You or your child or other family member have had a serious injury. Within days of that injury, you will come face to face with the insurance system of Ontario and all its demands, its technicalities and its frustrations. This is the system that dictates what compensation for the injury and funding for treatment and rehabilitation is available. In the coming months and in some cases years, you will hear terms like, “Bill 198”, “no fault”, “threshold”, “accident benefits”. You will be asked to complete forms, sign statements and attend meetings and medical assessments. You are going to need help to negotiate this system and get access to the funding you need.

Bill 198 is the Insurance Act of the Province of Ontario, which prescribes the coverage and benefits to which victims of automobile accidents are entitled.

No Fault really means “regardless of fault”. The system provides that you look first to your own insurance company for out of pocket expenses, income replacement and treatment costs, regardless of who was at fault for the accident. If you have a vehicle in your household, even if that vehicle was not involved in the accident, you should immediately put your own insurer on notice. If you, or your family member were not at fault for the accident, this should not affect your premiums.

There is a common misconception in the community that because of “no fault” insurance, there is no longer a right to sue for injuries. That is only true for minor injuries. If you have a serious injury or a loss of income which is not completely covered by the benefits paid by your own insurer, you should consult with a personal injury lawyer as to whether you have a claim against the at fault driver(s). The “threshold” for making a claim is discussed in detail below.

“Accident Benefits” is the term used to refer to the benefits covered by your own insurer.

AT WHAT STAGE DO I NEED A LAWYER?

In the case of serious injuries, you should have a lawyer as soon as you feel able to give wise consideration to the selection of an expert in the area of your specific injury. You may think you cannot afford a lawyer, but most personal injury lawyers wait to be paid out of the outcome of the case. There are experts in this field who will give you a free initial consultation. You may feel overwhelmed and unable to deal with a lawyer at first, but having an expert involved, handling the technicalities and educating you, can ease your load tremendously so that you can focus on your own recovery or that of your child or loved one. There are technical requirements and time limits which may apply to you. It is best to have a lawyer involved from the earliest time to make sure deadlines are met.

Most people do not need a lawyer many times in their lives. Many people who are injured in accidents have never had anything to do with a lawyer or the insurance system before. This lack of experience at being a client makes it very difficult for people to assess the services they are getting from their lawyer and to know whether their expectations are reasonable, or their dissatisfaction is based in the reality of their lawyer’s inability to handle their case well or based on unrealistic expectations and/or lack of understanding of the law and the system.

HOW DO I FIND THE RIGHT LAWYER?

If you or someone you care for has been seriously injured in an accident, you need a personal injury lawyer. The insurance law has changed 4 times in the last 10 years; the last amendment came into force on October 1, 2003. Rights and coverages have changed significantly. You need a lawyer with expertise and experience handling serious injury claims, especially the type of injury which you have sustained.

Generally speaking, you should not choose the lawyer who acted for you when you bought your house or made your will. There are lawyers who specialize in personal injury cases, and a small number who have expertise in handling brain injury cases.

Here are some suggestions when choosing a lawyer for your personal injury case:

1. Ask for the advice of your treatment providers: the trauma unit of the hospital where you receive your initial care, the team at your rehabilitation centre, your case manager or therapists. Through their work, these people have regular first-hand exposure to the law firms in this field and can help steer you in the right direction.
   
   
2. If you have a brain injury, you can ask advice from your local brain injury association and/or the Ontario Brain Injury Association. These associations can help you choose your lawyer and/or help you assess the services you are getting from the lawyer you have.
   
   
3. Is the lawyer who will be handling your case certified as a specialist in Civil Litigation by the Law Society of Upper Canada? This is not essential, but it does mean that the person has been recognized by their governing body and their peers as a specialist in their area of practice.
   
   
4. Does the lawyer who will be handling your case restrict their practice to personal injury cases?
   
   
5. Is the law firm recognized within the service providing community as expert in this field? Has the lawyer participated in professional development of others as an educator either through speaking or writing articles.
   
