Archive for the ‘Serious Personal Injuries’ Category

Benefits of Having Both Disability Benefits AND Critical Illness Insurance

Sunday, January 29th, 2012

Would your way of life survive a critical illness or a serious injury?

If you survived a critical illness would you have enough money to pay for private nurses, home care, special medical treatments inside or outside Canada, job or career retraining, daily living costs such as food, mortgage or rent and taxes?

Critical Illness Insurance is offered by several Canadian insurance companies. CI pays a lump sum benefit upon a diagnosis of one of the covered conditions listed in the insurance policy.

Critical Illness Insurance is considered to be a “living benefit” insurance that offsets lost income and its main purpose is to help pay for additional expenses incurred by those who survive a major illness. Traditional life insurance won’t help in these circumstances.

With CI, you don’t have to dip into your RRSPs or savings. You are paid a lump sum amount as per your policy terms.

For more details about what critical illness insurance covers, and long-term disability benefits refer to our previous blog posts concerning this topic.

If you are a business owner or self-employed, you may want to consider critical illness insurance as well.

CI Insurance does not replace LTD or Life Insurance but is meant to complement these products.

It has been said that insurance is one thing you pay for but never really want to use. But, the reality is, insurance can allow a person to get back to where they need to be financially and can alleviate financial stress in many cases.

Turning to Disability Insurance, LTD insurance is a percentage of your pre-disability earnings and the benefit period ends at age 65. With individual policies, you can choose the level that works for you, from 50-100% of your wages. The higher the percentage, the higher the premiums are.

If you became disabled as a result of a car accident, having LTD benefits will allow you to afford your monthly expenses, like your mortgage payments, car payments, basic necessities and in general, protect your lifestyle if you have purchased enough coverage.

These 2 insurance products should be part of your financial portfolio. Being financially prepared is responsible, and will pay off.

Aaron Waxman and Associates is a personal injury law firm that handles car accident claims, critical illness claims and long-term disability claims.

Collisions Down, Cost of Claims Rising in Ontario…

Tuesday, January 17th, 2012

Keep your eyes on the road and stay focused…insurance rates are on the rise in Ontario. The Toronto Sun posted a brief article about the increase in insurance rates. Just under half of auto insurance companies were approved for rate increases. The Ontario Government approved the rate changes, saying an increase in third-party property damages claims was the biggest factor in increases.

According to the aforementioned article, there was a 3.5% increase in the 4th quarter of 2011 for third-party property damage claims, accident benefits claims rose  2.5% and third-party bodily injury costs rose 1.9%.

It is interesting to note that car accidents decreased by 1%. This reflects a trend in the industry that was noted by the provincial auditor, Jim McCarter in his annual report, namely that collisions are down, but the costs of claims are rising in Ontario.

Currently, Ontarians pay the most for auto insurance compared to the other Canadian provinces.

Auditor General Jim McCarter found that the average cost of accident injury claims is five times higher in Ontario than in the other provinces.

Insurance fraud costs the insurance industry approximately $1.3 Billion a year and Ontario does not have significant measures in place to combat this fraud, warned McCarter in his report. It seems that from 2005 to 2010, the total cost of injury claims actually rose 150%,  even though the actual number of injury claims in the same period only rose by 30%.

If you have been injured in a car accident and are seeking legal help, contact the law firm of Aaron Waxman & Associates today. We provide you with trusted expertise and experience.

Road News: What’s going on out there?

Tuesday, January 17th, 2012

The Toronto Star posted an article titled “Headphones Kill: Pedestrian deaths, injuries tripled in seven years”.  Now this is a frightening statistic. Over the past couple of years,  we do hear about pedestrian accidents on the radio on an almost daily basis. When the seasons change, when we turn the clocks ahead or back…But…are headphones contributing to these accidents?

It could be. Ipods are more popular than ever. Blackberrys, Androids and iPhones all have the capability to play music. Researchers studied databases for reports from 2004 to 2011 for accidents involving the use of headphones, of which 81 were fatal. During this time period, results tripled compared to previous years.

The study was published in the journal, Injury Prevention and the researchers suggest the use of headphones with handheld devices may pose a risk to the safety of pedestrians. Most accident victims were males under the age of 30. Nine out of ten accidents happened in urban areas.

