COVID-19 Update: How We Are Serving and Protecting Our Clients

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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.

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Many lawyers boast about being virtual, paper free and 100% remote. This is fantastic and something which we should all strive for given the current climate brought on by the COVID19 global pandemic. If COVID19 has done anything for the legal profession, it’s opened the legal community’s eyes that we as a profession are desperately behind the times when it comes to incorporating technology in to the general practice of law.

I place the majority of the blame on our inept Court system along with our archaic filing practices. Lawyers CANNOT file a majority of materials with the Court electronically. Process servers for in person Court filings are required, otherwise you will face the wrath of rejected materials. Courts have never wanted to hold teleconferences for mundane consent or unopposed matters. Courts still require personal attendances at the expense of everyone’s time, money and resources. I hope that all of this will change when we reach the light at the end of the COVID19 tunnel.

I can go on and on about inefficiencies of our Courts and legal practices along with how we can all improve with technology; but this is a topic for another day.

The purpose of this week’s instalment of the Toronto Injury Lawyer Blog is to focus on the daily activities of a personal injury law practice which have been impacted by COVID19. For today we will let you in behind the curtain of Goldfinger Injury Lawyers to understand what goes on behind the scenes to keep our law firm running in a time of crisis.

The lawyers who I recognize boasting online that their practices are 100% remote are mostly those lawyers who earn a salaried wage. They are not business owners. They are in large part removed from the day to day, nitty gritty which go hand in hand with operating, managing and running a law firm. Such lawyers are employees or contractors of a legal operation of some sort. Think of in house lawyers, associates or even partners of a larger law firm.

Some may be “partners“. But the term “partner” can often be misleading. There are equity partners vs. non equity partners. Equity partners have skin in the game. Non equity partners can exist for name recognition only, and don’t have any skin in the game compared to their equity partner counterparts. A non equity partner can walk away from a sinking ship without any real consequence. At the same time, even equity partners can find a way to buy out, walk away or totally collapse the firm if things aren’t going well without significant personal loss. See Goodman & Carr or Heenan Blaikie

An owner of a law firm is responsible for paying rent, office supplies, making payroll, paying for professional membership dues, operational overhead, marketing overhead etc. These are great responsibilities which feed family and fuel many different industries (legal, office supply, marketing, telecom, tech, furniture, security, cleaning and the list goes on).

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The global COVID-19 pandemic has had a severe impact on the way lawyers serve their clients, with many opting for remote meetings through phone calls and videoconferencing rather than in-person, says Toronto personal injury lawyer Brian Goldfinger.

In Ontario, across the country and around the world, governments have declared states of emergency, advocating that people work from home where possible and practice social distancing to slow the spread of the novel coronavirus.

“We’re not conducting any in-person meetings,” Goldfinger says. “We’re doing as much as we can over the phone and on email. We have cancelled all meetings that required an appearance, including examinations for discovery and mediations, if we can’t do them over the phone or using videoconferencing. We don’t want to put anyone at risk.”

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This installment of the Toronto Injury Lawyer Blog is intended to focus specifically on the impact which COVID-19 will have on your personal injury case.

Right now we recognize that there are much more pressing life issues out there given increased health risks and lifestyle changes which COVID-19 has brought. These larger life, political, economic and health/safety issues are certainly larger than a personal injury case.

We are personal injury lawyers.

We do not profess to give an cogent or meaningful advice about health policy, social policy, geo-political policy etc.

If you want that sort of information or misinformation; there’s certainly no shortage of it out there.

We are going to stick to our lane and comment about what we know best; personal injury law.

Before we get in to it, we would like to let you in behind the curtain on what Goldfinger Injury Lawyers is doing to flatten the curve. All of our personal injury lawyers are working remotely from home. All in person meetings with clients, adjusters and other lawyers etc. have been cancelled. These meetings have either been rescheduled, or they will take place via teleconference or video conference.  Examinations for Discovery have been re-scheduled. We aren’t yet sure what’s happening with upcoming mediations. These tend to work best in person, but during these times we are taking it day by day and will have to consult with all parties in order to determine the best course of action. This may require re-scheduling the mediation, or the mediations taking place by teleconference or video conference. We remain responsive to voice messages and emails as always.

Many of our clients are concerned for a variety of reasons. But they are calling us for answers about their respective cases and how COVID-19 has and will impact their case.

Here’s how:

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Let me preface this article by stating that COVID-19 Corona Virus is very real; and very serious. For facts, consult your local physician, or reputable medical/government websites such as:

https://www.cdc.gov/coronavirus/index.html

https://www.canada.ca/en/public-health/services/diseases/coronavirus-disease-covid-19.html

https://www.who.int/emergencies/diseases/novel-coronavirus-2019/advice-for-public

https://www.who.int/health-topics/coronavirus

https://www.toronto.ca/community-people/health-wellness-care/diseases-medications-vaccines/coronavirus/

The point of this edition of the Toronto Injury Blog Post is to put as positive a spin as we can on a very negative situation.

One of the biggest complaints from lawyers is regarding how slow, delayed and backlogged our Courts are. Our Courts are handing an enormous volume of cases, with inadequate resources and technology at their disposal.

Electronic filing of Court documents is NOT available for all documents, nor is it available at all levels of Court. In fact, electronic filing is not encouraged or promoted as aggressively as it should be by the Ministry of the Attorney General.

