41717
Achieving-Justice

Best legal advice: Try

Everyone’s a legal expert when it comes to ICBC claims.

Or any other legal matter when alcohol starts to flow at a social gathering.

All sorts of advice comes out of the woodwork. Some is helpful, but much of it is harmful.

Tidbits of legal advice pop up here and there on television, the movies, on the Internet and from others who have pursued fair compensation for their injuries. Those tidbits are taken out of context and offered up as if they are “tried and true” pieces of advice that apply to all situations.

The same thing happens in medicine, but people are much more likely to pop in to see a doctor to get the straight goods than to consult with a lawyer.

I am going to give you a golden nugget of advice that applies to all personal injury claims. Keep it in your back pocket and pull it out at social gatherings.

I am confident in saying that because I’ve felt like a broken record giving this advice day after day, week after week, year after year for over 20 years. 

Without exception.

It’s really quite simple: Try.

And don’t just “sorta try.” Give it a really good try. Follow the advice of your parents and grandparents: Try your best.

There are two possible outcomes from trying.

One is success. Success, particularly in the context of an injury claim, is a beautiful thing.

Has your doctor recommended that you work with a kinesiologist to develop and participate in a stretching and strengthening program? Try it. Try your best at it. In this context, success is achieving a full, or at least more full, recovery.

Has your doctor pulled you away from work? Be assertive with your doctor to please authorize an attempt to return. If authorized, try. Your best. You might surprise even yourself with a fully successful return to work, or at least a partial return.

If that attempt is unsuccessful, try your best to find some other type of work that you might be able to do. And provided you are medically authorized, try your best at it.

Did you enjoy skiing before the crash? Are you uncertain about your ability to handle that activity? If you have any uncertainty at all about whether or not it is medically safe, ask (beg) your doctor for permission. And then try it. Success in this context is returning to an activity that you love.

Always be trying. And trying your best.

You might achieve success. The other possible outcome?

Failure. That’s a horrible outcome. But you haven’t sunk any lower. 

Think of it like starting at the base of a ladder. You try to climb. Failure doesn’t put you into a hole, it just leaves you standing on the floor where you started.

And if you make it part way up the ladder, you’re much better off than had you not tried.

By trying, you achieve the very best outcomes:

  • You achieve as full a recovery as possible;
  • Lose as small an amount of income as possible
  • and return as fully as possible to the life you enjoyed before the crash.

But I promised you legal advice. So far, I’ve simply given you common sense.

That common sense advice will keep your losses to a minimum.

Hey! Wait a minute! Doesn’t smaller losses mean a smaller claim? 

Yes.

What kind of ridiculous legal advice is that?

Not one of my clients has ever walked out of my office with a big cheque saying: “I’m just so grateful that I suffered all those losses.”

Further, my percentage fees, which are deducted from the settlement, mean that the bigger the cheque the greater the deficit they are left with.

The only one benefiting from a larger claim is the personal injury lawyer.

This might, still, seem more like “apple pie and motherhood” than legal advice. In this case though, as in many, the two are directly aligned.

The law requires you to make your losses as small as reasonably possible. In legal terms, that’s called “mitigation.” 

Failure to do so will give ICBC a strong legal argument that your claim should be slashed.

The law also requires you to prove your losses. How can you possibly prove that you can’t return to skiing if you haven’t even tried? How can you prove the extent your income earning capacity has been impacted if you haven’t tried your best to get back into the work force as fully as possible?

And the law relies on common sense. How hurt could you be if you haven’t tried your best to get better? How much did you really enjoy playing golf if you haven’t stepped foot on a golf course?

It can be hard. Really hard. Before the crash, you were able to do things without a second thought. Now, you struggle through pain.

Pain and functional limitations often lead to psychological impacts like a depressed mood, lower energy and lower motivation.

The law doesn’t expect you to be superman or superwoman. It expects you to try your best, whatever that means in your particular circumstances.

Please share this really, really important legal advice with those you care about.





You're compensated for loss

“You want me to sit down and make notes to “journal” how I was before the crash?”

