Articles Posted in Accident Benefits

Our law firm has written many articles on how to complete the OCF-3 Disability Certificate in previous editions of the Toronto Injury Lawyer Blog.

Your can read these previous articles here, here, or here.

Don’t get me wrong. Those articles are great and contain valuable information for accident victims, their loved ones, doctors, therapists, even insurance adjusters.

But those articles are dated. Accident benefit and car insurance law is ever changing!!!

The standard OCF claim forms are constantly being updated. We have no reasonable explanation as to why the OCF forms get changed around so often aside from the government is constantly changing car accident law to keep lawyers and insurers on their toes. These changes generally seem to favour large insurers, but that’s another story all together.

The end result is that injured accident victims, doctors, therapists and rehab clinics may be using old forms which won’t be accepted by the insurer when submitted.

In fact, we’ve had experience with more than one adjuster who has submitted the wrong/dated OCF form to our clients by mistake. Our lawyers don’t blame them. The system and the constant tweeks/updates to accident benefit and car insurance law has made an already complex system even more complex and burdensome to accident victims, service providers and insurers alike.

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Not many people know this, but my family used to own a farm in Brockville, ON. Brockville is east of Kingston, near the Ontario/Quebec border. My grandparents owned a large farm with hundreds of cows, some chickens and large vegetable garden. I still have memories of the farm. On occasion, my grandfather would threaten me if I didn’t listen by saying he would take my toys away and give them to the cows. I sure listened after that.

As Goldfinger legend has it, the farm house burned down on account of a spontaneous hey fire. The only things that were saved were the  family photo albums. And if you ask around, there are a few epic shots of yours truly hanging out with the cows we had.

The reason I’m bringing up Brockville is because it reminds me of a special client our law firm worked with. This client was involved in a single car motor vehicle accident just outside of Brockville. Years went by and this person never thought of retaining a lawyer. She was at fault for the single car accident, so there was nobody to sue (you can’t sue yourself for your own negligence). The person was scared to consult with a lawyer for these reasons. S/he didn’t know where to turn, what to do, or how the system worked. She was lost, and just went along with whatever the insurer suggested.

The person sustained multiple orthopaedic injuries and a brain injury in the car accident. This was by no means a minor collision, and the injuries were significant. I’ll talk more about the significance of those injuries later on in this Toronto Injury Lawyer Blog Post.

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Sometimes, our personal injury lawyers think that car accident law has been purposely designed just to trip people up.

How else can you explain:

a) $36,920 deductible for a pain and suffering award in a car accident claim

b) $73,840 deductible for a pain and suffering award if involved in 2 car accidents

c) $110,760 deductible for a pain and suffering award if involved in 3 car accidents!

d) these deductibles increase year after year with inflation

e) serious and permanent threshold for pain and suffering claims which cannot be shared with the jury at trial

f) the deductibles cannot be shared with the jury at trial either

The purpose of car insurance and accident benefits is consumer protection legislation. This seems like a stretch goal (pardon the Kathleen Wynnism) considering the way the law actually works, and how the law has evolved such that the scales of justice are tipped so far in favour of insurers, it makes it almost miraculous if a Plaintiff succeeds at trial.

This theme of insurance law as consumer protection legislation was highlighted by the Supreme Court of Canada in the decision of Smith v. Co-operators General Insurance Co., [2002] 2 SCR 129, 2002 SCC 30 (CanLII) If you haven’t read the case, it’s worth a read. An oldie, but a goody!

Here, the Supreme Court stated:

There is no dispute that one of the main objectives of insurance law is consumer protection, particularly in the field of automobile and home insurance.  The Court of Appeal was unanimous on this point and the respondent does not contest it.  In Insurance Law in Canada(loose-leaf ed.), vol. 1, Professor Craig Brown observed, “In one way or another, much of insurance law has as an objective the protection of customers”….

The Supreme Court goes on to add:

In my opinion, the insurer is required under s. 71 to inform the person of the dispute resolution process contained in ss. 279 to 283 of the Insurance Act in straightforward and clear language, directed towards an unsophisticated person.  At a minimum, this should include a description of the most important points of the process, such as the right to seek mediation, the right to arbitrate or litigate if mediation fails, that mediation must be attempted before resorting to arbitration or litigation and the relevant time limits that govern the entire process.  Without this basic information, it cannot be said that a valid refusal has been given. 