There is an entire industry which has been built on in-person filing and delivery of legal documents (process servers). I have nothing against process servers. They are currently essential to personal injury claims. In fact, with new privacy legislation they are more important than ever because they’re the only ones who have access to track down certain Defendants’ addresses if they aren’t detailed on police report.

But the reality is that with technology, process serving as we know it should be rendered obsolete. All legal documents should be filed electronically with the Court. But they aren’t. Not even close. Hot take. I know. But as lawyers we tend to lag behind and play in the past. COVID-19 is telling us that lawyers should be more flexible and change with the times.

Here’s how.

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Mental Health is a very serious problem, but it’s not treated with the seriousness which it deserves.

Part of it is because there is a stigma around mental health. You can’t see depression, anxiety or suicidal ideations; therefore they don’t exist.

When someone is physically injured, you can see those injuries in plain sight. Blood, bruises, broken bones, needing a cane, wheelchair or walker etc. Because you can see those injuries that means that they are true.

But mental health is invisible to the naked eye. Even worse, those injuries are subjective unless you have a proper diagnosis from a treating doctor or specialist. But even mental health diagnoses differ from physician to physician. Some doctors are sympathetic towards mental health. Others are not.

Worse still is that hockey and tough winters are ingrained in Canadian culture. When it’s cold outside, you bundle up, suck it up and tough it out. Hockey players are glorified for playing injured, bloodied, battled and bruised. You get knocked down, you’re taught to suck it up and get back on the ice and hit the opponent harder.

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Determining how much your case is worth in a Long Term Disability Case can be a bit of a weird science. But, there is a method to what many perceive as madness.

Plaintiff side personal injury lawyers would LOVE for your number to be accepted by the long term disability insurer.

Wouldn’t it be great if coming up to a number in a long term disability case was as easy as imagining the highest number in your head, spitting it out, and then the case is settled.

This would be your personal injury lawyer’s dream. The client gets what s/he wants. That number is very high. The lawyer feels great for having achieved such a significant recovery on behalf of his/her client.

Long term disability cases are not cases for pain and suffering. Nobody from the long term disability insurer committed an actionable wrong which led directly to your disability. Meaning, no one from the long term disability insurer ran you over with their car resulting in your disability (unless this actually really happened). For the most part, the disability has little to do with the action(s) of the insurer, and vice versa. While the decision of the insurer to deny, or terminate benefits will likely cause emotional stress and financial duress; it has little to do with the onset of the actual disability giving rise to the claim in the first place.

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After a serious accident or collision, the injured party will require treatment.

Sometimes the treatment is covered by OHIP. Seeing your family doctor, getting surgery, assistance through LHIN, seeing a specialist, publicly funded physiotherapy; these are all examples of treatment which is covered under the OHIP system. That means that regardless of who was at fault for the accident, that you don’t need to pay for the treatment. This type of treatment is of particular important for all manners of accident and injury cases. If you hold a valid Health Card, there is no excuse for not at the very least, seeing your doctor. It’s free.

Sometimes treatment is NOT covered under the publicly funded OHIP system. Seeing a psychologist, a physiotherapist, occupational therapist, chiropractor, speech language pathologist, massage therapist; these are examples of treatment which is NOT commonly covered by OHIP.

To get these forms of treatment which are not covered, accident victims have a few options to access treatment.

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Did you know that Ontario car insurance companies are entitled to a secret credit approaching $40,000 for your pain and suffering in car accident cases? Probably not.

It’s one of the best kept secrets in the insurance industry which insurance companies don’t want you to know about.

In the past few days, the secret credit aka the deductible has been getting a bit of attention in the news. Here is an article from the Toronto Sun explaining the unfairness of the deductible.

In fairness, the current deductible does not actually stand at $40,000. Technically speaking, it sits at $39,556.53, but lawyers call it $40,000 because remembering the exact dollars and cents is a bit difficult to do. This $39,556.53 goes up each year on January 1st. So, while today the deductible sits at $39,556.53, by January 1st of next year, it will go up again, likely over $40,000 which is higher than the average net salary of many income earners in Ontario.

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Some of the most devastating and gruesome injuries which our personal injury lawyers see occur as a result of fire. Fires in homes. Fires in apartments. Fires in condominiums. Fires in commercial units. Fires cause devastation to person and property. They also kill.

Often in fire injury and fire loss claims, damages are almost secondary for the lawyers. All of the lawyers for both Plaintiff and Defence recognize the loss suffered by the burn victim. The lawyers may argue about the extent of the damages and the impact and duration of those damages. But reasonable lawyers will recognize that serious burns cause serious injuries which have life long physical and psychological consequences.

Where things can tricky is when it comes to who will pay for those damages.

All lawyers are taught that it’s very important to sue a party with deep pockets; meaning that you have to make sure that you can sue a party who can pay a judgment or payout on a settlement.

If you sue a party with no assets, you have nothing to collect upon. The judgment which a Plaintiff is awarded is without any material value because you cannot collect from an impecunious party. Think of it like you can’t get blood from a stone.

The same adage applies to fire loss claims. Generally in personal injury cases, lawyers see insurance companies defend their insureds, and payout damages on a judment or settlement.

The same cannot be said in burn cases and fire loss cases.

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