   
6. Do you feel comfortable with and confident in the lawyer and in the environment of his or her offices? After researching the lawyer’s expertise in the area, this is a critical consideration. You will be placing a lot of trust in your lawyer to represent you in a system which is foreign to your experience. You will want to choose a lawyer with whom you feel comfortable and in whom you feel confident. Your law firm and its members must be approachable and accessible. Within the personal injury bar, there are different philosophies of practice and image, from the large corporate power image to the small personal touch and involvement philosophy. Choose the one in which you feel most confident and comfortable.

IS THERE ANYTHING SPECIFIC I SHOULD LOOK FOR IN AN ADVOCATE WHEN I HAVE A BRAIN INJURY?

For survivors of traumatic brain injury, there is an added complication: you must have a lawyer who understands your injury and its implications for your life both in the short term and in the long term. THE IMPORTANCE OF HAVING A LAWYER WHO HAS EXPERTISE IN HANDLING BRAIN INJURY CASES CANNOT BE STRESSED ENOUGH.

Individuals with brain injury often tend to minimize and/or deny their problems (This is especially true of children, adolescents and teenagers). They often lack insight into the way their injury is impacting on their life and the lives of the people around them. Denial, poor judgment, loss of impulse control, rigidity and an inability to initiate or act on their intentions, problems with memory and concentration and fatigue are all common symptoms of brain injury. If you have had trouble recognizing these symptoms in yourself or your child, think how much more difficult it will be for a lawyer who didn’t know you before and who doesn’t understand your injury to recognize them in you. You need someone acting for you who, through experience with others, understands your injury or the injury to your child better than you understand it yourself—a lawyer who knows what is available to help you, who is familiar with the experts in your location and who can work with the experts to make sure your case is well documented. It is not enough to have a case; it must be proven.

Inexperienced lawyers will rely on their client’s statements about their own level of functioning. This can lead to serious under-evaluation of the claim. Brain injury cases are usually very difficult to present at trial. Most people with a brain injury look perfectly normal. There may be no external evidence of disability. Further, to the lay person and to the inexperienced lawyer, the client’s deficits are not always immediately discernible and clients with brain injury often over-represent their capacity and ability. The lawyer’s challenge is complicated even more by the fact that the health care system very often, if not properly directed, lets individuals with brain injury down. Because of the inability to initiate and follow through, patients are often left untreated.

You need a lawyer who can advocate for you within the insurance system, but also within the medical system and to make sure that your injuries and problems are well and convincingly documented.

HOW DO I ASSESS THE SERVICES I AM GETTING? CAN I CHANGE LAWYERS?

You have the right to be comfortable with all of your treatment providers, legal, medical and rehabilitation. If, at any time, you feel uncomfortable with any of your service providers, or sense that they are working more for the interests of the insurance company rather than your interests, discuss your concerns with your lawyer. Although your service providers are paid by insurance coverage, they are supposed to be working for you.

Your communication with and confidence and trust in your lawyer will be important over the next months or years as your case progresses. Although you have probably not dealt much with lawyers before now, you have developed instincts that have served you well in meeting the challenges of your life. Listen to your instincts; If they tell you that you are not getting good service or that your lawyer doesn’t seem to have the expertise your case requires, ask questions. Talk to your lawyer about your expectations and concerns. Talk to your service providers about your concerns.

If you are unhappy with your lawyer or sense that your lawyer does not have the required expertise, and after discussing your concerns with the lawyer and others whose judgment you respect, your concerns are not allayed, you should seek a second opinion. It is not difficult to change lawyers. The new lawyer will protect the fees of the previous lawyer out of the outcome of the case.

After a claim is started, the first major stage of the action which involves your attendance is the examination for discovery. This is the stage of the action where the opposing lawyer meets you and asks you questions about the accident and your injuries. Preparation for the examination for discovery is one of the most important stages of the litigation. If your lawyer attempts to present you for a discovery without having prepared you beforehand, then you definitely have the wrong lawyer. You should expect to meet with your lawyer and be prepared in detail for how to answer the questions that will be asked during the formal hearing. If you are thinking of changing lawyers, by all means do it BEFORE the examination for discovery. The longer you allow litigation to go on without the right lawyer acting for you, the more of an uphill battle your new lawyer will have. Your new lawyer will have to go over all of the ground again, figure out what has been done and try to make up for lost time and lost opportunities.

