Ten Mistakes People Make When Dealing With Doctors After an Injury

If you have experienced a traumatic injury as the result of a motor vehicle accident or slip and fall you will no doubt end up seeing one or more doctors perhaps on multiple occasions. Here are 10 mistakes people who have experienced a traumatic injury make when dealing with tDoctor Meeting With Mature Male Patient In Exam Roomheir doctors.

1.    Failing to Seek Immediate Medial Attention After a Traumatic Event

The victim is always responsible for proving that he or she was injured in a particular incident.  Insurance companies and juries often believe that if you aren’t hurt badly enough to seek immediate medical attention, you aren’t hurt badly enough to deserve compensation.  Don’t ignore signs of pain, even small ones.  See a doctor as soon as possible, as minor injuries can always get worse.  You don’t want the first words the insurance lawyer says to the jury to be, “she didn’t even see a doctor for two weeks.”

2.    Failing to Fully Disclose Your Health History and Habits to Your Doctor

A health care provider will usually ask if you had any injury or sickness before your current problem.  It is important to be honest when answering this type of question.  Doctors use past medical history to diagnose and treat you.  Providing incomplete information can have an impact on the quality of the medical care you receive.  Concealing prior injury or sickness from your doctor will also hurt your legal case.  If you provide your doctors with incomplete information, their medical opinions could be rejected by insurance companies and juries.  The same advice goes for describing the accident.  Don’t tell your doctor the car was “totalled” if it was only scratched.  The insurance company’s lawyer will attack your credibility with that contradiction.

3.    Talking With Your Doctor About Lawsuits or a Lawyer’s Advice

A doctor’s job is to focus on your medical condition.  In order to do that job, a doctor does not have to know about your lawsuit or your lawyer.  Sharing your legal issues or concerns with a medicalcare provider should be unnecessary.  Many doctors do not want to be involved in a lawsuit.  If you tell a doctor he or she is treating an injury that is the subject of a lawsuit, it could affect their willingness to provide treatment.  Remember that whatever you say in confidence to a doctor is not confidential at all once you file a personal injury claim. The doctor’s notes will likely have to be shared with the insurance company’s lawyer and it help your case if they contain information you gave to your doctor about your lawsuit or your  lawyer’s advice.

4.    Missing or Showing up Late for Medical Appointments

Insurance companiesand juries get to see your medical records.  When you skip a medical appointment, your record just says “DNS”, which means “did not show”.  Excuses – no matter how valid – usually do not make it into the record.  More than one or two “DNS” entries could make it look like you were not committed to getting better.  Skipping medical appointments or showing up late could also irritate your doctor.  Irritated doctors do not make good witnesses for their patients.  If you need to cancel – call in advance and reschedule.  You don’t want the insurance company’s lawyer saying, “It must not have hurt that much, she didn’t even show up for her appointments.”

5.    Failing to Get Your Pain Accurately Documented in Medical Records

Insurance companies and juries may not believe that you are in pain just because you say so.  They need to read about your pain in your medical records.  When insurance companies and juries review your records, they will be looking to see how soon you reported pain after an injury and how long you continued to report that pain.  One effective way to help make sure your specific pain and limitations do make their way into a busy doctor’s chart is to write it out beforehand and give it to him at your office visit.  Again, don’t exaggerate. And keep a copy of your note to give to your lawyer.

6.    Failing to inform Your Doctor if Your Injury is Affecting Your Ability to Work

Insurance companies and juries may not believe that your injury affects your ability to work just because you say so.  If your injury is affecting your ability to work, it is important to mention such a problem to your health care provider.  Work problems caused by injury may be treatable and they should be noted in your medical records.  Again, keeping notes that you give to the doctor at your office visits is a good idea.

7.    Failing to Take Medications as Prescribed

There is a reason why doctors prescribe a particular type of medication for a particular time period.  You should follow your doctor’s recommendation until your doctor tells you something different.  If you think a medication is making your muscles ache or your stomach hurt, say so; side effects are not rare, and your doctor can usually switch you to another drug.  Don’t put yourself in the position where you have to admit that you chose not to follow your doctor’s advice.  This can be very harmful to your case.

8.    Stopping Medical Treatment Too Soon

Insurance companies and juries often believe if a person stops seeking medical treatment for an injury, the injury must be healed.  They also believe that significant gaps between treatments suggest that you healed from one injury and must have suffered a new one unrelated to the first.  If you have an injury that is affecting your ability to function, you should seek medical treatment until you are healed or until a doctor tells you that there is nothing more that can be done to improve your condition.  If you are still suffering and your doctor tells you to “come back as needed” or “call me if you have any problems”, you should ask how long you should wait to call if you continue to have the same level of pain and disability.

