Personal Injury Claims: Myths & Facts

Pursuing a personal injury claim may seem intimidating, that’s why it is important to hire the right lawyer. 

Previously, we discussed the importance of hiring an experienced personal injury lawyer, like the Windsor personal injury lawyers at Paciocco & Mellow. 

Here are a few myths that we want to put to rest about personal injury cases. 

Myth: You cannot attempt a return to work while your case is ongoing as it will damage your claim for income loss or pain and suffering. 

Reality: You may be eligible to participate in a work-hardening program, or a graduated return to work program if your pre-accident employer will allow for modified duties and modified hours. A work-hardening program will allow you to build strength and stamina to return to the workforce. 

Attempting a return to work, either at your pre-accident employer or attempting to find alternative employment by going to job interviews, submitting resumes or working with an employment agency shows both your accident benefits insurer and the at-fault party’s insurer that you are mitigating your damages. 

It does not mean you have made a full recovery or that your injuries or symptoms have disappeared, you may be returning to work out of financial necessity, therefore it does not affect your claim for pain and suffering. 

It does not have a negative impact on your claim for income loss. During your rehabilitation and recovery, you suffered a loss of income; this is your claim for past loss of income. You will also have a claim for future loss of income. Even if you return to work at a reduced capacity and are earning income, you continue to suffer a loss of future earnings. You are unable to work at the same capacity as before. 

Myth:  You have no case if you were at fault for the accident 

Reality: Under Ontario law, if you are involved in a motor vehicle accident, as a motorist, you are entitled to Statutory Accident Benefits (no-fault benefits) through your own insurer. 

Accident Benefits will provide you with immediate benefits- benefits such as medical and rehabilitation expenses, attendant care expenses and income replacement benefits. 

It is important to remember that income replacement benefits only cover 70% of your gross weekly income, up to a maximum of $400 per week. 

There are limitations on medical and rehabilitation expenses and attendant care expenses: 

  1. Minor injury – a maximum of $3,500 will be paid for medical and rehabilitation expenses (no attendant care expenses available);
  2. The “In-between” category- more serious injuries that require further rehabilitation – a maximum of $50,000 for medical and rehabilitation expenses, for up to 10 years after the collision and $36,000 for attendant care expenses;
  3. Catastrophic injury- a maximum of $1,000,000 in medical and rehabilitation benefits over your lifetime and $1,000,000 for attendant care. 

You must notify your insurance company within 7 days of the accident (or as soon as you are able to) and complete an application for accident benefits within 30 days of receiving the forms. The sooner you submit your application, the sooner you can expect to receive benefits. 

Myth: I have to be an occupant of an automobile to be eligible for no-fault accident benefits 

Reality: Pedestrians and cyclists who were injured in an accident involving a motor vehicle may also be entitled to accident benefits. They can claim accident benefits through a policy they are covered under (their own policy, spouse, or parent) or if they do not have access to an insurance policy, they will make a claim for accident benefits through the insurance company of the vehicle that struck them. 

If the accident involved a collision between a pedestrian and an automobile or a bicycle and an automobile, accident benefits are likely to be made available to the pedestrian or cyclist. 

Myth: You always have to go to court in order to settle your case 

Reality: There are alternatives to going to trial. In many jurisdictions, the courts are overbooked and as a result, trials are being booked 1-2 years in advance. There are also many risks to proceeding with a trial, such as whether or not there will be a jury and the expense of a trial.

 Your lawyer can engage in settlement discussions and arrange a settlement meeting with the insurers involved in your case to settle your claims. Some cases, if they are straightforward and if liability is straightforward can be settled at the adjuster level, without having to get defence counsel involved. 

A very popular option is mediation. Mediations is a welcome alternative to going to trial and many cases do settle at a mediation. A mediator is a neutral third party (usually a former lawyer) who helps facilitate settlement between the parties.  If you have commenced more than one action in the court, for example, a court action against the at-fault party, against your accident benefits insurer and long-term disability insurer, you could ask them all to participate in mediation, known as holding a “global” mediation. 

Myth: Insurance companies will treat you fairly, with or without a lawyer when it comes to negotiating a settlement 

Reality: Insurance adjusters/insurance companies will act differently when the offer a settlement amount to an unrepresented party than they would a represented party. 

Insurance adjusters too often take the view that unrepresented parties would not be aware of their rights or not understand what would encompass a fair settlement, be it a settlement for accident benefits or for a bodily injury claim (claim for damages from the at-fault party’s insurer). 

Having a personal injury lawyer represent you during settlement negotiations would allow you to know your rights and they will inform you what is a fair amount for settlement. You would be informed of what you are entitled to legally receive for accident benefits as an insured person. 

With respect to a settlement from the at-fault party’s insurer, having a lawyer negotiate a settlement for you provides an advantage.  A lawyer will take certain factors into consideration before negotiating a settlement including loss of income, any medical expenses or housekeeping expenses not covered by accident benefits as well as out of pocket expenses. 

It is better to go into settlement negotiations with an educated perspective. 

The lawyers at Paciocco & Mellow are here to help you with your personal injury claims. Do not hesitate to contact us for assistance with accident benefits claims, car accident claims or long-term disability claims. We are available to help you through your difficult time.