Articles Posted in Car Accident

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New cases are released all the time. In Canada’s common law system, new cases help build and develop our legal system. Think of it as an ever changing, evolving, legal landscape.

Some cases stay the course. Other cases change things slightly. But some cases make your eyes POP and make you question “what was going on in the Courtroom during the trial” or “what were they thinking when they released this decision“?!?!?!?

To kick off 2017 for car accident law cases in Ontario, we have one of those decisions that makes you go “hmmmmmm” and really scratch your head.

Ladies and gentlemen; I hereby introduce you to the Judge and Jury decision of Bodenstein v. Penley, 2017 ONSC 27. This case was just released at the start of 2017.

This was jury trial which appears to have lasted over the course of a few weeks, perhaps even more. A few things to note about this case:

  1. The car accident took place on August 22, 2003
  2. The Jury was charged, meaning that the meat and bones of the trial was done on December 21, 2016
  3. The Judge then released her decision on a motion on liability alone on January 3, 2017

That means that from the date of the car accident, until the date that the trial decision was released from the Judge; 4883 days had passed!!!! For all you geeks out there, that’s 13 years, 4 months and 12 days from car accident to final verdict!!!! Talk about a long time to wait to have your day in Court!

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There was a great comedy sketch on the Rick Mercer Report last night regarding Winter Driving during the first snow fall of the season.

The Canadian husband and wife drivers experienced a sort of amnesia; such that they forgot how to drive when it snowed. These grizzled Canadians had experienced countless winters before; but driving during that first snow fall of the season was like their first time driving in snow…EVER!

The husband said that he began to lose control of the car because of the snow, and then thought it would be a good idea to drive faster, break harder, and follow other cars more closely because of the snow fall. Thinking this would be a great way to regain control of his car when it began to slide.

The wife suggested turning her lights off during the snow fall to make driving in the snow easier.

They said, that with every snow flake, their memory of Canadian Winter driving got worse and worse. It was because every snow flake was “different”, and they had to adjust their tactics for each flake. They ended up doing the exact opposite of what they ought to have done. Comedy ensued.

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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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The most important form to get treatment (physio, chrio, massage, occupational therapy, counselling, speech language etc.) after a car accident in Ontario is called the OCF-18 Treatment Plan.

This is a magical form. If the OCF-18 Treatment Plan is completed properly; then your treatment will be approved and paid for by the car insurance company.

If the OCF-18 Treatment Plan isn’t completed properly, then your treatment will be denied and you may have to pay for treatment out of your own pocket. Having Treatment Plans denied can be incredibly frustrating on your road to recovery following a serious car accident.

What’s incredible and rather perplexing for the lawyers at our office is given the importance of the OCF-18, how many times this form is updated, revised or changed. There are so many different versions of the OCF-18 it’s getting hard to keep up. Just 27 days ago (October 1, 2016), the OCF-18 Treatment Plan form was revised and changed yet again! Keep in mind that the OCF-18 is just one of the many OCF forms required in an accident benefit claim. There are over 18 other forms you may need to use during the course of your accident benefit claim.

If you visit the Financial Services Commission of Ontario website (FSCO, which is the home of the OCF forms for car accidents), you will see that there are different versions of the OCF-18 Treatment Plan, along with a wide other variety of OCF Claim Forms. For Example:

There is a Revised OCF-18 Effective October 1, 2016

There is an OCF-18 Effective June 1, 2016

There is an OCF-18 Effective November 1, 2014

There is an OCF-18 Effective February 1, 2014

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In last week’s Toronto Injury Lawyer Blog, I briefly shared with you our law firm’s experience seeing and reporting auto/accident benefit fraud.

We had many calls following that blog post wanting to know more, as I didn’t really expand on what had happened.

This week, we will take this opportunity to examine what happened to our clients, and to our law firm when faced with what appeared to be a clear cut case of lies, deception and manipulation amounting to an attempted accident benefit fraud on our clients.

A friend of mine referred me to lovely family who had been involved in a serious car accident. The mom was still in hospital with a broken leg which had been operated on. She remains unable to walk, work, or engage in her normal activities of daily living. She was staying in the Ortho Floor at Credit Valley Hospital in Mississauga.

I made arrangements and eventually met with the entire family at the hospital. This is normal for personal injury lawyers to do. Hospital meetings are sometimes necessary, and at our law firm, they are free of charge.

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Here’s the scenario:

You or a loved one was hit by a negligent driver. The driver was texting on their cell phone at the time of the collision. The driver was charged and convicted of distracted driving and careless driving under the Highway Traffic Act.

Liability is clearly not an issue. The distracted driver was at fault. There will be no arguments from the Defendant Insurer’s Lawyer in that regard.

As a result of the collision, the Plaintiff sustained a brain injury, along with multiple orthopedic injuries to her neck, back, knees and wrists. The injured accident victim has under gone  6 surgeries at different hospitals across Ontario; each with different orthopedic analyst. After each surgery, the accident victim has been bed ridden for between 1-3 weeks at a time.

