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TORONTO INJURY LAWYER BLOG
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Not too long ago, the Toronto Injury Lawyer Blog focused on limitation periods in the context of Long Term Disability Claims, and how insurers will delay, delay, delay such that enough time has passed that they could ask the Court to dismiss your claim. Delay is the enemy of a Plaintiff and the friend of an insurer.

The longer a denied claim goes without litigation, the greater the chance that the delay argument will swing in the favour of the LTD insurer. It’s clear that time is NOT on the claimant’s side when it comes to filing an LTD claim, and then litigating it at Court.

One of the larger LTD Insurers, RBC Life Insurance Company recently brought their delay argument to the Ontario Court of Appeal in the hopes of having a claimant’s case dismissed completely.

The case is Dube v. RBC Life Insurance Company and the initial decision at the Superior Court level can be found in the above noted link.

In this case Mr. Dube was a full time employee of the Windsor Essex Housing Corporation. He began working there in around November 2008. He was entitled to benefits under a group disability policy with RBC. One of those benefits was Long Term Disability Benefits. These benefits were supposed to pay for a percentage of Mr. Dube’s salary, in the event of serious injury, illness and/or disability. Basically, if you’re too hurt to work, RBC will pay you a portion of your salary to help make ends meet. In theory, this sounds like a great thing. Almost too good to be true…

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It seems that every few months or so, the Toronto Injury Lawyer Blog is discussing the topics to changes in car insurance and accident benefit disputes in Ontario. Is it because we LOVE blogging about accident benefits? Not really. Accident benefits are quite frankly, an incredibly complicated and dense area of the law. The rules for accident benefits, in many respects, are made in favour of large insurance companies and designed to limit an injured claimant’s ability to recover an income. It’s not a committee of accident victims who sit around and make these laws, and tweek them ever so slightly. Rather, it’s deep pocketed insurers and so called “insurance experts” who do so at the behest of the large insurance lobby.

A few quick examples of some arbitrary decisions which accident benefit laws have imposed:

  • No monetary reimbursement for a trip to the doctor which is under 50km. Why 50km? Who picked the 50km distance? Your guess is as good as mine
  • A maximum recovery of just $3,500 for soft tissue injuries which are classified to fit under the Minor Injury Guideline. Why just $3,500? Because that’s what insurers and our government deems to be reasonable. Interesting enough, that $3,500 is less than you paying the full value of your car insurance premiums over a 3 year period in Toronto, London, Ottawa or another large city in Ontario.
  • A maximum recover of $50,000 for claims which aren’t catastrophic, but not Minor. Why a $50,000 limit? Beats me.
  • An income replacement benefit of a maximum of just $400/week under a standard Ontario Automobile Policy, which has NOT increased to reflect inflation over the past 15 years.
  • A deductible which will be increasing from $30,000 to $36,500 for pain and suffering claims. Why $36,500? Beats me.

As you can see, many of the monetary limits imposed in accident benefit law in Ontario are just numbers which seem to be picked out of a hat to favour insurers. Not once have I ever met an injured accident victim, or an ordinary person who believes that these limits are reasonable or helpful for claims.

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Our law firm handles a wide variety of Long Term Disability (LTD) Claims against pretty much every deep pocketed insurer you can think of: Manulife, SunLife, Great West Life, Desjardins, SSQ, RBC Insurance, Empire Life, Canada Life, Industrial Alliance, Equitable Life, Co-Operators, Standard Life (Now Manulife). If you can name them, we have probably sued them.

Although every LTD claim is different, and every insurer handles claims in their own way, our lawyers see many similarities for these denied claims. Because we have years of experience helping people get the benefits they deserve, we are able to share some of our wisdom with you, our readers of the Toronto Injury Lawyer Blog.

For today’s instalment, we would like you share with some of the top reasons why Long Term Disability Insurers deny claims.

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The OCF-6 Application for Expenses or Expenses Claim Form is the MOST IMPORTANT FORM to get paid back for your out of pocket expenses following a car or motor vehicle accident.

Immediately after a serious accident, the bills and expenses can quickly add up. Hospital parking is a fortune these days. Hospital meals, medication, the ambulance bill, damaged clothing, broken glasses, equipment rental for ramps, crutches, a wheelchair or simply purchasing a cheap cane from a drug store. All of these expenses quickly add up.

Some of the first questions from prospective clients isn’t how much their case is worth. It’s how can I get re-reimbursed for my out of pocket expenses?

I’ve always found this a bit odd; but I suppose it’s human nature. In the context of a multi million dollar claim, we are worried and insurers fight over the smaller $10 expenses; yet they are willing to pay out $1,500/month for attendant care benefits without issue; or pay out much larger amounts on a periodic basis.

In any event, the purpose of this Toronto Injury Lawyer Blog is to assist you in preparing your OCF-6 the right way, so that your out of pocket expense claims gets approved instead of denied.

