Transcript April 13 Legal Talk With Derek Wilson
Topic 1: How to Work with Your Personal Injury Lawyer
Laura Hampshire: Welcome to Legal Talk with Derek Wilson on 900 CHML. I’m Laura Hampshire, joined by Derek Wilson, personal injury lawyer with 20 plus years experience, even though you’re only 29, right Derek?
Derek Wilson: Yeah, don’t tell my wife that, but yeah, that’s true.
Laura Hampshire: Works right here in Hamilton. Very busy time of year for you. I do want to give out the phone number as we start. 905-769-0418. Or check out derekwilsonlaw.ca. What do you want to talk about today, Derek?
Derek Wilson: Well, I think there’s a couple of topics, but we should start off talking about how to work with your personal injury lawyer, because that’s vital to the success of your case.
Laura Hampshire: Exactly. What is the first step when somebody comes in to see you?
Derek Wilson: The first thing I’m going to do is obviously talk to them about why they’re here, what kind of injury they’ve had. I’m going to get details and specifics about when it happened, the types of injuries, whether the person is able to work or not work. It’s really getting information from that person.
One of the big things that I tell clients, or potential clients, when you pick a personal injury lawyer, it’s a partnership. It’s not that you’re just hiring them to do a job for you. They have to believe in you as much as you believe in them. Honesty is the best policy. It’s what your parents tell you as kids that holds true throughout life.
Laura Hampshire: Mm-hmm, you bet.
Derek Wilson: So, tell me everything. The good, the bad, and the ugly. Don’t keep anything back. Don’t think that I’m not going to find out, or, more importantly, the insurance company will not find out, because they will, eventually. This applies probably to a lot of fields in life. It’s how you want to present the information. The information’s going to come out. If you are the one to bring the information out, you can put it in its best light.
You don’t want it pointed out to you by a defense lawyer, and I’m hearing it for the first time, because then I’ve lost my faith in you as a client, and I’m not really going to be able to do anything for you. It’s very, very important that you tell, whichever lawyer you choose, everything about your case. Don’t try to edit it. Good, bad, and ugly. Let the lawyer decide what’s important, what’s not.
Why Derek Got Into Personal Injury Law
Laura Hampshire: Why did you personally decide to get into personal injury law? You have a very unique perspective.
Derek Wilson: I’d like to say it was real fantastic story as a kid. I actually wanted to be a criminal lawyer and spent a lot of time in law school studying that aspect. It was basically where I got an articling job. I knew nothing about personal injury law until I got a job in Hamilton back in the early 90s as an articling student, working for a lawyer called Stan Tick, who’s now retired, where I trained and learned about personal injury.
What I liked about it is you can see a contribution you’re making almost immediately because you are dealing with people who are pretty vulnerable at that point in their lives because they can’t work, or they’ve been injured. And you can help them through that. Not just getting the money, but helping them secure treatment that they need. Being there just to listen to their questions and talk through.
Whereas when I looked at something like corporate law, you’re working on a big transaction. I don’t want to say, “Who cares,” but who cares. You don’t get the same… at least I wouldn’t get the same feeling of accomplishment or doing something for someone that I get from the area I ended up falling in love with basically.
Then just over time, you like what you do. If you like what you do, you tend to be good at it. It usually goes hand in hand. Now I look back and say, “Criminal law. No way.” I’m glad I sort of fell into this and I enjoy the area.
Laura Hampshire: You also worked for the insurance companies.
Derek Wilson: I did. I spent about a decade doing that. That’s one of the things, when you are coming to see a lawyer, you should ask… There are other lawyers who have done that as well. I’m not unique. But it does help to have worked on the insurance side for obvious reasons.
Laura Hampshire: I think so, yeah.
Derek Wilson: You’ll get really good criminal lawyers in the city. Most of them have started off as crowns, have worked in the crowns department at some point in time. It helps you because you understand the case you have to meet.
You understand, in my field, what the insurance company is looking for in deciding what compensation to award somebody, and whether they’re going to award somebody compensation. You can expect the question before it’s asked, so you can prepare for it. If you’ve basically worked for the insurance, you have an idea of what they need in order to convince them that this is a case that they should resolve with you.
Laura Hampshire: But, as you said, it is a partnership between you and the client. As much as you’re asking the client questions, there are certain questions the client should be asking their lawyer as well.
Questions To Ask A Personal Injury Lawyer
Derek Wilson: Of course. It goes two ways. You should be asking questions, not just at the beginning. There are questions that are going to come up in an initial meeting. One of the big ones is how would a lawyer get paid. The timelines it’s going to take. What am I, as a client, expected to do throughout this case?
