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Sometimes, the Toronto Injury Lawyer Blog examines recent cases that we think our readership will enjoy. We do our best not to make the legal analysis too technical, because that just turns in to a snooze fest. We want to keep things light, upbeat and easy/enjoyable to read. The law can be very dry and we don’t want our blog to become a bore.

Reading the Ontario Reports this week, we came across an interesting Long Term Disability Benefits decision involving a disability claimant, Ms. Garneau; and her LTD insurer, Industrial Alliance.

The decision was taken to Ontario’s Highest Court, (just shy of the Supreme Court of Canada); to the Ontario Court of Appeal on Queen St. in Toronto.

The decision appeal decision of Garneau v. Industrial Alliance Insurance and Financial Servics Inc. 2015, ONCA 234 can be read here. The motion for a reduction in set offs at the Superior Court level can be read here. The initial decision which was being appealed can be read here.

What makes this case so interesting for our law firm? Read on and we will share with you.

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When injured accident victims think about damages, they often think of those valuations in very linear terms; as if they’re on a straight line.

Broken knee? $100,000 plus $150,000 loss of income = $250,000

Fractured wrist? $50,000 plus $25,000 loss of income = $75,000

These are very simple mathematical equations. The problem is these equations are too simple and don’t take in to consideration the whole story.

What accident victims don’t know is that often insurer are entitled to credits or set offs when calculating damages to make sure that the Plaintiff is not over paid for their injuries.

There are many examples when an insurance company is entitled to a set off. What is a set off?

Essentially, it’s a credit in favour of the insurance company. Take the example of a person who was involved in a catastrophic car accident. Prior to the car accident, they were earning $40,000/year. They will never be able to work again on account of a traumatic brain injury.

They are receiving an income replacement benefit in the amount of $400/week from their accident benefit insurer. The total amount of income replacement benefits equal $20,800/year.

If the tort insurer pays 100% of the $40,000 income loss; then the accident victim ends up with $60,800/year ($40,000 + $20,800). That would mean that the accident victim is in a better income position post accident than pre-accident. While this is great to see; unfortunately, this is NOT how the law or the Insurance Act works. In this example, the tort insurer is entitled to a credit; commonly known as a “set off” to make sure this type of over payment doesn’t happen. That set off would be for $20,800 for the income replacement benefits already paid out. Therefore, in order to make the accident victim whole, the tort insurer will pay the difference, that being $40,000-$20,800 = $19,200.

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If insurers paid out maximum compensation on each and every claim, there wouldn’t be any need for personal injury lawyers or paralegals who focus on benefit accident claims.

Why does an injured accident victim or disability claimant need a lawyer, if the insurer is paying them out the full value of their claim up front; without any hassle?

But, if an insurer paid out the maximum value of each and every claim which came across their table, chances are they wouldn’t be as profitable as they are; or profitable at all.

As much as we are made to believe that insurers are there to look out for our best interests and pay out when they are supposed to; at the end of the day; insurance companies exist to MAKE MONEY.

Many Canadian insurance companies trade on the Toronto Stock Exchange (TSX). Here are a few examples along with their stock symbols, along with current share values as of the time of preparing this Toronto Injury Lawyer Blog Post on July 7, 2015:

Intact Financial Corp: IFC $90.57

Sun Life Financial: SLF $41.80

Manulife Financial: MLF $23.03

Co-Operators General Insurance: CCS-PS $23.79

Those are just a few of the examples of insurance companies which do business in Canada, who trade of the Toronto Stock Exchange.

Those stock symbols and share prices are VERY important. If those share prices drop significantly, millions, if not billions of dollars will be lost value and options for shareholders around the world.

If one of these insurers paid out ALL claims, regardless of merit of an entire year, chances are those stock values would dip dramatically.

So, when accident victims or disability claimants wonder why so many claims are denied at first instance, or why insurers refused to believe what their doctors have to say about their injuries, there is a financial reason for this.

The more money an insurer pays out to your for your claim, the less money they get to report in profits for their share holders.There are certainly a variety of their factors involved in insurer profits, but this is one of the most tangible concepts for accident victims and disability claimants to understand.

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Happy Canada Day! It’s a time to celebrate our beautiful country, friends and family. For many, Canada Day will involve good food, good beverage, and participating in outdoor activities.

