1. My Insurance Company is handling everything. Why do I need a lawyer?
Your insurance company has good legal advice about everything it does - you need
the same advice. In our experience insurers, while often helpful in the
beginning, are not looking out for your best interests and over the long run are
seeking to limit payments to you. They are not permitted to provide you legal
advice about your right to sue. If you have been in a car crash, and wish to
consider a law suit, you need independent advice about your rights. Strict time
limits apply in some cases so it is not in your best interests to delay getting
advice. The scene of the crash may be important, and early attendance by a
photographer, engineer or investigator may be needed to preserve your right to
claim.
For more information, see where to begin
2. I was in a single car crash. Do I need a lawyer? Who do I sue?
Even in a single car crash you can be a victim of negligence. Road
authorities will be liable for hazardous road conditions. For example,
road authorities [cities, counties or the Ministry of Transportation]
may be liable for ice and snow covered roads, defects on the road
surface before or during road construction, and for improper road
design or sightline obstructions. Other causes of single car can be
related to car defects or negligent repairs. In these cases, you would
be able to sue your car manufacturer or mechanic if the defect caused
your crash.
3. How much will the first visit cost?
At the first consultation, you will meet a lawyer who will hear about your case. She or he will ask questions about how you were injured, who was involved, when it happened, and what your injuries were. That will assist the lawyer in figuring out if you can demonstrate someone else was at fault for your injuries, and if you still have time to sue. A preliminary idea of the hurdles you will face in proving fault will be obtained. The injuries you suffered will give the lawyer an idea of what compensation the courts might award you. An important consideration will be how your life has changed: work, leisure, family and community life are all important.
The lawyer will then be able to give you a preliminary idea of whether you "have a case" and its potential value. It is important that you bring as much information to that first visit as you can. The more solid information the lawyer has, the better the idea of the potential of your case you and your lawyer can get at this stage. When you make the appointment ask what you should bring.
You should have a clear and frank discussion about costs and legal fees during this meeting. Remember, the better informed the lawyer is about your case, the better the information you will get at this meeting, including information about costs.
Most lawyers in the personal injury field work on a basis of a combination of contingency fees and retainer. This is because there are two kinds of costs or expenses: first are the expenses that have to be paid for, out of pocket expenses. Those included police reports, hospital records and filing court documents. A retainer is usually requested to assist in paying those expenses on a preliminary basis. Remember, the lawyer only knows what you tell him or her. It is good business to verify information at the outset from independent sources. So you will very likely be asked for a retainer. If you can't pay it all at once, many lawyers will set up a payment schedule that you can cope with. In some cases it will be waived entirely. They will expect repayment of expenses incurred in developing your case, either from the insurance company that pays your compensation, or from your compensation. In a successful case, the lion's share of expenses will be paid by the insurance company.
The second is legal fees. The vast majority of experienced personal
injury lawyers will charge you a percentage of the compensation that is
recovered for you. That is called a contingency fee. The percentage
will depend on many factors, including the size of the recovery, how
difficult the case is, how long it takes to resolve and how much of the
lawyer's own money has to be invested in the case. You should have an
idea of the range of the percentage that will be charged.
Talking about money is difficult for many people, including some
lawyers. But it is important to you so don't be shy. If the lawyer
doesn't raise it, you should. I like to be upfront and frank about
money, so there are no unnecessary worries about it, from either my
client's perspective or my own. An experienced lawyer will give you
good information about costs at that very first meeting.
4. Can I sue the other at fault driver?
Generally you can sue the driver responsible for the accident whenever you are
injured in an automobile accident in Ontario or whenever a family member has
been injured or killed. You may still sue the other driver even if you or the
family member is partly responsible for the accident.
5. Are there any time limits I should know about?
Generally, you will have two years to start an action if your claim
is after January 1, 2004. However, there may be shorter time limits for
starting actions and certain defendants must have notice of your
intention to start a lawsuit within days of the incident. If your case
involves suing a municipality for failure to remove snow and ice you
must assume you have 10 days to give it written notice. In the case of the
province of Ontario, assume you have to give written notice within 10
days. As a result, you should consult a lawyer immediately
following an incident to ensure that proper notice is provided.
