Canadian Lawyer

44 F E B R U A R Y 2 0 1 9 w w w . c a n a d i a n l a w y e r m a g . c o m the purposes of the courts. If a claimant has PTSD, anxiety, depression or other symptoms, the psychiatrist on the stand will only diagnose SSD, as per the DSM-5's standards, he says. "That's well and dandy for treat- ment, because then that can focus the treatment and ultimately, in a practical sense, it provides the funding," he says. But to convince judge and jury that the claimant is not malingering, Hol- ness says they need a more detailed description of the various aspects of the condition from expert testimony. That is because, unlike a straightfor- ward health condition backed by some- thing tangible like an X-ray, these cases turn on the credibility of the plaintiff. So, despite the rise in SSD cases noted by Birdi and Staunton, Holness says he often advises clients not to put them- selves at risk of a trial, spending tens of thousands of dollars on experts only to have the judge or jury decide they don't like them. "A lot of people don't pursue it and the people that do pursue it are really in peril because they don't have the X-ray, they don't have the scan, they don't have something they can just say, 'Hey, it's real!' and then, of course, a good defence lawyer's going to create all these doubts." Charles Gluckstein of Gluckstein Law- yers in Toronto says that SSD is the "most litigated disability" and that, in his experi- ence, the vast majority of claimants lose. "The difference-maker ends up being will they like the client or not?" he says. "And that's hard to do when you're an injured person because someone who's complaining all the time and telling you it hurts everywhere is not usually the person you want to hang out with." Rose Leto, a partner at Neinstein Personal Injury Lawyers LLP in Toron- to, says that insurance companies tend to focus on statistical evidence. If peo- ple typically recover from whiplash in three to six months and most respond to a treatment, an outlier with SSD who has no physical signs that would explain the pain takes on the burden of having to prove they're not a liar. And plaintiff lawyers say they are met with L E G A L R E P O R T "A lot of people don't pursue it and the people that do pursue it are really in peril because they don't have the X-ray, they don't have the scan, they don't have something they can just say, 'Hey, it's real!' and then, of course, a good defence lawyer's going to create all these doubts." Renn Holness, Holness Law Group PLC IT'S YOUR CALL 1 866 685 3311 When your client suffers a serious injury and needs a referral, make the call. We will safeguard your reputation and get them the compensation they need. Refer r al fees paid in accordance with LSO guidelines. Proud member of the PIA Toronto I 1-866-685-3311 I www.mcleishorlando.com Consultation Offices in: Barrie I Hamilton I Kitchener I St. Catharines ntitled-2 1 2019-01-18 9:03 AM

• Cover