Articles Posted in Damages

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Long Term Disability Plans are what they call in the insurance industry “living policies” or “living benefits“. You need to be alive in order to recover on going LTD Benefits.

In their most basic form, these LTD policies are there to protect an insured person in the event of serious disability which prevents that person from working at their own occupation, or at any gainful occupation.

If an insured person meets the test for disability, and they have filed all of the proper paper work, then in a perfect world; that person will receive long term disability benefits for the period for which they are disabled.

The amount of the monthly LTD benefit depends on your policy along with your pre-disability income. Some polices have a set monthly benefit amount like $1,000/month; regardless of income. Other policies base the monthly benefit amount on a percentage of your monthly pre-disability gross or net income, depending on the wording of your policy (ie 66.67% of your gross income averaged in the year before your disability).

All of these calculations sound simple enough. But have you ever read the fine print of these policies? Have you ever paid attention to how long some LTD policies can be?

The devil’s in the details, and the wording of these LTD policies can rise up and have a negative impact on your long term disability case.

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Personal Injury, Long Term Disability and Car Accident cases across Ontario are built upon EVIDENCE. Our legal system doesn’t play out in such a way as a Plaintiff makes a claim, yells a lot that they’re entitled to compensation, and then they get what they want. If Courts worked that way, those with the loudest voices would always win. In order for your case to succeed, you need evidence.

Evidence can’t be made up or fabricated. In order to be persuasive and carry weight, your evidence needs to be pure, legitimate, and not tampered with or altered.

Evidence comes in a lot of different forms. Evidence can be oral testimony from an examination for discovery. It can come from testimony at trial while a witness or party is on the stand. Oral evidence can come from parties to the litigation, witnesses to the action, lay persons/character witnesses, or experts.

Evidence can also come in the form of documentary evidence. Police reports, medical reports, video surveillance, 911 recordings, photos of injuries etc. All of these items are forms of evidence as well.

Cases are made and broken based on evidence. How much weight evidence is given depends on the Judge/Jury.

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When injured accident victims think about damages, they often think of those valuations in very linear terms; as if they’re on a straight line.

Broken knee? $100,000 plus $150,000 loss of income = $250,000

Fractured wrist? $50,000 plus $25,000 loss of income = $75,000

These are very simple mathematical equations. The problem is these equations are too simple and don’t take in to consideration the whole story.

What accident victims don’t know is that often insurer are entitled to credits or set offs when calculating damages to make sure that the Plaintiff is not over paid for their injuries.

There are many examples when an insurance company is entitled to a set off. What is a set off?

Essentially, it’s a credit in favour of the insurance company. Take the example of a person who was involved in a catastrophic car accident. Prior to the car accident, they were earning $40,000/year. They will never be able to work again on account of a traumatic brain injury.

They are receiving an income replacement benefit in the amount of $400/week from their accident benefit insurer. The total amount of income replacement benefits equal $20,800/year.

If the tort insurer pays 100% of the $40,000 income loss; then the accident victim ends up with $60,800/year ($40,000 + $20,800). That would mean that the accident victim is in a better income position post accident than pre-accident. While this is great to see; unfortunately, this is NOT how the law or the Insurance Act works. In this example, the tort insurer is entitled to a credit; commonly known as a “set off” to make sure this type of over payment doesn’t happen. That set off would be for $20,800 for the income replacement benefits already paid out. Therefore, in order to make the accident victim whole, the tort insurer will pay the difference, that being $40,000-$20,800 = $19,200.

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Happy Canada Day! It’s a time to celebrate our beautiful country, friends and family. For many, Canada Day will involve good food, good beverage, and participating in outdoor activities.

In the days following Canada Day, our law firm often gets a number of calls and inquiries regarding injuries which took place in the great outdoors during Canada Day celebrations. There is a common thread with these calls, which I would like to share with you in order to ensure that your holiday is a safe one. Because afterall, who wants their Canada Day celebration ruined on account of a serious injury or accident. This is the last thing you want over a long weekend.