Yes, I do.  As soon as possible. Before your memory fades.

“But what does that have to do with my injuries and the huge impact they are having on my life right now?”

You can barely get yourself out of bed. The tissues in your neck and back are so inflamed, you are stiff as a board when you move about. Your pounding headache is clearly visible in your face.

Nobody is going to question how bad things are right now.  

But, thankfully, the inflamed tissues will calm down. With therapies and participation in a stretching and strengthening program, the range of motion in your neck and back will be completely restored.

You will learn how to manage your ongoing pain and headaches, allowing them as little visible impact on you and the way you live your life as possible.

Like so many who live with pain, you will appear perfectly fine to those around you.

But you’re not.

Two to three, maybe four years have passed since the crash. You have reached a permanent plateau in your recovery. This is the way you are likely to live out the rest of your life.

However difficult those first years were, when your symptoms were at their worst, that was a sprint in comparison to the marathon you face at your permanent plateau.

It is that plateaued level of symptoms and permanent impact on your life (which I refer to as your “condition”) that most determines what level of financial compensation for your ICBC claim is fair.

But it’s not that straight forward.

You are compensated for loss.

Loss is the difference between how things turned out to be after a crash and how things would have been had the crash not occurred.

The only way to assess your loss is to determine “how things would have been had the crash not occurred.”

The starting point is how things were during the months, and years, leading up to the crash.

But if I ask you, three to four years later, how often you had headaches in the year before the crash, what will you say? Many people will look at me with an exasperated look on their face:

  • “How can you, or anyone, expect me to remember that?”

If an ICBC defence lawyer asks you that same question, and you give that same answer, he or she will cross headaches off the list of symptoms they need to compensate you for.

If you don’t remember the frequency and severity of your headaches leading up to a crash, how can you say your post-crash headache plateau is any different?

Well, of course, it’s different. Isn’t it? You don’t remember being bothered by weekly headaches before the crash.

But your level of compensation is determined by the level of loss. How can that level be determined if you can’t tell me your approximate pre-crash headache frequency?

Is the advice at the beginning of this column starting to make sense?

When thinking back and journaling your condition in the months and years leading up to the crash, it’s important not only to list your symptoms and how they impacted on your life, but also to describe the pattern of those symptoms over time.

Were they at an unchanging plateau? Were they gradually getting worse? If so, at what pace? Perhaps you had been injured recently in another incident, but your condition was improving?

Medical specialists, when providing opinions about how things “would have been,” need to know this information. 

Newton’s law of motion (an object will remain at rest or in uniform motion in a straight line unless compelled to change its state by the action of an external force) applies remarkably well to a medical condition.

So please. If you or someone close to you has been in a crash, follow or pass on this important piece of legal advice:

  • journal, with as much detail as possible, your condition leading up to the crash while your memory is still fresh.


Be vigilant with kids' health

Our children are the most precious things in the world to us. Ironically, we put their well being at risk on our roadways with an epidemic of inattentive drivers. 

And when the roulette wheel falls on “crash,” few parents take the steps necessary to protect their legal rights.

At a rate of approximately 115 crashes a day in the Southern Interior, I don’t like my odds when I leave pull out of my driveway.

I’ve been lucky so far, not yet having been the victim of a crash. When is the other shoe going to drop?

The feeling of vulnerability jumps when my kids are in the car. They’ve long gotten used to my incessant insistence that they pull up head rests and sit properly in their seats.

Many of my clients have described that frantic moment, immediately after impact, of looking back to make sure their child is OK.

But, of course, they are. Or at least they appear to be.

You want to believe, with every ounce of your being, that your child is going to be perfectly fine.

Their doctor does an examination and reassures you of that outcome.

Children are incredibly resilient. Research have showed that “Children are resilient and rebound quickly from injuries, even serious ones.” 

And you’ve learned from countless bumps and bruises, cuts and bee stings: The less attention you pay to the owie, the better.