HOW DOES THE “SYSTEM” WORK?

Lawyers do not make the law and they can never get you a better result than the law provides. Secondly, the insurance system is a very frustrating one. Insurance companies are in business. Like every other business, if they are not profitable, they do not continue in business, so their objective is often to pay as little as possible and still seem to fulfill their contractual obligations. Insurance companies often have internal policies as to how they will respond to certain kinds of claims and if your case falls into that category, you may be treated according to that policy rather than as the merits of your individual case deserve. The role of the lawyer in those circumstances is to advocate for you to get you the benefits to which you are entitled. Don’t assume that because the insurance company tells you they won’t pay, you are not entitled. Sometimes they are right, sometimes they are wrong, sometimes it is debatable and sometimes you need someone to fight for those “maybes”.

One of the realities of this business is that there have been some claimants before you who have tried to take advantage of the system. Insurance companies are used to meeting people who don’t tell the truth and those people have paved the way for the difficulties most legitimate claimants experience.

If your benefits are cut off or not paid in a timely fashion or not paid at all, that is not necessarily because you have an incompetent lawyer. If the system worked perfectly, you would not need a lawyer at all. The reason you need a lawyer is because the system does not work perfectly and insurance companies have a difference of opinion with you as to whether your disability is as serious as you know it is. They put everything to the test of proof; and when it is in their interest to cut off your benefits or prolong your case, they may do so.

After giving notice of your accident to the insurers, you will be contacted by a “claims adjuster”. The adjuster for your own insurer, will provide you with a package of forms to be completed and ask you for a statement as to how the accident happened. Your own insurance company is entitled under the terms of your policy to a statement. If it is unclear who is at fault for the accident, you should retain your lawyer before giving that statement.

You will also be contacted by an adjuster for the other driver’s insurer. You are under no obligation to give any statement to them and it is usually unwise to do so.

WHAT IS THE LAW THAT APPLIES TO MY SITUATION?

If your accident happened after October 1, 2003, the legislation which applies is Bill 198, the Insurance Act passed by the Conservative government just before the Fall election that year.

NO FAULT

Your own policy provides coverage for medical and rehabilitation expenses to a maximum of $100,000 for non-catastrophic, and $1 million per claimant, where the injury is determined to cause catastrophic impairment as defined by the legislation. This coverage is there to cover out of pocket expenses which your treatment providers say are reasonable and necessary expenses incurred because of the individual’s injury. It is only payable as necessary expenses are incurred. Be sure to save all your receipts. Once the maximum of $100,000 is spent, there is no further coverage for medical and rehabilitation expenses under the Accident Benefits, but your additional expenses can be claimed in an action against the at fault driver. In the case of catastrophic impairment, there is $1million of coverage under accident benefits and excess expenses can be claimed in the action against the at fault driver.

There is also “attendant care” coverage. Where this is needed, this coverage has a monthly maximum of $3,000 for non catastrophic for a maximum of 2 years and $6,000 for catastrophic, and a total maximum of $1 million, as needed. A member of the family or friend may provide “attendant care” and be paid for it. You should provide us with all the details of care provided.

If you were injured and you were employed at the date of the accident, Bill 198 provides for income replacement benefits in the amount of 80% of your net income to a maximum of $400/week. Special rules apply to self employed individuals. If you have private insurance or benefits through your work, they pay first.

Full time students qualify for weekly benefits at the age of 16 or 26 weeks after the injury, whichever is later, provided they suffer a complete inability to carry on normal life. The “non-earner” benefit is $185/week commencing 6 months after the injury, for the next 104 weeks and then $320/week as long as the person remains completely disabled from normal life.

If the injured person is the primary caregiver of dependents, and remains substantially unable to engage in the caregiving activities required for those dependents, he or she is entitled to a “caregiver benefit” of $250/week for the first dependent and $50/week for each additional dependent.

If you are a family member of the injured person., your own loss of income will only be covered if you are considered by the treatment team to be providing necessary attendant care to the injured person. Whether you are entitled to any compensation for the care you provide is determined on a case by case basis.

