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All You Need to Know About Car Accidents and Personal Injury: January 26th Legal Talk With Derek Wilson

Topic 1:  About Derek Wilson Personal Injury Law

Laura Hampshire: Good morning, and welcome to Legal Talk with Derek Wilson on 900 CHML. I’m Laura Hampshire, and really excited about this, because before I got into radio, I was actually going to be a lawyer. My mom is still crying about it, but that’s another story. This is going to be a brand-new show on 900 CHML. I’m really excited about it. I’m joined this morning with Derek Wilson, personal injury lawyer, 20 years experience. Good morning, and welcome, Derek.

Derek Wilson: Thanks very much, Laura. It’s a pleasure to be here.

Who Is Derek Wilson?

Laura Hampshire: Tell the audience a little bit about you and what you do. 

Derek Wilson: I’ve been practicing law… actually, into my 24th year now.

Laura Hampshire: Wow.

Derek Wilson: I started in Hamilton a long time ago, in the early ’90s. Articled for a great lawyer, Stan Tick, who is retired now. Then, I left Hamilton, went to England for a year, did my masters. When I came back, I worked in Toronto at an insurance defense firm for about 11 years. I was a partner, there, doing the other side of what I do now. About a decade ago, I came back to Hamilton. Started off with a couple of lawyers, then went on my own about six years ago. Now, I just do plaintiff personal injury, which, what that really means is mostly motor vehicle accidents, slip and falls, long term disability-type claims, but not working for the insurance company anymore, working for people like you or anyone who’s been injured.

Laura Hampshire: What are some of the things you don’t cover? Just so people know that, as well.

Derek Wilson: I don’t do things like worker’s compensation. If I get a call for that, I know people who do, so I’ll refer them on to those people, but it’s not an area that I know that much about, so I let people who do know about it to do that work. Medical malpractice is another thing that I don’t do that I refer people on. Everything else in the genre of personal injury, I pretty much handle.

Laura Hampshire: Why did you decide, after working on the other side of the fence, to join the good guys, so to speak? 

Derek Wilson: I started off doing both, when I was working with Stan Tick in Hamilton, originally. I was doing both insurance work and plaintiff. I liked them both, but when I came back to Ontario, I just thought there were going to be more opportunities in Toronto, and where I fit in was mostly with the insurance defense. 

After doing it for a while, it got a little bit repetitive. I find, when you’re helping plaintiffs, at the end of the case, it’s not just the money, which is obviously important, but people, yeah: “you helped me”. There’s a lot of gratitude. You can make some good friends, whereas when you’re working for insurance companies, the people you’re working for are professionals, but it’s really not their money. It’s the company’s money. If you save the company money, they’re happy you did that, but you don’t get the same kind of gratitude you get when you’re working for, I think, people who are injured. 

That was one of the reasons that brought me back. Plus, I think it’s good to have done both, because you understand what an insurance company will put up as a defense. You’ve put up that defense yourself in the past, so you’re prepared for it. 

Laura Hampshire: Exactly.

Derek Wilson: It’s like I said, really, really good criminal lawyers often have been prosecuting attorneys. A lot of them start off… Howard Greenspan did. A lot of those people started off on the other side, working for the Crown. Why? Again, you learn the other side. I think it’s, if I can draw an analogy, it’s similar in that way. I find this work better, more fulfilling. I shouldn’t say better, but more fulfilling for me, personally. 

What Topics Will Be Shared In This Show?

Laura Hampshire: What are the kind of things that the audience should expect from this show? What kind of things are we going to be discussing that you want the audience to know?

Derek Wilson: I think there’s some stereotypes, stereotypical things that people think about lawyers, and meeting them, and discussing their issues that we can address. Lawyers, especially in the Hamilton area, such as myself, they’re very approachable. If you’ve got an issue, you can call them. The vast majority are not going to charge you to meet with you the first time to discuss what’s going on in your life. 

I think that that’s important for people to know. Also, just some of the stereotypes around insurance companies and what they may or may not think is going on in a particular claim, and how insurance companies operate, and information they may need to deal with what an insurance company is going to say to them, I can usually tell what they’re going to say before they say it, because I know what I said. I’ve been there. 

Laura Hampshire: Yeah, you’ve been there. Yeah.

Derek Wilson: I think they can expect to hear from me how to deal with that aspect of a claim. Some of the procedural things that you have to do to make a claim in Ontario, depending on what type of claim it is, long term disability versus motor vehicle accident, they’re very different. One’s a contract. One’s what we call a tort. There are, different rules apply, and different things apply, but there are some similarities between the two, as well.

Laura Hampshire: The best part, too, is that you offer free consultations. I read it on your website. It says they are free, 100%.

