Have you or someone you know suffered a personal injury? TIPS TO MAXIMIZE COMPENSATION

Transcription

1 Have you or someone you know suffered a personal injury? TIPS TO MAXIMIZE COMPENSATION

2 If you have suffered a personal injury it is important to consider all potential sources of compensation. A personal injury lawyer can help you maximize your recovery. Catastrophic injuries, including spinal cord injuries, arise in many circumstances. Those range from motor vehicle accidents, at work accidents, accidents at home and as a result of being a victim of a crime. There are many potential sources of benefits and funding that can assist in providing compensation. We set out a summary of sources with information to assist the newly injured and their families in determining sources of benefits and funding. Motor Vehicle Accidents Motor vehicle accidents are a significant cause of catastrophic injuries, including spinal cord injuries. Compensation of various kinds may be available as a result of those accidents. Typically, the compensation is obtained through commencing a lawsuit. Compensation is also available through ICBC. These two sources of compensation are interrelated. Lawsuit Fault or negligence based In order to recover compensation for injuries sustained in a motor vehicle accident, it is necessary to prove that you were injured as the result of the fault, or negligence, of another. It may be the fault of the driver or owner of the other motor vehicle(s) involved. It may be the fault of the party responsible for maintaining the road or highway. It may be the fault of someone else. Fault may be shared between a number of parties, including yourself. It is important to gather all information about fault early to preserve the evidence necessary to prove your case. Consulting a lawyer right away will assist in your getting this important information quickly. Types of Compensation Pain and Suffering Pain and suffering, also known as non-pecuniary compensation, is meant to provide some form of solace or substitution of sources of satisfaction that have been lost as a result of the injuries you have suffered. It is to compensate for your pain, suffering and loss of enjoyment of life. Judges make awards for this compensation considering your unique circumstances and similar decisions other Judges. Several years ago the Supreme Court of Canada limited the amount of compensation for pain and suffering for the most catastrophic of injuries to $100,000. This has been adjusted to take into account inflation. This rough upper limit is presently set at approximately $350,000. Your lawyer will be able to tell you what range of compensation you may be entitled to once all your medical evidence has been obtained. [1]

3 Income loss (past and future) If you are unable to work, or work full time, for a period of time after a motor vehicle accident, you may be able to recover compensation for that past income loss. If you are unable to work, or work at full capacity, in the future, you may recover compensation relating to that future loss. Compensation for past and future income loss is based on your net income as defined in the Insurance (Vehicle) Act. Compensation for loss of future earning capacity may be awarded where permanent physical or psychological deficits occur. The loss must be assessed rather than calculated in a mathematical way. Typically, these awards involve consideration of expert evidence and are usually awarded in a lump sum. Determining the appropriate amount of compensation for these losses is complex. You should get legal advice to assist you with this. Care costs (past and future) The Courts may compensate you for your care needs resulting from injuries you sustain in a motor vehicle accident. Your past care costs are typically recovered from ICBC through your no fault benefits (discussed later). Future care costs may be awarded provided that those costs are reasonably necessary to preserve your health. Qualified rehabilitation experts usually are required to assess these costs. A lump sum award is typically made. A variety of considerations are taken into account in determining the amount of compensation. These include the nature and extent of your injuries, your unique care needs, amongst many other factors. Sometimes Courts make an in-trust award for your family members to take into account their efforts for any housework, nursing and domestic services provided to you. These are complex claims that require assistance of a lawyer. Rehabilitation Costs If you are seriously injured in a motor vehicle accident the Courts may compensate you for your rehabilitation needs resulting from that accident. Amounts for rehabilitation costs incurred up to the date of trial are typically recovered from ICBC through no fault benefits (discussed later). Future rehabilitation costs may be determined on a similar basis as care costs. Qualified rehabilitation experts are required and a lump sum award is usually made. A variety of considerations are taken into account in determining the amount of compensation. These are also complicated claims requiring the advice of a personal injury lawyer. Medical Expenses These are typically in your lawsuit paid through ICBC no fault benefits, but may also form part of a claim for special damages. Some examples are the cost of an ambulance, physiotherapy treatments and the like. These may also include other related expenses that you have paid for your medical needs. [2]

