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Your Personal Injury or Long Term Disability Case starts even before you retain a lawyer (Ontario)

Bad accidents happen all the time. Long Term Disability denials too.

It’s a common misconception that one’s case begins the moment that the claimant retains a personal injury lawyer. This is completely wrong. One’s case begins long before that. And, it’s important for a potential claimant to know that their actions will be scrutinized long before a Statement of Claim or Demand Letter has been prepared by your personal injury lawyer.

A Plaintiff’s job is to make a claim, and push that claim to trial. A Plaintiff is required to steer the litigation, and push the pace of the case. Like driving a car. If your lawyer doesn’t drive the car in the right direction, then nobody will.

A Defendant on the other hand can do the exact opposite and delay the action. Justice delayed is justice denied. A Defendant can conversely push an aggressive defence and proactively attempt to have the claim roadblocked before it ever sees a trial by way of motioning the claim to death.

A Plaintiff is required to do all of the asking,  pushing, document gathering and demanding. Think of the personal injury lawyer as the builder of a castle. They need all of the resources and materials to build a stable structure. Think of a defence lawyer as the party which seeks to tear the castle down, brick by brick. Which brings me to my next point.

Frequently, our lawyers get calls from injured accident victims and LTD Claimants who, even though they don’t have a lawyer, haven’t yet taken the very most basic steps to advance a claim which don’t require legal advice or counsel.

Our lawyers get calls from Long Term Disability claimants, seeking to sue their LTD insurer, even though they have not yet made a claim for LTD benefits. How can a disability lawyer sue an LTD insurer even though an LTD claim hasn’t yet been made or denied? An insurer like Manulife, Great West Life, Sun Life, Standard Life, Industrial Alliance, SSQ etc. will first need to evaluate and assess a claim, before it can deny a claim. I have never heard of an LTD insurer denying an LTD claim, before an LTD claim has been made. Who knows? The optimistic side of me likes to think that these people won’t need the assistance of a long term disability lawyer because their LTD claim gets approved with no questions asked! How about that for getting some fair treatment from an insurer! If the claim has been approved, and the LTD insurer is paying the proper disability amount, then what’s a lawyer to do? There isn’t much of a claim to be had should the insurer pay the claim properly and in the right amount. But the key to getting the ball rolling is for the LTD claimant to first make the claim. You don’t get what you don’t ask for. And you won’t magically get paid LTD benefits if you don’t make a claim. Life doesn’t work that way, nor do insurance companies and LTD claims. They won’t magically pay you if you haven’t even made an LTD claim.

The same applies in car accident claims. We get calls from many people who have been involved in serious accidents who have called a personal injury lawyer, before reporting the accident to the police, before going to hospital, and/or before reporting the car accident to their own insurance company. In some respects, I understand wanting to speak with a personal injury lawyer prior to reporting the car accident to their own insurer. Insurers can be tricky, and you don’t want to get recorded (because the insurer will record the call), saying something potentially damaging to your case.mmdaf

But, there are also instances where months, or perhaps a year or so has gone by and claimants wish to advance a car accident claim, despite not reporting the car accident to the police or to their own insurer or even to a doctor! In those instances, it makes the personal injury lawyer’s task very difficult as evidence is certainly lost and the late timing of the claim is grounds for serious scrutiny from an insurer and their lawyers. Papering the trail of the injury is also difficult because the clinical notes and records may not make any sort of notation regarding a car accident. Some people are reluctant to report car accidents to their insurers out of fear that their premiums will soar. In most cases, your premiums are going to soar anyways, so why not just report it..Seriously. Has your car insurance gone down in the past 5 years or increased? In our informal polls take from existing and prospective clients, their car insurance rates have climbed. But, in every case, their benefits have been slashed. Yet another example of paying more, but getting less.

In other cases, the other driver to the car accident will have likely reported it, so you may as well report it too. Police or tow truck drivers may report the car accident as well. And if your injuries get so bad that you can’t return to work after a long period of time, failing to report the car accident will jeopardize both your tort and accident benefit claims making your claims for fair compensation difficult to attain. This is another example of a Plaintiff failing to push their case and advance their claim. Even without a lawyer, your moves will be closely examined. The right thing to do is to report the claim to your own insurer as soon as it’s safe to do so. If your injuries are so catastrophic that you cannot report the claim on your own, then have a family member or loved one do so for you. That way the insurer can open a file, set their reserves properly, and when you ask for their assistance, there shouldn’t be much delay in having the claim set up because your file will have been opened already. This doesn’t mean meeting with an insurer, or providing a statement to an adjuster without a lawyer. All it means is setting up your claim the right way from the get go. Instead of delaying what ought to have been done long ago. It never hurts to ask. Asking is what a claimant is expected to do, even without a lawyer. For the Toronto Injury Lawyer Blog; I’m Brian Goldfinger.

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