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First and foremost, I would like to thank all those loyal readers of the Toronto Injury Lawyer Blog. Your readership, positive feedback and comments are all encouraging. We are glad and proud of keeping you informed and up to speed with the ever changing legal environment for personal injury claims in Ontario.

The focus of the Toronto Injury Lawyer Blog this week will be on Catastrophic motor vehicle accident claims, or CAT claims as they`re known in the industry.

CAT claims are in the category of the most serious cases we see at our law firm. Not just any run of the mill car accident case will qualify as catastrophic. There is an ever changing medico-legal definition of that it takes for injuries from a car accident to be categorised as catastrophic. The medico-legal definition changed very recently (June 1, 2016 to be exact). Any accident after June 1, 2016 will be tested based on the new CAT test, which is itemised in the OCF-19 Application For Catastrophic Impairment Form as follows:

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Our law firm gets a ton of calls from people who have been denied Long Term Disability (LTD) benefits from their insurers (Great West Life, Manulife, Sun Life, Industrial Alliance, SSQ, Co-Operators, RBC Insurance, Desjardins, Equitable Life, La Captiale Insurance, Canada Life, and the list goes on…).

Although none of the people who contact our law firm have met, there are many common threads in the phone calls. A serious injury, illness or disability denied, or not properly communicated to the insurance company. Feelings of loss, anger, hopelessness, worry and despair on account of the denial. A sense of loss and simply now knowing what to do, or what to expect for their case or future.

These are all common and perfectly normal feelings. After all, you’re not a lawyer and this is probably the first time your applying for Long Term Disability benefits; let along your first time seeing how an insurer is reacting to your claim. It may be your first time calling a lawyer as well!

The experience of calling a lawyer should NOT be scary and NOT be intimidated. At our law firm, we do our very best to make the experience as comfortable and easy to understand as possible. There is no reason why excellent customer service should not extend to personal injury lawyers.

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Certain fact patterns in cases are so unbelievable, that even the most experienced and seasoned personal injury lawyer can’t make them up. Just when you thought you’d seen it all…

It’s common for insurers in Ontario (and all across Canada for that matter), to retain private investigators to conduct surveillance on injured accident victims. The investigators are paid by the insurer to follow as discretely as possible the Plaintiff and try to catch them in the act of doing something that runs contrary to their case.

For example, if the medical records from the Plaintiff’s medical experts show that the Plaintiff can’t run; and the Plaintiff at his/her Examination for Discovery states on the record and under oath that s/he can’t run; but the insurer has video surveillance of that very same person running in multiple marathons/races post accident; then that Plaintiff’s credibility will be left in doubt for a Judge and Jury at trial.

If the Plaintiff complains that s/he cannot work and cannot lift, but there is surveillance showing that same person working at a rock quarry lifting heavy boulders; again that person’s credibility will be a big issue at trial.

If the Plaintiff is lying about this, then what’ s to say that s/he isn’t lying about that? What’s to say that the Plaintiff isn’t lying about how the accident happened, the severity of their injuries, and how their injuries are impacting their day to day life? Can we now trust anything this person has to say?

Credibility and likeability are two big factors at trial. The more credible and likeable the Plaintiff is for a Judge/Jury; the greater the chance his/her version of the events and injuries will be believed. That translates in to a greater award at trial. The same goes the other way. The less credible and likeable the Plaintiff, the greater likelihood his/her version of the events will not be accepted. This will translate in to a lesser award at trial.

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One of the most commonly asked questions of our personal injury lawyers is how innocent car accident victims can get the insurance company to pay for their medical/rehab treatment following a car accident. This involves the proposed service provider completing the OCF-18 Treatment Plan Form.The Toronto Injury Lawyer Blog has already written on the topic of completing the OCF-18 Treatment Plan Form. This previous entry can be accessed here. But, since this question is asked of us so much, we thought it would be of great use to re-visit the topic. After all; getting the car insurer to pay for your post accident treatment is important to your rehabilitation and peace of mind. It certainly seems unfair if you would have to pay for the treatment out of your own pocket when you’re not able to earn an income following a serious collision.

