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Injury Wise

5 Claim misconceptions

If you have been hurt in an accident or as a result of medical negligence you will likely look to your friends and family for some advice on how to deal with the situation. These are the people you trust and it makes sense that you will look to them for help. Family and friends usually have your best interests in mind and do not want to see you taken advantage of. Unfortunately though, when it comes to ICBC claims or other accident claims, many people, particularly those who have not been through the process with the help of good legal counsel, will often be misinformed about things to do or not to do when dealing with ICBC or other matters. As a result, one of the biggest challenges I have in my job is to undo some of well-intentioned advice my clients have received from non-lawyers. Below are five common misconceptions that I find personal injury clients are often told by non-lawyers.

 

1. You should not go to work.

I will often hear clients say something like: “my friend says I shouldn’t go back to work.” The reality is that the decision to work or not work after an accident should be ultimately made by your doctor, not you. When I am asked this question by my clients, my advice is that if your doctor has recommended that you take time off work, then you should take it off. If your doctor is not supportive of you taking time off work then you should not take time off unless there are other valid reasons. If you choose to take time off work which is not supported by the medical evidence, then any wage loss you sustain will not be compensated.

 

2. You should not go on vacation.

Often I have clients who have pre-planned vacations but then the accident happens putting a hiccup in their plans. Friends or family will often say something like: “you have an ICBC claim, you can’t go on vacation now, ICBC will conclude that there is nothing wrong with you.” But life goes on after an accident in one form or another and you should generally continue to live your life as though a personal injury claim does not exist. If you are making a decision not to go on a pre-planned vacation purely for optic reasons (how you think it will appear to ICBC) then you are missing a trip that you should probably take. If you physically or mentally can’t go, that’s another story. My advice to clients with respect to vacations is that you should check with your doctor. If your doctor is of the view that it is safe for you to go on vacation and you want to go, then you should go. That being said, you need to understand that if you do go on vacation and you choose to do physically rigorous activities like bungee jumping, river rafting, horseback riding, sky diving, bull riding, etc. then be prepared for ICBC to suggest that you may not be that injured. You should also be prepared to hand over photos of your vacation.

 

3. You should not return to your physical activities.

Just like my advice with respect to vacations and working, the same holds true for physical activities. It all comes down to the advice of your doctor or other caregivers (specialists, physiotherapist, massage therapist, chiropractor, etc.). If they clear you to return to your activities, then you are not doing yourself any favours by sitting around the house. If you try an activity and it hurts, listen to your body and bring it up with your doctor at your next visit.

 

4. It is impossible to sue doctors.

I am always surprised when I hear someone say: “I thought you couldn’t sue doctors.” Yes, you can sue doctors, chiropractors, dentists, acupuncturists, etc. Medical malpractice claims are generally far more challenging than motor vehicle accident claims but it can be done if there is a valid claim. For more information on medical malpractice claims, see my previous article titled: Is it medical malpractice?

 

5. Lawyers are expensive.

Just like any other service, there is a cost involved but most personal injury lawyers work on a percentage basis, so barring unusual circumstances, the lawyer will easily pay for himself or herself. For more information on the cost of personal injury lawyers, see my previous article titled: Cost of an Injury Lawyer.

 

Those are just five of the misconceptions that I often hear, but there are others. Yes, you can do your own research on the internet and rely on the advice or experience of family and friends but you run a risk that the information you are getting is not accurate. Every case is unique and your case may require different advice than what is standard. At the end of the day, despite the good intentions of your family and friends, if you are receiving advice about any sort of legal claim it is always a good idea to seek that advice from a lawyer in the relevant field (i.e. personal injury, employment law, criminal law, family law, etc.).

 

*Important Note: The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.





Before you sign...

How many simple documents or forms do you sign each year without reading? When you sign, do you know what rights you are giving up? One of the most common myths about the law is that signing a document means nothing. But nothing could be further from the truth. Sometimes I hear people say, “I didn’t read it” or “I didn’t know that’s what it meant”, but generally speaking that is not going to matter. Legally enforceable documents come in all shapes and sizes, not just lengthy documents signed at a lawyer’s office. So before you sign, understand the bottom line.

 

Below are five common situations and things to keep in mind before you sign:

1. Risky activities - If you are about to participate in a risky activity (i.e. zip lining, river rafting, sporting event, etc.) you should assume that the agreement you are being asked to sign prevents you from being able to sue that company or organization for injury or death, however caused.

Before you sign, ask yourself these questions: Is it worth it? What safety measures are in place? Do I have disability insurance coverage if I get hurt?

