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Injury Wise

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.



It's OK to say 'I'm sorry'

Stand-up comedians and sitcoms have been making fun of Canadians for being polite as long as I can remember. Being known for our niceness is certainly not a bad thing and I wish more Canadian businesses would adopt this philosophy when people get hurt on their premises. As a lawyer practicing in the field of personal injury law I see many clients who tell me that they would not be in my office if the other party (usually a big company) just apologized or quite frankly demonstrated any real concern for their well-being. Unfortunately, I think too many businesses are ill advised in that they assume if they are nice or they apologize this could be interpreted to mean that they did something wrong and it could hurt them in a lawsuit. As a result, human decency seems to go right out the window. What these businesses may not be aware of is that it’s OK to say “I’m sorry” or express sympathy to the victim of an injury and it cannot be used against them in a court of law.

For any cynics out there, I am not just trying to get businesses to admit guilt for the benefit of personal injury lawyers. Quite the opposite in fact; I believe that if businesses show more compassion it will be detrimental to personal injury lawyers as the clients are less likely to litigate (this does not necessarily apply to catastrophic claims). There are numerous studies that look at the relationship between apologies and litigation, particularly in the field of medical negligence. As a result, many governments have created legislation that allows people to apologize without there being any recourse.

People often say “I’m sorry” and what they mean is that “I’m sorry you got hurt”, but that does not equate with “I’m sorry it’s my fault.” The reason it is OK to say “I’m sorry” in BC (regardless of what you mean) is that we have legislation called the Apology Act, which essentially states that an apology does not amount to an admission of fault or liability by the person involved and it must not be taken into account in any determination of fault or liability. In short, saying “I’m sorry” does not amount to guilt. Therefore you are free to apologize until the cows come home without legal consequence.

I have no doubt that there are some people who get hurt, that no matter how nice you are, they will do what they feel they need to do, but there are many others that are simply looking for kindness, compassion and respect. In cases involving more significant injury, such as where a person is severely disabled and cannot work anymore, a lawsuit will likely ensue out of necessity but it does not mean that an apology or compassion for what has happened to the person is not the right thing to do. In my view the best policy for anyone to apply is the golden rule – treat others the way you wish to be treated. What have you got to lose? From my perspective, nothing. The Apology Act protects you from liability, it protects you from any terms of your insurance policy that take issue with apologies and in-turn it also protects the integrity of your business.

 

*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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What do I pay ICBC for anyway?

If you have had ongoing dealings with ICBC as a result of a car accident than you have likely had the pleasure of dealing with at least two sides of ICBC. Initially the relationship starts off pleasant but as the relationship continues the lines of communication and mutual understanding fade. Now, in fairness to many of the adjusters who handle personal injury files, this is not the fault of the adjuster but the fact that the adjuster wears two hats along with having to follow ICBC’s unreasonable and arbitrary policies. These two hats are confusing to clients and I often hear, “So what do I pay ICBC for anyway?”

Let me try to explain. In most car accidents in British Columbia, ICBC is your insurer but they are also the insurer for the other people involved in the collision. In simple terms, ICBC acts for the good guy (white hat) and the bad guy (black hat) on the same case. A very clear conflict of interest.

White hat - If you are the injured party and you are not at fault for the collision (aka innocent party) then ICBC is your insurer for:

1. Accident benefits, also known as no fault benefits or Part 7 benefits. This is very basic insurance coverage that is designed to provide very modest insurance coverage for wage loss (up to $300/week), medical and rehabilitation benefits (a portion of these expenses) and death benefits. It is not full compensation. ICBC is not a disability insurer, nor can you buy this coverage from them. To get complete compensation from ICBC, you need someone else to be at fault and insured by ICBC with policy limits sufficient to cover your claim. In short, you need someone to sue with money (usually insurance money).

2. UMP (Underinsured Motorist Protection) – this is additional coverage if the person at fault does not have enough insurance to pay for your claim. Additional UMP coverage can be purchased at a very low cost.

3. Hit and run coverage - this is additional coverage where you do not know who is responsible (who to sue) for your claim (Note: very specific steps need to be followed for this coverage to be effective – see my previous article ICBC Ought to Include a Warning.)

 

Black hat - If you are the person at fault for the collision then ICBC is your insurer for:

1. Accident benefits – for you, even if you are at fault (see description above).

2. Repairing or replacing your vehicle (if you bought collision coverage).

3. Paying valid claims that any other person involved in the collision makes against you for vehicle damage and injury up to your policy limits (between $200,000 and $5 million depending on what coverage limits you bought). Without this insurance you would personally have to pay any damages awarded by a court to a person injured in a car accident that was your fault. If insured, ICBC will negotiate with the injured party on your behalf and if necessary, settle or defend a lawsuit. If the other party’s claim is more than your insurance coverage, you are personally responsible for anything in excess of your policy limits.

 

In summary, what you primarily pay ICBC for when you buy auto insurance, besides repairing or replacing your vehicle, is insurance coverage to defend and payout any damages awarded or agreed to on your behalf up to the limits of your insurance policy. You do not pay ICBC to provide you with full compensation if you are hurt. What this means is that if you are badly hurt in an accident, in order to obtain complete compensation, you are going to need someone to sue (make a claim against). More specifically, and from a practical level it means that ICBC primarily acts for the black hat and if you are the injured party you are going to have to wait until the end of your claim to get most of your money. ICBC has no obligation to pay your ongoing expenses, beyond what is covered under your accident benefit coverage until the end of the claim. That being said, ICBC may choose to pay more than their legal obligation for a period of time in hopes that you will not retain a lawyer, but the bottom line is that they do not have to pay everything until the end of the file. As a result, whenever you are dealing with ICBC as the innocent party it is important to keep in mind that ICBC simply cannot act in the best interests of both people they insure (white hat and black hat) at the same time.

 

*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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