Derek Wilson: Yeah, I mean, when you’re meeting with somebody, you don’t really know. You have an idea, in my practice, what happens. People generally call in. I have two great law clerks who will take down a lot of information. They’re taking it down on purpose, so I have a better understanding of what the case is about. 

For instance, we talked about this a little bit before. I don’t do WSIB or medical malpractice. If the first thing out of your mouth is, “Well, I have a work issue with WSIB,” they’re going to stop you and refer you to somebody who can help you. We try to get the information for the stuff that I do. Then, I will meet with the person and get more information, decide whether I think I can help them. 

Often, too, clients are more, or I will say, potential clients are way more savvy these days. They might even be interviewing you. They’re going to see two or three lawyers, and that’s fine. I think what’s important in that initial consultation is that they’re comfortable with you, and you’re comfortable with them, because these cases take anywhere from two to four years to resolve. You’re going to be dealing with this person on an ongoing basis.

Laura Hampshire: Two to four years?

Derek Wilson: Yes. It sounds like, you know, two years is actually pretty quick in our time, yeah. 

Laura Hampshire: Really? That is a long term.

Derek Wilson: It is. 

Laura Hampshire: …especially when you’re dealing with injuries and life-altering accidents.

Derek Wilson: Yes. Yeah.

Laura Hampshire: That’s unbelievable. If people want more information, you have a great website. Derekwilsonlaw.ca. You can also give him a call, 905-769-0418. Toll-free, 1-855-769-0418. You can also find Derek Wilson Law on Facebook and Twitter. Now, you’re also dealing with other things, as well, like whiplash?

Suing For Whiplash And The Nature Of Permanent Injuries

Derek Wilson: Yeah. Well, whiplash is one of the areas that people are always asking whether or not they can sue. Really, if you have a whiplash, which is really a soft-tissue injury to your neck, and it’s graded at different levels depending upon how severe it is, we don’t talk so much in terms of suing for whiplash. It’s more about whether that injury heals or doesn’t heal. If it doesn’t heal, then you’re probably going to come and see me, because if it does heal, you’re not going to need to see a lawyer, because you’re going to get back to where you were before, likely, in about six to eight weeks time. 

Where whiplash becomes more serious, when it delves into what we call chronic pain, which, technically, chronic pain is pain that really doesn’t clear up. There’s different definitions, but usually within six months. It’s more of a whiplash that would not go away and progress onto chronic pain, because in Ontario, it’s not so simple. 

What people don’t really understand, well, I had a bit of pain and suffering, and I will often say to them, “So what?” Not being callous, but you can’t just sue because you have a bit of pain. In Ontario, you have to have a permanent injury. A whiplash, if it’s going to go away in six weeks, good luck. You’re not going to get anywhere with that type of case. It’s essentially if you have an ongoing injury that is permanent. Permanency, how do we know whether it’s permanent? I usually tell clients, “If you’re not feeling better six to nine months or a year later, you’re going to have some ongoing problems with that injury.”

Laura Hampshire: That’s a good way to look at it. 

Derek Wilson: Right. 

Laura Hampshire:  I know that it’s okay, it’s a stereotype. Insurance companies deny a majority of cases. I’m just going to make a blanket statement, there. 

Derek Wilson: Yeah, blanket statement. 

Laura Hampshire: Yeah. 

Derek Wilson: They deny a lot of cases. I don’t know whether, because I don’t have the stats in front of me, in terms of whether any specific insurance company denies more claims than they accept. It’s more of the rules that are in play. I mean, the rules that are put in place are put in place by the government. Unfortunately, they don’t really, at this point in time, favour people who’ve been injured, let’s say, a car accident. 

One of the things I was talking about was the permanency. In order to sue for pain and suffering in Ontario, the technical definition is a permanent, serious impairment of an important physical, mental, or psychological function. Hopefully I got that right, because I’m just going through my memory.

Laura Hampshire: Yeah, that was really good.

Derek Wilson: What that means, there’s cases that have interpreted, whether it’s permanent, you need a doctor to say it’s likely not going to get any better. Even if you have an injury that doesn’t get better, that doesn’t mean you can sue for pain and suffering. You also have to have the serious component. 

How does that work? Generally, if it affects your employment in some way. You were working, you’re not working anymore, that’s an obvious one that’s going to meet the threshold because it’s going to be deemed permanent and serious. If you go back to work, and you go back to all of your activities, but you still have lingering pain in your neck, or wherever, in your back, court could say, a judge could say, “Well, it’s not serious enough.” Right? We call that the verbal threshold.

There’s also a monetary threshold. How that works is that, and I always tell people, a lot of cases settle. I used to tell people about 95% of the cases would settle.

Settlements Versus Going To Trial: Deductibles Apply

Laura Hampshire: Really? Okay.