In the days following Canada Day, our law firm often gets a number of calls and inquiries regarding injuries which took place in the great outdoors during Canada Day celebrations. There is a common thread with these calls, which I would like to share with you in order to ensure that your holiday is a safe one. Because afterall, who wants their Canada Day celebration ruined on account of a serious injury or accident. This is the last thing you want over a long weekend.

So without further a due, here are Goldfinger Injury Lawyers’s top safety tips for the Canada Day holiday:

1. Drinking and Driving; Drugs and Driving and Texing and Driving is always a dumb decision. Don’t do it. But let me take this one step further in tip #2…

2. Alcohol, or Drugs and Any MOTORIZED equipment don’t mix either! Operating a chain saw, a scooter,an e-bike, a small engine boat, an ATV, a Sea-Do; you name it. If it’s motorized and you’ve been drinking or have taken a narcotic; it’s not a good mix. You would be amazed at the amount of weird fact pattern calls we get following summer long weekends involving operating some sort of motorized vehicle and drinking. Often, these vehicles aren’t insured, and are being operated where they shouldn’t be operated. Play it safe from the start so you don’t need a personal injury lawyer to figure out how an insurer is going to respond and perhaps pay out for such a claim. There is no magic pill to get your health back, and no amount of money; no matter how large will ever restore your health. People don’t often understand that concept. A million dollar, or two million dollar award, or even higher will NEVER restore an accident victim’s ability to walk.

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You’ve been injured in a car accident, or you’ve made a claim for Long Term Disability Benefits.

Benefits have not yet been paid. The insurance is giving you a tough time. They’re treating you like you’ve done something wrong; when all you’ve done is been in the wrong place at the wrong time resulting in serious injuries. All you want are the benefits you need to help you get better, and make ends meet. After all, isn’t that what insurance is for? Isn’t that why you’ve paid mountains of money in premiums all of these years.

You receive a notice in the mail from your insurer. They want you to attend an IME (Independent Medical Examination) with some doctor or therapist who you’ve never heard of, in a strip plaza or office tower that’s far away from home.

Transportation has been arranged, but the assessment is still going to take up a lot of your time.

You have yet to receive any benefits so why should you bother to attend? You don’t want some strange doctor or therapist touching you, or asking you all sorts of personal questions, and then reporting their findings to strangers at the insurance company. It all seems weird. And who’s paying for these examinations anyway? They aren’t covered by OHIP, and you know that doctors’ time isn’t cheap.

If the request for an IME is as a result of a car accident, unfortunately, the Insurance Act and the Statutory Accident Benefits Schedule (that’s the law dealing with car accident benefit claims) requires that you attend.

Here is an excerpt of the relevant section of the SABS:

Examination Required by Insurer

42.  (1)  For the purposes of assisting an insurer determine if an insured person is or continues to be entitled to a benefit under this Regulation for which an application is made, an insurer may, as often as is reasonably necessary, require an insured person to be examined under this section by one or more persons chosen by the insurer who are members of a health profession or are social workers or who have knowledge in vocational rehabilitation. O. Reg. 546/05, s. 21.

So, you’ve now read the law which basically requires your attendance at these examinations. Still..what happens if you just don’t go? Read on and we will tell you!

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One of the most commonly asked questions of clients at my law firm is “how much is my case worth?”

This is never an easy question to answer.  When assessing the value of a claim, particularly an LTD claim, there are a variety of factors which need to be examined such as:

  • The age of the LTD Claimant
  • The duration which benefits are payable under the policy (age 65 or earlier?)
  • Were any back payments/arrears paid out by the LTD Insurer or not?
  • The value of the monthly LTD benefit
  • Are there any set offs which the LTD insurer is entitled to under the policy such as CPP, WSIB or otherwise
  • Is there an all source maximum deduction at play
  • What are the nature of the injuries causing the disability and are those injuries likely to heal
  • What the claimant’s doctors have to say about a potential return to work
  • What the insurer doctors have to say about the injuries and the potential return to work
  • Has the insurer conducted any surveillance (real time, online, cyber or otherwise) and what does that surveillance show
  • What sort of education, training and work experience does the claimant have
  • Can the claimant read and write in English or French
  • What is the employability potential of the claimant following the LTD claim
  • Has there been any bad faith handling of the LTD file on the part of the insurer. If so, what is the nature of that bad faith claims handling and how has it impacted the claimant’s entitlement to LTD benefits?