6. What is it worth?
You can recover damages that will compensate you for your economic
losses, your loss of earning capacity, your pain, suffering, loss of
enjoyment of life, and for the loss of a family member's care,
guidance, and companionship. You can also recover expenses associated
with your ongoing care and future needs. Until the doctors give
us your prognosis, or prediction about your child's future disability,
it would irresponsible to give you any specific numbers.
7. What initial steps should I take?
Very often, the conditions that existed at the moment of your or your child's injury will be lost if not preserved either by video, photography or retention of involved equipment. Do whatever you can to preserve the evidence. As well, take photos of your or your child's injuries, bruises and cuts. They may provide valuable information for your lawyer later on about just how you were injured.
8. If I want to sue and my case is worthwhile; then, what happens?
We would review the financial aspects of the investigation again. It is very important that you have sufficient financial information in order to make this decision. Effectively you are investing money in order to determine if you have a case. This money (retainer) is not refundable in the event the investigation does not support the case.
Retainers create the lawyer-client relationship. These monies are used to finance the investigation which includes:
a. obtaining copies of clinical and hospital records
b. in some instances, pay for court fees
e.g. the statement of claim
c. obtaining medical opinions from experts
9. Is the retainer the only money I pay?
No.
10. Does the retainer cover legal fees?
No.
11. How long will it take to settle my case?
How long a particular case will take to resolve is very difficult to determine. Some of the factors that go into determining how long a case will take to resolve are as follows:
12. What are Statutory Accident Benefits?
Statutory Accident Benefits are your "no fault" benefits available to you from your own insurer when you are involved in a car crash. This means that, no matter who was at fault in the collision, your own insurer must pay for goods and services that you need because of the collision that are provided by the policy. These benefits include, but are not limited to, income replacement benefits, caregiver benefits, non-earner benefits, medical and rehabilitation benefits, attendant care, housekeeping and home maintenance, and other expenses such as visitors expenses when you are in hospital and damaged clothing.
13. How do I get Statutory Accident Benefits from the insurer?
You have to apply to your own insurance company. You will be asked to complete an application form and give information about your injuries, the collision and your income. After the application is made, there are a number of forms that must be completed by your doctor, employer and perhaps others that will support your right to benefits.
14. What medical expenses will the insurer pay for?
Generally, any medical expense not payable by your health plan or extended health benefits or OHIP due to the motor vehicle collision are payable by your automobile insurer. This includes, but is not limited to, medical, surgical, dental, optometric, hospital, nursing, ambulance, audiometric, speech-language pathology services, chiropractic, psychological, occupational therapy, physiotherapy, medications, prescription eyewear, dentures and other dental devices, hearing aids, wheelchairs, prostheses, as well as orthotics and other assistive devices. Additional benefits are available to you if you are very seriously injured, called "catastrophic impairment". If you are considered catastrophicly impaired you are also entitled to a case manager, to help co-ordinate all of your medical and rehabilitation needs.
Learn more by going to our article published in the Ontario Brain Injury Association Review
15. What rehabilitation expenses will the insurer pay for?
Your automobile insurer must pay all reasonably costs for you to reduce or eliminate the effects of any disability to help you return to your family, society and appropriate work. Rehabilitation benefits can include life skills training, family counselling, social rehabilitation counselling, financial counselling, employment counselling, vocational assessments, vocational or academic training, workplace modifications and/or devices, home modifications and/or home devices, and vehicle modifications. Learn more by going to our article published in the Ontario Brain Injury Association Review
16. How do I collect medical and rehabilitation benefits?
Your medical and rehabilitation should be under the direction of your physician. He or she should recommend appropriate treatment. The treatment provider must complete a form, which requires your signature, to obtain permission from your insurer to conduct a thorough assessment. If your insurer agrees that you require the assessment, they will notify your treatment provider and an assessment can then be done and a treatment plan is developed, which is then sent to your insurer for funding consideration. In order to help ensure that your assessment and treatment is not delayed significantly, your insurer has five days to approve a request to conduct an assessment and 14 days to approve a treatment plan. If your insurer misses those deadlines the request is considered approved. If your insurer does not approve of a request to assess or a treatment plan, you can either withdraw the request or it is forwarded to a DAC.