But it doesn’t stop there. You meet the lawyer for the first time and the initial consultation might be an hour, it might be two hours. It depends on how much information and how complex the case is. But after that, you don’t just leave and not see your lawyer again.
In my firm, it’s fairly small, because I am the only lawyer there. I have two clerks. We work together as a team. But there’s no other lawyer that you’re going to see other than me. I have clients who will drop in often without appointments, and that’s fine. Often I’m there. If I am, I will talk to them. If not, my clerks will speak to them.
It’s important that they’re updating us with respect to what’s going on in their lives. You look at someone who’s had an accident. They meet you two months after the car accident. It’s going to take two to three years for that case to resolve, typically. Things are going to change, obviously.
So, you need to know, as the lawyer acting for that person, what has gotten better in terms of injuries, what has not gotten better. Whether they want to attempt to return to work and have their okay from their family physician. What restrictions are going to be placed upon that person when they go back to work? You need to know all of this. So, it’s a two way.
Where I get worried is if I say a client’s missing in action. We try for that not to happen. We stay on top of the file and if we haven’t heard from somebody in four or five months, we’ll reach out. But it’s not just my responsibility. Clients have to actually, let’s say, reach in and call and give an update. Especially if it’s affecting their case. I always say, “This is not my case. It’s your case. So, if you’re not involved in it, it’s not going to work out for you.”
It’s important to have them ask questions too. There are no wrong questions or stupid questions, because often they’ll ask me a question and I’ll go, “Oh, okay, I understand now where you’re coming from.” Something I thought was obvious, isn’t. Because, again, when you’re dealing with this day-to-day, things become obvious to the lawyer. Not obvious to the client. Anybody who’s good at anything, whether it’s a lawyer, doctor, I don’t care what you do, you have to be able to explain it to somebody. If you can’t explain it to somebody, you don’t know it. It’s as simple as that. So there simply are no stupid questions.
Laura Hampshire: What are the questions that people should be asking, or some of the questions that you’ve received?
Derek Wilson: Well, usually, a few questions, and I kind of touched on it a little bit. People want to know how long it’s going to take.
Laura Hampshire: Yep. That’s important.
Derek Wilson: That is very important. In a car accident, it’s really a range of time. Usually I’d say at least two years. You have to know the status of the injuries. Are they going to get better? What’s going to get better? What’s not going to get better? They might not be working when they come to see you, but they go back to work. Are they able to maintain a full-time job? Or are they only able to go back part-time? You can’t possibly answer that or know that in the first couple of months. These are questions that are going to arise throughout the course of the litigation.
Often they’ll ask about how I get paid, which is important. In my case, we charge a contingency fee, which is a percentage based upon whatever settlement we achieve for the person. That’s explained up front so they understand how that operates. But we explain other things too.
In addition to fee, there are what we call disbursements. So if I have to hire a doctor, or even getting medical records from a family doctor, that all costs money. We expect, when a case is being resolved or litigated, that the defense insurance company will pay those additional costs, and generally they do. But, in my practice, you would have to have that explained to the person that if there wasn’t a recovery of the disbursements, they potentially could still be responsible for those.
Laura Hampshire: Exactly.
Derek Wilson: So you have to explain that so they understand it, not kind of tell them at the end, “Well, didn’t you know this,” because I think that’s not really being fair with the client. They need to know, basically, what their responsibilities are.
Laura Hampshire: Should they also be asking the lawyer their track record in past cases? Does the lawyer have to be honest in their response?
Derek Wilson: I think it’s important to know. Most clients these days are, I guess, internet savvy, so they’ve done the research on the lawyers, and can read information on their websites about what they have and haven’t done. I have no trouble with someone asking me and I can give them… I can’t obviously give them specific names, but I can tell them about similar cases that I’ve had, and what success rate I’ve had, and what problems they might face, and what problems I faced before dealing with this type of case. So, they should ask you that.
In Ontario, it’s a little bit different. People use the word specialization. You really cannot hold yourself out as a specialist, unless you’ve gone through an additional training, which is fairly rigorous to become a certified specialist in civil litigation. Which I’m not. It’s something I could do, but I haven’t gone out to do the additional courses in that yet. When I talk to people, I don’t hold myself out as a specialist, but I say, “My practice is restricted,” which it is, “to personal injury, and I’ve only done personal injury for the past 25 years.” So obviously I have an expertise in it, but people can ask about that. I also tell them about my background doing defense work, and why that’s beneficial.
