PERSONAL INJURY. What you need to know about your legal rights INFORMATION KIT. Personal Injury Litigators since

Transcription

1 PERSONAL INJURY INFORMATION KIT Effective: September 1, 2010 What you eed to kow about your legal rights Persoal Ijury Litigators sice

2 CONTENTS What you eed to kow Te importat steps to take whe ijured Obtaiig compesatio for ijuries Accidet Beefits Makig a claim How do I proceed with a tort claim? Pai ad Sufferig Loss of icome ad iability to ear icome Housekeepig ad home maiteace claims i tort actio Health care expeses i tort actio Family claims with respect to the loss of care, comfort ad compaioship i tort actio Frequetly asked questios There are time limits to all claims Why a Thomso, Rogers lawyer is right for you Other assistace Glossary

3 WHAT YOU NEED TO KNOW INTRODUCTION ABOUT YOUR RIGHTS, REMEDIES, AND THE LEGAL PROCESS At Thomso, Rogers we offer free cosultatios without obligatio to people who have bee ijured i accidets. We will explai your rights, the legal process, ad the role of your lawyer i simple, clear laguage. We offer this service at o charge because whe you or a loved oe is ijured, we believe it is importat to uderstad your rights ad remedies, ad to take the guesswork out of hirig a lawyer. Sice 1936, Thomso, Rogers has bee a leader i Persoal Ijury Litigatio. We are oe of the largest Persoal Ijury Law Firms i Caada. Every oe of our lawyers is a trial lawyer. The vast majority of our cases are referred to us by health care professioals, other lawyers, ad former cliets. Ulike most persoal ijury law firms i Toroto, we represet oly people ijured i accidets. We do ot represet or defed the iterests of isurace compaies i persoal ijury claims. Your iterests are our iterests. IF YOU OR SOMEONE YOU KNOW HAS BEEN INJURED IN AN ACCIDENT, THIS IS A BASIC GUIDE TO HELP YOU AND YOUR FAMILY: Kow your rights. Access the help that is available. Choose the best lawyer for you. 3

4 INTRODUCTION TEN IMPORTANT STEPS TO TAKE WHEN INJURED IF YOU OR SOMEONE YOU KNOW HAS SUFFERED A SERIOUS PERSONAL INJURY, SOME VERY IMPORTANT STEPS NEED TO BE TAKEN WITHIN THE FIRST FEW DAYS: 1. Make sure the police have all of the iformatio they eed about the accidet. 2. Record the ames ad addresses of ivolved parties ad witesses to the accidet. 3. Keep your family doctor iformed of your ijury. 4. Notify your isurace compay as soo as practicable of your car accidet. 5. Notify your employer or school. 6. Record the ames ad cotact iformatio of your health care professioals. 7. Record isurace iformatio. 8. Keep receipts for all related expeses. Family members should also record dates ad time spet carig for the ijured perso. 9. Check for other isurace coverage (i.e. through your work, school or private plas) Cotact Thomso, Rogers ad kow your rights.

5 OBTAINING COMPENSATION FOR INJURIES ABOUT YOUR RIGHTS, REMEDIES, AND THE LEGAL PROCESS 1. How do I kow if I have a claim? If you are ijured i a accidet, you may have the right to make a claim agaist the perso who caused or cotributed to your ijury. Claims for compesatio ca be made for ijuries suffered i may situatios ad are ofte covered by isurace. 2. What if the accidet is my fault? If you are ijured i a automobile, sowmobile, ATV, motorcycle or dirt bike accidet, you are etitled to certai accidet beefits (usually paid by your ow isurace compay), eve if you are at fault for the accidet. Further, depedig o the circumstaces of the accidet, you may also be etitled to beefits from other sources. We ca help you idetify those potetial sources ad obtai the beefits to which you are etitled. TYPES OF CLAIMS: Accidets ivolvig cars, motorcycles, plaes, boats, trais, sowmobiles, ATVs ad other motorized vehicles. Slips ad falls o public or private property. Ijuries caused by defective products. Medical egligece. Assaults. COMPENSATION 3. Where do I begi? The first step is to determie if you have a claim. The quickest ad surest way to do this is to cosult with a lawyer as soo as possible after a serious persoal ijury, because there are strict time limits ad deadlies that must be met i order to avoid delays or disqualificatio from obtaiig compesatio. 5