Another recently posted article discusses the increase in deer-related collisions. in areas like Sudbury and Bancroft, Ontario. Collisions with wildlife are traumatizing and can cause major damage to your vehicle. The costs of repairing vehicles involved in these types of collisions range from $4000-$6000  generally, to $8000-$9000 for new vehicles according to collision repair shops.

Parents should be aware of new rules concerning children’s car seats that came into effect January 1, 2012. Of course the new regulations are aimed at keeping children safe. New regulations include new testing parameters, particularly for booster seats, which went untested before.

In addition, seats will now accommodate children up to 30kg and infant seats must be able to hold babies up to a weight of 10kg.

Transport Canada has said, however, there is no need to replace old seats, as long as they haven’t passed their expiration date. But, car seats should always be replaced if they have been involved in an accident, collision or been damaged or dropped from a height.

Retailers have been informed only to sell the seats that meet then new requirements. Consumers who shop for second hand seats should be cautious and make sure the seat has no damage and has not been in any prior accidents and make sure it meets the guidelines and has the National Safety Mark.

Aaron Waxman and Associates is a Toronto Personal Injury Law Firm dedicated to the practice of Personal Injury Law. We treat our clients with the utmost dignity and respect.

Are You Prepared for Winter?

Tuesday, January 3rd, 2012

Although late, Winter has certainly arrived. Besides snow, we have to worry about freezing rain and what it does to our roads, both as a driver and as a pedestrian.

Driving in the Canadian Winter is hazardous if you are not prepared for it. In Quebec, it is mandatory to have winter tires on your vehicle. In Ontario, it is not. And we certainly see the rise of car accidents and pedestrian injuries and deaths in the winter time.

All Season Tires may sound like the right solution for driving in a country/province where we see “all seasons” but if you are using your tires all year round, you are wearing down the treads and reducing how well your tires work.

Winter tires help you stop fast, prevent your car from spinning and in essence, help prevent accidents. Winter tires have deeper treads to allow for better performance in snow, slush, on ice and wet and dry roads.

According to the Ministry of Transportation, All Season tires can begin to lose their grip below 7 degrees Celsius. Most people probably are not even aware of this fact. The MTO reccommends that you install 4 Winter tires, even on four-wheel drive vehicles, for best control of your vehicle.

How else can you drive safely this winter?

Useful Tips:

  1. Install 4 matching Winter Tires.
  2. Clean off all snow from your car- including your side mirrors.
  3. Defrost car thoroughly before leaving your driveway or parking lot- better to be safe than sorry.
  4. Be aware that it will take longer to stop in poor driving conditions and allow for extra stopping room.
  5. Avoid using overdrive and cruise control on slippery roads.
  6. Make sure your windshield wipers are in good condition and that you have enough windshield wiper fluid.
  7. Make sure your brakes are in good working condition.

Aaron Waxman and Associates is a personal injury law firm in Toronto that aims on providing quality services to our clients and useful, helpful information to our blog readers.

 

Kusnierz Decision Released

Saturday, December 31st, 2011

The long-awaited decision regarding Kusnierz v. Economical Insurance was released on December 23, 2011.  The Ontario Court of Appeal overturned the 2010 trial decision and the Court of Appeal Judges, in the Disposition, state:

“I would allow the appeal, set aside the judgment of the trial judge, declare that the appellant meets the definition of “catastrophic impairment” under cl. 2(1.1) (f) of the SABS and, accordingly, is entitled to enhanced medical and rehabilitation benefits thereunder, and direct the respondent to pay such benefits to the appellant.”

What the Ontario Court of Appeal did in this decision was confirm that that psychological impairments should be combined with physical impairments to determine whether a car accident victim has suffered a catastrophic impairment. When the trial decision came out in 2010, plaintiffs lawyers were very worried about what it would mean if the combination of psychological impairments and physical impairments were not allowed.

Pre- September 1, 2010 insurance changes, for those accident victims whose accidents took place before September 1, 2010, and who were not declared catastrophic, had access to $100,000 in medical and rehabilitation benefits. Post- 2010 changes, the amount changed to $50,000 for accidents occurring after September 1, 2010.

