The purchasing of optional benefits allows for a number of additional supports, including but not limited to:

1. Increased non-catastrophic medical rehabilitation dollars from $65,000.00 – $1,000,000.00;
2. Access to a Case Manager without proving catastrophic impairment;
3. Increased attendant care.

While working on this case with the support of a qualified Case Manager, Mr. Joey Nativ of Innovative Case Management, it became clear just how much of a game changer the optional benefits are for everyone involved in the case at the crucial “early” file stages. It is easy to understand that when someone has hundreds of thousands of less money available, recovery will be limited. However, there is also a significant institutional effect on having limited benefits. Working with Mr. Nativ, we are speaking on a regular basis handling various case related issue. Whether it be additional supports needed, removing clients from the Minor Injury Guideline, accessing needed therapy, I am struck by just how much support is needed right now. Not only does this give the clients the best chance to focus on recovery it gives the team the best chance to do what they are trained and assigned to do. For example, we have a wonderful Occupational Therapist on the team, Miranda Mo. Without the formalized support of a Case Manager much of the “treatment gap” would fall on her. The remaining gap would fall on the client, myself as the clients’ lawyer, OHIP, the insurer and the remaining shortfall would simply go unserved.

Additionally, without the funding restrictions, our team can determine the best assessments required for the clients without having to “choose” between say additional attendant care and having a needed therapy assessment. This also greatly reduces the need to consider undertaking protected accounts which places additional stress on both the client and providers of uncertain funding sources.

A further benefit of the optional benefits is allowing for a more facilitative less charged relationship with the insurance company. When everyone is ultra-concerned with limited funding, especially at the critical time of need, parties are less likely to be empathetic to each other’s position. While a catastrophic designation still matters when optional benefits are purchased (i.e. housekeeping), generally less is a “stake” with the designation and certainly the timing of such a designation is less critical in most scenarios.

The decrease in Accident Benefit funding has had a profound effect on recovery. We all share this cost as an industry committed to helping people recovery from traumatic personal injury.

The post The hidden costs of not purchasing optional benefits appeared first on Jeffrey Shinehoft Personal Injury Law.

The drastic increase in insurer profit has not been passed on to consumers by way of reduced premiums, and, in fact, premiums have been increasing. Rates continue to increase despite collisions and related insurance claims being down in 2020 when compared to the previous year. This trend continues in 2021.

WHAT CAN BE DONE? REBALANCING THE SYSTEM

1. Repeal of the secret deductible

The deductible is secret because a jury is not allowed to hear that the award they give for pain and suffering will be reduced by more than $40,000.00.

a. This year, the secret deductible on pain and suffering damages now exceeds $40,000.00.  It stands at $41,503.50. Any claim for pain and suffering damages of less than $138,343.86 is subject to this deductible.

b.  More than 80% of the innocent accident victims in the Ontario who pursue tort

claims are punished by this deductible. Notably, no car accident victim is entitled to payment for

pain and suffering damages unless their injuries are deemed serious and permanent

(threshold test). Accordingly, with this verbal threshold test in place, any legislative goal of keeping

smaller claims out of the court system will be met without the need of the secret deductible.

c.  The secret deductible is unnecessary, redundant and unfair, and causes significant hardship for those injured in car accidents due to the negligence of another driver, while that negligent driver’s insurance company derives an unfair economic benefit.

The insurer for the at-fault driver gets to take that deductible, at the expense of an innocent accident victim. The secrete deductible motivates insurance companies to take unreasonable settlement positions and force more claims to the court system.

2. Past loss of income reformed to 100% of losses as opposed to 70% prior to trial.

Victims of negligence or wrongful conduct have always been entitled to claim 100% of their loss of income in tort actions. However, victims of car accidents are treated differently – they are only entitled to claim 70% of their loss of income to the date of trial. Arbitrarily limiting past loss of income for car accident victims is unfair and provides auto insurers with an economic incentive to delay the settlement or trial of an action. It is not a surprise that an insurer may delay an action to keep 30% of the injured victim’s past income loss. This is particularly problematic in light of the backlog in getting cases to trial caused by the COVID- 19 pandemic.