Derek Wilson: A little bit less, now. I think insurance companies are taking a much harder line. I don’t know what the stats are, but I usually tell clients it’s probably more like 80% of the cases will settle, 20% won’t. The cases that go on and are tried, a jury might come, “I like this person. They presented well. They’ve got some problems. I’m going to give them $40,000 for pain and suffering.”

What the jury’s not supposed to be told, and you can’t tell them, as a lawyer, or you’d have a mistrial, is there’s statutory deductible for pain and suffering. Right now, it’s close to $38,000. What that basically means, if a jury awarded you $40K, you got $2K. No one’s going to trial for $2,000, okay? 

Laura Hampshire: Wow. 

Derek Wilson: When I say that the current system is not really stacked in favour of plaintiffs, it is not. That deductible, it had been stuck at $30,000 for years. I think, when it first went to $30,000, and again, I’m not 100% sure, but I believe it was 1996, stayed there forever. Then, recently, in the last couple of years, they have taken it. They’ve indexed it to inflation. $30,000 in 1996, or whatever the year is, is now worth $38,000, and it goes up every year. Next year it will be a little bit more. 

Laura Hampshire: Oh my gosh, so what’s the incentive?

Derek Wilson: I mean, if you were dealing with somebody who’s coming to see me just about pain and suffering, I probably couldn’t help them. You’re really looking for, in order to make a successful claim, people who have had some kind of impact on their employment, because income is not based upon a threshold. I mean, there are certain rules that apply. You can only sue for 70% of your gross income, up to the time of trial. Then, after the trial, you can sue for 100%. Somebody who’s not going to work, we have to look into the future of how much income loss they might be out.

That’s not based upon a threshold. It’s based upon, you still have to have the evidence. Insurance company is not going to accept because you tell them that you can’t work that you can’t work. 

Laura Hampshire: They do have people that follow you. 

Derek Wilson: Yeah, they do do surveillance. Not in all cases, but often, they do. They do do surveillance.

Laura Hampshire: So much more.

Derek Wilson: That’s a whole other topic.

Laura Hampshire: That is a whole other topic, and that’s just an example of some of the things that we are going to be talking about on the show. We are going to delve a little bit in the next segment into long term disability. What that means, who can apply, and really, all the steps you need to take when you are seriously injured. You are listening to Legal Talk with Derek Wilson on 900 CHML. We’ll be right back. 

Topic 2:  Long Term Disability And Slip and Falls

What Is Long Term Disability Insurance?

Laura Hampshire: Welcome back to legal talk with Derek Wilson on 900 CHML. I’m Laura Hampshire, joined with Derek Wilson, personal injury lawyer right here in Hamilton. We’re going to talk about long term disability. What exactly is long term disability? 

Derek Wilson: When I think of long term disability, we were talking a little bit earlier about contracts. That’s what it is. First of all, a person has to look, it’s normally through their employer. Their employer, especially in larger companies, may have plans with companies like Sun Life, Manulife, Great-West Life. There’s quite a few.

Laura Hampshire: Benefit companies of some kind, yeah. 

Derek Wilson: A lot of people have coverage for, let’s say, medical dental. That’s usually a separate policy. What we’re talking about is a policy over and above that that would cover or pay you a portion of your salary when it’s deemed that you can’t work, often because of an illness or an injury. Doesn’t have to be an accident. It could be a disease. It could be something quite bad like cancer. 

Laura Hampshire: Heaven forbid.

Derek Wilson: Yeah, or anything that would prevent you from working. When people are faced with: am I able to work or not, they should … Most people, I’m not going to say everybody, a lot of people know whether they have that coverage. If they don’t know, they should talk to human resources and say, “Do we have long term disability available?”

I should rephrase that. Usually, at the beginning, when you go off of work, it’s short-term disability. That’s usually for about 16 weeks, give or take. Then, the long term disability will kick in after that if you’re still not able to get back to work. Then, it really depends, because big companies often will pay their employees, we call it being self-insured. Manulife’s not going to kick in or Great-West Life. The employer would pay the people if they are legitimately off of work for the first 16 weeks.

If you’re not able to get back, usually a large company will have a policy with one of the providers that I mentioned. Then, you have to apply to them for what we call long term disability benefits. Usually, that’s about six months after you’ve been off is when they kick in. There’s a waiting period. Yeah. 

Laura Hampshire: All right. Can you buy insurance for your … If your company does not have anything like that, should you make sure? Is that something that the average person should have is to make sure that they have long term disability insurance of some kind? 

Derek Wilson: I think it’s a good thing to have, because it’s like your life insurance, right?

Laura Hampshire: Exactly.

Derek Wilson: You’re trying to take care of your family. It can get a little expensive if you were buying a policy for one person. For instance, for me, it’s quite expensive, because I’m a sole proprietorship. It’s just me. I know when I looked into doing it before, they would only insure me for two years. That’s not really that great. 