4 ICBC No fault benefits (Part 7 benefits) Part 7 of the Insurance (Vehicle) Regulation outlines the benefits available to you from ICBC if you are injured in a motor vehicle accident arising out of the use or operation of the motor vehicle. You do not need to prove the accident was caused by the fault or negligence of another to get these benefits. The benefits include: a) Medical and rehabilitative benefits; b) Disability benefits for employed persons; c) Homemaker benefits; and d) Death benefits. To be entitled to benefits, you must be insured as defined in the Regulations. An insured includes owners of vehicles, members of a vehicle owner s household, occupants of vehicles, cyclists or pedestrians who collide with a vehicle, amongst others. If you are eligible for benefits under the Workers Compensation Act or Employment Insurance Act, those benefits are deducted from the no fault benefits. Similarly, benefits payable to you from your extended medical insurance may also be deducted. ICBC has a claims procedure for starting your claim. ICBC requires you to provide medical evidence to support the claim. The benefits payable under Part 7 are deducted from the amounts you recover at trial whether or not you received those benefits. Care must be taken to ensure all benefits are properly claimed. A lawyer can ensure that you have applied for all benefits that are available to you. Underinsured Motorist Protection ( UMP ) When you purchase or renew car insurance it automatically comes with underinsured motorist protection ( UMP ). The UMP coverage is a standard $1M. It may be increased to $2M for an annual fee. UMP is available where an at-fault motorist does not have enough insurance or other assets to satisfy the amount of the claim or judgment you obtained for your injuries. In British Columbia, UMP coverage is mandatory. UMP applies where injury or death occurs as a result of the motor vehicle accident. Coverage is $1M per incident, less numerous deductions. The law relating to UMP coverage is complex. Any dispute regarding entitlement or the amount of compensation must be resolved by way of arbitration. You should have a lawyer assist you with these kinds of claims. [3]

5 Disability Insurance Other Insurance - Check All Insurance Policies If you suffer a personal injury you may be eligible for disability insurance payments. These benefits are typically obtained from insurance available through employment. In such cases, the coverage is usually through a group plan. Working professionals may also have individual disability insurance. The insurance policies will determine the form of application and proof of claim you must submit. The policy will also determine the amount of the benefit that may be paid. Typically, it is a percentage of your income to a prescribed age. The disability benefits are paid regardless of fault provided that the individual meets the definition of disability in the policy. The usual categories of insurance include own occupation and any occupation. Most group policies pay disability benefits to an individual who is unable to perform his own occupation for a specific period of time, such as one or two years. Thereafter, many policies switch to pay disability benefits only if that individual is unable to perform the work of any occupation for which they are reasonably suited by education or training. The language of the policies will determine the kind of benefit that may be paid to you. These benefits may not be taxable where the premiums for the insurance are paid by you. There may also be deductions from the benefits that the insurance company pays such as amounts paid by Canada Pension Plan Disability and WorkSafeBC. A lawyer can assist you with your claim to make sure you meet all time limits for submitting your claim information and starting any necessary lawsuits.` Property Insurance If you are injured on the property of another and the injury is caused by the fault of the owner or occupier of that property you may have a claim against the owner or occupier for your losses. Typically, owners and occupiers of the property will have insurance. The insurance, that the owner or occupier has, may be a source of funds for your compensation. The insurance will typically have a policy limit that prescribes the maximum amount that the insurance company will pay. If the insurance is insufficient, the owner or occupier may be responsible to pay the injured party themselves. This applies to both commercial and residential properties. To recover you may have to start a lawsuit against the at-fault owner or occupier. Time limits to start lawsuits will apply. Your lawyer can help you in properly making your claim and bringing the necessary lawsuits. [4]

6 Accidental Death and Dismemberment (AD&D) If you are injured you should also consider whether you have access to Accidental Death and Dismemberment (AD&D) insurance. While the name of this insurance suggests that it is only for death and dismemberment, it often makes payment for other injuries. This insurance is typically a part of a group policy obtained through employment. Some separate AD&D insurance may be available, for example, through schools or through travel insurance. The insurance policy will set out the requirements for the claim. Typically AD&D policies pay fixed sums for specific kinds of injuries including spinal cord injuries. The amounts that are paid vary depending on the specific terms of the insurance policy. There are certain exclusions that may apply and there are time limits to make claims. Proof of the fault of another is usually not required. [5]