So without further a due, here are Goldfinger Personal Injury Law’s top safety tips for the Canada Day holiday:

1. Drinking and Driving; Drugs and Driving and Texing and Driving is always a dumb decision. Don’t do it. But let me take this one step further in tip #2…

2. Alcohol, or Drugs and Any MOTORIZED equipment don’t mix either! Operating a chain saw, a scooter,an e-bike, a small engine boat, an ATV, a Sea-Do; you name it. If it’s motorized and you’ve been drinking or have taken a narcotic; it’s not a good mix. You would be amazed at the amount of weird fact pattern calls we get following summer long weekends involving operating some sort of motorized vehicle and drinking. Often, these vehicles aren’t insured, and are being operated where they shouldn’t be operated. Play it safe from the start so you don’t need a personal injury lawyer to figure out how an insurer is going to respond and perhaps pay out for such a claim. There is no magic pill to get your health back, and no amount of money; no matter how large will ever restore your health. People don’t often understand that concept. A million dollar, or two million dollar award, or even higher will NEVER restore an accident victim’s ability to walk.

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Our law firm had a record number of Long Term Disability Claims settle in the last quarter of 2014. In particular, the last month of 2014 was a mediation bonanza for our lawyers when it came resolving long term disability (LTD) disputes.

One of the things which we caution our clients on when it comes to settling LTD claims are the tax implications of the settlement.

Damages for pain and suffering are non taxable. Damages for past and future income loss are taxable. But these heads of damages apply to tort claims such as car accident and general negligence cases (slip and fall, dog bite, etc.)

But what happens for Long Term Disability Claims when it comes to tax implications for the settlement?

Look no further than the wording of your policy. I will be in there. I guarantee it!

Some policies state that benefits are taxable. This means less money in the client’s pocket because they have to pay tax on any amount recovered.

Other policies state that the benefits are NOT taxable. This is much better for the client because they don’t have to pay the tax man for any amount recovered in the case.

If you don’t know whether your LTD benefits are taxable or not, then just ask your insurance broker, union rep or even your employer who is funding the benefits. They will have an answer for you. You can also call the insurer who is underwriting the policy (Great West Life, SunLife, Manulife, Equitable Life, SSQ, RBC Insurance, Co-operators, Desjardins etc.) and ask an agent directly. They will have an answer for you as well.

Effective January 1, 2015, Revenue Canada introduced some important rule changes which impact the tax implications on any taxable LTD settlement. If you have an LTD claim before the Courts, it’s very important to understand these rule changes because they will likely impact on your settlement.
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The first thing which comes to mind when thinking about compensation for personal injury law cases is that they’re all about pain and suffering, or general damages as they’re known.

People who focus on in this area know that damages for pain and suffering are significant, but they aren’t the be all and end all of compensation for an injury case. There are MANY more headings and heads of damages for an injury case which can be much more lucrative than general damages.

The purpose of this Toronto Injury Lawyer Blog Post is to examine damages for pain and suffering and how they work.

One of the most commonly asked questions for our lawyers is HOW MUCH IS MY CASE WORTH? MY PAIN AND SUFFERING IS IMMEASURABLE.

As always, these questions are hard to answer in a quick 140 character Tweet. It all depends on the facts of your case, the nature of the injuries sustained, your pre-accident health, pre-accident life style, and how your recover (or don’t). Every case is different, and every award for damages is also different.

A very long time ago, when dirt was young and when there was little to no traffic on the 401 or in the City of Toronto, the Supreme Court of Canada ruled on 3 distinct cases that are commonly known as the “trilogy”, In these case, the Supreme Court essentially ruled that damages for pain and suffering (general damages) were capped.

Unlike the United States, where we see massive awards for general damages in the millions and millions of dollars; damages for pain and suffering in Canada will not exceed around $356,000 or so in 2014. Sounds crazy right? Just $356,000 to measure pain and suffering!?!?! I agree. But the Supreme Court did this for good reason.
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When will my case settle?

When will I get compensation for my injuries?

When will my case close?