So I think that’s important. They want to understand that, first of all, you’ve dealt with these types of cases and what your strategy is. Really what you’re doing in an initial meeting, is not just finding out about whether both of you can work together. Assuming that that’s an affirmative and you both feel good about working with one another, the next issue is what are you going to do, and how are you going to do it.
I usually like to give a bit of an outline. The outline, of course, will change for each client. It will be individual. But there are things in it about when we’re going to start the action, what records we’re going to go out and procure, what information I need to know, which doctors they are seeing, which doctors they should be seeing. We want to get that together early on because it’s not like when I say it takes two or three years it’s because we just wait and do nothing and two years comes along and we deal with it. It’s starting from day one, building a case.
Building a case is creating risk and that’s the only way insurance companies are going to pay you. Nobody really knows, unless you go to a trial, what’s going to happen. There’s a winner and a loser. Still, the majority of cases these days are settled out of court. To settle out of court, you have to create that exposure.
Laura Hampshire: The best part, too, is that consultations are completely free.
Derek Wilson: That’s right.
Laura Hampshire: I’m here with Derek. So, if you ever want to give him a call, 905-769-0418. Also, check out derekwilsonlaw.ca. Much more to come. You’re listening to Legal Talk with Derek Wilson on 900 CHML.
Topic 2: Motor Vehicle Accidents, Slip & Falls, Long-Term Disability Claims
Laura Hampshire: Welcome back to Legal Talk with Derek Wilson on 900 CHML. I’m Laura Hampshire, joined by Derek Wilson, personal injury lawyer in Hamilton. I’m going to give out that phone number again. 905-769-0418. Consultations with Derek are absolutely free. Derek, just so people know, what kind of cases are we talking about here?
Derek Wilson: Well, in my firm, there’s three primarily I deal with. The most obvious one, the car accidents, which is still the number one reason why people are injured in this province.
Laura Hampshire: Wow.
Derek Wilson: I also do slip and falls. And long-term disability claims, which are claims that… usually against a company which, like Manulife or Sun Life, that provides LTD benefits to your employer and to you. Essentially, if you’re not able to work, and it doesn’t have to be a personal injury, it could be a disease, something else. It’s really that contract that you’re suing on. They don’t want to pay you a benefit because they think you can work. Your doctors say you can’t work. You don’t feel you can work. Now there’s a lawsuit.
Laura Hampshire: Okay, okay. When we’re talking about accidents as well, it’s not just you being in a vehicle, it’s pedestrians as well, right?
Derek Wilson: Yes.
Laura Hampshire: Which is increasing so much more. Cyclists, pedestrians.
Derek Wilson: Exactly. There’s pedestrian knockdowns. You could have somebody who has no connection to automobiles insofar as they don’t even have a license, they don’t know how to drive, they don’t drive, but they get knocked down by somebody when they’re going through a crosswalk, they have a personal injury claim. Now they’re welcomed to the auto insurance world, because even though they didn’t have a policy, that’s how they’re going to be handled. They’re going to be handled through the laws that apply to car accidents. Same with somebody on a bicycle is hit by a car. It’s the same thing. It’s the auto insurance that’s going to respond, potentially, to that claim.
How Do Claimants Cope During The 2-3 Years It Takes To Settle / Go To Trial?
Laura Hampshire: Okay. I know you said most cases are about two, three years. Jerry, our producer, brought up a great question on the break. That’s, “What happens if you’re completely incapacitated, and you truly cannot work? Where are you going to get income for those two or three years while the case is going on?”
Derek Wilson: That’s a good question and is often a problem. If someone’s lucky enough and they are working for a company that has, what we call, collateral coverage for things like short-term disability or long-term disability, that’s where they’re going to start. Often short-term disability, if you’re lucky enough, will cover your full wage. It can be for a very short period of time. It usually doesn’t go more than 16 weeks, and it’s all over the map in between those two.
After that, if you’re still not able to work, and you have a long-term disability policy, you can apply for that. Hopefully you’re accepted. If you’re accepted, that’s not going to pay you 100% of your wage, but generally the policies… Every policy is a little bit different. Generally they pay between 60 and 70% of your gross wage. So, you’re not getting 100% of your money. But you are getting 60 to 70%.
If you don’t have that kind of coverage, you have no short-term disability and no long-term disability, you’re left applying for income replacement benefits. Income replacement benefits, very specific words that are used to describe weekly income benefits that are paid by an auto insurer.