6 COMPENSATION We uderstad that you may be ucomfortable dealig with a lawyer. Most of the people we represet have ever talked to a lawyer before. However, you will fid that the assistace of a experieced persoal ijury lawyer is iformative ad helpful. You may also have cocers about the cost of talkig to us. At Thomso, Rogers we provide free cosultatios, ad i most cases we do ot require ay paymet util you receive compesatio. Whe we meet, we will esure you are iformed about legal fees ad costs. 4. What if I am ijured i a automobile accidet? There is a special system for obtaiig compesatio related to motor vehicle accidets. Ufortuately, it is complicated. Our experieced professioals ca help you obtai full ad just compesatio. There are two sources of compesatio, both described below: A claim agaist your ow car isurace compay or the car isurace compay of aother vehicle ivolved i the accidet is called the Accidet Beefits Claim; ad A claim agaist the at-fault driver is called the Tort Claim. 5. Ca I claim for other types of accidets? Yes. If your ijury was caused by the egligece of someoe else, you may be able to seek compesatio. For accidets that do ot ivolve motorized vehicles, accidet beefits are ot available. Geerally, compesatio for your losses will ot be paid by the isurace compay util the ed of your case. However, i certai circumstaces, we may be able to persuade the resposible party s isurace compay to make a advace paymet. 6

7 ACCIDENT BENEFITS WHO IS MY ACCIDENT BENEFITS INSURER? If you are ijured i a car accidet, o matter who is at fault, you are etitled to accidet beefits. These beefits are available to you from either: Your ow car isurace compay; The car isurace compay of ay other vehicle ivolved i the accidet; or The Motor Vehicle Accidet Claims Fud ( ). BENEFITS You may qualify for the followig accidet beefits: Weekly beefits A beefit for lost icome from employmet, equal to 70% of your gross icome, to a maximum of $400 per week.* If you were ot employed at the time of the accidet, a o-earer beefit of $185 per week (ad i some circumstaces $320 per week). This beefit is ot available util 6 moths have passed sice the date of your accidet. I certai situatios, if you were the primary caregiver for a perso i eed of care, a caregiver beefit of up to $250 per week, plus $50 for each additioal perso requirig care, may be available based o icurred ** expeses. * See glossary of terms "Optioal Beefits" ** See glossary of terms "Icurred" Expese 7

8 BENEFITS Medical ad Rehabilitatio Beefits The accidet beefits isurer is required to pay for a wide rage of icurred ** medical ad rehabilitatio expeses over ad above what is paid by OHIP: If you suffer a o-catastrophic ijury - up to $50,000 is available over a 10 year time period*; or, If you suffer a Catastrophic ijury up to $1,000,000 is available over your lifetime.* All fees ad expeses for coductig assessmets, examiatios ad preparig reports are paid out of your medical ad rehabilitatio limits. If you suffer a Mior Ijury, oly $3,500 is available, except i certai circumstaces. Attedat Care Beefits The accidet beefits isurer is also required to pay for various persoal care services, as determied by a Occupatioal Therapist or Registered Nurse, that you require ad have icurred ** followig your accidet, to a maximum of: If you suffer a Catastrophic ijury $1,000,000 ($6,000/moth) over your lifetime; If you suffer a o-catastrophic ijury $36,000 ($3,000/moth) for up to 2 years; or, If you suffer a Mior Ijury, Attedat Care Beefits are ot available. 8

9 Death ad Fueral Beefits $25,000 to the victim s spouse. $10,000 to each former supported spouse. $10,000 to each of the victim s depedats or more if the victim had o spouse. $10,000 to the perso upo whom the victim was depedat. Up to $6,000 for fueral expeses. The Accidet Beefits Claim Time Limits ad Forms The isurace process is very complicated ad icludes very specific time limits that must be met to avoid delay or deial of your beefits. Durig your iitial cosultatio with Thomso, Rogers we will help you fill out the accidet beefits applicatio, at o charge. The followig is a summary of some of the steps that must be take to claim Accidet Beefits: Determie which isurace compay should pay the beefits. You must provide "writte otice" to the accidet beefits isurer withi 7 days of the accidet. Complete a applicatio for accidet beefits withi 30 days of receivig the forms from your isurace compay. Your treatig health care professioal ad your employer must complete certai forms. OTHER AVAILABLE BENEFITS INCLUDE REIMBURSEMENT FOR: The expeses of immediate family members ad/or those livig with the ijured perso who visit durig treatmet or recovery. These expeses ca iclude the cost of meals, mileage, travel ad hotel. Please remember to keep your receipts. I cases ivolvig catastrophic impairmet, or where additioal optioal beefits have bee purchased, Housekeepig ad Home Maiteace Expeses, of up to $100/week may be available, based o icurred expeses. Damage to clothig. Lost educatio expeses for studets, to a maximum of $15,000. Please ote some of these beefits may be icreased if your isurace policy icludes additioal optioal coverage. 9