The reason why if you’re in a larger company that it’s better, they’re pooling it. They’re figuring how many people are actually going to go on long term disability. Most people aren’t. Generally, they’re not going to be sick, and they’re going to go on and work. The people who are, you’re kind of pooling the resources of everybody, insofar as the premium dollars of everybody, so they can make the policies a little bit better, if it’s in a large corporation. It really does depend on what your employer, what they negotiate, because not all polices are the same. Yeah. 

Accident Benefits Come Before Long Term Disability Benefits

Laura Hampshire: All right. Say you’re in a car accident, a severe car accident, or you’re a pedestrian, you get hit by a car. What’s the first step you take? 

Derek Wilson: In a car accident situation, it’s a little bit different, because you can apply for accident benefits, which are benefits that are available to you through your own insurance company. They’ll cover income loss. They don’t pay for, the first week is excluded, but they’ll pay income loss, but only up to $400 per week. If you’re making 50 grand, $400 a week isn’t really going to cut it. 

They sometimes will pay more if you have purchased optional benefits, but most people don’t know about the optional benefits and don’t buy them. I tell clients, especially after I’ve met them, “If you ever have another accident, you should definitely buy these benefits, now. It’s smart to have them.”

Laura Hampshire: Through the auto insurance company?

Derek Wilson: Yeah. In my case, for instance, the most you can get is $1,000 a week, but it doesn’t cost me much to bump up from $400 to $1,000 a week. I think it’s about $120 a year. 

Laura Hampshire: Wow, okay, yeah. 

Derek Wilson: It’s worth it. What would happen in a situation where somebody involved in a car accident was working for a company that had long term disability, they would want to apply for long term disability, as well. Their own insurance, I say own insurance company, I mean the accident benefit insurance company if the car company would expect them to apply, but they would also get more money, likely, from their long term disability than they’re going to from their car insurance company.

Laura Hampshire: Yeah, by the sounds of it. 

Derek Wilson: Yeah. I mean, to an extent, like, most long term disability policies pay, and again, they’re all different. I’ve seen some that are as good as 70% of your gross wages. Often, it’s two thirds. Some are as low as 60%. That all depends upon what policy your employer negotiated. Obviously, the ones with the better benefits are more expensive than the ones with less benefits.

Applying For Long Term Disability Benefits

Laura Hampshire: Exactly. With long term disability to apply, what are the things that they’re going to ask for? What is going to be required?

Derek Wilson: Well, there’s quite an application process. There would be the part that the applicant would fill out, and it might deal with what they perceive their work duties to be, what they perceive to be their disabling medical conditions. 

Laura Hampshire: Doctors’ notes? 

Derek Wilson: Well, yeah. That’s a bit different. There would be another section that you would take to your doctor. It would be a medical certificate or a medical form that your doctor would fill out and would have to support why you can’t work. There’s often a section, or, I wouldn’t say often, I would say there is a section that you would have to take to your employer to fill out, which might describe a little bit more about your job duties at your employment, whether or not the employer can offer you modified duties. They want to see all of that.

Then, they start asking for more. What will happen is, unless it’s a very obvious case, they might ask for, and I wouldn’t say might, probably almost in every case they will, medical records. They’re going to want to see your family doctor’s clinical notes and records, which are the records, every time you see your family doctor, he or she is supposed to write down, “Okay, I saw you on this day. This is what your problem was, and this is what you complained about,” which is why I tell people it’s important, even if you don’t like doctors, you got to go see your doctor, because if you don’t see your doctor, there’s no records to support…

Laura Hampshire: There’s no proof, yeah. 

Derek Wilson: … other than what you’re telling the insurance company, and that’s not going to be enough. You’re right insofar as the clinical notes and records are important, but they wouldn’t be part of the initial application, in most cases. 

Laura Hampshire: All right, okay. In the meantime, you’re injured. You’re out of work. You’re not getting paid. What do you do? 

Derek Wilson: It’s pretty tough. I mean, that’s why you want to do it as quickly as possible, because if you have assets, you’re not going to be going on welfare, because you’re not going to qualify. You’re not going to qualify for ODSP, which is a type of welfare, Ontario Disability Support, again, if you have assets, and you own a house, because they’re going to expect you to sell your house and live off your assets. 

Really, it’s kind of a case of borrow, beg, or steal until you can get your benefits. In a car accident situation, you have to get your application in quickly to your own insurance company. I mean, you have to report the accident within 37 days and apply within 30 days. Most people will do that, get the application in, but even that then requires forms to be submitted by your doctor and a form to be submitted by your employer. If you have an understanding employer and a good doctor, that shouldn’t be rocket science, getting those forms in pretty quickly. Then, hopefully, you’ll get your income replacement benefit from the auto insurer quickly.