In Ontario, how it works is that you get 70% of your gross wage. So if you look at someone who’s a decent income earner, makes $1,000 a week. They would be entitled to 70%. So, 70% of 1,000 is $700. But the catch is… It sounds good. It’s not. The catch is there’s a maximum of $400 per week. So you’re stuck at 400, even though you were making 1,000. And you have a claim, potentially, for the other $300, it brings you up to 70% of gross, against the at-fault driver, if there is one. But you’re never going to see that money until you settle the case, or until you have a trial.
Laura Hampshire: $1,600 a month.
Questions To Ask Your Broker When Renewing Your Auto Insurance Policy
Derek Wilson: Right. So, one of the things that we talk about that’s important and we’re going to talk about it a little bit today about this is the questions to ask your broker when you’re renewing your insurance. Because you can purchase optional benefits. I have optional benefits in my auto policy. They do cost more money. It probably costs me an additional $150 a year, but I have a maximum of $1,000 a week if I can’t work. That’s the maximum. You can’t get more than that. But $1,000 a week is way better than $400 a week.
That’s one of the issues. Really, and it’s not anyone’s… Wow, how can I phrase this? This information is not distributed widely and people don’t know. So, often when I meet someone for the first time, he’s had a car accident. I tell them this is the worst time to have an accident in the province of Ontario. There’s bare bone benefits available through your own insurance company. And if you don’t know anything about optional benefits, you likely don’t have them. I don’t know whether they’re pushed enough by the brokers. They should be.
For an additional… If you’re paying $2,500 a year, you might as well pay $2,800 and realize that you have coverage that you simply don’t have. It’s not like your coverage is going to go from 2,500 to $5,000 to buy these benefits. They are more expensive, but they’re relatively inexpensive when you look at the devastation that a personal injury in a car accident can do to somebody.
Mitigating Factors And Credibility In A Claim
Laura Hampshire: For sure. What about mitigation? What is mitigating?
Derek Wilson: When we were talking earlier about questions to ask, that’s something that will often come up. Mitigation is a legal term. For instance, what I mean questions will come up, somebody will say, “Well, I’ve been offered a part-time job. I was working full-time. This is modified work. My doctor thinks I should try it.” Then they call me, “Should I try it?” I’m going to say, “Yeah, of course, you have a duty to.”
The law in the province of Ontario is pretty clear. Even if you were hurt by the fault of somebody else, and you can’t go back to a full-time job, but you can do a part-time job on a modified basis, you can’t sit at home and say, “Well, no, I can’t do my regular job. I want the insurance company to pay me.” That’s not how it works.
In a scenario like that, where they… We’ll use the $50,000 a year again. A person can go back and work and make 25. They’ve got a duty to go back and work and make 25. If they don’t, a judge and jury will consider all of that. And the defense is certainly going to make that argument, that you should have done that.
It’s the same with treatment. That’s where it comes up a lot. You’ve got to do what your doctor tells you to do. Because if you don’t, the defense will argue… First of all, you should anyway. It’s common sense.
Laura Hampshire: I know. Why go to a doctor and then don’t accept the treatment?
Derek Wilson: Right. It’s not a rocket science topic. But people say, “I don’t have time. I don’t feel like doing this. I don’t feel well.” You’re not helping your case. First of all, you have a duty to try to make yourself better. How do you know if you’re going to get any better unless you’ve done what your doctors have told you? If you want a doctor to support you, you need to do what he or she tells you to do. So, follow their advice. As a personal injury lawyer, I expect you to do that. I expect you to do what the doctors tell you to do. I expect you to go to your appointments. I expect you to go for treatment. Because you have a duty to mitigate.
Plus, think about it, the insurance company is not going to take your word for it that you’re injured, even if you honestly are and you believe you are. They’re going to look at the documents to support that. The documents to support that is not what your lawyer says. It’s just not. I’m laughing because they think you have a certain amount of power to convince an insurance company. They don’t write cheques because I ask them to. I wish I had that magic.
Laura Hampshire: Ah, only.
Derek Wilson: It’s based upon… I mentioned this earlier… about creating risk. If you’re going for medical appointments, and you are going for treatment, and you are seeing a psychologist because you’re having anxiety, and you’re going to a physiotherapist, they all have to create records, by law. And they will. Those records will reflect what you told them at that point in time. That’s why it’s also good.