7 Government Benefits WorkSafeBC If you are injured at work you may be entitled to benefits through WorkSafeBC. Various kinds of benefits are paid. They are paid regardless of whether or not you are at fault for the accident. Wage replacement benefits may be paid if you are disabled from working. The amounts are set out in the Workers Compensation Act and Regulations. Workers with permanent injuries may be entitled to a disability award which may be paid on a monthly basis to age 65. Other benefits may include vocational rehabilitation benefits and retraining. For catastrophic injuries, vehicle and home modifications, amongst other items, may be paid for. In cases where you are injured in a car accident, while you were a worker, you may have the ability to elect to sue the at fault party. WorkSafeBC has forms that must be completed to make this election. In such cases, workers compensation benefits will not be paid and you can proceed with a lawsuit. If you are successful you may recover more than you would otherwise receive from WorkSafeBC. If the lawsuit is unsuccessful, and the election forms have been properly completed, compensation through WorkSafeBC may be available. You should seek legal advice before you proceed. Link: CPP Disability Canada Pension Plan disability benefits may be available to you if you meet the Plan s definition of disability and have paid into the Plan. These are federal benefits payable while you are disabled to age 65. The benefits are typically paid monthly and based in part on contributions made to CPP. They may be paid if you are injured in a motor vehicle accident. The legislation requires that your disability must be severe and prolonged. The initial application is typically completed by you and your doctor. There are a series of review and appeal processes that you may pursue should the initial decision be unsatisfactory. You may first ask for a written review. Following that you may appeal to a three member Review Tribunal and after that, appeal to the Pension Appeal Board. CPP disability benefits are typically deducted from Part 7 benefits and disability insurance benefits. Application kits are available by contacting Service Canada. Your lawyer can assist you in getting these benefits. Link: [6]

8 Employment Insurance EI Sickness benefits may be paid to you if you have sustained injury, including injuries in motor vehicle accidents. To qualify for these benefits you must have paid Employment Insurance premiums. The Employment Insurance Act sets out the amounts for such payments. There is typically a two week waiting period. Benefits are usually paid to a maximum of 15 weeks. The amounts received may be deducted from Part 7 benefits and disability insurance payments. Applications may be submitted online. Link: Persons With Disabilities Assistance This is a provincial assistance benefit for persons with disabilities. You must be at least 18 years of age and significantly restricted in performing daily living activities. The amounts received may be deducted from Part 7 benefits and other benefits. Applications for assistance are available online. Link: Crime Victim Compensation Benefits may be payable to you if you are injured as a result of certain Criminal Code offences. Benefits are paid under the Crime Victim Assistance Act. Various forms of compensation are paid to victims of crime and their families. Those benefits include medical and dental benefits, counseling and others. In certain cases, income support is paid as are vocational benefits. The program has the ability to make awards for disability aids and mobility aids as well as payments for some homemaker services and care needs. The program also has the ability to make payment towards vehicle modifications. The Crime Victim Assistance Program will set out the prescribed forms for making application for these benefits. Benefits typically do not apply in cases of injuries arising from motor vehicle accidents or where compensation is payable under Workers Compensation Act. Application forms are available online. Link: The time following a personal injury is challenging and filled with many questions. Here are some that you may have... [7]

9 FREQUENTLY ASKED QUESTIONS Are there time limits to make claims for compensation or to start lawsuits? o Yes. They vary. Some time limits are very short. You should speak to a lawyer as soon as possible. o Some examples: The Insurance Act sets a one-year time limit to start a lawsuit in relation to an insurance policy. Most claims for personal injury may be governed by a two-year time limit under the Limitation Act. That Act also contains certain postponent provisions. Time limits to both notify and sue Cities and Municipalities are mere months. Seek legal advice right away to determine what limitation may apply. Do different compensation sources overlap? o Yes. You may have multiple sources of compensation available to you. o Some examples: Most disability insurance policies deduct CPP disability benefits. They also usually deduct benefits paid from WorkSafeBC. ICBC Part 7 benefits deduct Employment Insurance sickness benefits. Many of these benefits are not deducted from the motor vehicle lawsuit. Your personal injury lawyer can assist you in determining how these sources of compensation overlap. Are there any issues in not seeking compensation from all sources? o Yes there can be. Certain benefits may be deducted from other sources even if you have not obtained them. o Some examples: In a motor vehicle case, when your lawsuit goes to Court, the Judge will deduct the amount of Part 7 benefits you should have received from ICBC. These may be deducted whether or not you actually received them. Make sure your lawyer pursues all of your Part 7 benefits. If I am denied compensation, is there anything I can do? o You may have rights of review, appeal or to start a lawsuit. There may be time limits that apply so you should speak to a lawyer as soon as possible. o Some examples: CPP disability and WorkSafeBC have similar layers of appeal: a written review; an appeal to a review tribunal; and an appeal to an independent body. Underinsured Motorist Protection disputes must be resolved by arbitration. Appeals through lawsuits are restricted to the Courts. Different sources of compensation will have different review and appeal procedures that you and your lawyer should be familiar with. [8]