3. Return to the pre-judgement interest rate to 5%.

Rule 53.10 of the Rules of Civil Procedure requires that a negligent defendant pay 5% pre-judgment interest on an injured victim’s pain and suffering damages from the date of the accident forward. The law recognizes that pain and suffering damages are owed to the victim as soon as the negligent act of the defendant occurs and the injury is sustained. The Insurance Act contains a number of disclosure clauses, aimed at ensuring the insurance company has proper timely disclosure so as to assess the claim for damages. The Insurance Act compels the injured victim to provide the insurer this information/documentation or run the risk of having the clock starting the pre-judgment interest accumulation delayed.

In 2016, the government carved out an exception to pre-judgment interest payable to innocent victims injured in motor vehicle accidents. The result is a reduction from the standard 5% to an amount that presently stands at 0.5% for victims of motor vehicle accidents. 

Insurers are discouraged to settle meritorious claims in a timely fashion given that their return on investments is likely significantly higher than any pre-judgment interest they will ultimately have to pay.

Insurers need to be motivated to resolve claims at the earliest reasonable opportunity. The court system is in a state of crises, plagued by insufficient resources, with far too many cases than can be reasonably handled. Having parties resolve their claims without using judicial resources, through a return to the 5% pre-judgement interest rate on pain and suffering damages for car accident victims, is in the best interest of our community.

AUTO INSURANCE IS AT CROSSROADS

Ontario is at a crossroads. Consumers in Ontario expect that, if they are injured because of the negligence of someone else, they will be able to return to the same position economically as if they were not injured. In the current system, where insurers are enjoying record profits, nothing could be further from the truth.  No other province in Canada with a tort system has imposed the substantial restrictions on the rights of innocent accident victims that we have in Ontario as insurer profit on the backs of our community.

The post WHAT IS GOING ON? AN UNBALANCED AUTO INSURANCE SYSTEM appeared first on Jeffrey Shinehoft Personal Injury Law.

His client, Jack, was walking in his neighbourhood when a drunk driver suddenly struck him leaving him with life-long catastrophic injuries.

It is a case that Jeffrey will remember for his entire career and one he shares with other clients. Without sugar-coating Jack’s hard work both physically and emotionally, Jeffrey uses this story to show there can be a light at the end of the road.

To watch, click the play button on the video:

Jack explains his life was taken away from him in the blink of an eye and the difficulty of navigating the medical and legal process. He shares the importance and relief when a professional takes over the process, advocates for you, and removes what is overwhelming and anxiety-provoking.

To watch, click the play button on the video:

In response to Jeffrey’s question, Jack shares what he thinks of the rehab team assembled for him – people he now calls friends – his gratitude for their professionalism and the extra time they took to care for his needs.

To watch, click the play button on the video:

Jeffrey and Jack discuss the legal resolution. Jack explained his need to get his life back and maintain his livelihood. He shared where he is today – a point where he has a sense of independence, has reinvented himself and has a means by which to support himself, including a new accessible home. Above all, he shares his belief in a bright future ahead.

To watch, click the play button on the video:

Learn more about Jeffrey Shinehoft Personal Injury law, our firm values, and how we can help.

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One of the biggest honours is when colleagues call upon me to act as an independent mediator to help settle a case between two parties. Unlike my litigation files, as a mediator, I do not represent either side. I also do not offer legal advice. My sole focus is on bringing the people in the room to an agreement.

I create a framework to govern the process and ensure a commitment to operate in good faith.

My role remains neutral, and I ensure the information from the mediation proceedings is kept confidential. Creating the right atmosphere is crucial to ensure both parties feel safe physically, emotionally and legally and participate without fear, judgement or prejudice.

As needed, I remind parties of the rules, take action to keep the dialogue on track, and provide encouragement to keep everyone at the table.

Being a good communicator with a strong sense of empathy helps each side understand the other and make sure everyone is heard and feels respected.

This process can sometimes hit bumps in the road. In these situations, I may raise awareness of the risks of not finding a joint agreement.

It is worth noting that a mediator has no decision-making power. This limitation is a good thing as it makes it easier to build trust and get parties to share information comfortably.

The parties also have rights. For example, they may weigh in on the ground rules for the mediation process, and they may withdraw at any point. After the framework agreement is signed, however, all sides commit to participating in good faith and sharing information fully and honestly.

If you are considering mediation to settle your or a client’s dispute, I look forward to hearing from you and learning how I can help.

