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Long Term Disability claims aren’t simple.

I wish they were, but they just aren’t.

The amount of money you are entitled to is based entirely on your age, income, the set offs you are receiving or have received in the past, and what your long term disability policy says about the duration and quantum of benefits payable.

Are the benefits taxable or not?

Are the benefits eligible for COLA indexing?

Does the definition of disability change at the two year mark from your “own occupation” to “any occupation” or was an “own occupation” rider purchased under the policy?

Is there a means test under the Policy and if so, what is the percentage of income or income allowable?

Each long term disability policy is different.

There is no “master policy” for every employee out there. While some policies may look the same; they carry different nuances which often translate to very large differences.

When a group of employees has access to a variety of collateral benefits; things like private or public pensions (old age or disability); HOOP Benefits; OMERS Benefits; CPP; other disability benefits, vacation pay, sick pay, union benefits etc. things get complicated fast.

The more benefits available, the more complex the case.

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I think it’s fair to say that North American society has become more skeptical over the years. We are more skeptical of government. More skeptical of science. More skeptical of our leaders. More skeptical of large businesses. More skeptical in general.

Or perhaps, a more accurate comment is that social media has amplified voices for skeptics and conspiracy theorists alike.

The internet has also amplified our access to information and misinformation as well; thus giving rise to easily accessible and LOUD opinions online.

What always amazes me is that with the vast amount of information available at our fingertips; that people don’t research very basic things about their health; particularly when it comes to car accident cases.

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After you’ve been seriously injured, or even not so seriously injured in a car accident, or motorcycle accident in Ontario, the injured party; regardless of fault is entitle to accident benefits.

This is what Ontario’s “no fault” scheme of accident benefits is all about.

If you are not at fault for the car accident you’re entitled to receive accident benefits.

If you are completely at fault for the car accident you’re entitled to receive accident benefits.

If you were the passenger of a vehicle involved in a car accident you’re entitled to receive accident benefits.

If you were a pedestrian or cyclist struck by a motor vehicle; even if you don’t know the identity of the other driver; guess what: you’re entitled to receive accident benefits (even if you’re at fault for causing the car accident in the first place!).

Crazy right? Even if you cause the accident, you are entitled to receive accident benefits to assist with your recovery, attendant care needs, income replacement benefits or non earner benefits.

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The cost of Physiotherapy is NOT covered by OHIP. That means that if you need physiotherapy, someone needs to pay for it.

The cost of chiropractic treatment is NOT covered by OHIP. That means that if you need chiropractic treatment, someone needs to pay for it.

The cost of out of hospital occupational therapy is NOT covered by OHIP. That means if you need to see an occupational therapist,  someone needs to pay for it.

The same applies to psychotherapy, massage, cranial sacral treatment, nutritionist, a rehab coach, a PSW, an RSW, social work for a car accident case outside of hospital, speech language therapy, neuropsychological testing, driver retraining, case management services, psychology (not to be confused with psychiatry); even some forms of medicinal cannabis for pain management are not covered by OHIP.

All of these services are very important to accident victims for the long roads to recovery following a accident; motor vehicle or otherwise.

If the accident victim has their own form of collateral benefits with an insurer like Blue Cross, Manulife, SunLife, GreenShield, Canada Life etc.; some or percentage of those benefits may be covered. Most policies differ; but it’s not uncommon to see a cap for these services set at around $500 or $750 per year.

If the accident victim was involved in a motor vehicle accident; or an accident arising from the use or operation of motor vehicle s/he will have access to accident benefits to pay for these services.

The level of accident benefits available to each person varies depending on the coverage purchased under the policy along with the degree of injury. For the most minor accidents, people will only have access to $3,500 in benefits. For more serious accidents there is a blended level of $65,000. For the most serious accidents, there is $1,000,000 available in coverage.

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Personal Injury claimants seeking monetary compensation for their injuries and damages (think car accidents, slip and falls, dog bites, motorcycle accidents, bike accidents, long term disability cases) commence their civil claims in the Ontario Superior Court of Justice.

This is not to be confused with a Criminal proceeding or Highway Traffic Act case. Criminal Cases and Highway Traffic Act cases do NOT involve awarding the injured party monetary compensation for their damages or losses. Rather they seek to determine whether or not the accused broke the law, and if s/he did; then determining what is the appropriate punishment.

Another way of thinking about it, is that Criminal Cases and Highway Traffic Act cases are commenced and led by the State against the Accused to prove that the law was broken and to penalize the accused for their wrongdoing. It’s the public which starts and funds the case.

In contrast, civil claims are commenced by individuals or corporations using their own private funds to seek compensation for their injuries or damages. That’s not to say that a public entity cannot advance a civil claim for compensation or damages.

Civil claims are largely about money and compensation. Criminal Cases are largely about rights and protections of the person.

Most people have never set foot inside of a Courtroom, so they have no idea what Courts look like or how they work.

If people have set foot inside a Courtroom, it’s likely not have have been for a personal injury case or a case before the Ontario Superior Court of Justice.

For most people, when they go to Court, it’s on a Bi-Law matter dealing with Municipal Enforcement (like a dog bite or a property dispute with the City), a traffic offense or parking ticket (Highway Traffic Act or Municipal Bi-Law), a Criminal matter or a Family Law case. Rarely is it a personal injury case.

