In Ontario, you don’t usually sue specifically for whiplash because whiplash is a soft tissue injury.
Soft tissue injuries often resolve on their own, hence there’s no case. So what you’re really suing for, when you sue because of whiplash, is chronic pain.
What is a Soft Tissue Injury?
Soft tissue injuries are injuries that resolve within 8-12 weeks i.e. they heal.
For example, I fell at my home in January and hurt my chest. It was painful as anything, but it resolved in about three months…it’s when they don’t resolve – when you still have pain three or four months later that it makes sense to consider a lawsuit.
The longer your pain continues, the less chance that it will resolve itself.
There’s a line between temporary pain and chronic pain (it’s up to you doctor to draw this line) and a lawsuit generally deals with the latter.
Levels of Whiplash or WAD (Whiplash Associated Disorder)
There are levels of whiplash defined by the severity of symptoms ranging from level one (no pain) to level 4 (fracture or dislocation.)
These levels were determined by the Quebec Task Force on Whiplash Associated Disorders (WAD) back in 1995 (and updated in 2001.)
Generally, I’ll see a level 1 or level 2 injury – these are less obvious and, if it’s been less than 3 months, I may opt to shadow your case for a bit rather than commencing a lawsuit.
If the doctors diagnose you with level 3 whiplash (involves a fracture), it’s probably safe to say that it’s not going to get better with time and commencing a lawsuit makes sense.
For example, if you were to call me on the first day after a fractured neck injury, I’d tell you to come in right away because we know, without a doubt, that it isn’t going to heal in a few weeks and there’s a fair chance you’ll have on-going issues. In this case, the sooner we get started the better.
If you were to call me on the first day after neck pain due to whiplash that wasn’t severe, I’d generally only meet with you after you met with your doctor and I’d be more likely to keep in touch for a few months to see how things progress rather than immediately commencing a lawsuit.
How Common is Whiplash?
Level 1 and 2 whiplash is common enough, but luckily, we don’t see a lot of level 3 and 4s. The reality is that it’s not easy to break one’s neck and that’s something we’re grateful for.
Let’s be honest: If you’re searching the internet wondering if you have fractured your neck, you probably haven’t, because, if you had, someone at the hospital would already have handed you a card for a personal injury lawyer!
With a fractured neck, no insurance company is going to argue it hard. Most of them are going to pay. I’m not suggesting that lawyers hang around Ontario’s hospitals like they do in American movies. I am suggesting however, that a doctor who diagnoses your fracture is probably going to mention a lawsuit to you. Nobody knows better than your doctor what your recovery period is going to look like and how much help you may or may not require.
When Should You See a Lawyer?
If you’re rear-ended at high speed and it caused a back issue that resulted in back surgery, it might be good to consider a lawsuit. I would recommend you speak to a lawyer asap.
If you’re past the initial six weeks and you still have pain or restrictions, go see a lawyer. Perhaps it’s hard to turn your head left or right or bend it down, or there’s an issue that’s causing pain or stiffness- these are classic signs of whiplash….you should already be seeing your doctors but now it’s probably time to seek out a lawyer for a consultation.
If you’ve suffered a neck fracture of any kind, you must speak to a lawyer as soon as possible and I’d be surprised if you weren’t already doing that.
A word about self-diagnosis: While it’s convenient that the Quebec task force has provided this useful chart for diagnosing levels of whiplash, it’s safe to say that there’s much more that goes into a diagnosis and, unless you’re a doctor, you can’t determine this kind of thing yourself. Always see a doctor first.
And if you do choose to meet with a lawyer before seeing a doctor, and the lawyer doesn’t mention seeing a doctor, think twice about paying for any kind of retainer and seek a second opinion.
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