The person’s arms will never be the same.

The person’s legs will never be the same.

The person’s back will never be the same.

The person’s mind will never be the same.

The accident victim is completely BROKEN, and no amount of treatment, therapy, surgery or medication will ever make them whole again.

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First and foremost, I would like to thank all those loyal readers of the Toronto Injury Lawyer Blog. Your readership, positive feedback and comments are all encouraging. We are glad and proud of keeping you informed and up to speed with the ever changing legal environment for personal injury claims in Ontario.

The focus of the Toronto Injury Lawyer Blog this week will be on Catastrophic motor vehicle accident claims, or CAT claims as they`re known in the industry.

CAT claims are in the category of the most serious cases we see at our law firm. Not just any run of the mill car accident case will qualify as catastrophic. There is an ever changing medico-legal definition of that it takes for injuries from a car accident to be categorised as catastrophic. The medico-legal definition changed very recently (June 1, 2016 to be exact). Any accident after June 1, 2016 will be tested based on the new CAT test, which is itemised in the OCF-19 Application For Catastrophic Impairment Form as follows:

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Certain fact patterns in cases are so unbelievable, that even the most experienced and seasoned personal injury lawyer can’t make them up. Just when you thought you’d seen it all…

It’s common for insurers in Ontario (and all across Canada for that matter), to retain private investigators to conduct surveillance on injured accident victims. The investigators are paid by the insurer to follow as discretely as possible the Plaintiff and try to catch them in the act of doing something that runs contrary to their case.

For example, if the medical records from the Plaintiff’s medical experts show that the Plaintiff can’t run; and the Plaintiff at his/her Examination for Discovery states on the record and under oath that s/he can’t run; but the insurer has video surveillance of that very same person running in multiple marathons/races post accident; then that Plaintiff’s credibility will be left in doubt for a Judge and Jury at trial.

If the Plaintiff complains that s/he cannot work and cannot lift, but there is surveillance showing that same person working at a rock quarry lifting heavy boulders; again that person’s credibility will be a big issue at trial.

If the Plaintiff is lying about this, then what’ s to say that s/he isn’t lying about that? What’s to say that the Plaintiff isn’t lying about how the accident happened, the severity of their injuries, and how their injuries are impacting their day to day life? Can we now trust anything this person has to say?

Credibility and likeability are two big factors at trial. The more credible and likeable the Plaintiff is for a Judge/Jury; the greater the chance his/her version of the events and injuries will be believed. That translates in to a greater award at trial. The same goes the other way. The less credible and likeable the Plaintiff, the greater likelihood his/her version of the events will not be accepted. This will translate in to a lesser award at trial.

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One of the most commonly asked questions of our personal injury lawyers is how innocent car accident victims can get the insurance company to pay for their medical/rehab treatment following a car accident. This involves the proposed service provider completing the OCF-18 Treatment Plan Form.The Toronto Injury Lawyer Blog has already written on the topic of completing the OCF-18 Treatment Plan Form. This previous entry can be accessed here. But, since this question is asked of us so much, we thought it would be of great use to re-visit the topic. After all; getting the car insurer to pay for your post accident treatment is important to your rehabilitation and peace of mind. It certainly seems unfair if you would have to pay for the treatment out of your own pocket when you’re not able to earn an income following a serious collision.

Treatment payments are generally covered after a car accident through Ontario’s No Fault Accident Benefit regime. But, the accident benefit scheme is very complicated and can be very tricky to manage on your own. Even for lawyers, the system is tricky.

For starters, the first form that needs to be completed is the OCF-1 Application for Accident Benefits. This form opens up an accident benefit claim for the insurance company. Once an accident benefit claim has been opened, you’re then eligible for med/rehab benefits such that the insurer ought to pay for the cost of your treatment.

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Three words that can get any Ontarian excited are “August Long Weekend“!

Our personal injury law firm has seen a pattern over the past 8 years of a spike in new client calls after the long weekend in the following areas:

  • Drunk Driving & Drunk Boating cases
  • Fatality Claims (they happen nearly every long weekend)
  • Car Accident claims related to speed
  • Violent Assault claims (alcohol related)

So what happens over the long weekend that we see an increase in personal injury claims? Does everyone lose their mind or is it just bad luck? Are many of these accidents preventable? All good questions.

For starters, lots of people get excited for a summer long weekend. Why not? Fun in the sun after a long, cold Canadian winter. It’s perfectly reasonable to get excited.

Lots of people travel over the long weekend. They get out of town and go visit friends, go to a cottage, go camping etc. That means more people on the roads with places to go and destinations in mind. And those people travelling on the road want to arrive at their respective destinations as soon as possible so their long weekend can begin. For most, the long weekend doesn’t officially begin until you’ve arrived at your destination.

This means a greater likelihood of speeding. We all know that speeding increased the chance of car accidents, and car accidents at higher speeds normally equate to more severe damages and injuries. That’s not to say that car accidents at lower speeds cannot result in serious damages or serious injuries either.

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