TORT

If the accident was caused by someone else’s negligence, there may also be a claim against the at fault driver. The other driver being at least partially at fault is a pre requisite to any claim against his insurer. There is one further pre-condition, which is that the claimant must be found to have sustained “serious and permanent impairment of an important physical, mental or psychological function”; this test is commonly referred to as “the threshold”. It is the legal definition of the test applied by the court to decide if a claim can be made. Once a claim meets the threshold and is quantified, it is subject to a $15,000 deductible, per claimant and is limited to general damages for the injury. If the injured person meets the threshold, there may also be claims for family members, subject to a $7,500 deductible. (Deductibles do not apply if damages are greater than $100,000 for the injured person and $50,000 for the family claimants)

Bill 198 provides for a claim for future loss of income and loss of earning capacity. There can also be a claim for out of pocket medical and rehabilitation expenses which exceed the coverage in your own policy.

TO WHAT INFORMATION IS THE INSURANCE COMPANY ENTITLED?

The foundation of every case is the facts of the survivor’s life, both before and after the injury. In the initial stages of a case, most of the focus is on information gathering. Some of that information you provide orally, but much of it is contained in documents such as hospital records, medical reports, rehabilitation records, school and/or employment records.

You should not give statements or provide information to anyone without consulting with your lawyer first.

You should be aware that your medical records from both before and after the accident will be considered relevant, and those records will be requested. Any necessary information from the Income Tax Department, employers, schools, or other persons also may be obtained. When you sign blank authorizations, you should be aware that they will be used to secure the release of this type of information.

In addition to information you provide, insurers are entitled to do their own investigation. Insurers may conduct surveillance of you through investigators to attempt to get information concerning your level of functioning. This is legal as long as it is not harassing. They may also attempt to interview your neighbours, friends, teachers or employers. Information in the possession of schools and employers is confidential and should not be disclosed without your permission. Whether your neighbours and friends talk to the insurer’s investigators is a matter of their own discretion. They may, but they don’t have to. The insurers of the opposing parties or their representatives are not allowed to contact you directly once you are represented by a lawyer.

WHAT IS MY CASE WORTH?

The value of personal injury cases is determined based on the severity of the injuries, how long they last, and how they impair an individual’s ability to function, compared to how they would have functioned if the accident had not occurred. Just knowing what injuries a person sustained is not sufficient; we have to wait to see how well the person recovers from their injuries, how they benefit from rehabilitation and how the injuries will impact on their functioning later in their life. We depend on the doctors to give us this information. When the treatment providers are able to make a prognosis concerning the probable outcome and the real risks for the future, then we can proceed with the action. It is only when we have good medical information as to the diagnosis and prognosis, especially concerning future care and employability that any assessment of the case will be possible.

DO I HAVE TO SUE SOMEBODY?

If settlement cannot be reached with the insurance company for the person at fault, a law suit is formally commenced by the issuance of a Statement of Claim. This claim is issued naming the person or persons who caused or contributed to the accident happening. The claim must name the person in order to gain access to their insurance policy. Although the claim names individuals, the claim is actually defended and paid by the person’s insurance company.

A lawsuit is started by delivering to the other party a document called a Statement of Claim which indicates to him that he is being sued as a result of the accident. The other party is called a defendant. The defendant takes these papers to his insurance company, which delivers them to its lawyers. The lawyers then deliver a Statement of Defence.

In the case of car accidents, a claim must be started no later than 2 years after the accident. There are shorter limitations for making a claim in some cases. In the case of injured children, limitation dates are extended until they reach age of majority.

Although a lawsuit may be started, a negotiated settlement is always possible, and most cases are concluded without having to go to trial.

WHAT LEGAL FEES SHOULD I EXPECT?

ACTION AGAINST THE PERSON AT FAULT FOR THE INJURY

In the Province of Ontario, an injured party who achieves any reasonable degree of success in his lawsuit is entitled to recover from the Defendant certain legal costs. These costs are in addition to any damages to which an injured party is entitled regardless of whether the case is settled or proceeds through a trial or Judgment. These “costs” will defray a portion of your lawyer’s total legal bill to you. Your lawyer will have an account to render to you at the conclusion of your case in excess of the portion of costs paid by the insurer. The additional portion of the bill for which you will be responsible, will normally be in proportion to the result eventually achieved.