Learn more by going to our article published in the Ontario Brain Injury
Association Review.
17. What should I expect to receive in Income Replacement Benefits?
If you are employed and have no benefits through a private insurance policy,
your own insurance company is obligated to pay you income replacement benefits
for any time you are unable to work because of impairments from injuries
sustained in a car crash. As a general rule it is 80% of your gross income less
statutory deductions, to a maximum of $400.00 per week, unless you have
purchased additional benefits, which can then increase the maximum to $600.00,
$800.00 or even $1,000.00 per week. Your pay can be calculated on the 52 weeks
or 4 weeks before the crash, whichever is greater. Benefits are not available
for the first seven days following the injury.
18. How long will I receive Income Replacement Benefits?
You are entitled to this benefit until you are able to work in either your
own job or another job that is reasonably suited. There is no time limit.
19. Are there any maximums on these benefits?
Unfortunately, yes. If your injuries are considered non-catastrophic you are entitled to a maximum of $100,000.00 in medical and rehabilitation benefits over ten years, attendant care benefits to a maximum of $3,000.00 per month for two years, housekeeping and home maintenance benefits to a maximum of $100.00 per week for two years. You are also not entitled to claim any transportation expenses up to 50 kilometers per trip, even for medical and rehabilitation appointments.
If you are considered catastrophic you are entitled to a maximum of $1,000,000.00 over your lifetime, attendant care benefits to a maximum of $6,000.00 over your lifetime, and housekeeping and home maintenance benefits to a maximum of $100.00 per week for life, as well as no deductible on transportation expenses.
20. What is a DAC?
A Designated Assessment Centre, or DAC for short, is intended to be a neutral body of medical and rehabilitation assessors who reviews the treatment provider's request to assess or treatment plan to determine if it is appropriate. It is used when an insurer has denied payment for a medical or rehabilitation benefit.
21. What level of attendant care benefit is payable when catastrophic status is in dispute?
Health practitioners involved in the completion of Form 1 [assessment of attendant care needs] under the Insurance Act Regulations are entering a new era of confusion and contradiction. There are two diametrically opposed sections in the March 1, 2006 amendments relating to the level of attendant care to be paid to a person whose status is under review.
Recall a few of the basics:
1. Attendant care benefits are payable only after Form 1 is completed;
2. Attendant care benefits are payable at two different levels: up to $3000 per month for two years if one is not catastrophically impaired, but if one is catastrophically impaired, it jumps to $6,000 maximum per month for life.
3. Many impairment levels are known essentially from the time of the collision. In particular a Glasgow Coma Score of 9 or less within a reasonable time of the collision meets the criteria.
4. A significant number of impairments are not known until some time after the collision. For example, orthopaedic injuries and behavioural impairments may have to await prognosis and maximum medical recovery.
The new Regulation provides for potentially different treatment of this last group.
Payment rules when Catastrophic Impairment
is in issue:
1. The insurer must continue to pay benefits while a determination is being made
2. It must be made on the assumption that the person will be considered catastrophic [s 40]
Payment rules when level of attendant care
payable is in issue:
How will this play out in real cases? Let’s
look at two examples:
1. An injured person is considered catastrophically impaired from the date of the collision because of a GCS of 8. The first form 1 prepared post hospital discharge does not take into account any need for supervision except while cooking and out in the community. The form presents a value of $3500 per month. A neuropsychological examination is conducted 12 months post discharge. The evaluator finds that there are serious concerns about judgment and opines that the person needs 24 hour supervision. The new Form 1 has a value of $6000. Assume the insurer disputes the new amount.
Q. What does the insurance company have to pay to the insured person while the dispute is resolved?
A. $3500 per month.
Section 39 clearly applies. This has nothing to do with determining the insured’s impairment level, just the level of attendant care needed.