The post Serving as a mediator appeared first on Jeffrey Shinehoft Personal Injury Law.

The laws of Ontario have a mechanism to ensure every person who is injured or dies in a motor vehicle accident can access financial help. The mechanism is called Statutory Accident Benefits Coverages, and this is provided, by law, in every auto insurance policy.

The compensation provided by the benefits is available regardless of fault. It is also available whether the injured person was the driver, the passenger, or a pedestrian.

Accident Benefits help create financial security after a dramatic life change. Let us look at a few categories:

FINDING A SOURCE OF INCOME

If someone is seriously injured, it is likely that they cannot work, at least for a while. Income replacement is a benefit that helps provide an income during this recovery period.

Another form of compensation is called non-earner. This compensation provides financial support to people who will not recover medically and do not qualify for income replacement.

Sometimes income replacement is needed for the person required to fill the role of a caregiver. Accident Benefits can also provide compensation to people who must leave work to care for somebody injured in a car accident in Ontario.

COVERING NEW EXPENSES

After a car accident injury, there are many new expenses. There are medical expenses, the cost of aids (attendant care), and money needed for ongoing rehabilitation to improve health outcomes.

Some expenses are less obvious, such as the need for housekeeping, family or friends’ travel to provide support during the recovery or treatment, or lost educational expenses. There is also the cost associated with the repair or replacement of the car damaged in the accident.

Accident Benefits will also cover some funeral expenses and provide additional money to family members if the insured person dies due to the accident.

WHEN ACCIDENT BENEFITS CAN BE DENIED

Accident Benefits can be denied if the injured person is breaking the law. For example: driving without valid insurance or driver’s license or driving a vehicle without the vehicle owner’s consent. Cases of fraud or driving a car while committing a crime would also likely prevent someone from claiming Accident Benefits.

WHAT TO DO IF YOU ARE A VICTIM OF A CAR ACCIDENT?

If you are a car accident victim, start with reporting your information to the police and then make sure to seek medical treatment right away. After that, seek legal advice, especially if you have already made an insurance claim and have been denied the benefits you feel you are rightly owed.

Learn more, here

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Our occupation is often how we define ourselves. Whether or not this is a good thing for society or our self-worth is a separate discussion. Still, there is no doubt that with work comes feelings of pride, contribution, and connection to a work community that can offer grounding and stability that every one of us craves.

Wrongful dismissal is an area of law that protects employees from being terminated without receiving what they are entitled to under the law, whether this is a reasonable notice period or adequate severance pay.

Wrongful dismissal is different from constructive dismissal or unjust dismissal.

Recent examples in the news about the various cases of firing resulting from people in authority positions not standing up to harassment and other abuse in the workplace may fall under constructive dismissal.

Unjust dismissal is for situations in federally regulated workplaces, where an employee has worked for more than 12-months, and a dismissal does not meet a specific set of criteria.

Jeffrey Shinehoft Personal Injury Law understands the meaning, and importance, of a good day’s work and what this can do to a person’s psyche, their stress, and their finances when this is taken away from them.

Work is more than a job. It is part of our identity; it provides balance personally, professionally, financially; and adds meaning. It is also often inextricably linked to long-term goals now challenged or cut short.

If you have suffered from wrongful dismissal from work, please reach out for a free consultation today. We get it.

The post Wrongful (and other) dismissal, we get it appeared first on Jeffrey Shinehoft Personal Injury Law.

A most recent commentary came via the Divisional Court decision in Malitskiy v. Unica Insurance Inc., 2021 ONSC 4603.

Before discussing the decision a few basics about how Attendant Care is applied for via a Form 1. The Form 1 is the form used to apply for Attendant Care. The form is broken into three different “levels” of care i.e. part 1, part 2 and part 3. Each level of care has a corresponding dollar amount that is used in the calculation of the monthly amount of Attendant Care available. The dollar amounts are as follows as of today:

Part 1 – $14.90

Part 2 – $14.00

Part 3 – $21.11

The monthly attendant care is calculated by multiplying the hourly rates referenced in the specific part with the weekly allotment of hours in that part. You then add the three parts to obtain your Form 1 monthly amount.