I’m not seeing a client every day, and there might be months that I don’t see a client. I might reach out to them by an email or they talk to me on the phone, but they’re seeing their doctors because that’s what they’re working on. Getting better. They’re seeing their treatment providers. Those are the people who are going to document what’s happening to them, from a medical perspective, at the time they see them. It’s very important for an insurance company to see that history.
It kind of ties in… You were asking again about questions. One of the big questions that I ask, and I expect someone to be forthright, is about medical history, right. There’s no point in telling me you didn’t have problems with your back, when the family doctors’ records for three years before the accident are riddled with back complaints. You’re going to look like a liar. There’s no way you forgot that.
Even if the case is about a neck injury, not about a back injury, the defense is going to point out, “Well, you lied about this because you didn’t tell us you had pre-accident back problems.” They’re going put that in front of a jury, or in front of a judge, and your credibility is now an issue. If they can’t believe you on that, why should they believe you that you have neck problems?
So that’s why people seem to think, “Well, it’s not really relevant,” again, not up to you to decide what’s relevant or not relevant. Let your lawyer do that. Maybe it’s not relevant and your lawyer’s saying, “No worries.” But if they don’t know about it, you could potentially be screwed later on.
Laura Hampshire: Exactly. I know so many people and so many friends who are supposed to go get physio for an injury, and they’re like, “Oh, it doesn’t work. Oh, I don’t need it.” I even got in a car accident a few years ago. And I did, I went and got some physio because I had some shoulder injury. I still have problems with this shoulder. And I did the physio. I don’t know if it helped. But I know too, just so many of my friends go, “Eh, well, I’m just not going to go. I went for one session and it was silly,” and whatever else.
Derek Wilson: I think you have to give it more. Sometimes you’ll have people who will go for physiotherapy, and they’ll say it’s too painful. It might be in the initial stages, so then take a break, but go back. You also have to often work through your pain. Again, a lawyer is not going to tell you to do that because they’re not medically qualified to tell you that. But if your doctor tells you you’re okay to go for physio, then take their lead and do what they tell you to do.
Often, if someone’s got a fracture, like in their hand, or their shoulder, or anywhere, they’re not going for physio right away because the injury has to heal somewhat before they can go through and start having someone manipulate their hand and their shoulder. But, take the lead from the doctor. The doctors are there to help, and they will tell you what’s necessary and what’s not necessary.
Sometimes, too, you might find out when you’ve gone for one or two visits, it’s not doing that much. But generally, like in a car accident, someone going for physio, it’s not unheard of that they’re going twice a week. Could be 15 weeks. That’s 30 sessions. Again, the first two or three sessions are not going to make a big difference. It’s the totality of it. Then maybe eventually you are right, you come to that conclusion, “I’ve gone for four or five months. This physio is not helping me.” But massage might help you. So, that’s something you want to keep doing because then you get to know your body and kind of what’s working and what’s not working.
Often people will try different things. They might try acupuncture. That might work for some, not for someone else. We’re all individual. Everyone heals differently. Really what’s good for you may not be good for me, and vice versa. But you’ve got to give it an honest try. Honest try is not going once or twice. It’s certainly not going at all. You actually have to go, and getting better is work, right.
What Award Can You Expect If You Win?
Laura Hampshire: Yeah, for sure it is. How much money should people expect to get out of lawsuits? So many people read headlines. Multi-million, hundred million dollars. Do you have a lot of clients coming in and anticipating that they’re going to get millions and they’ll be able to retire?
Derek Wilson: It’s really kind of managing expectations. I don’t know how you can tell someone when you’ve met them, they had an accident two weeks ago, really what their case is worth. Because there are so many factors. They might be seeing you and they’re not working. Maybe it’s two months after their accident and they have some pretty serious injuries. We’re not sure what the future holds, but they’re able to get back to work. In a couple of years, their claim is going to be less money than someone who is never going to get back to work.
It’s pretty difficult when you’re meeting someone right at the very beginning to know the answer to that question. Unless it’s obvious. If someone was catastrophically impaired… and that’s a special definition under the Insurance Act. But someone, for instance, who’s a quadriplegic, who was working a physical factory job. Let’s face it. They’re never going back to that job and likely are probably never going to work again anywhere. So from the get go, you know that that would be a fairly large case.
But most of the time, what I’m doing is looking at what might happen in the future and trying to make a judgment. It really is a crystal ball exercise.
Laura Hampshire: Exactly, yeah.