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If you’ve been involved in a car accident in Ontario, and you’ve been injured, you will need to report the collision/accident to a car insurer.

Despite what you may believe, large car insurance companies aren’t run by computers. They have real live people who work there! Many work very hard and diligently to respond to your claim in a professional, courteous and timely manner. Others…not so much. Some insurers and their employees are better than other. But that’s not the point of this Toronto Injury Lawyer Blog Post.

When you call an insurer, you will speak with a real person who will take down your information, and the basic details of your car accident claim. That intake operator will then assign your claim to a person called an “adjuster“.

An insurance adjuster is an employee or sometimes a third party contractor of a large car insurer who handles your case. They write to you, call you, send cheques, pay service providers, etc.

But different adjusters, handle different tasks and have different responsibilities. The purpose of this Toronto Injury Lawyer Blog post is to do our best to explain why there may appear to be so many adjusters assigned to your car accident case, and what each adjuster may (or may not), do.

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Yesterday our law firm participated in a private global mediation in Hamilton. As an aside, if it weren’t for lawyers, this downtown Hamilton office tower would not exist. It seemed like every floor housed a law firm. One of the few floors which didn’t house a law firm was a Reporter’s Office for Examinations for Discovery, Mediations, etc (where lawyers go).

A drunk driver hit my clients.

Liability was not contested. It was abundantly clear to all of the parties that my clients didn’t get in their car that day intending to get hit by a drunk driver.

Their vehicle was a write off following the collision. It was a bad collision.

The at fault driver plead guilty to drunk driving and his license was suspended for 13 months. No doubt, his insurance premiums went up. But, as of today’s date, he is back on the road and driving with the rest of us.

My husband/wife client were shaken up after the collision. The husband sustained the worst of the injuries. The wife was able to tough through the pain, and get back to a semblance of brining normalcy back to her life. But the reality for both is that their lives will never be the same following this drunk driving collision.

It only seems fair that they be compensated for their injuries, pain and suffering. So you would think…

The law in Ontario is, for lack of a better term, TERRIBLE for innocent accident victims. I have no other way of describing it.

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You know what’s confusing?

Car accident claims.

Even for personal injury lawyers who concentrate their practices exclusively on car accident claims; these claims can be confusing!

A recent report commissioned by the Government of Ontario (The Marshall Report: Fair Benefits, Fairly Delivered) affirms this opinion. Car accident claims; specifically accident benefit claims along with the legislation surrounding those claims is overly complicated and needs to be simplified.

As an aside, if you would like to read about Goldfinger Injury Lawyers’s commentary on the Marshall Report, you can certainly do so here by reading our previous week’s installment of the Toronto Injury Lawyer Blog. Our law firm was commenting on the Marshall Report as early as April 12, 2017. It seems that major news outlets only caught on to this story around April 19, 2017; which is about a week after we wrote about the story. Lesson: For up to date personal injury news, information and commentary look no further than the Toronto Injury Lawyer Blog.

Our comments on The Marshall Report are worth a read. We believe many industry outsiders are off base and out of touch with the reality of modern day car accident litigation in Ontario. And this is where we come in. To better help educate the Average Ontario Driver who is understandably flummoxed by how car accident cases work.

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Who is David Marshall,  and why has he been commissioned by the Province of Ontario to write a report on car insurance and car accident litigation in Ontario?

Good question.

If you haven’t heard of David Marshall, here is an interesting article about him from January 31, 2015 in which is he is described as “the Man Ontario Workers love to hate“. He was the president and CEO of the Workers Safety & Insurance Board (WSIB).

The WSIB is the subject of a multi million dollar class action law suit alleging that workers compensation and benefits were unfairly slashed.

The WSIB has been criticized by treating doctors of injured workers for ignoring their medical opinions.

Under Marshall’s watch, the unfunded liability pool of the WSIB has been shrunk from a high of $14.2 billion to just over $9 billion in five years, the number of workers not back to work after a year has dropped by more than half and lost time claims have dropped by 17 per cent — from 50,667 in 2009 to 41,987 in 2013. All the while employers are paying the highest premiums in Canada.

Ontario Federation of Labour president Sid Ryan calls Marshall “the equivalent of the modern day bounty hunter.”