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The most serious motor vehicle accidents in Ontario are classified as “Catastrophic” by our Ontario insurance law. The term “Catastrophic” is a term of art; meaning that it carries its own legal definition; separate and apart from the common definition you would find in an English dictionary.

Being designated “Catastrophic” or “CAT” as its known in the medico-legal community is significant, as it provides accident victims and their families to a wider array of accident benefits, over a longer period of time. The advantages are significant such that insurers will fight very hard to find serious injured accident victims as not meeting the catastrophic definition.

Just because you’ve been involved in a serious car accident doesn’t mean that you will automatically be found to be catastrophic. There are a number of medico-legal tests which need to be met. In addition, there is one VERY important form that needs to be completed. This form is called the OCF-19 Application for Determination of Catastrophic Impairment form.  You can find a link to the OCF-19 CAT form, along with other OCF claim forms on the Goldfinger Personal Injury Law website here.

The OCF-19 is only two pages in length. Which, by comparison to some other forms (like the OCF-1 or the OCF-3) makes it a short form. But just because the OCF-19 CAT Claim Form is short, by no means is it not important or can it be completed carelessly.

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Over the past few months, we have seen a war play out in the media between Ontario doctors and the Ontario government. Doctors and the province have been operating without a proper contract in place for quite some time. Neither side can agree to terms. Ontario unilaterally cut doctor fees, along with certain billing codes. The result is that it has presented a cut to Ontario’s thousands of doctors. Doctors are fighting this in Court by way of Charter challenge. It’s pretty interesting to see the public relations battle play out in the media. Not to mention that Ontario doctors are actually launching a Charter challenge, which gets any lawyer excited.

Some doctors are chosing to scale back their hours (why work more for less), close clinics, or move out of unprofitable centres. This was discussed in yesterday’s Globe and Mail which examined how some doctors were closing clinics (methadone and radiology) on account of the cuts to the OHIP system and billings.

The purpose of this edition of the Toronto Injury Lawyer Blog is to examine the crucial role which family doctors play in the context of a personal injury or long term disability case. At the end of the day, the family doctor can be the MOST IMPORTANT person on an injured accident victim or disability claimant’s team.

The great thing about Canada, is seeing a medical doctor is FREE. This is in stark contrast to the United States, whereby, for the most part, every time you visit you doctor, you have to pay for the visit (not withstanding Obama Care).

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Many people have benefits through work. Most understand those benefits to cover medical expenses such as massage, physiotherapy, medication, and dental expenses. Few think of those benefits as covering a portion of your income while you’re disabled and unable to work. This concept is called “disability benefits” or “disability insurance“.

These disability benefits are VERY important. Having them is excellent and great idea. Even if they aren’t offered through your employer’s benefit program; you can still purchase such benefits on your own from an insurer, or from an insurance company. These benefits are commonly referred to as Short Term Disability Benefits, and Long Term Disability Benefits. They typically run up until the age of 65 in the event of disability. Large insurers which offer LTD insurance are such companies as Manulife, Great West Life, Canada Life, Sun Life, Industrial Alliance, SSQ, Desjardins, RBC Insurance, Co-Operators, Equitable Life amongst others.

But it’s not enough to have access to this insurance. It’s important to understand HOW IT WORKS, and how to apply for it in the event of disability. Every policy is unique. Every policy will contain it’s own definitions of disability, their own exclusions, along with their own benefit amounts. Some policies are better than others. A BAD LTD policy is ALWAYS better than NO POLICY whatsoever. Usually, you get what you pay for. And, just because your employer offers LTD insurance through work, doesn’t mean that it’s a good LTD policy. Check it out for yourself how it works or talk you a broker or a lawyer about it.

As with any insurance, just because you’re hurt, doesn’t mean that benefits will automatically begin to flow. You have to jump through some hoops in order to get those benefits to begin. At the end of the day, you have something the insurance company has; and which the insurance company does NOT want to give up; it’s their money!

The first rule of insurance is that if you don’t claim for it; you won’t get it. The same applies to your LTD policy. If you don’t make a claim on it, then you won’t be able to collect benefits on the policy. But claiming these benefits isn’t as simple as putting in a phone call, or filling out a form online. There are a few forms which you, and your doctor  and employer will need to complete. The whole process can take some time.

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Around this time of the year, our law firm receives a noticeable spike in pedestrian collision claims. These are the sort of cases where somebody is trying to cross the street (on foot), and they get hit by a car, or some other sort of motor vehicle (even a bike).

What explains the spike is anybody’s guess. But, it would make sense that near the end of October we get less daylight, making visibility more difficult for motorists, cyclists and pedestrians alike. We also have some worse weather which can lead to visibility issues as well. And who can forget the Halloween Holiday, whereby residential streets are flooded with trick or treaters in full blown costume.

At the time of preparing the Toronto Injury Lawyer Blog Post, at least 12 pedestrians were hit by cars around the General Toronto Area during the commuting periods. Some new outlets have the number as high as 16 pedestrian collisions throughout the course of the day. That’ a lot! Police are attributing this spike to poor visibility on account of decreased daylight and bad weather. This was one of the first days of the fall where the weather was rather cold, damp and dark.