An ICBC adjuster tells you that you have nothing to worry about with your child’s claim because the two year “limitation period” clock doesn’t start ticking until their 19th birthday.

That gives lots and lots of time for any long-term problems, if any, to be identified and dealt with.

You can shift your focus to recovering from your own crash injuries and relax about your child’s wellbeing

Right?

Absolutely! If your child’s symptoms 100 per cent completely resolve.

And never return.

Statistically, that’s a likely outcome. Most people enjoy a 100 per cent complete recovery from car-crash injuries.

But your child might be one of the unlucky minority who never fully recover.

If so, they won’t have a hope of achieving fair compensation for their injuries unless proactive and ongoing steps are taken to preserve evidence of those injuries.

With nobody taking an interest in their complaints, they stop mentioning their symptoms.

You know the classic response to:

  • “How are you doing?”
  • “Can’t complain. I’ve tried, but no one listens.”

Symptoms of stiffness and soreness quickly become “background noise” for children. It becomes their new reality.

It won’t be for another number of years before they face the real world of work, which often requires hours of sustained postures sitting at a computer, or holding awkward positions.

That’s when the background noise might come to the foreground and have a serious impact on your child’s future.

But, by then, it’s too late to draw a connection between those now chronic symptoms and the car crash that occurred years before.

ICBC will point to the fall from a bicycle or horse, trampoline incident, sports injury and all the various other times your child took a tumble over those years. “That’s when your child hurt their neck.”

Your child, asked when their neck symptoms first started, will say “as long ago as I can remember.” 

A young adult won’t be able to credibly articulate their symptom history extending back five, 10 or 15 years.

Don’t listen to the ICBC adjuster. You cannot relax. Work needs to be done right away, and on an ongoing basis, to “preserve the evidence.”

Have your child carefully examined as soon as possible after a crash by a hands on treater who has experience with children such as a pediatric physiotherapist and/or a chiropractor with a particular child focus.

Be vigilant, and keep a journal of your own observations of any changes at all in your child’s behaviour, mood and activity levels.

Carefully listen to your child when symptoms are mentioned. Include those mentions in your journal.

Our medical system is reactive, not proactive. Give a full recovery, the very best opportunity by proactively pursuing care for your child if unhealthy tissue is identified in the physical examination, or if symptoms linger.

Any ongoing symptoms, however minor or infrequently surfacing, must be monitored, journaled and of course treated.

As falls from bicycles or horses, trampoline incidents and sports injuries occur, details of the incident and any symptoms arising must be journalled as well.

It’s a lot of work! 

Great care must be taken, though, not to cause your child to become focused on their symptoms. 

We do, very much, want those symptoms to become background noise and have as little conscious impact on their lives as possible.

I can include only so much advice in a column. 

Please take the time to have a free, initial consultation with a personal injury lawyer who can advise you about these and other important matters about your child’s legal rights, including a limitation period deadline that the ICBC adjuster will never tell you about.





The 5 accident preserves

I've written, before, that you should take photographs and get witness information at the scene of a crash. (You’ve been in a crash… What now?).

But isn’t that obvious? Why would you need a legal columnist to give that advice?

In all the years I’ve been doing this work, though, not one of my clients has ever done it.

Why are these steps not taken?

It doesn’t occur to us that the other driver might not be perfectly forthright when reporting the crash to ICBC.

We give the benefit of the doubt. It would be an unpleasant world if we approached everyone with suspicion.

And taking steps to collect evidence at the scene feels impolite and uncomfortable as all heck.

By collecting evidence, you are screaming out: “I don’t trust you!” Even asking to see their licence and registration feels uncomfortable.

Start taking photographs with your cell phone and you’ll look like a total jerk. Getting witness names and contact information is like putting up your boxing gloves.

No wonder it’s never done. But it’s important.

What is obvious to you, at the scene, is never so obvious months or years after the fact. Memories fade. Stories change.

Sometimes police attend. Sometimes they don’t.

If they do, you can count on them to do an excellent job of securing the scene and investigating for the purpose of law enforcement. But their job does not include preserving evidence so that you will be dealt with fairly in your personal injury claim.

