual conferences work in PI cases?
The past few weeks have seen a significant increase in the number of online meditations taking place, especially in employment disputes, but that forum isn’t necessarily going to work for settling personal injury cases, Goldfinger points out.
“It’s only been a few weeks, so we will see. There’s something to be said for having everyone –– lawyers, clients, mediator –– in the same room. That can’t be duplicated in a videoconference,” he says.
There are also numerous technical challenges facing personal injury litigants that might torpedo an attempt at virtual mediation, Goldfinger says.
“Not everyone has a computer with video or a microphone. The individual may not even have Internet access at home. Or if they do, they might have kids in the background. What about clients who don’t speak English? In a perfect world, it would work, but the world is far from perfect right now,” he says.
A growing call to reform legal system
Goldfinger says one issue this pandemic has made clear is that the court system isn’t equipped for an emergency situation, from a mindset or a resource standpoint. Matters such as consent motions and unopposed motions should have been done electronically years ago, but instead, lawyers have to attend the court in person.
“It’s a joke to require lawyers to come to the court and have a document signed and stamped by the court. A lot of these things could be handled over the phone, via teleconference or in writing –– especially if they’re not opposed. Consent matters can be dealt with in writing, but the backlog is steep. In some cases, it could take months to get it back. So rather than risk unnecessary delays, many lawyers opt to go in person,” he says.
In a recent column for The Lawyer’s Daily, former chief justice of the Supreme Court of Canada Beverley McLachlin writes that “COVID-19 is highlighting for us what we already knew — that the justice system needs to be revamped and reformed.”
“She sees it from the top down. I’m in the trenches, and I see it every day,” says Goldfinger. “The silver lining in all of this is that it will be an eye-opener for lawyers, politicians, and the judiciary to recognize how behind the ball we all are in incorporating tech into our practices. Technology could make us more efficient and effective.”
We all hope that litigants and those who make the legal system work will be able to adapt in these difficult times.