Wednesday, July 23rd13.2°C
21452
21755
Injury Wise

Why I practice Personal Injury Law

There is no shortage of news stories, novels, television series or movies portraying what the media believe lawyers (or “attorneys” if you want the US lingo) do for a living. While the media often depicts lawyers in a bad light, fortunately some portrayals are not only positive but also inspiring. One of my favorite inspiring moments is the closing argument in the movie: A Time to Kill, based on a John Grisham novel. Obviously, A Time to Kill is not a story of a personal injury lawyer but it is a story about a lawyer who is passionate about the law and finding justice for his client.

I think that most people who go to law school have a sense of what they think the practice of law is about, but until they get out into the real world, meet real clients and have to solve real problems they really have no clue. When I finished law school, I could have chosen to be any type of lawyer I wanted. I could have been a general practitioner (a lawyer who does a bit of everything), a solicitor (a lawyer who drafts things like business contracts, deals with copyright, tax or security issues, prepares wills or documents needed to buy and sell homes), a criminal defence lawyer (like in the movie mentioned), or a crown prosecutor (someone who prosecutes criminals), just to name a few. But, I knew within my first weeks of articling (like an apprenticeship for lawyers) that I wanted to be a civil litigator. A civil litigator is a lawyer who goes to court and argues civil (as opposed to criminal) cases. Now, the fact that I would take an interest in arguing probably came as no surprise to those who know me.

By the time I finished articling I knew, not only did I want to be a civil litigator but I had a keen interest in personal injury law. I wanted to act for the injured, not the insurance companies. I had gotten a taste of how good it felt to help someone and how interesting the medical and legal issues were. Each year that passed, each conference I attended, each trial I watched or was involved in, I became more and more entrenched and excited about the practice of personal injury law such that there was no doubt about it, I had found my niche. To many of my colleagues, the thought of practicing personal injury law is exactly how I view tax and securities law. In one word - “yuck!” So, you might be wondering what it is about personal injury law that is so exciting to me?

There are lots of aspects about what I do that I love. I have always had an interest in medicine and I get to pour over medical records, reports and text books. In some cases, I get to refer clients to medical experts that without my involvement, they would not otherwise get to see. So, indirectly, I sometimes get to play a role in helping my clients get better. I get to help eliminate their stress by helping them navigate the system and get fair settlements. When push comes to shove, if the other party is not offering a fair settlement for the injuries suffered, I get to run a trial. Sometimes judge alone and sometimes jury. Either way, I get to put my skills to the test in the court room where I get an opportunity to tell my client’s story in an attempt to obtain justice and as much as I can, make my client whole again. Achieving a great result for a client through settlement or trial is a pretty awesome feeling.

However, the number one reason I love what I do is that I get to help people who need it, who without someone to advocate for them would get screwed over by the system. I get to make a real difference in people’s lives and I get to meet some pretty amazing people in the process. I love that!



22085


Do I have an ICBC claim?

I will often get calls or emails from people wondering “do I have an ICBC claim?” In most cases, these people actually do have an ICBC claim. What often surprises me is how often ICBC tells you that you that you do not have a claim, when you actually do (or at least that is what the client hears). Unfortunately, too many people take ICBC at their word or do not understand what is being communicated. Sometimes, it’s not that ICBC has actually said that you do not have a claim it’s that they have told you they will not pay you anything for your claim, or do not believe you have a claim based on the information in their possession. So, when do you have a claim for personal injury?

As an ICBC insured, if you are injured in a motor vehicle accident (as a driver, passenger, cyclist or pedestrian), regardless of fault, you are generally entitled, at a minimum, to some very basic accident benefits. In the ICBC world (somewhat akin to the Land of Oz), this is what is known as a Part 7 claim. The type and amount of benefits you are entitled to is governed by legislation. These benefits are minimal (some wage loss, some medical and rehabilitation costs, death benefits, etc.) but at least there is something. The only reason you will not receive these benefits is if you are entitled to worker’s compensation benefits (because you were working at the time of your accident) or you are in breach of your ICBC policy. You may be in breach of your policy if you were drinking and driving, lied to ICBC, were using the vehicle contrary to your insurance (i.e. too many passengers), racing, have not provided a statement or medical information they require, or other behaviours that constitute breach under the policy. If ICBC has advised you that you are in breach of your insurance policy, you should immediately seek legal counsel as there can be significant consequences. If you are found 100% at fault in your accident, Part 7 benefits is all you will be entitled to.