10 If requested, you must, withi 10 busiess days of the request, provide your isurace compay with iformatio they eed to determie your etitlemet to accidet beefits, such as hospital records ad family doctor records. If requested, you must, withi 15 busiess days, provide a health practitioer s disability certificate. If requested, you must provide a statutory declaratio a swor statemet describig the circumstaces that gave rise to your claim. If requested, you may be required to atted a examiatio uder oath, where you will be questioed by the isurace compay. If required to do so, we urge you to have a lawyer preset to represet you. 10

11 MAKING A CLAIM AGAINST THE AT-FAULT DRIVER LOSS OF INCOME AND INABILITY TO EARN INCOME How do I proceed with a tort claim? Retai a lawyer from Thomso, Rogers. We will give writte otice of your itetio to sue. We will make sure that accidet beefit claims are properly submitted to the isurer. We will start a lawsuit withi the prescribed time limit. What ca I claim? Pai ad Sufferig I a motor vehicle accidet claim, i order to claim for your pai ad sufferig, you must suffer a permaet serious impairmet of a importat physical, metal or psychological fuctio or permaet serious disfiguremet, such as scarrig. This is usually referred to as the threshold test. The law states that your claim for pai ad sufferig may be subject to a moetary deductible. This meas that a portio of your claim may ot be recovered. From the first week after the accidet util the time your case settles or reaches a trial, you ca claim 70% of gross icome loss. If you cotiue to be disabled from work, future icome loss ca be claimed based o 100% of your gross icome loss. I most cases, you must first seek compesatio for icome loss from: ay disability isurace; ad your accidet beefits isurer. If the sources of icome replacemet are isufficiet to pay for your actual icome loss, the a additioal amout may be claimable. LAWSUITS No icome loss is payable for the first week followig the accidet. 11

12 What ca I claim? (cot.) Housekeepig ad Home Maiteace claims i tort actio If you are uable to maitai your home as you did before the accidet, you ca claim reimbursemet for expeses you icur or will icur. You must first seek reimbursemet for housekeepig ad home maiteace expeses from your accidet beefits isurer, if available. LAWSUITS Health Care Expeses i tort actio All past, preset ad future health care expeses ot covered by OHIP or by your accidet beefits isurer are claimable if your ijuries pass the threshold test. Claims by Family Members Family claims with respect to the loss of care, comfort ad compaioship i tort actio Certai family members may be able to make a claim if your ijuries pass the threshold test. The law states that the claims of your family members may be subject to a moetary deductible, although o deductibles are applied i cases ivolvig a fatality. 12

13 FREQUENTLY ASKED QUESTIONS 1. How ad whe should I talk to the isurace compay? Whe you are claimig accidet beefits, you eed to otify the accidet beefits isurer ad provide iformatio i support of your claim. I most cases, your isurace compay will sed a isurace adjuster to meet with you ad talk about the accidet ad your ijuries. Here are some importat poits to remember: Be aware that aythig you say to the isurace adjuster will go ito your file ad ca affect your future accidet beefit ad tort claims. Oly talk to the adjuster whe you are medically able. Get legal advice ad kow your rights before meetig with the adjuster. Why? Isurace compaies deal with cases like yours all the time. This is likely your first time dealig with a adjuster. Keep the playig field level by kowig your rights. You have o obligatio to speak to a adjuster from the isurace compay of the at-fault perso. However if you choose to, we recommed that you speak to a lawyer first. 3. What if the ijured perso caot make decisios due to icapacity? If a ijured perso has a severe ijury that prevets the perso from makig his or her ow decisios, the the family is etitled to make decisios regardig treatmet while the perso is cofied to the hospital. Thereafter, it is possible to appoit a perso as a substitute decisio-maker o behalf of the ijured perso. QUESTIONS? 2. How do I complete all of the forms? Whe you are claimig accidet beefits there are several forms that must be completed before ay beefits are paid. Thomso, Rogers ca help you complete the forms durig the iitial meetig. 13