Scary because Halloween is right around the corner and you get the sneaking suspicion that people can’t drive safely anymore? Scary because you get the feeling that motorists don’t have respect for other motorists, cyclists or pedestrians? I know the feeling. Adding insult to injury is that the penalties handed out by our Courts following a breach of the Highway Traffic Act are akin to slaps on the wrist. A few demerit points, a license suspension, a fine. None of these penalties are proportional to the devastating impact a serious car accident can have on an innocent accident victim and their family.

There are a lot of young parents who read the Toronto Injury Lawyer Blog. Having a young family of my own, I want to share with you some of Goldfinger Personal Injury Law’s top tips on how to keep Halloween safe when you’re outside trick or treating this holiday season. If the recent trend of motorists colliding with pedestrians continues, I’m certain you can use these tips. I’ll do my best to give you some out of the box tips you may not have even thought of aside from the usual ones you may see in other media online.

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Generally speaking, adults have 2 years from the date of a car accident, or slip and fall to sue. If you wait until after two years from the date of the accident, you’re likely out of time to sue. This is called a “limitation period“. These limitations, are set out by statue. The best place to look when it comes to limitation periods is Ontario’s Limitations Act, 2002, SO 2002, c. 24. or the applicable act for the subject matter you’re dealing with. You’ll likely need a lawyer to help sort these things out, so have a good one to call if you have any questions about this sort of thing. But this isn’t the purpose to today’s instalment of the Toronto Injury Lawyer Blog.

Sometimes, large insurers try to contacts OUT of the limitation periods which are set for in the Limitations Act,  2002, or other statues. Personal injury lawyers often see this in the context of long term disability litigation.

Long Term Disability claims are unique, because unlike a car accident or slip and fall case where the applicable law is generally tort law from our common law system along with other statutes such as the Negligence Act, Occupier’s Liability Act, or Insurance Act; Long Term Disability Claims (LTD) are entirely contractual claims. The insurer and their underwriters draft the contract. The claimant is suing for benefits which are supposed to be provided for under that contract. If the contract doesn’t exist, then there’s no LTD claim. If the benefits don’t exist under the contract, then they won’t exist in your claim.

A trend which Plaintiff side lawyers have been seeing more and more in the context of LTD litigation are instance whereby large LTD insurers, such as Manulife, Great West Life, Sun Life, SSQ, Desjardins, RBC, Equitable Life, Industrial Alliance and others are trying to contract OUT of statutory limitation periods to reduce them. They do this by virtue of tucking in clauses to those lengthy and complicated LTD insurance contracts.

An LTD claimant, or lawyer may assume that they have two years from the date of denial to sue. This would seem entirely reasonable. BUT, the insurer is relying on one of these limitation clauses to have the claim dismissed from Court, so that they don’t have to pay out any benefits on the claim.

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Eugenie Bouchard is the greatest female tennis player in Canadian history. She has made international headlines for her amazing tennis skills. But these days, her press isn’t about success on the tennis court. Rather, it’s about her battling her head injury and concussion symptoms off the court. Those symptoms have become so serious, that Genie has needed to retain a personal injury lawyer to make sure that she gets the compensation she deserves. I imagine she didn’t want to go this route, but that just goes to show the severity of her injuries.

This week, lawyers in the US Federal Court-Brooklyn, filed a  law suit against the United States Tennis Association (USTA). The USTA is the body which organizes and runs the US Open; one of the four grand slam tennis tournaments held in a season. The US Open is held in Queens, New York, and is arguably the most prestigious tennis tournament in the world. Others would argue the most prestigious tennis tournament is Wimbeldon; but I’m a big US Open fan. I like it when players get to wear something other than white on the Court, and get to show off their personalities without being penalized for it. I also LOVE US Open night matches that stretch in long in to the evening. There’s also nothing better than all of the celebrities that come out to watch US OPEN games. There’s no better beacon or stage for tennis than the US Open.

At this year’s US Open, on around September 4, 2015, Genie had just finished a mixed doubles match. She returned to the women’s locker room, and entered the treatment/physiotherapy area. It might have been dark, and the lights may have been off. As Genie was walking in the training/physio area, she slipped and fell; thereby slamming her head and sustained a concussion/brain injury.

If it could happen to Genie; it can happen to you!

Genie tried playing in her singles match the following day, but she was not able to compete. If you will recall, she attended the US Open grounds wearing dark sunglasses, with a hoodie draped over her head. This wasn’t a good sign. As a result of failing to compete in the Open, she lost out on significant prize money, and international exposure. In a subsequent tournament, she was also forced to withdraw as a result of head injury symptoms.

The filing of this law suit has drawn international attention. Let’s face it; this is a big story. It’s possibly the highest profile slip and fall case I’ve ever seen because of the parties involved, the place the fell occurred (the US OPEN), along with the potential damages at stake as a consequence of the fall.

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