Derek Wilson: Really, someone asking me how much their case is worth at the initial appointment, is really not the right question, it’s whether do I think you have a case, and what is that based upon, and what factors are going to affect this case as we move forward. Cases can start off small, and you think the person has fairly minor injuries, they’re going to get back to work. They end up being huge cases because, for some reason, maybe it’s a psychological reaction that they’re just starting to have, who knows. They’re not able to get back to work. They go to defense doctors even, who say they can’t work. When the insurance company’s own doctor is agreeing they’re not going back to work, case is large. But you could not have in any way possible been able to predict that. If you say you can, again you’d have to be a mind reader. There’s no way that you can do that. The cases have to develop.
What you should be able to find out from a lawyer is whether you have a case and why, what that lawyer is going to do to explore your case further. Usually when I see somebody for the first time… and there’s no right answer to when they come to see a lawyer. Some people come early on. Some people come later. But I’d say often it’s in the first three or four months. Even if I think you have a case, I’m not going to go and sue somebody the next day. I’m going to take a look at it.
Laura Hampshire: It’s a process.
Derek Wilson: It’s a process. You have two years to sue in the province of Ontario. I don’t wait until the last minute, because if you’ve had a client from the first three months after their accident, by the time you get to the one year mark, you generally know whether they have a lawsuit or not. Because if your injuries have not gone away at that point in time, it’s unlikely they’re going to go away, or they’re going to go back to normal, anyway. You’re going to have some ongoing deficits and problems. Then we can also look at, “Well, how has work gone? Did you go back to work? Are you working part-time now? Are you still not working? What’s the prognosis?” And we can look at the medical records that have been built up over that one year period. So you’re in a better position.
As you get closer to resolution, the second or third year mark of the case, you have a better idea of what it might be worth. That’s usually when you can have a realistic discussion with your client about ranges. No lawyer is going to tell you it’s worth a specific number, it’s worth $100,000. Again, I don’t know how you could do that. They’re going to give you a range of what it potentially could be worth, starting at the minimum and the maximum. Then you’re going to hopefully resolve somewhere in between those ranges. Those ranges can only be determined later on when you know what the case is about.
Laura Hampshire: Okay. You know what, consultations are always free with Derek Wilson. You just have to give him a call. 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 3: Car Insurance and Optional Benefits: Income Replacement Benefits
Laura Hampshire: Welcome back to Legal Talk with Derek Wilson on 900 CHML. Derek Wilson, personal injury lawyer right here in Hamilton. That phone number again for free consultations. 905-769-0418.
I know we touched on it a little bit the last break, but just explain a little bit again about the optional benefits. Because I know my insurance is coming up for renewal soon.
Derek Wilson: Yeah, well, policies generally come up for renewal every year, sometimes every six months. It’s a good time to have a chat with your broker. Or, if you buy direct, some insurance companies don’t have brokers, talk to them directly about what optional benefits are. We touched upon it when we spoke just a few minutes ago. One of them is income replacement benefits and I said how you can increase that amount from the standard $400.
Laura Hampshire: To a thousand.
Derek Wilson: Right.
Laura Hampshire: Which is a huge difference.
Derek Wilson: Which is a huge difference. There’s another one, and what will happen often, when someone’s in an accident, they’ll get a letter from their own insurance company. This is the accident benefit insurer, who is going to pay you this income replacement benefit. And we talked a bit about going for treatment and going for physio. Who is going to pay for that? Well, the auto insurer is. You’re going to submit a plan, your physiotherapist will, to them. But they’ll respond to you, “You have $3,500 of treatment only.” That’s called you’re in the MIG. MIG is an acronym for minor injury guideline.
Laura Hampshire: Okay. What is that?
Derek Wilson: Well, it’s a way for insurance companies to save money, is what it is. Essentially, when the laws changed and this whole MIG thing came out, basically if you have a minor injury, you should be able to be treated for $3,500 and no more. In fairness, some people can be treated for that. But people who can be treated in the MIG, don’t need lawyers. Because they’re going to go for physiotherapy. They’re going to get better. They’re going to go back to work. And that’s the end of it. That’s what the MIG is for.
But by default, I see, from the vast majority of people I meet for the first time, they’ve already been told their MIG. Unless it’s something obvious, they have a fractured bone, something where they’ve gone for an operation, it’s almost always that the insurance company says that they’re MIG. That only gives you $3,500. Most people are going to go through at least two or three times that in treatment, okay.
One of the ways to avoid this is to buy an optional benefit. Optional benefit to increase your medical rehabilitation coverage, okay, which you can. You can get $100,000 in coverage, or more, depending on what, again, what you end up picking. It’s a lot better than $3,500.