So I’ll assume that little or nothing has been done to preserve evidence at the scene. What can be done after the fact?

Preserve your own memory

Your memory is just as likely to fade as anyone else’s. Preserve it. 

Tell your story of what occurred, with as much detail as possible, in a journal entry. Tell the story of what happened after impact as well, including details of discussions you had with the other driver and others.

Preserve the other driver’s story

Give the other driver a call. No phone number? Do a little sleuthing. Try Canada 411, Facebook, or use other resources.

What do you say? You’re simply wanting to ensure there’s no confusion about what occurred. Yes, it will be uncomfortable. Yes, they’ll be caught off guard. 

Record the conversation. Don’t let them know it’s being recorded, though, because they’ll get nervous and clam up. That’s perfectly legal, by the way.

Just get them talking about the crash. Get their story nailed down.

Maybe they know about witnesses. Ask them.

Preserve the scene

Go back to the scene of the crash (or send a friend or family member) and take a bunch of photographs.

Maybe there is some physical evidence like skid marks.

Roads are regularly in a state of upgrade, repair and reconfiguration. If you don’t capture how the scene looked at the time of the crash, that evidence can forever be lost through road maintenance and construction.

Preserve the vehicle damage

Vehicle damage can be critical to proving what occurred. It can also be helpful to show the severity of impact.

ICBC repair shops are required to take photographs of damage to support their repair estimates and invoices. Take your own, though.

Some repair shops will let you keep the damaged components and some will not. Use a repair shop that will let you keep those components.

If your vehicle is “written off,” your photographs might be the only ones taken. Towing companies, for whatever reason, won’t let you take photographs of your own, destroyed vehicle at their premises. Take photographs anyway.

Witnesses

The stories told by independent witnesses are often seen to be the most reliable by the courts.

Their memories are likely to fade much faster than yours because they were passive observers and what occurred is not as important to them as it is to you.

Maybe a witness handed you their business card or jotted their name and number down on a piece of paper for you.

If not, you might have to do some sleuthing. Was a witness driving a vehicle with a company logo on it?

Any witnesses should be interviewed to preserve their recollection of what occurred. The interview should be recorded as well.

Does all this seem like overkill? For most crashes, it will be.

The “Who’s at fault” question is often not an issue.

Further, most people enjoy a complete recovery from crash injuries within a short period of time. Those claims are likely very small ones. The smaller the claim, the less these things matter.

We can’t predict how things will turn out, though. The exact, same injury can resolve completely in one person, while causing a lifetime of chronic pain in another.

I recommend taking these steps “just in case.” 

Need some guidance about what you might do in your, particular circumstances? Consult a personal injury lawyer who offers a free, initial consultation.



More Achieving Justice articles

42923
About the Author

Paul Hergott began practicing law in 1995, in a general litigation practice. Of the various areas of litigation, he became most drawn to, and passionate about, pursuing fair compensation for injured victims. This gradually became his exclusive area of practice.

In 2007, Paul opened Hergott Law, a boutique personal injury law firm in the Central Interior, serving personal injury clients from all over British Columbia. Paul’s practice is restricted to acting only for the injured victim, never for ICBC or for other insurance companies.

Paul became a weekly newspaper columnist in January of 2007, when his first column entitled “It’s not about screwing the Insurance Company” was published. 

Please feel free to email or call Paul (1.855.437.4688) with legal issues you might like him to write about in his column, or to offer your feedback about something he has written.

Email:   [email protected]
Firm website:  www.hlaw.ca
Achieving Justice Legal Blog:  http://www.hlaw.ca/category/all-columns/
One Crash is Too Many Road Safety Campaign: www.onecrashistoomany.com
Google Plus:  https://plus.google.com/+HlawCanada/posts
Facebook:  www.facebook.com/personalinjurylawfirm
Twitter:   twitter.com/Hergott_Law



The views expressed are strictly those of the author and not necessarily those of Castanet. Castanet does not warrant the contents.

Previous Stories