“His job is to disqualify injured workers from receiving their rightful benefits . . . The $400,000 is his bounty for his work over the last year,” Ryan said.

Catherine Fenech, of the Ontario Network of Injured Workers’ Groups, said since Marshall arrived, “we’ve seen a steady decline in the number of claims being accepted . . . and an increase in workers being told the board thinks they can go back to work no matter how badly injured they are.” Continue reading →

It has been a busy week at Goldfinger Injury Lawyers, and we have some exciting news to share with the readership of the Toronto Injury Lawyer Blog.

We’re excited to announce the hiring of a new lawyer, Afsoun Amirsolaimani. Afsoun comes to us having graduated from the Faculty of Law at the University of Ottawa, and articled at a boutique personal injury law firm in Hamilton. She gained valuable experience in car accident, slip and fall, accident benefits, dog bite and long term disability claims. Outside of work, Afsoun is a fantastic amateur photographer. We are confident that Afsoun will bring her enthusiasm, dedication and passion for justice to our law firm in order to better serve our clients across Ontario. 

Another important announcement is that our Toronto Office has expanded! Yet again! This is our 4th office expansion in Toronto over the past 9 years. Please don’t get the impression that our law firm are bad tenants. It’s just that our law firm has been growing year after year, and we need to increase our space in order to accommodate our needs. We have been able to grow by serving our clients as best we can. Growing one satisfied client at a time. We aren’t going anywhere far. Same building at Yonge/Sheppard. Same floor. Just larger space. We’re still accessible off of Highway 401 at Yonge Street and also accessible via two subway lines. We’re also steps away from OHIP, ODSP, FSCO along with two Court Reporter’s Offices which is very convenient for our lawyers and clients alike. Our law firm is handicap accessible. What’s not to like about Yonge and Sheppard?

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If you drive a car in Ontario, every year or so, your car insurance needs to get renewed. Come renewal time, your premiums may go up, they may go down, or just stay the same.

Ontario drivers need to purchase insurance in order to drive. This is a requirement under the Compulsory Automobile Insurance Act R.S.O., 1990 c. C. 25: which states:

Compulsory automobile insurance

2. (1) Subject to the regulations, no owner or lessee of a motor vehicle shall,

(a) operate the motor vehicle; or

(b) cause or permit the motor vehicle to be operated,

on a highway unless the motor vehicle is insured under a contract of automobile insurance.

In plain English, if you drive a vehicle; that vehicle needs to be insured. That means that you, or somebody else needs to pay money to an insurer to have that vehicle insured.

You see a lot of advertising from insurance companies on TV, the internet, at hockey games, even on billboards on our roads. There’s that Knight Mascot from Belair Direct. The “under five minutes” to start your claim schtick from Intact. State Farm has ads which feature different celebrities. They’re all fighting for you business as a consumer of insurance (car, home or otherwise).

But as consumers, insurance is one of the few products which in general, consumers don’t really understand. This is not like buying a pair of shoes or a loaf of bread. Have you ever read the fine print contained in those lengthy policies of insurance? Probably not. It’s all in legalese. Even the personal injury lawyers, insurers and judges don’t get it right sometimes!

Even more remarkable is that the majority of insurance consumers purchase these products without knowing what benefits come with the product. All people care about is the bottom line. How much will their insurance cost? They don’t bother asking the question; what benefits am I entitled to receive from this insurance product in the event of a car collision? How will my insurance protect me in the event of a serious car accident?

None of these questions are asked, or even thought of until it’s too late.

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The road to recovery can be a long one following a serious accident. You’ll need all the help you can get; and sometimes the help provided through the publicly funded OHIP system just isn’t enough.

Treatment like physiotherapy, occupational therapy, massage, psychological counselling, speech language pathology and chiropractic treatment in the majority of cases aren’t covered by the OHIP system.

Sometimes insurers will pay for this sort of treatment while the case is still open; in order to support your wellness and rehabilitation.

In car accident cases, these treatments can be paid for by way of an accident benefit claim via OCF-18 Treatment Plan. The car insurer will only pay for the treatment provided that they deem the treatment to be both “reasonable and necessary“. Unfortunately, the insurer gets to act as Judge, Jury and Executioner in deeming whether or not the proposed treatment via OCF-18 Treatment Plan is “reasonable and necessary“; which can be very frustrating for clients.

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