14 6. What if I was drivig my car without car isurace ad was ivolved i a accidet? You caot pursue a claim agaist ay at-fault driver if you were kowigly drivig your car without car isurace. However, you remai etitled to claim medical, rehabilitatio, attedat care beefits. 7. How will the accidet affect my isurace rates? If the accidet is your fault, your car isurace rates may icrease. If the accidet is ot your fault, your car isurace rates should ot icrease eve if you make a claim for beefits. QUESTIONS? 4. What if I am at-fault for the car accidet do I still have a claim? Yes, regardless of how the accidet happeed or who caused it, your etitlemet to accidet beefits may be substatial, depedig o your ijuries. 5. What should I do if I am hurt i a car accidet ad ca t work, go to school or take care of my childre? There are beefits available to replace lost icome, ad recover school expeses, ad i certai circumstaces, to pay child care providers. 8. What if the accidet occurred while I was workig? We suggest you cosult a persoal ijury lawyer to determie if the claim should be pursued through the isurace compay or the Workplace Safety Isurace Board (WSIB). 9. Who chooses the case maager or treatmet providers? The ijured perso is etitled to select case maagers ad other treatmet providers. We recommed that you iterview qualified health care professioals before you make a choice. Lawyers, social workers ad isurers ca put you i touch with these professioals. 14

15 THERE ARE TIME LIMITS TO ALL CLAIMS HOW DO I KNOW HOW MUCH TIME THERE IS? The law i Otario places a umber of rigid ad uforgivig time restrictios o your right to pursue a claim. If you do ot start a lawsuit withi the time limit, it is possible that you will lose your right to pursue a claim. The followig time limits apply: Motor vehicle accidet: Iform accidet beefits isurer of accidet withi 7 days of accidet. Complete accidet beefits applicatio withi 30 days of accidet. Mediate ad sue or arbitrate agaist the accidet beefits isurer withi 2 years of a deial of a beefit. Give writte otice to at-fault driver withi 120 days of accidet. Sue at-fault driver withi 2 years of accidet. Loss or damage to vehicle if ot resolved, must sue withi 1 year of accidet. Motor vehicle accidet caused by slippery road or o-repair of road: Provicial Road sue withi 2 years of accidet. Muicipal Road give writte otice withi 10 days of accidet; sue withi 2 years of accidet. DEADLINES 15

16 DEADLINES Fall o a muicipal (city) sidewalk: Give writte otice withi 10 days of accidet, if caused by sow or ice. Sue withi 2 years of the icidet. Accidet ivolvig provicial streetcars or trais (GO Trasit, etc.): Sue withi 2 years of the icidet. Fall o provicial property: Give writte otice withi 10 days of the icidet. Sue withi 2 years of the icidet. Lawsuit agaist the provicial govermet: Give 60 days otice before suig. Sue withi 2 years of the icidet. Accidet ad sickess isurace: Check cotract of isurace. Fatal accidets (death): Geerally, you must sue withi 2 years of accidet (uless a shorter limitatio period applies). Victims of assault: Sue withi 2 years of assault. Public authorities (OPP, muicipal police, etc.): Give writte otice withi 10 days of accidet. Give 60 days otice before suig. Sue withi 2 years of accidet. Medical Malpractice: Sue withi 2 years from the time you kew or ought to have kow of the facts givig rise to malpractice. 16