10 How do I make a claim for compensation? What kind of information do I need? o There are different requirements depending on the compensation sources. The information you need will vary depending on which compensation you are claiming. o Some examples: ICBC Part 7 benefits must be initiated by a prescribed proof of claim form. CPP disability benefits are claimed by specific forms to be completed by you and your doctor. Disability insurance is typically claimed directly from the insurance company by submitting that company s prescribed proof of claim form. The insurance company will often then get medical information directly from your treating doctors. The precise forms for all these types of compensation vary and you should ensure that you and your lawyer have access to the proper forms for your claims. When is the compensation paid? o Time for payment varies. Some compensation such as no fault benefits may begin quickly. Funds paid through a lawsuit may take a long time so start your claims early. o Some examples: Part 7 benefits are typically paid once the prescribed proof of claim forms completed by you and your doctor are submitted and approved. Benefits may be paid directly to the treatment provider (eg. physiotherapists) for specific periods of time. Other forms of benefits are payable upon a submission of the approved forms and acceptance of the claims. Compensation sought through a lawsuit is typically not paid until the matter is finally settled or a Court makes a decision. Do I need to start a lawsuit to get any of these types of compensations? o Some claims do not require you to start a lawsuit. However, other claims will. You should consult a lawyer to find out what issues you may face for each kind of claim and how to make your claim. o Some examples: Many claims can ultimately only be resolved by starting a lawsuit if they are not settled by agreement. These include claims for compensation for motor vehicle accidents, accidents on commercial or residential property and claims for insurance benefits. Other forms of compensation are not subject to lawsuits. These include WorkSafeBC, Crime Victim Compensation and others. Your lawyer can tell you whether you need to start a lawsuit for particular types of benefits. Will any compensation help me in my rehabilitation and care needs? o Some are specifically designed for your rehabilitation or care needs. Others provide you with funds you can apply as you see fit. [9]

11 o Some examples: WorkSafeBC provides specific compensation for rehabilitation and care needs. Similarly, ICBC Part 7 benefits will also fund these needs. Crime Victim Compensation may pay for some rehabilitation and care needs. Other kinds of compensation, such as through AD&D insurance, are lump sum payments that you may apply to your needs as you see fit. Once I am accepted for compensation how long will it continue? o Certain compensation may continue monthly for a long time. Other compensation is paid in one lump sum. Many require ongoing monitoring to confirm continuing payment. o Some examples: CPP disability benefits are paid monthly until age 65 provided you continue to be disabled within the meaning of the Plan. Long term disability benefits are typically paid on a monthly basis while you are disabled for the time period set out in the policy. Compensation paid from a motor vehicle lawsuit is typically paid in a lump sum following settlement or a trial. Your lawyer can assist you in determining what payment method may be available. Can I afford to hire a lawyer to help me recover compensation? o A lawyer will make sure your claim is dealt with properly. Most lawyers charge their fee on a contingency - if there is no recovery you pay no fee. When hiring a lawyer, make sure to ask about the fee agreement. o Some examples: The maximum contingency fee a lawyer may charge for a personal injury arising from a motor vehicle accident is 33 1/3%. For personal injuries in other circumstances, the maximum contingency fee a lawyer may charge is 40%. These percentages do not include disbursements. Disbursements are expenses required to pursue your claim in a lawsuit, such as costs for medical reports, Court filing fees, amongst others. You should ask your lawyer to explain the fee agreement in full and how your disbursements may be recovered. This material has been prepared for general information purposes only. It is not intended as legal advice to be acted or relied on as laws are constantly changing and each case is unique. You should always seek the advice of a competent lawyer directly. [10]

12 Prepared for Spinal Cord Injury BC by: West Georgia Street Vancouver, BC V6E 3V7 Phone: Fax: *Wheelchair access located on Thurlow Street side of building at Alberni Street* [11]