Treatment payments are generally covered after a car accident through Ontario’s No Fault Accident Benefit regime. But, the accident benefit scheme is very complicated and can be very tricky to manage on your own. Even for lawyers, the system is tricky.

For starters, the first form that needs to be completed is the OCF-1 Application for Accident Benefits. This form opens up an accident benefit claim for the insurance company. Once an accident benefit claim has been opened, you’re then eligible for med/rehab benefits such that the insurer ought to pay for the cost of your treatment.

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Three words that can get any Ontarian excited are “August Long Weekend“!

Our personal injury law firm has seen a pattern over the past 8 years of a spike in new client calls after the long weekend in the following areas:

  • Drunk Driving & Drunk Boating cases
  • Fatality Claims (they happen nearly every long weekend)
  • Car Accident claims related to speed
  • Violent Assault claims (alcohol related)

So what happens over the long weekend that we see an increase in personal injury claims? Does everyone lose their mind or is it just bad luck? Are many of these accidents preventable? All good questions.

For starters, lots of people get excited for a summer long weekend. Why not? Fun in the sun after a long, cold Canadian winter. It’s perfectly reasonable to get excited.

Lots of people travel over the long weekend. They get out of town and go visit friends, go to a cottage, go camping etc. That means more people on the roads with places to go and destinations in mind. And those people travelling on the road want to arrive at their respective destinations as soon as possible so their long weekend can begin. For most, the long weekend doesn’t officially begin until you’ve arrived at your destination.

This means a greater likelihood of speeding. We all know that speeding increased the chance of car accidents, and car accidents at higher speeds normally equate to more severe damages and injuries. That’s not to say that car accidents at lower speeds cannot result in serious damages or serious injuries either.

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Using 5 P’s in to this Toronto Injury Lawyer Blog Post has got to be some sort of record!

In case you’ve been living under a rock, the mobile device game Pokemon Go has taken the world by storm. Its received a record number of downloads since it launched, caused server crashes, and has resulted in actual physical crashes causing harm to people as well.

The game is a phenomenon to say the least.

If you’ve never seen or played the game, here is a very quick rundown. The game is played in augmented reality. While there have been augmented reality games in the past, Pokemon Go is the first game of its kind to really take off.

Players are followed in an augmented reality world via GPS maps, to find Pokemon. These are little cartoon like animals. Think giant scavenger hunt played out on a Google Map using your cell phone. There are physical landmarks in the game which are identified as Pokestops or Pokegyms. Players can track their footsteps on the map.

To give you an idea of the popularity of the game, let me share a story with you. The game in Canada was officially launched last week. When I left my office for lunch on Tuesday, over 10 random people I passed near my Toronto Office all had their heads down; deeply immersed in Pokemon Go.

Today, I am preparing this blog from my Kitchener-Waterloo Office. While walking around downtown Kitchener, I spotted yet again more than 10+ random people with their heads down, fully immersed in the world of Pokemon Go. The game has been picked up by millions of Canadians in a very short span of time.

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For anyone who practices in the field of accident benefit law (dare I now call it litigation), what we all need is more paper work, more records, and more forms to be completed by insureds, and insurers alike. What is already a complicated and confusing system has been rendered even more complex with the shift of accident benefit disputes from the Financial Services Commission of Ontario (FSCO) to the Safety, Licensing Appeals and Standards Tribunals of Ontario (SLASTO) License Appeals Tribunal (LAT). How’s that for a mouthful?

Accident benefits, at their most basic, are designed to protect an insured accident victims following a motor vehicle accident. The Insurance Act is consumer protection legislation supposedly aimed to help rehabilitate and make ends meet for somebody whose livelihood and health has been impaired in an accident. Items in dispute can range from simple physiotherapy treatment, to weekly income replacement benefits, to more complicated catastrophic disputes.

Since 1997, FSCO has been hearing accident benefit disputes between injured car accident victims and their accident benefit insurers. FSCO was mandated to hear these types of cases. FSCO had its own mediators, arbitrators, practice code and a wealth of case law built over the years to guide the public and insurers. Continue reading →

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Long Term Disability Insurance, and Critical Illness insurance are both “living policies“. They differ from a death benefit or life insurance policy in that the insured is still alive and the beneficiary; while alive; is able to recover the benefits.