17 WHY A THOMSON, ROGERS LAWYER IS RIGHT FOR YOU 1. Do I really eed a lawyer? Seekig compesatio for ijuries is a complicated process. You should ot make ay decisio without beig fully aware of all your rights. We specialize i persoal ijury cases. We ca help you uderstad your rights, ad we ca assist you with the followig: Early ivestigatio of the circumstaces surroudig the accidet. This is very importat, as witesses move, memories fade over time, ad records are ot always kept. Your isurace compay may ot advise you of all the beefits to which you are etitled. We will. Your health care providers may suggest that you eed services or goods for which your isurace compay may ot agree to pay. We will work with you ad your treatmet team to esure that you obtai access to all reasoable ad ecessary treatmet ad rehabilitatio services. We will assist you i obtaiig a fair ad complete settlemet of your claims. Claims agaist someoe at-fault for your ijuries are processed through the legal system. This process is complicated ad a lawyer is essetial i order to resolve your case i your best iterests. We have the resources, skill ad determiatio to pursue your case through to trial. 2. What should I expect from my lawyer? At Thomso, Rogers, whe appropriate, our lawyers are prepared to come to the hospital or to your home to meet you ad your family. There is o obligatio or fee charged for the iitial meetig. We have a thorough uderstadig of persoal ijury law ad we are able to explai your rights i clear laguage that you ca easily uderstad. We will be frak ad ope about what we ca achieve for you ad what we will charge you. We will provide to you a complete writte explaatio about legal fees. LAWYERS 17

18 3. What should I ask my lawyer? Ask us to explai the rights ad obligatios that you have ad the claim that you may pursue. We are accessible ad experieced, with a highly traied staff to assist with your case. You should ask us about our qualificatios ad depth of experiece i hadlig cases like yours. Be assured a Thomso, Rogers lawyer will be available to aswer all of your questios. 4. Our Website thomsorogers.com The Thomso, Rogers website provides up-to-date iformatio regardig our firm, lawyer biographies, evets, commuity ivolvemet, ad a persoal ijury resource directory that will help you fid health care ad other relevat iformatio. LAWYERS 18

19 OTHER ASSISTANCE HOW DO I ACCESS MEDICAL, GOVERNMENT AND COMMUNITY RESOURCES? Workplace Safety ad Isurace Board (WSIB) Caada: Otario: Toroto: If you were ijured at work or durig the course of your employmet. Claims must be made withi 6 moths of the ijury. I work-related accidets ivolvig a automobile, you may have the right to elect to receive accidet beefits ad pursue a tort claim, rather tha accept WSIB beefits. Crimial Ijuries Compesatio Board Toll-free: Toroto: If you were a victim of crime. A claim should be filed with the Board withi 2 years from the date of the icidet. Otario Huma Rights Commissio Toll-free: Toroto: If you have bee discrimiated agaist or iappropriately termiated from your employmet. RESOURCES 19

20 Caada Pesio Pla (CPP) Toll-free: If you have questios regardig retiremet pesio, disability beefits, death beefit, childre s beefits ad survivor s pesio. The Otario Brai Ijury Associatio (OBIA) Toll-free: OBIA will be able to put you i touch with appropriate, local brai ijury associatios located across Caada ad the Uited States. These are ot-for-profit orgaizatios that ca help you ad your family deal with the effects of brai ijury. They ca provide resources for programs ad services available i your commuity. The Caadia Paraplegic Associatio of Otario Toll-free: Toroto: A ot-for-profit orgaizatio to assist people with spial cord ijuries. RESOURCES 20

21 GLOSSARY OF TERMS Accidet Beefits Beefits i the form of moey or assistace provided to persos ijured i a motor vehicle accidet, regardless of who is at fault. Types of accidet beefits iclude o-earer, icome replacemet, caregiver, attedat care, medical, rehabilitatio, educatio, damage to clothig, visitatio, housekeepig ad home maiteace, fueral, etc. Adjuster A perso who ivestigates ad/or adjudicates isurace claims o behalf of a isurace compay. Attedat Care A type of accidet beefit a ijured perso receives to pay for care/assistace i his or her daily livig. Assistace may take the form of cookig, cleaig, helpig the ijured perso get dressed or supervisig the ijured perso. The cost of providig attedat care may be paid by the isurace compay to the perso providig the care, whether it is a health care professioal or a family member. Case Maager (Qualified) A rehabilitatio professioal who coordiates rehabilitatio services followig a ijury. Catastrophic Impairmet The most serious of persoal ijuries. Examples iclude: quadriplegia; paraplegia; amputatio of arm or leg or impairmet causig the total ad permaet loss of use of a arm or leg; total loss of visio i both eyes; ijuries resultig i a impairmet of 55% or more of the whole perso; brai impairmet measured by a score of 9 or less o the Glasgow Coma Scale; marked or extreme metal or behavioural impairmet; ad severe disability from brai ijury measured usig the Glasgow Outcome Scale. A perso havig a catastrophic impairmet becomes etitled to maximums of $1,000, for medical/rehabilitatio eeds, plus $1,000, for attedat care plus housekeepig expeses, payable over the lifetime of the ijured perso. Damages The losses the plaitiff has suffered because of the defedat s coduct. These losses ca take may forms icludig compesatio for pai ad sufferig; loss of past, preset ad future icome; health care costs; loss of social or familial relatioships; etc. Deductible I lawsuits arisig from a motor vehicle accidet, after a award for compesatio for pai ad sufferig is established i court or durig the settlemet egotiatios, the award may i some case be reduced by statutory amout. 21 GLOSSARY