These are just a few of the most common questions that our lawyers are asked at our firm. They are very good questions to say the least. It’s entirely understandable when an inncocent, injured accident victim would want to know when their case will close and when they will receive compensation for their injuries. Living with a looming legal case over your head; having to worry about surveillance, medical appointments with insurance doctors; attending at discovery; attending at Court is all very worrying and taxing to one’s psyche.

For you and the insurance company, a closed file is a good file. And for innocent accident victims, settling their case helps bring a sense of closure and finality to the case; so that they can close that chapter of their lives; and move on the next. Our lawyers often see a catharsis and sense of relief; light a large weight/burden is being taken off a client’s shoulders once a case is closed and settled.

So, if there are so many positive elements to closing or settling one’s file; then WHY DOES IT TAKE SO DARN LONG TO DO SO?!?!?!
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Our law firm sees some very seriously injured accident victims and disability claimants. Many of our long term disability clients who have cases against large multi national insurers such as Manulife, SunLife, Great West Life, Standard Life, Desjardins, Industrial Alliance, SSQ, Equitable Life etc; want to know how an insurer can place a dollar figure on their disability and inability to work for the rest of their lives.

For a disability claimant, the answer to this question can be very simple. If I can’t work for the rest of my life, then naturally, I should be entitled to MILLIONS of dollars worth of compensation. Afterall, my pain and suffering is immeasurable.

One of the most common misconceptions in long term disability cases is that claimants are entitled to damages to compensate them for their pain and suffering. This is NOT true. At our Law Firm, we refer to LTD cases as “four corner” cases. That means that your damages, or benefits, are limited to what the four corners of the policy provide for. If you have a bad policy, which, based on the wording of the policy will not properly compensate you in disability benefits; then your award will reflect that.

There are some situations where awards in long term disability cases can fall outside of the four corners of the policy.
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Hey Brian! As a lawyer, you must hear some crazy stories. (TRUE).

You probably have lots of strangers calling you every day, wanting to discuss their legal problems (TRUE).

What are some of the most commonly asked questions of you (GOOD QUESTION).

As an injury lawyer, we hear of, and see lots of crazy things; lots of sad things; and lots of things that you just can’t make up. Some of these stories, I’m not at liberty to share with the general public.

Regardless of the severity of the injury, one thing that ties most clients together are their questions and concerns for their respective cases. From Toronto to London to Peterborough, client questions are generally the same. Just shows you that geography, race, culture, creed; it doesn’t really matter. People are people, and they share many commonalities regardless of your background, upbringing, or the mechanism and nature of the injury.

So, without further a due, here are some of the most commonly asked questions we here from inquiries to Goldfinger Personal Injury Law.
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Many of our clients cannot return to work after serious accidents.

The form of accident is irrelevant. It doesn’t matter if your accident was caused by bike, car, pedestrian knock down, boat, fall or otherwise.

It doesn’t matter if your injury is catastrophic, is a brain injury, spinal cord injury, ankle fracture, chronic pain, psychological injury or any of the above.

The purpose of this Toronto Injury Lawyer Blog Post is to discuss and examine what you can do for money when you cannot return to work on account of your accident related impairments.

Firstly, it’s important to better understand how the Courts and how insurers quantify income loss claims. Many clients tell me that they’re high income earners, like having high, CEO style six figure salaries with benefits packages. Then, when we request their tax returns, they show little to no income. Go figure.

Courts require evidence of your income loss claim. The best evidence to prove income loss is what’s reported on your tax returns. In some cases, this is the only evidence that matters. In fact, if you should know that whatever you don’t report, you cannot claim. That means if you work at a cash business, and you deliberately conceal earned cash income on your tax returns without reporting it to revenue Canada, the Courts will not re-reimburse you for that income loss (save in exceptional circumstances).ankle.jpg

Basically, you cannot have the tax benefit and NOT report income in a cash business, and later seek to claim that money from an insurer as reportable income later on as your case develops. It doesn’t work that way. The law doesn’t let you suck and blow at the same time. In fact, the laws of physics don’t allow you to suck and blow at the same time. Go ahead. Try it.
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