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Starting a personal injury case arising from a car accident

I’ve been involved in a car accident.

How do I start my personal injury case?

This should be an easy question. And it was a much easier question to answer in the 70’s or in the 80’s. But in 2022, car accident law along with car accident cases have become very complex. Car accident law should NOT be rocket science. Unfortunately, it has become rather close needing skilled and expert personal injury lawyers to handle these sort of cases.

Let’s get the stuff out of the way which does NOT require the expertise of a skilled personal injury lawyer.

You don’t need a personal injury lawyer to dial 9-1-1 to contact the police or an ambulance about your car accident

You don’t need a personal injury lawyer to go to the hospital to get medical treatment for your injuries

You don’t need a personal injury lawyer to get the name, contact and insurance information of the other driver (but your lawyer car certainly do that if you forgot or could not do so)

You don’t need a personal injury lawyer to report the accident to your own insurance company (although your personal injury lawyer can do that as well if you’re not able to do so on account of your injuries)

You do not need a personal injury lawyer to take photographs of your injuries or of the damage to the vehicle(s) involved in the car accident

All of these things sound and ought to be simple. It’s common sense. But the thing about common sense is that it ain’t so common.

Once the dust has settled, it’s time to contact a skilled and experienced personal injury lawyer to hear their thoughts on your case and to hear about how they can help you out with your situation. If you sit on making that call, you are only hurting your case. Justice delayed is justice denied. Evidence gets lost or conveniently “misplaced” to your detriment. Memories of the accident fade. Insurers don’t like late reporting car accident claims. They law says that they need time to conduct their investigations so they aren’t railroaded with countless last second claims. As the process goes along you will quickly notice that car accident laws grant a lot of indulgences of insurers and very few for accident victims. This law against late reporting is one of those many indulgences.

Your personal injury lawyer will assess your claim and give you his/her thoughts on how to proceed. After the initial intake, conflict searches and investigations are completed, the personal injury lawyer will assist you in completing the OCF-1 Application for Accident Benefits, along with the OCF-2 Employer’s Confirmation of Income Form, OCF-3 Disability Certificate, OCF-6 Application for Expenses and an OCF-10 Election Form.

All of these forms are likely new to you. They are not new for your personal injury lawyer. Completing these forms the wrong way, or submitting them out of time will hurt your personal injury case. Getting these forms in correctly and on time will certainly help your case and help you get the compensation and benefits that you need.linkedin-2-300x300

Here are some common mistakes in completing the OCF Claim forms:

  • Failure to sign and date the forms
  • Failure to initial the OCF-1 Form at Part 11 for direct pay to your service providers. This can result in delays in getting treatment or can even result in the injured accident victim owing his/her treatment provider money
  • OCF-1 not completed in its entirety
  • OCF-3 not read properly by the physician completing the form and indicates that the applicant is “able” to return to work or function normally when is ought to have been marked “unable”
  • OCF-3 completed in such a way which disentitles the applicant to benefits instead of the other way around
  • OCF-10 not completed, or completed to elect the Income Replacement Benefit when the Non-Earner Benefit was the more appropriate way to go (or vice versa)
  • OCF Forms not submitted on time, or not submitted to the right insurance company, or to the correct department at the insurance company. The result is that the forms conveniently get “lost” and the applicant has no way of showing how, where or when the forms were submitted.

This accident benefit claim is against your own insurer. That may seem odd, especially if you are NOT at fault for the car accident. But Ontario has its own no fault system of accident benefits for car accident cases. That means regardless of fault, the car accident needs to be reported to your own car insurer and they take care of the first party “accident benefit claim“.

When the injuries are deemed to be both “serious and permanent”, and your lawyer is able to establish a case for negligence against an at fault driver; then chances are that you will have a strong tort claim. The tort claim is considered the case for pain and suffering along with all other damages which are not covered by the accident benefit claim. These damages include, but aren’t limited to general damages for pain and suffering; past and future cost of care; past and future income loss; loss of competitive advantage in the workplace; past and future attendant care; past and future housekeeping; past and future home maintenance; along with any out of pocket expenses not covered by accident benefit or by any other collateral insurance. It’s important for your personal injury lawyer to investigate the route cause of the accident, any potential underlying insurance coverage issues and get a notice letter out to the at fault party or parties. The sooner this is done, the better.

What often happens with these cases is that insurers look for any reason to pass the blame along to another party. What you may have thought was a simple accident may develop in to a complicated coverage dispute between insurers or even the Government’s “Claims Fund” if the argument is that there was absolutely no coverage in place. These coverage disputes delay the claim significantly because no party wants to pay. They are all seeking to place the blame on another party/insurer. Having your personal injury lawyer get these issues out of the way sooner, rather than later is a formula for a successful claim.

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