If an accident victim is declared to be catastrophic, the med/rehab benefit amount changes to $1 Million. You can understand why a person with serious injuries, like Mr. Kusnierz who suffered an amputation to his legs, with complications to his stump and with his prothesis and serious psychological issues, 10 years after his accident, would need more than $100,000 in medical and rehabilitation benefits.

By allowing Mr. Kusnierz’s appeal, it was the first time an appellate court weighed in on the issue of combining psychological and physical impairment.

In Desbiens v. Mordini, a 2004 decision which was the decision that the courts previously followed with respect to the definition for catastrophic impairment combining psychological and physical impairment, the trial judge, Justice Harvey Spiegel found that an accident victim’s psychological impairments should be combined with physical impairments when considering whether he or she suffered a “55 per cent whole person impairment” (one of the definitions of catastrophic impairment). What this case did for plaintiff was confirm that catastrophic impairment status could be sought by a wider range of accident victims than previously thought.

Desbiens had been followed by the court and the Financial Services Commission of Ontario until the judge at Kusnierz’s October 2010 trial disagreed. The Court of Appeal stated that it preferred Spiegel’s conclusion and reasons in Desbiens than those of the trial judge in Kusnierz.

For a more detailed look,  canadianlawyermag.com posted a great synopsis of the decision and what it means for plaintiffs and plaintiffs’ lawyers.

What remains to be seen is what will happen with the definition of catastrophic impairment. What changes will the government implement and will this decision have any impact?

One of the issues discussed in FSCO’s Expert Panel Report was the very issue of combining factors to achieve CAT impairment.

The fight isn’t over yet.

Bad Faith Claims Part 2: Duties of the Insurer and the Insured

Friday, December 30th, 2011

Previously we blogged about Bad Faith Claims, which are claims that arise when an insurance company has grossly mishandled the claim of its insured, the policy holder/policy member.

In this blog post, we will take a closer look at what duties the insurer has/is supposed to follow and look at what duties an insured person has as well.

Insurer’s Duties:

Duty to Assess the Evidence in a Balanced and Reasonable Manner: The insurer should assess the merits of the claim in a balanced and reasonable manner. The insurer cannot dismiss credible, alternative evidence that does not support its pre-conceived ideas.

Duty to Reasonably Interpret the Policy: Policy language must be reviewed and checked, the policy should actually be read.

Duty to Adequately Investigate: A timely and thorough investigation of the claim should be made before a claim is denied, this is essential where a claim for disability is being made under a long-term disability policy. Medical investigations are to be made and all reports are to be considered, from the insured person’s doctors as well.

Duty to Inform: The insurer has to inform the insured person of the nature and extent of the benefits that are payable to him/her, and assist the insured in the completion of the necessary documentation (provide instructions). When an insurer decides to deny a claim, there is a duty to properly inform that the denial has been made, the insured person should not be told or misled by stating “the matter is under investigation”.

In a lot of cases, we do see that insurance companies write to our clients and postpone the actual denial of benefits by saying that a final decision has not been made, the matter is under investigation pending further documentation etc. This is incredibly frustrating to our clients!

Duty not to misinform: For example, not providing a copy of the actual policy.

Duty not to Take Advantage of an Insured’s Economic Vulnerability: E.g. Submission- by trying to get the insured person to settle at an early stage in the claim, for a lesser amount than the claim is worth.

Duties of the Insured:

The insured person, as this is a contractual relationship has duties as well, to act in “Good Faith”.

Duty to be Honest: For example, in any type of disability policy, to disclose all relevant health information, all employment details, all previous claims, details of WSIB claims, anything that may be relevant. You do not want the insurance company to find out information about you any way except from you yourself.

Duty to Rehabilitate and Mitigate: You have the duty to attend rehabilitation (physiotherapy, massage etc), whatever type of therapy that helps you try to feel better. You must actively be under the care of a physician and actively be trying to get better. Mitigation refers to the attempt to return to work. You must try to return to work, and advise the insurance company of your attempts, even if unsuccessful.

Duty to Give Notice of a Claim in a Timely Manner: If you are seriously injured and believe you qualify for LTD benefits, you should not wait too long to apply. Most policies allow you to apply after a 6 month waiting period. Sometimes people apply after 2 years and their claim is accepted. But reasonable notice of a claim should be given if you want your application to be considered and not denied from the outset.