If you are injured as a result of a motor vehicle accident, you are not at fault (or at least not 100% at fault) and someone else is (or at least partly at fault), then in addition to accident benefits, you are also entitled to make a tort claim with ICBC. This is a much more comprehensive claim for damages and what most people think of when they are thinking “claim”. The types of damages you can claim for include: pain and suffering, past wage loss/loss of earning capacity, future wage loss/loss of earning capacity, special damages (out of pocket expenses), loss of housekeeping capacity, in-trust claims (for services of family and friends), future cost of care, etc. You do not have to suffer a permanent injury or an injury of a particular severity to be entitled to pursue a tort claim for compensation. The significance and impact of your injury will determine the amount of compensation you are entitled to. If you are injured as a result of an accident and you are not 100% at fault, it is advisable to seek legal advice. An initial consult with most personal injury lawyers is typically free of charge.

Now, sometimes you are not at fault, but ICBC takes the position that you are. In these cases, if you do not seek legal help or challenge this finding, you will be limited to the amount of compensation you can recover and your premiums will be affected. Do not let ICBC convince you that challenging a ticket or finding of liability is a waste of time, without seeking further advice. This is particularly true if you have been injured.

If the damage to the vehicles involved is minimal, ICBC will often deny a claim under its LVI (low velocity impact) policy. However, this is simply ICBC’s internal policy and it is not the law. Minimal damage to the vehicles involved does not mean that you do not have a personal injury claim. See my past article on LVI claims called: Minor Accident – Minor Injury?

If the accident is a hit and run, there are important steps you will need to take in order to pursue a claim. See my past article on hit and run cases called: ICBC Ought to Include a Warning. Also, if the other driver is not insured (has no driver’s license or his or her license has expired) or you have been hit by a drunk driver, you still have a claim.

Most personal injury claims have a two year limitation period. There can also be other time limits depending on the type of claim. As a result, it is wise to legal advice as soon as possible, despite any advice ICBC may give you to the contrary (see: ICBC Says I Don’t Need a Lawyer). Do you want to know if you have an ICBC claim? Call or email me: [email protected] – I would be happy to advise you free of charge.

 

*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.



Proving damages in an injury claim

This column is the last of three, for how to prove your personal injury claim. It is the piece de resistance of the trilogy, the Chuck Norris piece – the final say! As mentioned in the first two columns, there are three things you need in order to prove your injury claim: 1) Liability; 2) Causation; and 3) Damages. In essence, someone else has to be legally at fault for your injuries, your injuries must have been caused by the accident (not some pre-existing condition or post-accident event); and as a result of those injuries, you must have suffered some compensable damage or harm. In this column, I deal with “damages". For those who know me, it will come as no surprise that I had to reference Chuck Norris in this article. Plus, damages always follow Chuck Norris.

Of course, “damages”, is the piece that everyone thinks about when they think of personal injury claims. It’s the money, the cash, the bankroll, the mucho dinero. The purpose of a damage award in a personal injury claim is to put you, the plaintiff back in the same position you would have been in if the injury did not occur to the extent that money will allow.

In a personal injury claim, damages take two forms: 1) Non-pecuniary damages, more commonly referred to as “pain and suffering” and 2) Pecuniary damages, which are the financial losses that flows from the injuries and includes things like: wage loss, special damages, future cost of care, in-trust claims, etc. The subject of damages occupies many leather-bound books (a Ron Burgundy reference for you crazy Anchorman fans) so with this column I can only scratch the surface.

