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Articles Posted in Accident Benefits

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The heading of this edition of the Toronto Injury Lawyer Blog “Hitting a Deer or a Moose with your car” may seem like some sort of joke, or click bait; but I can assure you; it’s not.

Hitting a deer or a moose with your car is very real; hence the signage you may see on highways for “Deer or Moose Crossing”. The Minister of Transportation knows of it’s danger, and so should you.

In all of my years of practicing personal injury law, I’ve never handled a case where someone struck a deer or a moose in an urban/city setting. These cases happen in rural, forest and remote settings. And while the chances of striking a deer or a moose with your car may seem awfully remote; and perhaps laughable; these cases are nothing to joke about.

Some of the most serious injuries I’ve seen have resulted from collisions with a deer or a moose. No joke.

Why is that?

For starters, these sort of cases take place on highways or rural roads. The vehicles which hits the moose or deer is generally travelling at a high rate of speed. The faster you’re travelling, the greater the impact and the greater the chance for catastrophic injury.

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April 1, 2016 was an important date for car accident victims across Ontario. Not because it was April Fools Day. But because on this date, everything to do with hearing and adjudicating accident benefit disputes in Ontario changed.

All accident benefit disputes filed on or after April 1, 2016 which used to be heard at the Financial Services Commission of Ontario were from that point forward heard at the License Appeals Tribunal or LAT for short.

Only around 2 or 3 adjudicators from FSCO transferred over to the LAT, so there was no real continuity or institutional knowledge which had carried over from FSCO to the LAT.

Adjudicators at the LAT were not bound by any precedent set by the years of caselaw developed at FSCO.

There were new shorter time lines which the parties had to deal with. New rules regarding expert reports and expert qualifications.

Costs only awarded in rare circumstances, and when costs are awarded, they are under the low end of the spectrum.

The cost burden shifted significantly to the injured accident victim who has much less money to spend on legal fees than does the insurance company who they are fighting against.

At FSCO the accident victim simply filed for mediation. The cost of filing for mediation was free to the accident victim. If the mediation failed, the accident victim could give up on the case, pay $100 to file for Arbitration, or elect to sue in Superior Court.

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There are serious misconceptions of how people get paid, or receive benefits after they’ve been seriously hurt or injured in an accident.

You’ve likely heard stories of insurance companies paying for an accident victim’s lost wages, treatment costs or even getting them a modified vehicle or modified home before their case even settles.

Some of these things might be true. Some of these things might be false.

At the end of the day, it’s this sort of misinformation which creates large scale confusion as to what benefits get paid, and what benefits don’t get paid before a case even settles.

Goldfinger Injury Lawyers would like to set the record straight with this instalment of the Toronto Injury Lawyer Blog.

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The OCF-1 is the Application for Accident Benefits.

How do I get an OCF-1?

Getting an OCF-1 Application for Accident Benefits is very easy. You can download a copy here at from the website of the Financial Services Commission of Ontario. But most people get the OCF-1 from their car insurance company after a car accident.  The car insurer will send the OCF-1 Application for Accident Benefits to you by regular mail, courier or by email. You can also ask a personal injury lawyer for the OCF-1. Most personal injury lawyers have access to these forms; not that it’s anything special because these are public forms.

The only problem with getting the OCF-1 on your own (not from the car insurer) is that you won’t know your claim number, or the name and contact information of the insurance adjuster who is assigned to your claim. What you don’t want happening is submitting the OCF-1 to the car insurer only for it to “get lost” in the void of mail which car insurers receive everyday. If there is no claim number and no adjuster assigned, you would hope that a file gets opened. But more often than not what happens is that the claim gets put aside and a file does not get opened. This isn’t right, but this is what can and what often happens if there isn’t a claim number or an insurance adjuster assigned.

Can an insurer be penalized for this sort lack of attention to a file? Sure. But getting to the bottom of that could take months or years. In the meantime the accident victim is not receiving the benefits which s/he needs. Take a more practical approach to this. Ask for a claim number and get the name and contact information of the insurance adjuster. Send the OCF-1 to him/her by email, fax and registered mail so that you know the adjuster receives it. This way your claim will get moving forward and you will get the benefits you need in a timely manner (we hope).

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Many clients and prospective clients want to know where they should go for treatment after a serious car accident in Ontario.

It’s a common question because there are so many options and there is no “right way” of doing it. But there is certainly a wrong way of getting treatment.

For starters, there is no substitute for seeing your family doctor, or any other doctor for that matter who is covered by OHIP. These doctors are free and have no vested interest in your personal injury case. All they want to do is see that you get better and get the treatment you need. There’s nothing wrong with that.

Where people go wrong is that they leave their family doctor (or nurse practitioner) out of the picture when it comes to their post accident wellness and rehabilitation. Your family doctor is probably THE MOST IMPORTANT person when it comes to getting the treatment you need.

Lawyers and Judges rely heavily on the clinical notes and records of your family doctor.

Your family doctor can prescribe you with medication to get better. Your family doctor can make referrals to other specialists to help you recover. Your family doctor can request an x-ray, CT Scan, MRI or refer you to a pain clinic or brain injury program (all covered by OHIP). These are indicators to lawyers and to insurers that a Plaintiff is in pain and that something has gone wrong. If those diagnostic tests come back with objective evidence of a serious injury then it’s very hard for an insurer to refute that nothing is wrong with that Plaintiff. The doctor will know what’s wrong with his/her patient so that the patient can get the treatment which s/he needs. Don’t leave your family doctor or nurse practitioner out of the loop. A physiotherapist, occupational therapist, naturopath, chiropractor or social worker is NO SUBSTITUTE for your family doctor or nurse practitioner.