In a “death policy” or “non living policy” only the designated living beneficiary, trust or corporation can recover the benefit. Somebody will need to have died in order to make a claim or recover benefits.

When making a claim for long term disability or critical illness benefits, it’s important to know what you’re getting in for.

Those application forms and questionnaires are very important. They are source documents for your case. They will go on to provide evidence upon which an insurer will use to potentially defeat your claim. These forms will also be scrutinized by a Judge or Jury with respect to how they were completed, what they say, and even when they where filled out.

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Recently, contingency fee agreements in Ontario for personal injury cases have come under attack. Seeing this sort of news is very disappointing and disheartening. A recent decision from the Ontario Court of Appeal on this issue was highlighted in the news. Here is a link to a quick article. I cannot comment on what the former lawyer did in that case, but it’s certainly does not appear to be good for the legal profession.

A contingency fee agreement is a fancy legal term for an agreement between an client (injured accident victim) and a lawyer/law firm whereby the law firm’s legal fees are based entirely on the success of the case. If the lawyer works many many years, and invests many many hours on a case, but the lawyer isn’t able to recover any money on the case, then the lawyer gets ZERO. But, if the lawyer is successful in winning/resolving the case for fair compensation, then the lawyer gets paid their legal fees based on a percentage of the recovery in the case. If there is no money at stake in a case, then a contingency fee cannot work. Contingency fee agreements don’t only exist in personal injury cases. Other lawyers in different practice areas use them as well.Contingency fees in the context of criminal cases are rare, if not unheard of. I have never heard of a criminal lawyer take a case on the basis that s/he will only get paid if s/he wins on behalf of their client. I suppose it can happen, but what that fee will be for winning would have to be worked out at the outset of the case.

In a contingency fee relationship, the client and the lawyer form a team. I like that. The more money the lawyer recovers on behalf of the client, the more money the lawyer can recover in legal fees. And vice versa, if the lawyer recovers ZERO, then the lawyer gets ZERO. This sort of arrangement works for a variety of reasons.

I would like to illustrate one of the biggest reasons by sharing a story with you.

When I was in University, I worked for Sears Canada. I worked in the hardware and paint departments. This was an odd fit, because I’m neither a handy person nor a painter. But, I must admit that I learned a lot; both about hardware and painting. The money I earned from Sears went towards my University education. I paid for school by working at Sears. For this reason alone, I appreciated that Sears kept me gainfully employed throughout my College years so that I could make ends meet.

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The Criminal Injuries Compensation Board (CICB) is a government body which awards compensation to victims of crime and their families following a criminal act.

It’s an important tribunal because for many victims of crime, it’s the only way they can recover compensation for their injuries.

The first rule of personal injury law (or litigation for that matter) is to sue a party with deep pockets. You can’t get blood from a stone in the Courtroom. So, if you sue, and get a Judgment against a party who can never pay the value of the Judgment; then the Judgment itself is without any value. The only value that the Judgment has is knowing that you won in Court. But winning in Court where the only award is damages is a hollow award.Imagine paying a lawyer $20,000 in legal fees, and the lawyer wins a Judgment for you at trial. But after trial, when the lawyer seeks to recover payment on that $20,000 and cannot deliver because the Defendant is broke without assets, then what value is that $20,000 Judgment to you? It’s essentially worthless.

In a car accident or slip and fall case, there is generally some form of insurance behind the at fault party. In Ontario, driving with insurance is mandatory.

But there is no every day insurance to protect you from an act of criminal violence. The same way that an insurer will not insure people for committing criminal acts.

Unless the at fault criminal is a multi millionaire with debt free real estate holdings, your chances of recover against the at fault party in Court are slim. Keep in mind that the wealthiest of people are normally very good at hiding their assets to make sure that they’re judgment proof.

This is where the Criminal Injuries Compensation Board comes in to play. The Ontario Government has set aside a pool of money to compensate victims of crime and their loved ones following a criminal act. This ensure that innocent victims of crime are properly compensated.

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