 9.    Failing to Follow Treatment recommendations Related to Depression or Anxiety

Often pain and/or disability trigger depression and/or anxiety.  Psychological conditions like depression and anxiety are just as real as broken bones.  They cannot be overcome without appropriate treatment.  A person who causes another person physical injury is also responsible for resulting psychological conditions.  Insurance companies and juries usually only compensate victims of injury-related depression and anxiety if those conditions are properly diagnosed and treated by medical professionals.

 10.    Failing to Keep a File

 It is important that your lawyer knows every medical care provider that you see after an injury.  It is also important that you keep track of all doctor orders, treatment referrals and/or work restrictions.  Keeping a file of all materials provided to you by health care providers and insurance companies will ensure that you can provide all necessary information to your lawyer at the appropriate time.

Conclusion

After a motor vehicle, accident or slip and fall it is important to consult a medical doctor if there is any chance that you have suffered an injury. Providing any doctors you see with complete and accurate information and following any treatment recommendations will not only increase your chances of maximum medical recovery it will also increase your  chances of maximizing your financial recovery in any subsequent law suit.

Edward (Ted) Masters is a personal injury lawyer in Ottawa with over 35 years of experience representing those seriously injured in car accidents. He can be contacted by his direct phone number, 613-566-2064, or by email at ted.masters@mannlawyers.com.

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You were injured in a car accident in the USA, what should you do?

Canadians travel to the United States regularly and in the winter months “snowbirds” flock to the southern states in their cars. Seldom do these motorists consider what it would mean if they were injureMiami highwayd in a car accident during their trip. Each year, many Canadians are involved in car accidents while travelling in the US. Bringing a claim for compensation after a US car accident can involve complex issues such as where a civil action should be started and which jurisdiction’s laws will apply.

If you are from Ontario and are involved in an accident in the United States, you may be able to commence an action in Ontario, in the state in which the accident occurred, or both. Your right to do so will depend upon several factors, including what insurance is available to the parties involved and the particular facts of each case.

How Jurisdiction is Determined in Ontario

Determining whether an Ontario Court has jurisdiction to hear your action involves a two-part test. First, the Court will determine if there are any “presumptive connecting factors” linking the lawsuit to Ontario. If you wish to have your case heard in Ontario, it is your responsibility to demonstrate the existence of one or more of these connecting factors.

The Supreme Court of Canada established the following four presumptive connecting factors:

1.     The wrongful act was committed in the province;

2.     The defendant lives in or is a resident of the province;

3.     The defendant carries on business in the province; and,

4.     A contract connected with the dispute was made in the province.

If Ontario is found to have jurisdiction over an action, the second part of the test considers whether or not Ontario is the most convenient place for the lawsuit. This is referred to as “forum non conveniens” and is based on an understanding that courts have the power to decline to hear an action in appropriate circumstances in order to assure fairness to the parties and the efficient resolution of the dispute. The Court may consider issues such as the difficulty or inconvenience of having to pursue litigation outside of Ontario or if you require ongoing medical attention in Ontario. The opposing party will have the burden of showing that another forum is clearly more appropriate than Ontario.

Is My Case Worth Less in Other Jurisdictions?

We have all heard of the large jury awards handed out in the USA. Unfortunately, many States require only minimal auto insurance coverage for their drivers. Therefore, if you are injured in the U.S., your access to the other driver’ss insurance may be limited even if your damages are much higher. Fortunately, you may still be able to recover additional compensation under the Family Protection Endorsement (OCPF-44R) in your own auto insurance policy. This coverage may increase your protection against uninsured or underinsured US drivers. You may also be entitled to receive accident benefits through your own policy.

Be Aware of Limitation Periods

The law of the place where the accident occurred is the law which determines who is at fault for an accident. This law also determines the time within which you must bring your action (the “limitation period”) as against the at-fault driver. American limitation periods are often shorter than the periods that apply in Ontario. Therefore it is crucial to contact a personal injury lawyer as soon as possible following the accident. If you miss the U.S. limitation period, you may not be able to bring an action in Ontario.

Assess Your Insurance Needs

It is also important to discuss your auto and travel insurance needs with your agent before travelling outside of Ontario. You may need travel insurance to cover any unexpected medical bills while in the US. You may want to increase your auto insurance limits and purchase optional accident benefits in order to protect yourself against the often in adequate insurance carried by US motorists.

Edward (Ted) Masters is a personal injury lawyer in Ottawa with over 35 years of experience representing those seriously injured in car accidents. He can be contacted by his direct phone number, 613-566-2064, or by email at ted.masters@mannlawyers.com.