 

2. Settling your injury claim - If you are settling a personal injury claim with an insurance company you should assume that if you sign the release agreement, there will be no more money. It does not matter that you did not know that additional problems would arise down the road or that the amount was “unfair”. An ICBC claim, unlike a WCB claim, cannot be re-opened. Once you have signed, your claim is done.

Before you sign, ask yourself these questions: Am I 100% better? Have I felt better for a while now? Am I confident that I know the extent of my injuries and I am not worried about further expenses or injuries that may appear? Does the offer from the insurance company address my pain and suffering, past and future wage loss, out of pocket and future expenses?
 

3. Monthly/weekly payment deals - If you are purchasing a membership or entering into any other agreement that requires you to make regular payments (i.e. rental property, vehicle lease, gym membership etc.) assume that you will have to pay for the full term of the agreement. If you stop making your payments, you should assume that they will be able to enforce payment.

Before you sign, ask yourself these questions: On what basis will the company let me out of the contract? Do I want to be committed? Can I afford to be committed?
 

4. Loans - If you are borrowing money you should assume that it is going to cost you significant interest. Make sure you understand the total cost of the loan in addition to the money that is being borrowed. Monthly payments or other payment plans can be very deceptive in terms of the overall cost. Know the facts.

Before you sign, ask yourself these questions: Do I understand the total cost of the loan? Can I afford the payments? What happens if I can’t afford the payments?
 

5. Termination of Employment - If you are settling a claim with your employer after termination and you are asked to sign a release, you should assume the deal will be binding.

Before you sign, ask yourself these questions: In addition to employment standards legislation, do I know my common law right to severance? Does the severance package take into consideration all forms of compensation? How fast can I find a new job?

 

The bottom line is simply this - if you do not want to be bound by the agreement, don’t sign. If you are unsure about whether you should sign a document, then it is critical that you seek legal advice before you do. There is a reason you are being asked to sign and it is more than just an acknowledgment of funds or an informal agreement. You should assume it is a binding contract, and yes, they are typically enforceable. However, just like many aspects of the law, there are some exceptions, such as contracts involving children. If you have signed a release, waiver or other agreement and you want to know if you can get around it, you should immediately seek legal advice.

 

*Important Note: The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.



Not the lawsuit type

If I asked you whether you were the lawsuit type, chances are that your answer would be a resounding “NO”. Most people cringe at the thought of being involved in a lawsuit and if you don’t you are either a lawyer, judge or you have a different take on the world than most.

People seem to be afraid of lawyers and as one colleague of mine said to me, “Can you blame them?” The answer is no, I can’t. The reason I can’t is because insurance companies like ICBC, the media, and bad experiences all play a role creating this fear. Lawyers are often portrayed as corrupt, money hungry, dispassionate and self centered (and unfortunately there are a few that will fit this portrayal). Clients in personal injury matters are often portrayed as greedy, dishonest and the reason for rising insurance premiums. Insurance companies have done a good job at perpetuating a stereotype that lawsuits are things that only “bad people” do and “good people” don’t need a lawyer. But nothing could be further from the truth. Bad things happen to good people and they happen all the time (The documentary “Hot Coffee”, available on Netflix and YouTube, does a great job of demonstrating how the media has impacted the way we view lawsuits and lawyers.

Because of these negative stereotypes, I have many clients tell me right out of the gate that they don’t really want a lawyer or that they are not the type of person who sues. Some even appear to be embarrassed that they are considering hiring a lawyer. But, something has brought them in. In some cases a family member has brought them in, sometimes against their will. In other cases, they are pretty sure they do not want to hire a lawyer for their claim but they do want to know their rights. My guess is that many potential clients feel stuck between a rock and a hard place. They do not want to be taken advantage of by the insurance company but they also do not want to be taken advantage of by a lawyer. I am sure that for some, it may be a determination of the lesser of two evils.

Sometimes I hear clients say they are not sure they want a lawyer because ICBC has been really good to them. I also hear the opposite. But if you think ICBC is being good to you ask yourself this question – how do you know? Nice does not equal fair. Returning phone calls and paying benefits is not being nice, it is doing what they are supposed to do. It is what they are not doing but should (like assisting you with your rehabilitation), and what they are not telling you about your legal rights because they don’t have to (like letting you know about benefits that you are not receiving, advising you of costs you can be reimbursed for, advising you of your limitation period to file your lawsuit, advising you about information you need to gather to support your claim, all the categories of damages that you can claim, the real value of your claim, etc. ) that is the problem.

If you settled your claim with an insurance company for $15,000 and later found out that your claim was worth between $75,000 and $100,000 would you still think they were good to you?