The value of the LTD claim depends in large part on how the above noted questions are answered, amongst other factors which may be unique to one’s case.

Unlike other injury or accident cases, LTD claims are largely assessed based on mathematical equations. Take the value of the LTD benefit, less any off sets, by the number of months owing in arrears and future benefits owing by the insurer; et voila; you will have the maximum exposure owing by an insurer.

In a car accident claim, the award for pain and suffering, is somewhat subjectively based on historical precedent of cases built over the years. There are different heads of damages for car accident claims such as pain and suffering, past/future income loss, housekeeping claim, attendant care claim, claim for out of pocket expenses, claim for past and future care costs, claim for a modified home or vehicle, family law act claim for loss of guidance care and companionship etc. On the tort end of a car accident claim, there are a variety of heads of damages upon which to base a claim.

LTD claims are different because many of these heads of damages simply don’t exist. LTD claims are contract claims. No contract of insurance; NO CLAIM. Because they are contractual claims, they are based primarily on what’s contained inside of the policy and its wording. These are NOT claims for pain and suffering. These are claims for past and future benefits, based on an amount as defined and calculated pursuant to the policy. Therefore, establishing damages is not based on legal precedent. It’s based on what the policy says, along with the factors set out above.

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Our law firm does NOT handle any WSIB matters. Imagine that…a personal injury law firm refusing work!

But that’s right; our law firm doesn’t touch WSIB work. There are a lot of reasons we don’t practice in this area. Aside from the WSIB being an archaic, overly complicated system; the reality is that it does not adequately compensate injured workers. The awards are rather pitiful, hard for workers to get, and their system of unbiased assessments is “impartial assessors” is a farce. There are a number of economic reasons why our law firm doesn’t do WSIB work, but that’s pretty much all you need to know about WSIB.

You will be hard pressed to find a reputable lawyer in Ontario who does exclusively WSIB work, but there are a handful of them around if you’re lucky enough to find one and have them take on your case at a reasonable rate.

There are times when WSIB and civil tort law intertwine. When this happens, we are there to help people make the right decisions so that their cases get off on the right foot.

For starters, you CANNOT receive bot WSIB benefits and SUE. You can’t have both. You either get one, or the other. This is very important for any accident victim to know.

There are instances where injured workers CANNOT sue. If they’ve been hurt or injured on the job site, there are instances where the injured party MUST pursue a WSIB claim. In such instances, it’s important to find out if your employer is a Schedule 1 or Schedule 2 employer. The difference is that is that you CANNOT sue a Schedule 1 employer; while you can sue a Schedule 2 employer. How do you find out if you’re dealing with a Schedule 1 or a Schedule 2 employer? That’s easy. All it takes is a call to the WSIB at 1-800-387-0750. Just ask the person who picks up the phone. It’s an easy search for their staff to make.

Banks, Veterinarians, Law Firms and some other employers are NOT require to have any form of WSIB coverage. So, it’s open season to sue these employers for their wrong doing.

At the end of the day, it’s important to keep in mind that WSIB acts as a shield for employers. They pay in to an insurance plan known as WSIB, and it’s there to protect them in the event of a worker getting injured.

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A Long Term Disability policy of insurance (LTD Policy), is a policy designed to cover the insured for a monthly benefit in the event that person becomes disabled.

These policies are often offered by employers, to employees as a part of their benefits package. It’s a common perk of employment. Like saying that you work at Google, and they offer a generous benefits package. That package includes LTD Benefits. The nice thing about this is that the employee has a benefits package. The bad thing about it is that the employee doesn’t have much say about what goes in to that benefits package, how much those benefits are worth, and the benefits will likely cease when the employee ends his/her employment relationship with the employer. No longer an employee of Google? Then no more LTD benefits are available to you.

Other times, LTD Benefits are purchased privately through an insurance broker. In this instance, the policy holder (that’s you) gets to pick the right amount of coverage which best suits their lifestyle and financial situation. The LTD benefits are NOT tied down to a specific employer. They follow the insured person from job to job. These benefits are great for contractors, self-employed persons, people who don’t have benefits offered through their employer, or even people who have benefits offered through their employer, but just want additional coverage because the coverage offered through their employer isn’t necessarily the best.