Court Of Appeal Clarifies Collateral Benefits Issues

There has been a steady reduction in the damages that innocent motor vehicle accident victims recover from the at fault driver. The Ontario Government, working with the insurance industry, has been passing more and more restrictive laws and regulations to cut down on damage awards to innocent accident victims. The Ontario Court of Appeal recently released two decisions that will have a significant negative impact on the amount of money innocent car accident victims will be able to recover from at fault drivers.

COA1In El-Khodr v. Lackie the innocent driver, Mr. El-Khodr, was seriously injured when the tow truck he was operating was rear-ended. Following a trial the jury awarded him damages totaling $2,931,006.

The trial judge had instructed the jury to regard the Ontario Drug Benefit Plan as a “contingency” meaning that it was not certain that the plan would still exist in 2028, the year in which Mr. El-Khodr would turn age 65 and first qualify for it. The Court of Appeal held that judge should have instructed the jury to award damages based on the law as it existed and that the Ontario Drug Benefit Plan should not be considered a “contingency”. Mr. El-Khodr would be eligible under the plan at age 65, and therefore the at fault party’s insurance company should only be required to pay for Mr. El-Khodr drug expenses until he turned 65.

Mr. El-Khodr qualified for life long benefits from his own insurance company (so called “collateral benefits”) because he was found to have suffered “catastrophic” injuries. The trial judge did not order Mr. El-Khodr to turn over (assign) these future benefits to the defendant’s insurance company. Several previous cases had required a strict “matching” between the types of damage recovered by the innocent party and the specific type collateral benefit he received before there could be such an assignment. The questions the jury had been asked to answer about the Mr. El-Khodr future damages did not identify each type of damage and the amount awarded for it. This meant that the required “matching” of the damages awarded at trial and future collateral benefits was not possible in this case.

The Court of Appeal held that in the case of Mr. El-Khodr it was not necessary to match both the specific kind of damages awarded by the jury with a specific kind of future collateral benefit. It was also not necessary to match the time when the future damage expense would be incurred with when the collateral insurance benefit would be available (“strict qualitative and temporal matching requirements should not be applied”). It held that “matching” was not necessary because Mr. El-Khodr was entitled to his other future collateral benefits for life. This meant that the jury’s damage award included all future expenses that would be paid by Mr. El-Khodr’s own insurance company as collateral benefits. This meant that if there was no assignment of the future benefits which Mr. El-Khodr received for medication, assistive devices and professional services, he would be over-compensated. His receipt of both damages after the trial and future collateral benefits for the same expenses would constitute double recovery.  

The Court of Appeal ordered that any collateral benefits received by Mr. El-Khodr for future medication, assistive devices, professional services (psychological, physiotherapy, occupational therapy, massage therapy, kinesiology/ personal training, case management), and travel to medical or other specialist were assigned to the at fault driver’s insurance company.

 The assignment of future collateral insurance benefits will significantly reduce the “net” amount of money Mr. El-Khodr and all other innocent accident victims will recover from all sources. Instead of using future collateral benefits to cover these expenses he will have to give the money to the at fault driver’s insurance company.

In Cobb v. Long Estate, Mr. Cobb suffered chronic pain that prevented him from working and performing household tasks. A jury awarded $220,000 in damages but after deducting the collateral benefits Mr. Cobb received from his own insurance company and the statutory deductible for damages for pain and suffering, the judge calculated a final judgment amount of $34,000.

Prior to the trial Mr. Cobb had entered into a final lump sum settlement with his own insurance company of his collateral benefits  including his Income Replacement Benefit. The correspondence between the insurer and Mr. Cobb’s lawyer regarding the settlement did not indicate that any portion of the $130,000 settlement was being made for any reason other than to compensate for his income loss.  The court decided that the entire $130,000 was to be deducted from the damages the jury awarded Mr. Cobb for loss of both past and future income.

The Court of Appeal also said that it was proper to deduct the entire $9,150 that Cobb received from his own insurance company for housekeeping from the jury’s awards for past and future loss under this heading of damages. It found that there was no reason to distinguish between past and future losses where the insurance company had not done so in the settlement.

In order to ensure that appropriate “matching” of benefits and assignment occurs plaintiffs’ lawyers must present their clients’ damage claims according to the categories of collateral benefits available form their own insurance companies. They should make one claim for past and future losses that have collateral insurance coverage and a separate claim for any past and future losses that do not have other coverage. In cases involving non-catastrophic injuries, the presentation of the claim should account for the both the monetary and time limits on benefits available to their client under their own insurance policy.

Edward (Ted) Masters is a personal injury lawyer in Ottawa with over 35 years of experience representing those seriously injured in car accidents. He can be contacted by his direct phone number, 613-566-2064, or by email at ted.masters@mannlawyers.com.