The relevant rates in Malitskiy were:

Part 1 – $13.19

Part 2 – $10.25

Part 3 – $19.35

The decision of the Divisional Court is in the context of an accident that occurred on March 16, 2014 when the injured Malitskiy sustained significant physical, psychological and cognitive injuries including a traumatic brain injury and multiple fractures. The injuries were deemed catastrophic by the insurer.

The initial LAT decision ruled that Malitskiy was entitled to a maximum benefit of $6,000.00 per month of attendant care. The decision was overturned by Reconsideration at the LAT and was then heard by the Divisional Court earlier this year. The issue in dispute was not how many hours of care were required, this was an issue of how to incur the approved benefits.

The insurer argued that the initial attendant care decision was wrong as the actual number of hours worked was less than the Form 1 hours stated.

Prior to the decision in Maltsiy, the insurer was obligated to pay the monthly amount from the Attendant Care Form 1. This approach was routinely followed and supported by many court decisions including the Court of Appeal in Belair v. McMicahel which upheld the reasoning offered by Director’s Delegage Makepeace whom held:

Belair submits that the word “incurred” indicates that attendant care benefits provide indemnity coverage only, and therefore no benefits are payable for any period when the service was not obtained or the expense incurred. However, the accident benefits scheme is consumer protection legislation, and this sometimes requires “bright-line boundaries” that produce anomalous results in certain circumstances. Belair’s position has serious implications for the claims process. Kennelly illustrates the problem: if benefits for a given period are not payable unless the services were received, the insurer stands to benefit from refusing to pay for services claimed, whether for medical, rehabilitation, attendant care, housekeeping or other services…

The Divisional Court ruled in Malitskiy that the hourly rates prescribed in the Form 1 are the maximum rates to be paid by the insurer.

Application of the Divisional Court ruling:

This decision forces more process on an injured person and requires more record keeping and submissions to the insurer. This really gives the insurer more “ammunition” to simply deny claims when adjusted in bad faith. At the end of the day, it denies care for the particularly injured and the particularly poor who cannot make up for the gaps in support.

It is virtually impossible to hire someone for $14.00 an hour. These rates are below minimum wage. The insured has no right when purchasing their policy to negotiate the rates. As a result, many accident victims would hire an attendant for less hours listed in the Form 1 at higher rates, than would be reimbursed the total monthly cost of the Form 1.

Is it fair to have an insurer only obligated to pay rates that are below minimum wage? Is it fair to have the gaps in support funded by the injured accident victim?

I say this in the context of the following facts related to Attendant Care since I started my practice in 2004:

1. The maximum monthly amounts available to an insured have never increased.
2. The definition of “incurred” has drastically changed to disallow families from performing the care and being paid to restricting care being provided by a professional or a family member who has sustained a corresponding income loss.
3. COVID has reduced the amount of attendant care services being obtained due to fear of exposure.
4. Less supports for care available through government agencies such as CCAC.
5. Significant reduction of the amount of attendant care available in a standard policy of insurance by approximately half in the case of the Catastrophically injured unless optional benefits are purchased.

The consequences of the decision can be devastating to an injured victim with little means of support. The decision essentially forces an accident victim to pay market rates for attendant care that they know will not be fully covered by their insurer.

The post ATTENDANT CARE – incur at your own risk appeared first on Jeffrey Shinehoft Personal Injury Law.

As a personal injury lawyer in Ontario, a province that loves its cyclists, I am often asked what I should do if I get into an accident while cycling?

My advice:

Call the police And make sure that both you and the person driving the car remain at the scene. The vehicle driver may be remorseful at the time, and you may have the personality that says, “don’t worry, I’m fine.” But it is essential to resist saying this as the extent of your injuries may still be unknown immediately following an accident.

If you are feeling up to it, document everything that you can and take pictures. If typing is problematic, consider using the voice prompt on your phone or video. Collect the driver’s contact information, driver’s license, car license plate, and insurance policy number.

Look around and see if there are any witnesses. If so, take down their contact information so you can follow up with them later if needed. Consider also recording what they saw.

Take a minute to write or video yourself speaking about what happened: What did you see, what direction you were travelling, what colour was the light, or any relevant signage? Did you see anyone in the car on their cell phones or distracted in any way? How are you feeling at this moment?