2. Psychiatric difficulties associated with a diagnosis of post traumatic stress disorder and anxiety are not fully apparent following the crash. There is also a brain injury, but the GCS was not taken until 3 hours post collision and at hospital it fluctuated above 9. A form 1 suggested 24 hour care due to concerns over the insured harming himself. It is completed as if it is $6000 per month but only $3000 is payable under the non-catastrophic limit.
Increasing anxiety and agoraphobia rendered the insured person housebound and unable to work, participate in family or social activities. A Catastrophic designation application is made 18 months after the collision based on a severe mental and behavioural impairment.
Q. What does the insurance company have to pay to the insured person while the issue of catastrophic impairment is resolved?
A. $6000 per month
Section 40 applies to essentially deem the insured person to be catastrophic during the dispute period. This results in a payment of $6000 per month. It would also permit the retention of a case manager. The level of payment is controversial, since this result is not consistent with s. 39. I would argue that section 39’s limitation is not triggered until there is a request for an assessment by the insurer under that section. That would usually only follow the catastrophic assessment application, so the s. 40 rule would apply.
For health practitioners there is a lesson to be learned from these examples: do not complete the Form 1 for a non-catastrophic impaired insured on the assumption that your client will never get over $3000 so any need over that does not need to be reported. You may be cutting him or her off from an entitlement later. And remember, recover in tort is still available.
Send your questions about the new Regulations or other legal matters to me at blegate@legate.ca.
22. Do I have a lawsuit?
Over my 25 years in practice, I have heard some pretty bizarre stories about how people get hurt. Often times, these people didn’t seek legal advice right away because they thought there was nothing they could do about the injury. Those with brain injuries who couldn’t relate how the injury happened with any precision were very uncertain about getting advice.
Let me tell you about a few who did, just to illustrate the point: finding out if you have a lawsuit doesn’t hurt and it can help.
Perhaps the biggest group are those who were in single car crashes. Who would you sue? Yourself? Of course not. I start from here whenever I see someone in a single car crash: if you weren’t impaired, then why you were hurt is a mystery worth finding out about. [If you were impaired, let’s find out if you visited a tavern that night. If they take your money, over serve you, send you out into the night drunk, they are asking for trouble].
Case #1:
A responsible lady is going to work on a cold winter night. She crosses the center line into the path of an oncoming truck. She can’t remember the crash.
Result: Investigation showed that there was a warning from Environment Canada that night about ice forming due to changes in temperature. The road authority didn’t act on this information and failed to sand the roads until after her crash. Problem was, all around this road authority roads were being salted and sanded in anticipation of the big storm. The case was settled out of court.
Lesson: Responsible people can make
mistakes, but it is worth looking into why.
Case
#2:
A bright young man drives through a stop sign into oncoming traffic. He is sober, alert and otherwise happy and healthy. Why would he do that?
Result: Investigation was delayed until a lawyer was consulted. By then, the intersection had been changed substantially, with an over pass, for reasons unrelated to the crash. It was impossible to recreate what we suspected were deficient site lines at the crash scene. It was settled out of court, but not favourably.
Lesson: Don’t delay getting in to see your
lawyer.
Case
#3:
A child plays and sleds on a hill in her town. The child ends up with a stick in the eye and brain damage, after sledding into a bush. Was this just one of the risks of childhood?
Result: Investigation showed that the hill was a well known place for kids to go sledding. The shrubs were a recognizable hazard. The case was settled out of court.
Lesson: Kids may be kids, but adults still
have to think about and watch out for them.
Case
#4:
A child on a bike suffers a brain injury when he apparently was distracted and fell into a pot hole and flipped over his bars. Turns out he was distracted by the sound of a car staring in a lane beside him. He needs immediate rehabilitation.
Result: although there might be a case against the municipality for the pothole, that would take time to complete. What he really needed was rehabilitation right away. He was able to get auto insurance benefits when an arbitrator found that his injury was indirectly related to the use of a car and qualified for coverage.
Lesson: Make sure even the smallest details
are written down and your lawyer hears them. You never know what might change the
outcome.
Conclusion
Your lawyer can help more often than you might expect. Remember, virtually all experienced lawyers will give you a free initial consultation. It may be the most important “freebee” you will ever get.