Usually, when I’m looking at someone, and it’s too late when they’ve come to see me, they don’t have the optional coverage. To try to get them out of MIG, I have to send them to a psychologist, or someone who can look at issues of chronic pain, psychological issues that are not covered by the MIG. Dollars to doughnuts, the insurance company is going to fight you on that.
They’re not going to agree that the person is just going to be taken out. They’re not going to listen to the psychologist they’ve gone to see. They’re going to send them to their own psychologist, which is called an IE, an independent examination. And you’re going to be fighting as to who’s right and who’s wrong. Even then, the most you get it $65,000. So, why not get rid of all that and go out and buy the optional benefit. It’s so much easier.
It’s really important. And, again, you’re going to have to talk to your broker. I don’t know how much more it would be. I think in my policy, it’s about 100 bucks more, maybe a little bit, but I have…
Laura Hampshire: For the entire year.
Derek Wilson: … Yeah. I have the extended benefits. Another optional benefit that’s really important… We talked a little bit about catastrophic impairment before and what it means.
Laura Hampshire: Yeah, okay, yes, please.
Medical / Rehab And Attendant Care Coverage In Catastrophic Cases
Derek Wilson: Let’s deal with someone who’s severely injured, quadriplegic, again, using my example. They are going to burn through a million dollars, which is all they have for medical and rehabilitation and attendant care. Attendant care is where you have someone coming over to help you with the activities of daily living. It can either be a professional, which in the case of a quadriplegic, it would be, or a family member. You’re going to burn through a million dollars. You’re going to burn through two million. However, by paying a little bit more, you can have two million dollars of coverage. A million for attendant care, and a million for medical rehab.
That used to be the law in Ontario. So that’s what we used to have. But, again, if you look at some of my blogs, they talk about accident benefits and how the laws around accident benefits change constantly and frequently.
Laura Hampshire: I didn’t know that.
Derek Wilson: Yes. I think in June 2016 was when the last major changes came in, and they basically took the two million dollars that you had for med rehab and attendant care and made it a million. I don’t know how they did that in the sense of these people need the money, but it’s, again, a way to save money, I guess. It’s not a way to help people. So you have to buy the optional benefit now.
Laura Hampshire: Okay. So, what about housekeeping? What is that?
Derek Wilson: Housekeeping is something…
Laura Hampshire: In terms of legal terms.
Derek Wilson: … Yeah, well in terms of what used to be available, it was available until about September, I think, 2010, when other changes came in. You could get housekeeping, $100 a week, if you were hiring a housekeeper to help you because you couldn’t do your housekeeping because of your injuries after an accident.
Laura Hampshire: Oh, okay, okay, okay.
Derek Wilson: That was taken away from the accident benefit carrier. You potentially have a claim for housekeeping against the at-fault driver, if there is an at-fault driver. But, if you don’t have a tort claim, that’s what we’re talking about at-fault driver, you won’t get it from your own insurance company unless you bought the optional benefit.
Laura Hampshire: Okay. So, that’s some things to think about when you are renewing your insurance. If you ever want to ask Derek questions, consultations are always free. You can give him a call. 905-769-0418. Also, Derek was referencing those blogs. So much information on his website, so check that out as well at derekwilsonlaw.ca. We will be right back. Legal Talk with Derek Wilson on 900 CHML.
Topic 4: Your Insurance Policy and Optional Benefits
Laura Hampshire: Welcome back. You’re listening to Legal Talk with Derek Wilson on 900 CHML. Derek Wilson, personal injury lawyer with 20 plus years experience, right here in Hamilton. That phone number, 905-769-0418. I should mention there’s also a toll-free number. 1-855-769-0418. And check out derekwilsonlaw.ca.
Just before the break, Derek, we were talking about housekeeping and getting coverage for housekeeping. But why is that something that you would even want?
Derek Wilson: Some people might not want it. If you already have a housekeeper coming to your house, it’s not something you’re going to want to spend the optional coverage on, because it’s not something you’re losing. You already paid for it before. But if you have somebody who’s staying at home and taking care of the kids, and doing all of the housekeeping, and that person is in an accident and can’t do that service, who’s going to do it for you? Either the husband or wife, whoever is working, is going to have to take over that role. Or you can hire someone to come in and do that. The only way you’re going to get that covered by the auto insurer, if you have injuries that will prevent you from doing that, is if you’ve paid for the optional benefit.