It is essential to seek medical treatment to document your health concerns, so a proper professional also records this information. If you don’t seek medical attention and later claim injury, the fact that you didn’t seek medical attention right away could be used against you.

This part of my advice is less intuitive: Don’t speak with your insurance company until you talk with a lawyer. Personal injury lawyers, commonly called bicycle accident lawyers, train to speak to insurance companies on behalf of their clients to ensure their rights have been respected and receive the total compensation they deserve.

For more information on bicycle accidents contact us today.

The post Help! I’ve just had a bicycle accident appeared first on Jeffrey Shinehoft Personal Injury Law.

Let us start this blog by looking at two definitions:

Long Haul COVID:

Long Haul COVID is when people contract the COVID-19 virus, and they experience ongoing health problems four or more weeks after being infected. These symptoms can present differently and for different lengths of time.

There are different types of post-COVID effects according to the U.S. Centre for Disease Control:

There can be new or ongoing symptoms. These can include difficulty breathing, fatigue, difficulty concentrating (“brain fog”), cough, chest or stomach pain, headaches, heart palpitations, joint or muscle pain, feeling of pins and needles, diarrhea, sleep problems, fever, lightheadedness, rashes, mood changes, changes in smell or taste, changes in menstrual cycles.

People who suffer particularly severely from COVID-19 can have multiorgan (heart, lung, kidney, skin, and brain function) effects or autoimmune conditions (swelling or tissue damage)that last well beyond the illness.

Another type of effect from COVID-19 can come from long rates of hospitalization. Terms like “post-intensive care syndrome” refer to severe weakness, problems with thinking and judgment, and post-traumatic stress resulting from trauma from having been in crisis in hospital. These symptoms can be mild to severe, leading to mental health problems and financial insecurity from extensive work periods.

Long term disability:

Long-term disability insurance benefits often start after your employer’s short-term disability insurance, sick leave benefits, or EI benefits finish. Long-term disability plans commonly replace between 60 per cent to 70 per cent of a person’s typical income.

Every lawyer and insurance company will explain that each disability plan has its differences in terms of the length and amount of compensation allocated. Compensation will depend on two critical factors. 1) Is the person able to return to the job they had before (own occupation)? 2) Is the person able to return to work doing any job (any occupation)?

The term “disability,” unfortunately, does not always mean the same thing to all parties. As a result, lawyers play an essential role in deciphering insurance policies.

Where these two terms meet:

As time progresses, the medical profession is learning more about the long-term impacts of COVID-19, whether ongoing symptoms, multiorgan or autoimmune conditions, or impacts of extended hospital stays and emergency interventions. It is an area being studied worldwide, and the results of such studies have already started to be published.

Suppose someone is unable to return to work for an extended period. In that case, long-term disability coverage may be a right to which they are both entitled and need for ongoing treatment and recovery support.

For more information on long-term disability, contact Jeffrey Shinehoft Personal Injury Law today.

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When you graduate from law school, they don’t tell you about marketing, or about how to build a brand. As a result, most lawyers just start practicing their craft focusing on what they were trained to do.

I too fell into this category, nose to the grind, focusing on one file and then the next. But after 15 years in practice, I am pleased to introduce to you an articulation of who I am as a lawyer and what the Jeffrey Shinehoft Personal Injury Law brand means to me and for you as valued co-workers, fellow professionals, and clients.

My firm is a purpose-driven firm dedicated to restoring dignity, rights, and independence to people who have suffered a serious injury.

Our Vision:

Access to justice without revictimization

Our Mission:

To utilize the legal system to provide financial security as soon as possible so clients may live in a proactive, balanced, and supportive manner.

Our Values:

COMPASSION for the people whose lives have been impacted by a serious accident

EQUITY in how we bill.

PERSEVERANCE in the lengths we go to protect our clients’ rights.

COMMITMENT to staying at the forefront of the industry through ongoing training, education, and experience.

TRANSPARENCY through open, honest, and accessible communication.

I hope that you’ll reach out to me and ask me about my vision for the industry and how each of these values manifests themselves each day in our office and in discussions about the law.

They are what ground us as we meet with people who have suffered injuries whether from a car accident, a cycling accident to a slip and fall, or a case of general negligence.

Values are what make the difference between a lawyer who does a job, and a lawyer who does a job with heart and a greater purpose of doing good in this world.

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