In addition to the time and effort which your lawyers and their staff will spend on your case as it proceeds, they will be required to expend sums of money on police reports, driver and ownership searches, medical records, court documents, etc. The amount of these disbursements range depending on the individual’s injuries, but are usually a minimum of $1,500.

As a general rule, law firms specializing in personal injury do not ask you to pay legal fees until the conclusion of the case or until some interim payment is made. The exception to this rule arises with high risk litigation or when a client insists on proceeding against their lawyer’s recommendations. Under these circumstances, most lawyers reserve the right to ask for fees to be paid before proceeding further with the case.

Of course, any financial retainer paid to your lawyer during the course of your lawsuit will be credited against their bill at the end of the case.

ACCIDENT BENEFITS FROM YOUR OWN INSURANCE COMPANY:

Once all the preliminary requirements are met and your claim is set up, it is often appropriate for you to deal with your own insurance company for the benefits covered under your policy with minimal need for intervention on the part of your lawyer. Your expenses and requests for funding can be submitted directly to your insurer by you and their payments made directly to you. This avoids the delay of the funds passing through an extra set of hands and unnecessary legal fees. Provided the insurer funds your requests, your lawyer’s involvement will only be in an oversight capacity. If there are any receipts submitted to your insurer which are not honoured promptly, you should advise your lawyer immediately. Similarly, if there is any service recommended by the team and turned down by the insurer, you should advise your lawyer right away.

While you are collecting accident benefits from your own insurer, they may ask you to attend medical assessments. They have the right under the Insurance policy to require certain medical assessments. However, there are some instances where your lawyer would want to object to the assessment, the assessor or the timing of the assessment, so it is recommended that you do not attend any medical appointment arranged by your insurer without advising your lawyer about it first.

Where an insurer cuts off accident benefits or refuses to pay an out of pocket expense, there are procedures set up through the Financial Services Commission of Ontario to mediate and then arbitrate those disputes.

If your lawyer has to become involved in mediating or arbitrating the termination of any benefit refused by your insurance company, additional legal fees will usually be charged.

Some law firms advertise or promote on the basis that they provide in house rehabilitation consultants. You should not be paying legal fees for rehabilitation services. Rehabilitation services are a funded service under your insurance policy, provided they are independent of your legal representatives.

WHAT SHOULD I TELL MY LAWYER?

If you are to get the best result in your case, you must find a lawyer in whom you feel confident and then you must trust your lawyer and take his or her advice and direction.

You must tell your lawyer the truth at all times. Never try to hide something from your own lawyer that you think might hurt your case. If your lawyer knows the truth, he or she can always work with it and cast it in the best light. But if the opposition knows more about the client’s case than his own lawyer, then the best result is impossible.

If you have an acquired brain injury then it is extremely relevant and important to your lawyer to know if you have, or have had in the past, a learning disability, behavioural problems, trouble with the law, abuse of alcohol or drugs, previous head injury or illness where you have been deprived of oxygen or have had loss of consciousness, history of seizure or fainting, and or any psychiatric problems or psychiatric or psychological treatment.
You should go to all of your appointments with your lawyer with a trusted family member or friend. That person can then remind you of the details of the meeting which you may forget. They can also provide their observations of the changes in you which can be very helpful to your lawyer in preparing your case.

CONCLUSION

The results of your insurance claims will have a significant long-term impact for you and/or your child or loved one. The more expertise your lawyer has, the better the result is likely to be. The system only provides so much, and often the system seems unfair and inadequate. Even the best lawyer must work within the system and can only get you what the system provides.

It is difficult to predict the long term effects of brain injury on an adult and even more difficult to predict their effects on a child. The settlement of a case is once and for all. You owe it to yourself and your family to make sure you have a lawyer who has the experience and expertise to protect your future.

Amended November 2003

Nancy Ralph is certified by the Law Society as a Specialist in Civil Litigation. She is the president of Nancy Ralph & Associates. Her law firm is a team of professionals committed to being pacesetters and leaders in providing legal representation to survivors of serious injuries and the families of those seriously or fatally injured, according to a standard of excellence in advocacy, service and education.