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My first case reported in the media was a dog bite claim. It involved a woman who has been diagnosed with PTSD. She had an emotional support dog to help her cope. One day on a walk outside of her the common area of her apartment complex; two unleashed pit bulls attacked and killed her emotional support dog, and attacked my client as well leaving both physical and emotional scars. The story was covered by a number of news outlets because pit bull bans were a hot topic; and it was a very ferocious attack leaving serious and long lasting injuries. The case eventually settled out of Court for a substantial sum. Whenever the Toronto Injury Lawyer Blog covers the topic of dog bites, I’m reminded of this case which still has a place in my heart.

If you’ve walked around your block during the pandemic and seen an increase in the number of dogs; you’re not seeing things. There has been a spike in the purchase and adoptions of dogs during the pandemic. It makes sense. More people are at home with time to care for a dog. People have been cut off from friends and family and are looking for another form of love, support and connection. There’s no better time to get a dog then when on lock down I suppose.

But with dog ownership comes great responsibility. Take away the vet bills, cost of food, accessories, training etc. It’s estimated that many of these new puppy purchases and adoptions will lead to an increased number of dogs being surrendered and shelter numbers going up.

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We like keeping our posts in tune with current events here at the Toronto Injury Lawyer Blog. We do our best to relate topics in personal injury law to current events as best we can. Sometimes global or local news themes dovetail nicely with personal injury law and how Courts work.

So for this instalment of the Toronto Injury Lawyer Blog, we thought it very interesting to discuss the American Presidential Election, and how it relates to personal injury law.

One of the most common complaints hear about the candidates for President; Donald Trump and Joe Biden; is that they lie, stretch the truth, or take liberties with the truth.

This is done so much that reporters have made careers out of fact checking politicians like Donald Trump. Toronto’s very own Daniel Dale leap frogged from local reporter at the Toronto Star, to Washington correspondent at the Toronto Star; to chief fact checker of Donal Trump at CNN and now has 1.1 million Twitter Followers. 

This is the very same Daniel Dale who received an apology from the late Toronto Mayor Rob Ford over some comments which were later proven to be false.

To go from reporting on the Mayor of the City of Toronto all the way to fact checking the Leader of the Free World in the President of the United States is a huge jump. And Mr. Dale paved his way reporting on the President of the United States by doing one simple thing right; fact checking to report the truth.

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OCF-19 Catastrophic Claims

There are special legal connotations when injuries from a car accident are deemed to be “catastrophic“. This is a term of art; meaning the term “catastrophic” has a special legal meaning.

Catastrophic is defined under the insurance act as an injury which meets one of the following criteria:

  1. Paraplegia or Tetraplegia;
  2. Severe impairment of ambulatory mobility or use of an arm, or amputation;
  3. Loss of Vision of Both Eyes;
  4. Traumatic Brain Injury (applicant 18 years of age or older at the time of the accident);
  5. Traumatic Brain Injury (applicant under 18 years of age at the time of the accident);
  6. Physical Impairment or Combination of Physical Impairment which results in 55% or more of whole person (there are additional criteria which aren’t included in this instalment of the Toronto Injury Lawyer Blog);
  7. Mental or Behavioural Impairment, Excluding Traumatic Brain Injury, Combined with a Physical Impairment which results in 55 percent or more impairment of the whole person. (there are additional criteria which aren’t included in this instalment of the Toronto Injury Lawyer Blog); and/or
  8. A Class 4 impairment (marked impairment) in three or more areas of function that precludes useful functioning or a Class 5 impairment (extreme impairment) in one or more areas of functioning, due to mental or behavioural disorder (there are additional criteria which aren’t included in this instalment of the Toronto Injury Lawyer Blog).

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Slip and falls can happen anywhere, at anytime.

Unlike a car accident case, the police don’t come to the scene of a slip and fall to record what happened; or to ticket the at fault party.

That’s very important because in a car accident case, the information regarding liability (the who, where, what, when and why) is recorded by the police. This information is later used by the parties and the Court to place the particulars of the accident in to context. The accident report is relied upon and generally weighed upon by the Court to understand how, where and when the accident happened.

The same cannot be said for a slip and fall case. There is no accident report. There is no recording by independent third party witnesses. There is no accident reconstruction.

Somtimes where a slip and fall happens in a monitored private space (like a supermarket, or a shopping mall) an employee or security guard may record an incident report. Sometimes a video camera may capture the fall itself. But more often than not, this doesn’t happen. And when it does happen, these incident reports are taken by employees, agents, contractors or servants of the defendant property owner. They have an inherent bias towards their employer or contractor to absolve them of liability. Those incident reports won’t favour the accident victim. They will be prepared in such a way as to favour the property owner which isn’t good news for the injured Plaintiff.

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Everyone is entitled to their own opinion. These opinions differ from person to person….and that’s ok.

Opinions can be based on a lot of different things: fact, belief, values, upbringing, history, education, training, experience, a gut feeling; or based on absolutely nothing at all!

You don’t need evidence to craft an opinion. It’s yours and doesn’t need to be justified by evidence, facts or anything other than that’s how you feel. And the crazy thing is how you happen to feel changes from day to day. Just like your opinion on something can change day to day, or hour to hour. Opinions aren’t concrete. They are fluid and forever changing.

Take politics. Sometimes Canadians elect a Liberal Government. Sometimes Canadians elect a Conservative Government. Other times Canadians can’t decide and elect a minority government. During an election; Canadians voice their political opinions by casting a vote for their party of choice. The party which they vote for can change from election to election. The change of vote represents a change of political support or political opinion. Opinions are fluid and change.

Evidence is completely different.

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