Some of the large companies who offer LTD benefits (both group and individual policies) are Great West Life, Canada Life, Sun Life, Standard Life, Manulife, RBC Insurance, Industrial Alliance, Co-Operators Insurance, Desjardins, SSQ and Equitable Life just to name a few.

As you can see, there are quite a few LTD Insurers out there to chose from. It’s important to note that each policy is different. What’s most important to the insured, is how the policy works to get you paid in the event of disability.

The term “disability” is a VERY broad term. Don’t believe me? Here are a few insurance examples from car insurance policies, and LTD policies which define what it means to be “disabled” to receive benefits under their policies.

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First and foremost, I want to send special recognition my friend David Siegel, who told me last night that he stopped following his mother, sister, father, the best man at his wedding, and his Grade 8 Karate teacher on Twitter. BUT, he continues to follow @GoldfingerLaw on Twitter. David told me that he can’t get enough of the Toronto Injury Lawyer Blog, along with the daily insight and tidbits from our law firm’s Twitter Feed. You can’t follow David on Twitter, but you can follow his dog, @RockySeigel for the latest in the life of his pooch.

On to some law talk? Sure. Why not.

My law firm gets calls from kind people all over Ontario who have been hurt or injured in an accident; or who have nowhere to turn after they’ve had their long term disability claims denied.

There are a lot of plaintiff personal injury law firms out there in Ontario. Goldfinger Injury Lawyers doesn’t control 100% of the market. Sometimes (more often than I can to admit) we get calls from upset clients of other law firms; or accident victims who have contacted other law firms, prior to calling our office.

Some of the practices I’ve heard from these clients from other law firms, whether true or not, are quite disturbing. I can relate to the anger and frustration of those who contact my office after being treated they way they’ve suggested. The tears say it all. There are no words to describe the upset feelings and disappointment these people have to share. Continue reading →

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Intact Insurance has some great television commercials where an terrible accident happens (like a car driving in to a swimming pool); followed by a scene involving an insurance policy holder calling the insurer over the phone. The next scene is that of a well lit and pleasant call centre whereby an insurance agent from Intact proceeds to collect that person’s information and open up a claim in 5 minutes or less. Pretty impressive! The ad is meant to show the ease and speed in which Intact can open a file and process your claim.

Because that’s exactly what all Ontarians are looking for when choosing an insurance company. We’re not looking for low rates, or good customer service. We’re looking for speedy claims opening procedures. They’re fast, so we know they’re good.

The commercials are pleasant and well executed. They are.

A casual observation from this injury lawyer: the television commercials don’t show any personal injuries, and physical injuries. The only damage is comical or cartoonish.

One ad has the car driving in to the swimming pool, another ad has a car driving in to a mail box. Nobody is hurt. It all looks like an honest mistake where everyone is calm, able to smile, and having a relatively good time. Of course, all of this is intentional to keep the air of the ads light; rather than be downers and show catastrophically injured accident victims and crying family members waiting attentively by a hospital bedside attending to their seriously injured loved ones.

Here is the reality of most claims:

1) If it’s a car crash, there are likely injures. In many cases, there are serious injuries. Sometimes the injuries are so serious that the accident victim can’t talk.

2) The claimant isn’t all bubbly and happy when making the call, no matter how pleasant the agent is on the other line. The claimant is upset, mad, stressed, nervous, anxious, or pi$$ed off for lack of a better term that they were involved in a serious accident and now have to make a claim.

3) The claimant might not speak the best English; making reporting the claim difficult. Language can always be a barrier to getting these things sorted out.

4) The person on the other line might not be as bubbly, welcoming and friendly as they appear in the commercials

Here’s something which you probably didn’t pay attention to in these commercials. The person who was working in the call centre for the insurer was sitting at a desk, in front of a computer and inputting information in to their system. They may be taking notes of the conversation, OR the conversation may be recorded for “customer service purposes“. The claimant who initiated the telephone conversation isn’t taking any notes, nor are they depicted as sitting at a computer an inputting information in to a computer system.

Don’t overlook this tiny detail. It’s important. Want to know why? Read on and find out.

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