Proving that you have suffered non-pecuniary damages from an accident is often a given, but not always. Bad food claims help illustrate this point. I will often get phone calls or emails from people who have found a piece of glass, a bug or something that does not belong in their food (usually gross) and they want to know if they have a case. My first question is always: “Did you get sick or were you hurt as a result?” While you might be totally grossed out about finding a piece of a rubber glove in your chicken burger (yes this did happen), the fact is that unless you were somehow injured as a result, your only claim (the only compensable damage you have suffered) is the cost of the product you purchased. Being “grossed out” is not a compensable pain and suffering claim, unless it occurs in combination with a physical injury or you suffer a psychological injury (a provable recognizable psychiatric illness) as a result.

If you did get sick or suffer an injury as a result of an accident, you have to prove what those injuries are and the extent to which they affect your life. You might be surprised to hear that the insurance company or defendant is not going to just take your word for it.

So how do you prove your damages for pain and suffering? Well, the most common way is to provide the insurance company (usually through your lawyer if you have one) with copies of clinical records from the hospital (if you attended one), your doctors, and any other caregivers you may have seen as a result of your accident. Many injuries, like whiplash, soft tissue injuries, fibromyalgia, chronic pain, concussion, mild traumatic brain injury and psychological injury (just to name a few) are not visible and do not show up on x-rays, CT Scans or MRI’s so you need to get a doctor to confirm your injuries and document the impact of those injuries and your recovery. So, for all you Chuck Norris wannabes, if you are injured in an accident and want compensation, now is not the time to be tough. Go to the hospital or doctor for diagnosis, treatment and follow-up care.

In more serious injury claims, your lawyer will also prove your damages through medical-legal reports and may send you to a specialist (or several) for an independent medical exam for further assessment and diagnosis. If your injuries are visible (cuts, bruising, scaring, burns, fractures, etc.), photographs, video footage and medical imaging are extremely valuable for proving your damages. Also, keeping a diary or pain journal is often recommended.

Once diagnosis of your injuries is confirmed, that diagnosis in combination with evidence for how it has affected your life will be compared to similar cases that have gone to trial to arrive at an amount of compensation for pain and suffering.

As mentioned above, pecuniary damages are damages that are related to financial loss you have incurred or are likely to incur in the future as a result of your injuries. Again, not surprisingly, the insurance company is not just going to take your word for the financial losses you have suffered and the ones you believe you will suffer going forward. These need to be proven. Sometimes these are relatively straight forward, like special damages, which are the out-of-pocket expenses that you have suffered as a result of the accident and are typically proven by providing receipts. In other aspects, particularly claims for future wage loss/loss of earning capacity or future cost of care these are not straight forward and evidence proving these claims are critical.

Proving past and future wage loss claims is done through a combination of the medical evidence, such as medical notes or reports which confirm your inability to work and evidence related to your employment income and actual time missed from work (the amount lost). Typically, ICBC will have your employer fill out a Certificate of Earnings (Form CL 15). Other documentation such as academic transcripts, your employment file, income tax returns, T4 slips, ROE’s, pay-stubs, financial statements (for the self-employed), resumes, etc. may also be used to help support both past and future wage loss claims.

Where you have suffered a permanent injury that affects your ability to work, your lawyer may also have you undergo a Functional Capacity Evaluation with an occupational therapist (this will measure your functional limitations), and possibly a Vocational Assessment with a vocational expert to determine your residual employability. These experts and their reports assist in proving your claim for future income losses.

Future cost of care claims are typically proven through your medical experts and with larger cases, with the help of occupational therapists or life care planners who prepare reports setting out all your future care needs and related costs. Where large amounts are being claimed for future losses, your lawyer will also often require the assistance of an accountant, economist or actuary to assist with calculations.

If your case goes to trial, your damages will not only be proven through your testimony, your doctors and other experts, but it will also be proven through the testimony of your employers, co-workers, friends and family who will provide evidence about the pain and suffering you endured, time missed from work, care requirements and the overall impact the accident has had on your life. Getting statements from these people early on can be helpful for proving your damages down the road.