LTD is a little bit different, because they take some time to make a decision. It could be 30 days. It could be a bit longer. They often ask for more records, and they’re not paying you while they’re making … It can be a little bit harder for people. I also tell my clients to apply for CPP disability, but that takes…which is a Canadian Pension Plan… that takes quite a long time, as well. It’s not a quick fix. To answer your question, really, if you fall into that situation, where it’s not an auto accident, and you’re applying for long term disability, you don’t have short-term, you could be without money for a period of time. 

Laura Hampshire: What about spouses? The main breadwinner in the family, say if it’s the wife or the husband who is seriously injured, who was a pedestrian who was struck on their way to work, and they’re now in a coma or something like that. Can you file on behalf of your partner, as well?

Derek Wilson: Yeah. I mean, that’s important to have, while you’re healthy, powers of attorney for property and the person, so that if something like that happens, you can take over. If someone’s in a coma, obviously they’re not going to be able to do any of this on their own. This would allow, let’s say if it’s the wife who’s injured, the husband to file for the wife, because he has the power of attorney to do so. These are good things to do while everybody’s healthy, because it becomes much more complicated once you’re in a situation where you’re not. 

Laura Hampshire: I do want to throw out the contact information, as well, for Derek. Derek Wilson. You can reach him, derekwilsonlaw.ca, 905-769-0418, or even toll-free, 1-855-769-0418. Once again, you do offer those free consultations. If anybody has a question about whether their case would be covered, or what they need to do, or what the next step, Derek is there to answer those questions, right? 

What Information Should You Have Ready When Approaching A Lawyer For Help With A Long Term Disability Claim?

Laura Hampshire: What is it like when somebody comes in for a consultation? What should they bring with them? 

Derek Wilson: That’s a good … If we’re dealing with a long term disability claim, I want them essentially to bring the denial letter, because essentially, that’s when you’re going to get a lawyer involved, because they’ve said no to you. I want to see why they said no. Basically, I want to see that letter. 

Usually, when I’m meeting someone for the first time on an LTD file, I want to know what support they have. Who’s supporting you other than you? I don’t mean financial support. I mean medically. Is your doctor on side? Has he sent you to a specialist? So I have a better idea of what the diagnosis is and whether this person is going to get better in the near future or not, so I can give them advice, essentially, on how long this is going to take and what to expect.

The medicals are pretty important, and the denial letter. Usually, we would have gathered information already through, we have an intake process, I was talking about it earlier, where they would speak to one of my law clerks. They’d be asked questions about, “Okay, who are you employed with? How long have you been there? What are your job duties? How much money do you make?” So we can get an idea, because most people don’t know, when they phone me for the first time, what their long term disability benefit amount is. 

Laura Hampshire: Yeah, I don’t. 

Derek Wilson: Exactly. If I know what the salary is, I can usually get a rough idea, because as I said, most policies are 66, 2/3. Not all. It’s not written in stone, but I can get an idea of what they would get. Then, there’s other things you want to find out, and they want to find out, whether the benefit, if they were getting it, is taxable or not taxable. There’s a reason for that, especially if we’re talking about negotiation with a long term disability carer down the road.

Fees For The Lawyer

Laura Hampshire: What about your fees, as well? That’s something that I would assume, generally, in these kind of cases that you get the defendant to incorporate your fees? 

Derek Wilson: Partly. What really happens, and the way it works for me, is the cost, so, let’s say you settled a file, I’ll just pick a number. An LTD file that you settled for, let’s say, $100,000, okay? 

Laura Hampshire: Okay. 

Derek Wilson: Let’s say it got to a process called discovery. We can talk about that, as well, maybe in another show, which is part of the process where the other lawyer, in this case, the lawyer for Manulife or Sun Life gets to ask the plaintiff, so the party who’s bringing this case, all kinds of questions about their previous health, their health now, why they can’t work, all these things. We call it discovery.

If you go through that process, generally, and you settle, an insurance will generally pay 10 to 15% on top of what they’re paying out for your costs. Those actually belong to the client. I charge a percentage of what they are, it’s called a contingency fee, on the $100,000. I’m getting paid on that. I’m taking a percentage of that. Then, basically, they would get the remainder plus whatever costs the insurance company pays on top. They don’t go to me, even though they’re paid for me. They go back to the client.

I only charge them a contingency fee on one thing, which is the actual settlement, which in this case, in my example, would be on the $100,000. If there’s no recovery, I don’t charge them anything. 

Laura Hampshire: Wow. 

Derek Wilson: Yeah. I mean, basically, I have to be pretty … When I’m signing somebody up, I want to be pretty certain there’s a decent case there, obviously, or I wouldn’t be in business. Essentially, it’s not a risk to them, because if there’s no recovery, and I don’t get them any money, they’re not going to get a fee charged by me. 

Laura Hampshire: That’s amazing. 

Derek Wilson: Yeah. 