If you are injured, it is understandable for all of the reasons mentioned above that you may feel reluctant to seek legal advice, particularly if you have had a bad experience in the past, such as a family law dispute or other legal matter. However, deciding to meet with a lawyer or choosing to hire a lawyer has absolutely nothing to do with whether or not you are the lawsuit type. It is not about gold digging or going after the insurance company. But, it has everything to do with understanding your legal rights, getting the medical and rehabilitation help you need, and getting a just and fair resolution of your claim. Without good legal advice there is almost inevitably an inequality of bargaining power between you and the other party. They will take advantage of that. Most personal injury lawyers do not charge for an initial consult and you should take advantage of that. You may still decide that hiring a lawyer is not right for you, and in some cases you will be better off without one but at least you will be better equipped with the knowledge of the legal issues involved in your claim and hopefully a little less fearful of the entire process.

 

*Important Note: The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.



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Medical confidential?

If ICBC asks your doctor for your information you may wonder: Can ICBC ask my doctor for my medical information? Can ICBC request a medical report from my doctor without my consent? What is ICBC entitled to know? If you are like most people, you consider your medical information to be private and confidential. So it is not surprising that when ICBC asks you, your lawyer or your doctor for this personal information that it raises some concern. However, despite the personal nature of the information being sought, it is also not difficult to appreciate that if you are asking an insurance company to cover expenses caused by an accident, then you are going to need to prove the existence, cause and effect of those injuries.

First, you need to know that if you sign any of the authorization forms provided to you by ICBC for release of medical information, this may provide ICBC with more information than they generally are entitled to. ICBC should only get information relevant to your claim. If you sign their forms, you will have consented to your doctor giving ICBC any information listed in the form, which in my view is typically too broad. As a result, I do not recommend signing these forms without first speaking to a lawyer (for more information see my past article called “What’s in your medical records?”). If you retain a lawyer, your lawyer should review your medical records first and decide what records ICBC is entitled to.

Second, you need to know that even if you choose not to sign ICBC’s authorization forms, the Insurance (Vehicle) Act and Regulation provides a mechanism for ICBC to obtain medical information to evaluate your accident benefit claim without your consent and without advising your lawyer. The form is called a CL19 Medical Report and it is sent to your doctor to fill out with a cover page explaining each section of the two page report. Your doctor is legally required to fill out the CL19 Medical Report, at least in part. Specifically, the legislation (s.28 of the Act) requires your doctor to provide ICBC, as soon as reasonably practicable, with a report of your injuries, diagnosis, treatment and prognosis related to the accident in the form prescribed by ICBC. Your doctor is offered a financial incentive, if the form is properly completed and returned to the adjuster within a set period of time.

There are four sections to the CL19 form. Section A - asks your doctor to provide details of your relevant past medical history and other relevant medical concerns. Section B - asks your doctor to conduct a physical examination and report his or her findings. Section C - asks your doctor to provide your diagnosis related to the accident. Section D - asks your doctor to comment on your treatment and your employability. All of the information input on the form should be directly related to your accident claim. Caution should be exercised by your medical practitioners in filling out the form, particularly where there is uncertainty. Any answers that appear definitive or final can create challenging hurdles if the information on the form is inaccurate or misleading. For example, under the return to work planning section, if the “disability end date” is unknown, it is preferable to simply input “unknown” or “unknown at this time". ICBC adjusters and defence counsel will often refer back to these forms, and once written (such as a disability end date), even with new evidence it seems almost impossible to get ICBC to change its position.

In addition to the CL19 Medical Report (which ICBC can also request from a nurse, chiropractor, dentist, physiotherapist or hospital employee who treated you as a result of your accident), ICBC can demand that you promptly furnish a certificate or report from your doctor or any of the people just listed as to the nature and extent of your injury, and the treatment, current condition and prognosis of the injury (s.98 of the Regulation). ICBC can also demand that you attend an independent medical examination with a medical practitioner of its choice and as often as ICBC requires, within reason (s.99 of the Regulation). If you have commenced a lawsuit, the Rules of Court also entitle legal counsel for ICBC to request your relevant medical records and one or more independent medical examinations.

In short, ICBC is generally going to be entitled to some medical information that is relevant to payment of accident benefits. Also, where a personal injury claim is pursued, ICBC will be entitled to additional relevant information to assess the validity and value of your claim. What medical information is relevant will vary depending on the injuries and disability you allege were caused by the accident. If you have concerns about the medical information being requested by ICBC, you should seek legal advice.

 

*Important Note: The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.



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The views expressed are strictly those of the author and not necessarily those of Castanet. Castanet presents its columns "as is" and does not warrant the contents.


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