22 GLOSSARY 22 Defedat A perso ad/or corporatio that is beig sued by a Plaitiff. Examples of defedat corporatios iclude a isurace compay, a leasig compay, a muicipality, a taver, a property ower, a hospital, etc. Most defedats i persoal ijury lawsuits are isured. A defedat s isurer will usually appoit a lawyer to act o behalf of the defedat. Glasgow Coma Scale A medical test used to determie brai impairmet resultig from a accidet. It is based o a scale of 3 to 15, with a lower score ofte idicatig a more serious ijury. A score of 9 or less usually results i the perso beig deemed to have sustaied a catastrophic impairmet. Health Care Expeses A category of tort etitlemet that icludes goods ad services for medical expeses, rehabilitatio, ad attedat care. Icurred Expese - New defiitio of icurred requires the claimat to pay or promise to pay the expese ad requires that the service provider provide the service i the course of the employmet, occupatio or professio, i which he/she would have ormally bee egaged, but for the accidet, or that the perso has suffered a ecoomic loss i order to provide the service. Isurer Examiatio/Sectio 44 Assessmet The isurer may appoit health care professioals of their choosig, to perform assessmets i order to determie whether to pay a beefit. Limitatio Period Whe a perso suffers a ijury, the law imposes a time limit i which to issue a Statemet of Claim. If oe fails to issue the Claim withi the time allotted, all rights to compesatio are lost. Mior Ijury - Oe or more of a sprai, strai, whiplash associated disorder, cotusio, abrasio, laceratio or subluxatio ad ay cliically associated sequelae. Optioal Beefit - Additioal Beefits purchased by the Isured or i some cases a family member of the Isured. Persoal Ijury Law The area of law that ivolves persos who have bee ijured i a accidet. Accidets iclude motor vehicle, slip ad fall, medical malpractice, boatig, assault, etc. Pre-Claim Examiatio The accidet beefit isurer may request a assessmet by health care professioals of its choosig, before you eve apply for beefits. The ijured perso has the right to refuse this assessmet ad may do so without pealty. Plaitiff A perso who has sued aother perso, corporatio or isurer (the defedat ).

23 Statemet of Claim A documet that begis a lawsuit ad claims damages from oe or more defedats based o the defedat s acts or omissios causig loss, ijury or harm to the Plaitiff. A Statemet of Claim is geerally prepared by the Plaitiff s lawyer. Statemet of Defece A defedat s respose to the Statemet of Claim. It is usually prepared by the defedat s lawyer. Ofte, it will dey the allegatios made i the Statemet of Claim. Threshold A level of impairmet or disfiguremet that a Plaitiff must prove i order to recover certai compesatio i a motor vehicle tort claim. This meas that the ijury must be either a permaet, serious disfiguremet (like a scar) or a permaet, serious impairmet of a importat physical, metal or psychological fuctio. There are may court decisios that help a lawyer specializig i persoal ijury law to advise you about whether your ijuries meet the threshold. Tort A area of law i which oe party sues ad seeks moetary compesatio (moey) for ijuries ad losses suffered because of the fault or egligece of aother party. This cotrasts with accidet beefits (o-fault beefits) where beefits are paid without referece to fault. 23

24 INFORMATION KIT Legal assistace i other laguages May of our cliets speak laguages other tha Eglish. We are pleased to offer the services of a iterpreter i your laguage. THOMSON ROGERS LAWYERS SUITE 3100, 390 BAY STREET TORONTO, ONTARIO M5H 1W2 Fax: Tel: Toll free: Effective: September 1, 2010