If you don’t have a family doctor or nurse practitioner, don’t fret. Get on a waitlist. These waitlists clear up faster than you would think. While you’re waiting, go to a Walk In Clinic or to your local Urgent Care or Emergency Department for check ups or for pain management. If you go to the same Walk In Clinic with frequency, they will get a sense of what you’re going through. It will be reflected in the records. Walk In Clinic doctors can make the same referrals and prescribe the same medication as a treating family doctor. If you have a health card, then you have access to a walk in clinic or urgent care clinic.

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It’s amazing to me how many people don’t know what to do after they’ve been involved in a car accident in Ontario.

Before you call a personal injury lawyer and we get into all the legal mumbo jumbo; there are a few basic and common sense steps which you will need to take to lay the foundation of a case.

  1. Report the accident to the Police.
  2. Get the medical attention you need.
  3. Steps #1 and #2 are so easy and can be taken care of by way of one single call to 911. The 911 operator can dispatch police, ambulance and the fire department if necessary.
  4. If the police won’t attend at the accident scene, then attend your local collision reporting centre
  5. If the ambulance doesn’t attend at the scene because you have refused it; then seek medical attention at your local emergency department, walk in clinic or family doctor.
  6. Get the name, contact information and insurance information of the other driver. Don’t let the other drive leave the scene without getting that information.

There is a very strong chance that your personal injury case will fail if you don’t report the accident to the police or don’t get medical attention for your injuries.

A Court will NOT accept your evidence that you were in pain if you don’t seek out medical attention. Your pain needs to be documented. Seeing a doctor and getting medical attention is the way to best document your pain for your personal injury case. The Court will draw a NEGATIVE inference by your failure to seek out prompt and regular medical attention. The Court will draw the conclusion that you are NOT injured; or your injuries are NOT serious because you have not sought out medical attention for your injuries. They will draw the inference that your injuries are either NOT serious or simply a fabrication so that you can claim compensation.

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Recently I read a very troubling decision from the License Appeals Tribunal (Travis v. Aviva Insurance Company, 2021 CanLii 120883 ON LAT)

This case is about a first responder firefighter, who heroically responded to the North York Van Attack which took place on April 23, 2018. You may recall that on April 23, 2018 Alek Minassian rented a van and deliberately rode down Yonge Street between Sheppard Ave. and Finch Ave along to pedestrian sidewalk and road and deliberately killed and injured innocent people.

This case hit very close to home. On the date of the attack Goldfinger Injury Lawyers Office was located at 45 Sheppard Avenue West, at Yonge Street in North York.

Myself, our personal injury lawyers and staff walked along the Yonge Street every day to get to the post office, to send couriers, for large copies, for dry-cleaning, for food, to take the TTC or just to get some fresh air. That stretch of Yonge Street was our daily route for pretty much everything outside. It could have been any one of us.

Reading this decision I had a pretty clear picture of the volume of pedestrian traffic and the route which the Van took.

In this case the first responder made a claim for accident benefits. That means that he made a claim through car insurance to get benefits like an income replacement benefit; an attendant care benefit, or benefits for psychological counselling or social work. Unfortunately, the accident claim was denied.

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After a serious motor vehicle accident, you will need a lot of help.

You will need help from doctors, nurses, personal support workers. occupational therapists, massage therapists, chiropractors, surgeons, internists, nutritionists, speech language pathologists, social workers, psychologists, psychiatrists, lawyers, accountants, friends, family and more!

Some of these services are FREE because they’re covered by OHIP.

But most services are not free and need to be paid for by an insurance company, or out of your own pocket. The cold hard truth is that most rehab services which don’t fall under the heading “doctor” are NOT covered by OHIP and cost a lot of money. If the insurance company won’t pay, or if you don’t have the means to pay for these services on your own; chances are you won’t get these much needed rehabilitation services.

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When you’ve been wronged and want to seek justice; you sue.

It’s sounds simple and it ought to be.

Trouble is, when it comes to accident benefit disputes following a car accident in Ontario, you can’t sue anymore. Your right to sue in Court and have your case heard before a Judge were taken away from you. That means that you can’t sue.

Understanding this concept for many innocent car accident victims is really hard to understand. It seems unfair and it is.

Instead of suing in the Courts, accident victims who are seeking compensation for their accident benefit claims follow a car accident are REQUIRED to apply to the License Appeals Tribunal Automobile Accident Benefit Service (LAT AABS) or simply know as the LAT.

The LAT is a Tribunal run by the Province of Ontario. It’s a strange place with its own unique set of rules, procedures and adjudicators.

It’s not uncommon for disputes to be resolved at a Tribunal instead of Courts. We see it in all sorts of places like the Human Rights Tribunal, Workplace Safety and Insurance Board, Ontario Land Tribunal etc.

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Car accident law shouldn’t be confusing. But it is!

Workplace injury law shouldn’t be confusing either. But it is!

Part of the reason that both car accident law and workplace injury law are both so confusing is because there are man made laws behind both; which usurp natural law.

For car accident claims we look to the Insurance Act and the Statutory Accident Benefits Schedule. Both pieces of legislation are dense; and require that the injured claimant complete a bunch of confusing standard forms.

For workplace injury claims we look to the Workplace Safety Act, the Occupational Health and Safety Act along with the First Aid Requirements Regulation 1101

These pieces of legislation are also dense, and require that the injured worker complete a bunch of confusing standard forms.

You cannot sue your car insurer in regular Court over an accident benefit dispute for a car accident claim. Instead you must start a proceeding before the License Appeals Tribunal or LAT in the Automobile Accident Benefits Service or AABS

You cannot sue your employer in regular Court over a workplace accident. Instead you must start a proceeding before the Workplace Safety and Insurance Board or WSIB.

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