At Aaron Waxman & Associates, we handle many disability claims. We are experienced lawyers who are able to help you with your fight against insurance companies.

We offer free no obligation consultations.


 

 

Bad Faith Claims: What constitutes bad faith in LTD claims?

Sunday, December 18th, 2011

Aaron Waxman and Associates is a Toronto Personal Injury Law Firm. We handle all types of personal injury claims, including long-term disability claims. Bad Faith Claims can arise in long-term disability cases.

When our clients’ benefits are denied or terminated, we commence an action against the Long-Term Disability Insurer. In the Statement of Claim, which is the court document that starts the legal process, we include a section where we plead bad faith. In order to make a claim for bad faith, we must include it in this document so that the insurance company knows this type of claim is being brought.

In Canada, the courts tell us that the duty of good faith requires that an insurer act both promptly and fairly when assessing claims. Breaching the duty of good faith in an insurance claim can lead to punitive damages. In order for the court to find that unfair conduct has taken place, and to award punitive damages, the court must find that the insurer acted unfairly and ‘delinquently’.

The idea is to reveal how the claim was handled from the outset and by what means the insurer actually arrived at the decision to stop payment or deny the claim. For example, an insurance company cannot terminate your LTD benefits while you are awaiting a decision from CPP regarding your disability benefits.

Bad faith claims are meant to act as a deterrent so that insurers will not exploit the vulnerability of the insured.

Morrison J., in Asseltine v. Manufacturers Life Insurance Company (Plaintiff sues disability insurer) said:

“A duty of good faith and fair dealing requires an even-handed evaluation of all evidence before the insurer by the insurer. Just as one cannot cherry pick the information to send to an assessor for a rehabilitation opinion, one cannot choose only to accept certain medical evidence in the face of compelling conflicting evidence.”

Examples of bad faith are:

1. Not rendering a decision about benefits in a timely fashion, even though medical info shows insured is totally disabled

2. Denial of benefits without medical certification indicating the insured is able to resume regular occupation

3. Unreasonable interpretation of policy

Our firm has successfully handled many LTD cases. Contact us for a free consultation.

Chronic Pain in the News Part III

Sunday, December 18th, 2011

Aaron Waxman & Associates LLP specializes in personal injury claims and helping clients receive the compensation they deserve.  Our “Chronic Pain in the News” series is meant to be a source of information for our readers and clients. We keep apprised of the latest medical developments with respect to chronic pain, and fibromyalgia.

Lyme Disease is a chronic disease that causes chronic pain. The Vancouver Sun recently reported that the government of British Columbia pledged $2 million for a new clinic where those with Lyme Disease and other complex and chronic diseases could go for help in managing their symptoms. The BC Women’s Hospital has been named as the home for the new clinic.

In Bancroft, Ontario, council has joined the fight against Lyme Disease. A growing list of municipalities are petitioning the province of Ontario to improve awareness, detection and treatment of Lyme Disease in Ontario. Pressure is being put on the provincial government of Ontario to update its Lyme Disease protocols. The Lyme Disease Association of Ontario (LDAO) says that the disease is regularly is regularly is regularly misdiagnosed because it mimics a variety of other diseases and neurological disorders including autism, arthralgias, arthritis, autoimmune disorders, chronic fatigue syndrome, fibromyalgia, depression, multiple sclerosis, Parkinson’s Disease, Alzheimer’s, schizophrenia, sleeping disorders, Lou Gehrig’s Disease, Lupus and more.

Currently, OHIP does not cover all testing for Lyme Disease. There is dispute over how the disease is transmitted. If Lyme Disease is caught early, it can be successfully treated with antibiotics.

Canada Newswire posted a Press Release about Canada’s need for a National Pain Strategy. Chronic pain is an under-treated health crisis affecting 1 in 5 Canadians. It is said that pain is often poorly managed in Canada, has a major impact on the quality of life and the ability of people to function.

The Canadian Pain Society (CPS) and the Canadian Pain Coalition (CPC) have issued a blueprint to outline the social, economic and personal impact of chronic pain on Canadians.

On April 24, 2012, the first ever Canadian Pain Summit will take place in Ottawa.