Fault Determination And Benefits

Laura Hampshire: That’s absolutely amazing. What about blame, though? Does it matter who’s at fault in any of these accidents, when it comes to coverage? What if you were the one that caused your own accident?

Derek Wilson: Well, that’s a good question. If you caused your own car accident, you wouldn’t be, we were talking earlier about meeting thresholds of permanent, serious impairment. If you’re the author of your own misfortune, so to speak, who are you going to sue? You can’t sue yourself. 

You would still have access to long term disability, if you have that coverage, and you can’t work. You still have access to accident benefits, which, again, is the contract of insurance you have with your own insurance company, which isn’t based upon fault. If you can’t work, they would pay you an income-replacement benefit. There is coverage available to you, but you wouldn’t be suing somebody for pain and suffering, because again, there’s no one to sue if you are the one who caused the accident. Yeah.

Slip And Fall Accidents

Laura Hampshire: What about slip and falls? Especially, I mean, this time of year, it’s winter. There’s so much discussion about who’s taking care of snow and ice on sidewalks right now. You slip in front of somebody’s house, or you slip in front of a business, or an apartment building, or how does that work? 

Derek Wilson: Slip and falls, you have … It’s a little bit tricky. For instance, if you’re slipping on city property or on a city sidewalk, they have these rules in place that, again, favour the city. They don’t really favour you. Technically, you have 10 days to notify the city that you’re going to sue them. Most often, people don’t know that, that they have 10 days, now.

Laura Hampshire: Okay, 10 days. 

Derek Wilson: You can get around it if you have what they term a reasonable excuse, but you really want to notify the city within 10 days. It’s hard for snow, because snow and ice cases, it’s not just standard negligence, it’s what they call gross negligence. It means that the city has to be really bad, in the sense of, whereas that wouldn’t apply to, let’s say you slipped at a mall, going into the mall. That would be basically whoever is the owner of the mall’s responsibility. Then, it gets a little bit more tricky, because often they will bring in the people who are responsible for removing the snow. 

If you’re like Cadillac Fairview, or a big company like that, and you have a mall, and I slip going into the mall and say, “You guys didn’t clear the snow and ice,” they’re going to say, “Well, we actually contracted this out to this third-party snow removal company. They’re the ones responsible.” You have to then find out who they are and bring them into the lawsuit. It gets pretty complicated, yeah. 

Laura Hampshire: All right, much more to come on Legal Talk.

Derek Wilson: Yeah. That’s a whole other area. 

Laura Hampshire: You are listening to Legal Talk with Derek Wilson on 900 CHML. 

Topic 3:  Long Term Disability Denial Letters

Laura Hampshire: Welcome back to Legal Talk with Derek Wilson on 900 CHML. I’m Laura Hampshire, joined by Derek Wilson, personal injury lawyer. We’ve been talking about long term disability, just one of the many topics that Derek covers. What happens, Derek, with long term disability? You’ve filed all your reports. You’ve got everything in order. Then, you get the denial letter.

Derek Wilson: At that point, it’s a good time to call a lawyer. 

Laura Hampshire: Yeah.

Derek Wilson: The reason, it might seem obvious, but some people don’t… I’ll tell you why, because generally, probably in all cases, there’ll be a paragraph at the end that you have a right to appeal this decision. You can appeal it. Let’s face it, I understand, most people, if they can do it themselves and get the insurance company to pay them, don’t want to get a lawyer involved, because obviously they have to pay for the lawyer’s time and services. 

I understand that, but what you’re not told, often, is that there’s a two-year limitation period to sue in Ontario. You could be going through internal appeals. I had a case where that happened, where the person did many internal appeals and basically ran out of time. That was one of the issues that the insurance company put in their defense. 

Laura Hampshire: No.

Derek Wilson: We ended up settling it, but it didn’t settle for what it would have settled for, had the person come to see me right away. Plus, I find in most cases, the majority of cases, you don’t win on an internal appeal, because think about it: the insurance company has already told you they’re not paying you, and that they either don’t accept the diagnosis or they don’t think that that diagnosis is enough to prevent you from working. If you go back to the same doctor, what’s he or she going to do? Say the same thing in a different way? So what? Go and get another doctor, who’s going to say the same diagnosis. They’re going to say, “We’ve already said no to that.” Unless it’s something life-altering, like, for instance, you were complaining about chronic back pain, you can’t work, and then, suddenly, you’re diagnosed with terminal cancer, yeah, that will change their mind. 

Laura Hampshire: Of course.

Derek Wilson: In most cases, and I wouldn’t say in every case. I’ve had a couple of clients who have been successful on an internal appeal, but generally, in my experience, it doesn’t happen. It makes sense. It’s going neutrally … Say that it’s a neutral person, but they’re both working for the same insurance company. It’s not going to a third party who’s unassociated with the insurance company. Unless you’ve got something that’s really changed between the initial denial, your chances of winning the appeal are not high. 