There are some optional benefits that maybe aren’t as important and you can pick and choose. Attendant care is another one where…
Laura Hampshire: In-home nurses and…
Derek Wilson: … Yeah, or a PSW, a support worker coming and helping you because you’re having trouble getting in and out of the bath, or trouble dressing. Again, some people might think, “Well, that’s not something I want to pay the benefit for,” but at least you can do that. You have some limited coverage for attendant care, even under a standard auto accident, as long as you’re not in the MIG. But if you want the enhanced coverage, and it’s a longer period, you have to pay for that.
Those are things that, again, talk to your broker about. I think the main ones are what we covered. Income replacement benefits, medical rehab, and a catastrophic designation. Those are the ones that I certainly would recommend to any of my clients.
Liability Coverage And Family Protection Endorsement
Laura Hampshire: What about liability coverage?
Derek Wilson: Yeah, liability coverage is a good thing to have. We all have it. But the amount is what really matters. In Ontario, you have to have at least $200,000 liability coverage, which is not enough. That was, again, going back to the Insurance Act, 1990, whenever this was created. Since that time, most people carry at least a million dollars. I have three million dollars. It’s not that much… That’s the one thing. You think well, it must cost you three times. You could go from a million to two million dollars by paying an extra 20 bucks.
Liability coverage is not that expensive. It protects you, especially if you have assets. If you caused a catastrophic accident, and the insurance case is worth two million, and the insurance policy is worth a million, the person who’s suing you could come after your assets beyond the one million dollars. So why would you want to do that to yourself, right?
Secondly, there’s something called the Family Protection Endorsement.
Laura Hampshire: Okay. What’s that?
Derek Wilson: It generally is on every insurance policy and often generally will match the liability coverage in terms of amounts. So, somebody who has a million dollar liability policy, would also have a million dollar family protection endorsement. What that is designed to do is, if you were hit by somebody and injured, through no fault of your own, and that person was driving without insurance, or was under-insured… they were somebody who was only carrying $200,000. If your case was worth more than $200,000 in that scenario, you now have to sue your own insurance company under the Family Protection Endorsement to recover the rest of your damages.
It’s actually a good thing to have, because if you got hit by somebody without any insurance, why should you be penalized, right? And you’re paying for coverage.
Laura Hampshire: Exactly. And you know what, that’s more common than people think.
Derek Wilson: It does happen. It does happen. If you have a higher liability coverage, like in my case, three million, my family protection endorsement is also worth three million. So if I was involved in an accident and someone is carrying a million dollars, and my case was worth more than a million dollars, I would be able to sue my own insurance company. That coverage is not very expensive. It’s almost silly not to have that discussion with your broker.
Your broker should be telling you these things, and often they do. Sometimes they don’t. We talked earlier about one of the themes of today was asking questions. Not just questions of your lawyers, questions of your doctor. It’s also questions from your insurance broker because the best thing is to have all this in place. You come to see me after an accident, who cares, I can’t go back in time.
I’ve had clients who I’ve settled cases for who, after we settled, have gone back, when they’ve renewed their policy, in case they’re ever, unfortunately, in a second accident, and now have the coverage, which is great. But that’s only after the fact.
Laura Hampshire: If only they had it, yeah, beforehand.
Derek Wilson: Exactly.
Laura Hampshire: And consultations with Derek are always free, which is the best part. So, give him a call. 905-769-0418. Or toll-free. 1-855-769-0418. And really, check out those blogs at derekwilsonlaw.ca.
Settling A Claim Without Involving Insurance Companies
Something I want to mention, as well, just quickly before we go, what about people who try to settle outside of court and without insurance companies? I know I was rear ended and the woman tried to pay me, right, because she didn’t want to involve the insurance companies. Is that a huge red flag?
Derek Wilson: It’s a bit dangerous. Because first of all, even if you’re just looking at your property damage, and they’re offering you a couple thousand dollars, how do you know how much damage has been done to your vehicle until you’ve had it assessed? That’s number one. Number two, often you’re not feeling that much pain at an accident scene. It’s later on. So, even if you were going to do that, your best bet is to wait a couple of weeks and see how you’re feeling.
I always say the best advice, talk to a lawyer. Nobody is going to charge you a fee to meet with them, even if you have a minor case. They’ll tell you that. Then you can go and do whatever you want after that. But always seek some additional advice from someone who knows what they’re doing.
Laura Hampshire: Exactly. So, one of the many reasons you should give Derek a call at 905-769-0418. I’m Laura Hampshire, and thank you so much for listening to Legal Talk with Derek Wilson on 900 CHML.
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