Changes to the Ontario Insurance Act that will directly impact on your Auto Insurance Benefits – Consumers Beware

Auto Insurance

Effective June 1, 2016, the Ontario Government has introduced changes to the automobile insurance system which will greatly affect the coverage consumers select and the price they will pay for auto insurance.   Many of these changes affect the statutory accident benefits that a person will receive if they have been injured in an automobile accident regardless of who is at fault.   Some of these benefits have been reduced and some options for increased coverage have been eliminated or changed.

Accordingly, it is absolutely vital for an individual to speak with their auto insurance broker to determine what the best coverage is for them and in many cases the increased coverage can often be provided at a minimal cost.

These changes will apply only to auto insurance policies issued or renewed after June 1, 2016.

Previously, medical and rehabilitation benefits for non-catastrophic injuries (less serious) provided a maximum of $50,000.00 in benefits with an additional $36,000.00 available for attendant care if deemed necessary.   Under the June 1, 2016 changes these benefits have been combined and reduced to $65,000.00 total.    A party can now choose to increase the benefits to a total of $136,000.00.

The 2016 changes also effectively cut in half coverage available to those with catastrophic injuries (serious brain injuries/spinal cord injuries).   Prior to June 1, 2016, the limit for medical care and rehabilitation and attendant care was 1 million dollars each.   Under the new policy these benefits have been combined and reduced to 1 million dollars in total.    An insured can now choose to add on an additional 1 million dollars for a total of 2 million dollars available for catastrophic injuries.

Disability claim

Prior to June 1, 2016, if an individual is unable to work they can receive income replacement benefits reflecting 70% of one’s gross income up to a maximum of $400.00 per week.   The new policy does not cause any changes.  However, an individual can now choose to increase their weekly limit of income replacement benefits (if eligible) to $600.00; $800.00; or $1,000.00 per week.

Other benefits/coverage including housekeeping and home maintenance expenses, death and funeral benefits and dependent care benefits can all be increased or modified for additional premiums.

It is important to speak to your auto insurance broker to determine what the best option for you is and how much any additional premiums will be.

It may very well be that a very minor increase in premium can afford you significant increased benefits.   If no changes are made one’s insurance, coverage will automatically default to the current new low standard benefits.

Change in Pre- Judgment Interest: Retroactive or Not?

We blogged about the change in the pre-judgment interest rate in March and April of this year.  As of January 1, 2015, the Insurance Act was amended to provide that the 5% pre-judgment rate set out in the Rules of Civil Procedure does not apply in motor vehicle accident cases.  As a result, pre-judgment interest on general or non-pecuniary damages in motor vehicle accident cases will now be based on the rate that applies to all other damages.  That rate is presently 1.0%.

In a recent Ottawa case that is apparently now on its way to the Court of Appeal, Justice Toscano-Roccamo held that the reasoning of the Judge in Cirillo v. Rizzo (which held that the change in rates applied retroactively to accidents before January 1, 2015) was not persuasive and that both entitlement to pre-judgment interest and the specific rate at which interest was calculated was a substantive right that could not be interfered with in a retroactive fashion in the absence of specific statutory language providing the change was to be applied retroactively.  Thus, according to her Honour the change in the interest rate should apply prospectively and only affect persons injured in motor vehicle accidents that occurred after January 1, 2015.

We will have to await the decision of the Court of Appeal for Ontario for a final determination of this question.

FAMILY PROTECTION ENDORSEMENT – OPCF-44R

An Ottawa court case decided in January that the Family Protection Endorsement (OPCF-44R) did apply to cover a young man (not named in the policy) who received serious injuries in an accident caused by an uninsured driver.  Despite the fact the young man had a pattern of living at more than one location, the court found the coverage was available to him since one of the ‘residences’ belonged to his mother, who was the named insured under the policy.

Every driver on the road should have this coverage because if you are involved in an accident with an uninsured or underinsured driver, it will provide between one to two million dollars of additional insurance coverage in the event you are injured in the accident.  If you are not sure whether you have this coverage you should contact your insurance agent right away.

Important Change to Motor Vehicle Accident Benefits!

Effective DececTK7JOaHmber 2014 persons who are injured in motor vehicle accidents will have to pay out of their own pocket for approved medical treatment and then seek reimbursement for this expense from their insurer unless the medical services provider who provides the treatment is licensed with the Financial Services Commission of Ontario (“FSCO”). Only those service providers who are licensed with the FSCO will be able to bill for their services directly for approved treatment that is provided to those who have been injured in an accident.

If you have been injured in an accident and are seeking treatment from a medical service provider, make sure that the provider is licensed with the FSCO before you start treatment.