In conclusion, proving that you suffered a compensable injury is critical to getting a settlement or an award in your personal injury claim. How much money you receive will depend on how well you or your lawyer proves the injuries suffered, the effect on your life and the financial consequences that flow from those injuries. Having a lawyer who understands the intricacies of personal injury claims can be paramount in getting an appropriate damage award for your claim.

 

*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.



21856


Proving causation in an injury claim

This column is the second of three, for how to prove your personal injury claim. I like to think of these columns as an epic PI trilogy – the likes of the epic sci-fi trilogy: Star Wars, only this trilogy is for fighting the insurance empire. As mentioned in the first column, there are three things you need in order to prove your injury claim: 1) Liability; 2) Causation; and 3) Damages. In essence, someone else has to be legally at fault for your injuries, your injuries must have been caused by the accident (not some pre-existing condition or post-accident event); and as a result of those injuries, you must have suffered some compensable damage (such as pain and suffering, wage loss, out of pocket expenses, etc.). In this column, I deal with “Causation.”

A defendant only has to compensate you for injuries you can prove were caused by the accident. The good news is that causation does not have to be proven with scientific certainty. The burden of proof for causation is on a balance of probabilities. In other words, you only have to prove that the accident probably caused the injuries, or that it is more likely than not the cause of your injuries (51% chance that the accident caused the injuries).

There is no doubt that if you lose a limb or became paralyzed as a result of an accident then proving what injuries were caused by the accident becomes an easy task. However, it is not always so straightforward. You may have pre-existing injuries or medical conditions, you may have been involved in other accidents, or your symptoms may not appear or get reported to your physician for several months after an accident and it becomes difficult to tie those symptoms to the accident in question. In other cases, the accident is minor and it is difficult to link the extent of the injury to the accident.

It is important to understand that a defendant is only required to put you, the plaintiff back in the same position you would have been in if the accident had not occurred. No better, no worse. As a result, what is often disputed is the state of your health at the time of the accident and what it was going to be regardless of the accident. So, you need to look at what your situation would have been like if the accident had not occurred and compare it to your situation as a result of the accident. It is the difference between these two positions which is compensable and is what you need to prove.

In many cases, pre-existing injuries are aggravated as a result of an accident. It is important not to minimize or deny pre-existing conditions as there will be records and denial will only hurt your credibility down the road. You are entitled to be compensated for an aggravation of a pre-existing condition.

So, how do you go about proving the accident caused your injuries? In most cases, causation is proven with the assistance of your doctors, typically through production of their clinical records, test results, forms they fill out for ICBC (i.e. CL-19 Report) and medical-legal reports. In addition, if you case goes to trial your doctors will also testify. Causation can also be proven through your own notes, photographs of injuries, documentation and testimony of other caregivers such as your physiotherapist or massage therapist, evidence of family, friends and co-workers, and in some cases expert evidence of biomechanical engineers and other medical specialists. In essence, a judge or jury will look at all the evidence and decide whether the accident probably caused your injuries or whether they were caused by something else.

To help eliminate arguments by the defence (whom I like to refer to as the “Dark Side”) that your injuries were not caused by the accident, it is important to seek medical treatment as soon as possible after the accident. In more serious cases this means going to emergency at the hospital. However, if going to the hospital is not warranted, it is still important to attend a walk-in-clinic or see your doctor as soon as possible after the accident so that your injuries are documented. You will want to make sure you report all the symptoms you are experiencing as soon as possible. Every day that goes by that you do not seek medical treatment after your accident, hurts your claim. Further, if symptoms are not documented within a reasonable time frame after the accident, it will become harder and harder to link them to the accident. Regular follow-up is also important.

In conclusion, proving causation is essential for a successful personal injury claim. Attention to detail is important. If you cannot prove that the accident caused your injuries on a balance of probabilities, you will not be entitled to compensation. May the force be with you!

 

*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.



Read more INJURYwise articles