What you’ve done, even if we’re not talking about running out of time, the two years, you’re delaying getting the money. If you play around with internal appeals for six, nine months, then come and see me, well, don’t expect me … You’ve wasted nine months. 

The other thing that happens is when you sue them, and to sue means bringing a lawsuit, statement of claim in the court, the people who made the initial decision, they’re no longer involved in your case. Insurance companies, all these LTD companies have separate departments with lawyers and separate adjusters who deal with litigation. They’re experienced in it. They understand what’s going on, insofar as whether maybe this is one we should have accepted.

Now, they know you have a lawyer who may know what they’re doing. The insurance company knows what the case is about. The thing about long term disability that’s a little bit different than car accident cases is that, we talked a little bit about discovery. You can often, I wouldn’t say often, you can settle a long term disability case without going to discovery. The reason being is because the amount of money in dispute is known. You know what the benefits are per month. We’re not trying to determine what they are. Then, really, it’s about whether they believe that the person’s not going to work, or not, and for how long, which you can negotiate.

I often find with long term disability, I don’t go to discovery on every case. Maybe half. In other cases, like motor vehicle accident case, unless you’re settling early on, which is not very often, you’re almost without question going to do a discovery, which also comes with the timelines. We talked earlier between two and four years. long term disability cases can be a year to two years. 

Often, it’s gone more than two years in my office, but usually, I can have it resolved within two years. Car accidents, not so much. Car accident is probably going to be at least two years, and more likely three years or more. 

Laura Hampshire: Wow.

Derek Wilson: Even the different types of litigation will speak to how long it’s going to be.

Laura Hampshire: Well, and I find, too, that especially in these kind of cases, insurance companies, they know their legal rights. They know what they can and cannot do. As soon as you get legal representation, it’s like they know that you mean business, and then they’re like, “Okay, we can’t mess with this person. We can’t manipulate them in any way,” because they know what to say, and they know how to say, “Nope, you’re denied. Good luck,” blah, blah, blah. Once you get that legal representation, it’s almost like you’re on the same playing field, in my opinion.

Derek Wilson: Yeah, I think, to a certain extent, insofar as they’re not going to pay them because I asked them to. I wish I had that power, or my colleagues had that power, but I don’t think any of us do. We know what you need to prove and how you have to get that information. They’re not going to be able to pull the wool over your eyes in terms of, if you practice in this area, you know the law. You know what needs to be proven. Therefore, you can certainly advise.

If someone comes and sees me, and I don’t think they have a case, I’m going to tell them that, as well, because I’m not going to say, “Well, let’s just take this and see what happens.” I don’t want to waste their time, and I’ll tell them why. Even in that situation, I would say, get a second opinion. That’s my opinion. If I’ve told you I can’t help you, maybe there’s someone who sees it differently. You should always do that. 

Generally speaking, when I think you have a case, and there’s a good reason why I think you have a case, the insurance companies will deal with you seriously. Again, they’re not going to write me a check because I asked them to, but they will generally, I can work with them, and I know what they need to help the client get what they’re after. That’s basically what it’s about, really.

Laura Hampshire: Once again, those consultations are 100% free. Give Derek a call at 905-769-0418 or check out his website at derekwilsonlaw.ca. We’ll be right back with Legal Talk with Derek Wilson on 900 CHML.

Topic 4:  Things to Know About Personal Injury Law

Laura Hampshire: Welcome back to Legal Talk with Derek Wilson on 900 CHML. I’m Laura Hampshire, and thank you so much for joining us on our inaugural show. We’ve been talking a lot about long term disability, why you should get a lawyer, when you should get a lawyer. We’re going to be covering a lot of different topics on this show, Derek, not just long term disability. There are lots of other things that you cover, as well. What are some of those things? 

Derek Wilson: I think one thing we could spend some time talking about is, we touched on it a little bit, about surveillance, and how insurance companies use tha01t. It’s across the board. It’s not just in long term disability cases. It also goes into car accident cases, slip and falls. Surveillance, what to do about it, and what to expect, I think that would be a nice topic. 

Laura Hampshire: Yeah.

Derek Wilson: A little bit more maybe delving into car accidents, and this threshold, and what you have to build. Most of these cases, and it’s funny, I get asked, you know, justice is about the truth. It’s really not. It’s about risk analysis. It’s really about building a case, and building risk, and the insurance company also attacking that and lowering their risk. Then, if you figure, you have these two equal forces fighting, then you should get something through the process that is fair. It may not be exactly what you wanted when you started off, or what the insurance company wanted when they started off, but it’s fair to the parties. 

To me, the only way to do that is to have both parties participating equally. Like you said earlier, if you’re self-represented, you’re dealing with an insurance company, you don’t know whether they’re giving you a line. 

Laura Hampshire: Exactly.