 

Chronic Pain in the News- Part II

Monday, November 28th, 2011

Our firm handles many types of cases. We do handle many car accident claims. Often times, as a result of car accidents, our clients go on to develop a chronic pain syndrome. Chronic pain is not an imagined symptom.

A recent article in the Wall Street Journal proposed an alternative way for people suffering from chronic people to treat their pain, by using guided meditations and hypnosis. In fact, recent articles appearing on the Internet about treating chronic pain have focused on alternatives to pain medications.  According to the article, “Rewiring the Brain to Ease Pain“, chronic pain represents a malfunction in the brain’s processing centres and this actually be seen on brain scans. The pain signals take detours into areas of the brain involved with emotion, attention and perception of danger and can cause gray matter to atrophy. Studies were conducted, and brain activity was measured while subjects participated in a guided meditation. The results demonstrated that being distracted from pain and thinking about the pain was effective and the study subjects found a new way to look at their pain.

Locally, a chronic pain treatment centre in Vaughan, Ontario is receiving attention. Dr. Ron Nusbaum moved his Canadian Headquarters Clinic just north of Toronto. This is the first in Canada to offer the cutting edge Class IV K-Laser therapy, a unique, painless and side-effect free approach to treatment that stimulates healing, reduces inflammation and pain. Dr. Nusbaum is the founder of the Back Clinics of Canada. He has created a new comprehensive non-surgical, drug-free and integrative approach to diagnosing and treating those who have suffered for years from back pain and chronic pain- the “High Performance Healing System”. He offers an alternative to risky neck or back surgery.

How about talk therapy? Cognitive behavioural therapy is an effective way to help manage chronic pain.  A study in the United Kingston found that exercise and CBT were two successful alternatives to consuming pain medication. Introducing these interventions within the first six to nine months of treatment is preferable.

It is also worth mentioning that women who experience poor sleep are at elevated risk for developing fibromyalgia, according to a Norwegian study. Sleep disturbances and excessive fatigue are known symptoms of fibromyalgia. Sleep deprivation also has been linked with increased levels of circulating inflammatory markers and a loss of pain inhibition.

The company Medtronic received FDA approval for a device meant to help treat chronic pain. The device is called “AdaptiveStim with RestoreSensor” and is a Neurostimulator using innovative motion sensor technology, similar to that used in smartphones and gaming systems by automatically adapting stimulation levels to the needs of people with chronic back and/or leg pain. This device does away with manual changes, and instead is an automatic device that recognizes and remembers the correlation between a change in body position and the level of stimulation needed. It also records and stores the frequency of posture changes, and allows the doctor or therapist to understand how a patient’s individual stimulation requirements are changing over time. This device is also approved by the FDA for use in MRI head scans if recommended by a physician.

The interplay between CPP Disability Benefits and LTD Contracts

Saturday, October 29th, 2011

People who receive long-term disability benefits should be aware that LTD providers often require, as part of the LTD contract, an application for CPP Disability Benefits to be made. This is dealt with under the “Offset” or “Coordination of Benefits” section of most group  LTD Policies.

The purpose of these provisions is to determine if the LTD provider can reduce or eliminate the amount the LTD plan has to pay out.  The reason insurers do this is to avoid something called “double recovery” – they do not want an insured person receiving double the amount of benefits for the same disability and to keep the costs of such plans to a minimum for insurers and their policy holders.

CPP Disability Benefits are a federal benefit that are available to employees who have contributed regularly to the Canada Pension Plan. CPP Disability Benefits are payable to the insured person if he or she has contributed to CPP for a minimum of 4 out of 6 years prior to suffering a disability. A minimum qualifying period has to be met, which translates into a date the the employee must prove disability by in order to be able to qualify. Your CPP Disability Benefit is determined by the amount of contributions an employee made during his or her working life.

If a person is receiving LTD benefits is approved for CPP Disability Benefits, his or her LTD monthly benefit would be recalculated to reflect the amount received from CPP.  The CPP monthly benefit is the lesser amount received and is then deducted from the LTD benefit, and then the LTD provider will issue monthly payments to reflect the difference payable.

Aaron Waxman & Associates is a Toronto Personal Injury Law Firm that specializes in disability law, long-term disability claims and assists clients with CPP claims.