Derek Wilson: You don’t know what your rights are. If you’re dealing with a lawyer, they will tell you, “No, that’s not right,” or, “You can expect this, and this is what we need to do to counter what the insurance company is saying.” You’ll get, in my opinion, a fair result. That’s really what it’s about.

Most of these cases go, and this is another thing we can talk about through the course of the show, is mediation. How do these cases get settled?

Laura Hampshire: Yes. 

Derek Wilson: Mediation is a whole other process. Most people know or have heard of mediation. 

Laura Hampshire: Big time. 

Derek Wilson: What does it mean in the context of a personal injury lawsuit? What can I expect at a mediation? What can I not expect? That’s a whole other topic that we could spend time on. slip and falls, we touched a little bit upon that, but you’d probably want to separate it into claims against the city and municipalities versus claims against…

Laura Hampshire: Small businesses or individuals.

Derek Wilson: Yeah, or malls, or homeowners, or things of that nature. That’s a thing, too. We talk about you, the snow removal, and that people have an obligation… 

Laura Hampshire: Snow, and ice, and all that this time of year, yup.

Derek Wilson: … to clean their driveways, but if it happens on a sidewalk, even though you have an obligation from the city to clean your sidewalk, you can’t sue the homeowner. You can only sue the city. Some people don’t know that. There are, you would think, “Well, it’s in front of his house. He’s supposed to clean the snow.”

Laura Hampshire: Some of these falls are serious.

Derek Wilson: Yeah. 

Laura Hampshire: I mean, I’m not talking about falling, and you got a bruise on your butt. I’m talking about fall, and you hit your head. I mean, there are some very serious injuries that can be caused by this kind of stuff. 

Derek Wilson: Yeah. There could be a lot of broken bones in a slip and fall, when you fall on your leg the wrong way. 

Laura Hampshire: You bet. 

Derek Wilson: Can require operations. You’re going to have ongoing issues with that. You’ve got metal in your leg, now, whether they have to take the metal out at some point. Yeah, slip and falls can be pretty serious, as can car accidents. It all really depends upon what happened to you specifically, and people don’t react the same way. You could have two people in a car accident, same car accident. One person’s fine, and one’s not. All our bodies are different. 

Laura Hampshire: True.

Derek Wilson: Some people are more physically fit than others. Some people are just older than others. They don’t heal as well. There’s all kinds of things that would go into the mix, when you’re looking at an individual, as to why he or she is injured versus someone who isn’t.

When To Call A Personal Injury Lawyer

Laura Hampshire: How do people know when they should call you? How do they determine, okay, you know what? I think I should talk to someone.

Derek Wilson: There’s really no right answer except maybe what you just said. If you’re already thinking about it, I think I should talk to someone, talk to someone. Even if it’s early, and the lawyer says, “Well, call me back in a couple of months. I can’t help you right now,” so, they’re not going to charge you for that phone call, and you’ve got some information. Information is wonderful. 

I mean, I know a fair amount about personal injury law. I don’t know about a lot of other things. If I don’t know about something, what I do is I pick up the phone, or I go on the internet, and I try to find somebody who does. 

Laura Hampshire: That’s awesome. 

Derek Wilson: I think it’s the same. I mean, don’t be afraid to call somebody, and don’t be afraid to speak to a lawyer. If they can help you, they will, and if they can’t, they’ll explain to you why they can’t. 

Laura Hampshire: That free consultation I think is a really big deal, because I think a lot of people think, “Well, I can’t go to a consultation. They’re going to charge me $50 to talk to me for 10 minutes.”

Derek Wilson: Right. Right. The vast majority of people who practice in personal injury law do not. Really, and I don’t. Really, it’s a question of meeting with you to find out whether it can help you or I can’t. 

Laura Hampshire: The only way that you can find that out is by giving Derek a call. You can call him, as well. You’re located 19 Bold Street, here in Hamilton. People can call you at 905-769-0418, or toll-free, as well. 1-855-769-0418. If you just want to look up more information about Derek, great website: https://derekwilsonlaw.ca. You have great information on there. Facts, what to do, blogs for people to check out. You can book your free consultation online, as well.

Derek Wilson: You can. The blogs are there. They’re for information purposes only, but we spend a lot of time on that. We do a couple a month. The reason why we do that, it’s free information. It helps people go, “Hey, I fit into that category,” whether they need to see a lawyer or not.

Laura Hampshire: Of course, you’ve also got Facebook and Twitter accounts. Just look him up at Derek Wilson Law. Our next show is going to be coming up on February 16. We do hope you can join us then. Thank you so much. Thank you, Derek, for being here. 

Derek Wilson: Thanks very much for having me. It was a great experience. Thank you. 

Laura Hampshire: I hope you’ll join us again. This was Legal Talk, with Derek Wilson, on 900 CHML.

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