Occupational injuries and LTD.

LONG TERM DISABILITY AND WSIBOntario Accident Insurance Claims

Many employers provide group benefits packages to their employees, including long-term disability (LTD) benefits. In addition, some employers also have an additional LTD policy to cover workplace injuries and illnesses caused at/by the workplace, called an occupational long-term disability policy. Some Ontario industries (eg. construction) are required by law to participate in a provincial workers’ compensation plan, such as WSIB. Some other companies have an occupational long-term policy in place to cover workplace illnesses and injuries that would be covered under the provincial workers’ compensation plan, if they had one. Mental and physical illnesses and injuries that are specifically related to the workplace are covered by occupational policies.

There are many differences between a group LTD policy and an occupational policy. For example, the definition of disability under an occupational policy differs from a group LTD policy. Under an occupational policy, you must be unable to work due to an illness or injury arising out of and because of your employment. Under some occupational policies, you must be unable to do any occupation within the company you work for, that you are or may be qualified for that would be at a minimum of the same pay-rate as your pre-disability income. With group LTD policies, however, you may be unable to work due to an illness or injury sustained outside of the workplace.

To be eligible for benefits under a group policy, you are required to provide evidence that you became totally disabled due to an occupational illness or injury while covered under the group policy, You must show that your disability continued past the waiting period stated in the group policy and you have sought appropriate treatment.

The payout under an occupational policy is generally a higher percentage of your monthly income than through a group policy. To be eligible for benefits under this policy, you must prove that you became totally disabled due to an occupational illness while covered under the group policy. As with a group policy, you have to show that your disability continued past the waiting period and you are seeking appropriate treatment.

LTD benefits

Although the two types of policies have differences, they also share some similarities. Both types of policies require that you be an active employee when your disability started. You must meet specific criteria as stated in both types of policies in order to qualify for disability benefits. As well, both policies usually have two different definitions of disability one involving your ability to continue working in your own occupation and the other being your ability to work in any occupation, even if you were to be provided education or training in another occupation. With both types of policies, other types of benefits – such as Canada Pension Plan Disability Benefits – can be used to reduce your LTD benefit amounts. LTD policies have a waiting period before benefits are paid out, and benefits can end for a variety of reasons, such as not following the recommended treatments, returning to work and are therefore gainfully employed, or turning 65.

If you were injured at work or developed an illness, such as anxiety or depression, and you decide to submit a claim, you will need to show when the illness/injury began or happened and how it relates to your workplace. It is best to include as much detail as possible, and attach an incident report (if there is one) and any other written evidence, doctor’s notes or reports regarding your illness or injury and treatments, prognosis and progression. The more information you provide, the better able your insurer will be able to assess what benefits you are entitled to.


WSIB claims and cancer ?

WSIB claims

Extension of presumption for entitlement for cancers in firefighters.

What do WSIB claims and cancer have in common ? Ontario has made it easier for firefighters to get the help and care they need by extending the presumption for entitlement to benefits to cervical, ovarian and penile cancers.

“Firefighters are vital to keeping our communities safe from life-threatening dangers. Every day, they risk their health and their lives to protect us and our communities. In return, we must protect them. That’s why the government has made it easier for firefighters and fire investigators to qualify for workplace safety and insurance benefits,” Kevin Flynn, Minister of Labour.

By adding the three cancers to the list of cancers presumed to be related to their work, firefighters and fire investigators will have greater access to healthcare and compensation. With the expanded presumption, once a firefighter is diagnosed with cervical, ovarian or penile cancer, the claims process for WSIB claims benefits will be expedited, and firefighters will not be required to prove a causal link between these cancers and a workplace exposure.

“If a firefighter is diagnosed with cervical, ovarian or penile cancer, the worker’s Workplace Safety and Insurance Board ( WSIB) claims for benefits and services will be presumed to be work-related. This will give firefighters faster access to compensation and other benefits, ultimately supporting positive recovery outcomes,” Ron Kelusky, Chief Prevention Officer

Claims related to cervical, ovarian and penile cancers will be retroactive to January 1, 1960. This will apply to full-time, part-time and volunteer firefighters, firefighters employed by band councils and fire investigators.

Quick Facts

* In 2007, the Workplace Safety and Insurance Act (WSIA) was amended to create a statutory presumption for firefighters and fire investigators to get compensation for heart injuries and certain cancers without having to prove they are work-related.

* In 2014, the Ontario government amended the Firefighter Regulation under the Workplace Safety and Insurance Act to add six cancers to the list of diseases that are work-related: multiple myeloma, testicular, breast, prostate, lung and skin cancer.

* This amended regulation makes Ontario among the leaders in this area and Ontario’s firefighters among the best protected in Canada.

* There are about 450 fire departments in Ontario made up of about 11,000 full-time firefighters, 19,000 volunteer firefighters and 200 part-time firefighters

If you, or someone you love, has been injured at work or has a work-related diagnosis of disease, give us a call. We can help you make sure that you receive the benefits that you deserve.


Clarifying what it means to be Additional Insured.

Additional Insured coverage

What does it mean to be additional insured ? The law, like most things, can sometimes be ambiguous.  Where some laws are straight forward and easily understood, others leave a great deal of room for interpretation.  In the latter case, it is often left to the courts to interpret the law and set precedent.  This has certainly been the case for Additional Insureds. 

Additional Insured coverage occurs when one company engages in a business relationship with another company.  Such relationships, while often beneficial, can sometime create the risk of lawsuits.  An example of this would be a landlord hiring a contractor to shovel the snow from the walkways in the winter.   Should a tenant of the building slip and fall on ice, that tenant could sue both the landlord and the contractor for damages. 

As an Additional Insured, the contractor could request protection under the landlord’s general liability policy, but since the law has not been clear, these requests for defense have often been denied by insurance companies.  The rationale being that there was a lack of clarity.  The insurance company would say that contractor should have independent liability insurance of their own and, when cases like this came to court, the rulings on Additional Insureds have not been consistent. 

A recent case, The Corporation of the City of Markham. v. Intact Insurance Company has done a lot to provide some clarity around Additional Insureds.  In this slip-and-fall-case, the City of Markham and a contractor hired to keep the sidewalks clear of snow, both requested defense from the Intact Insurance Company.   Intact took the position that Markham was not entitled to a defence and was not an additional insured for the purposes of this claim as it had failed to call out the contractor on the date of the incident. The Judge ruled that “The mere possibility that a claim falls within the policy triggers the duty to defend”, and that since the Plaintiff had alleged negligence on behalf of both the city and the contractor and that the city was a named additional insured, Intact could not opt out of defending the city. The judge further ruled that the city was entitled to appoint and instruct a counsel of its choice at Intact’s expense, as well as the past costs of defending the main action.

The court was very clear in the insurance company’s responsibility to provide a defense. Meaning that Intact Insurance would need to pay for separate counsel if the City of Markham did not believe that the one lawyer could effectively represent both parties. 

Much of the confusion stems from a series of cases that were decided differently, in particular, the case of Atlific Hotels and Resorts Ltd. v. Aviva Insurance Company of Canada, 2009.  At the time, a guest of the Deerhurst Resort slipped on an icy pathway and the Aviva insurance company refused to provide a defense to Deerhurst as an additional insured.  The judge found that since there were different categories of negligence in this action and that only of the categories, snow and ice removal, fell within the coverage, the insurer only had to provide the contractor with a claim. However, the court ruled that Aviva had to provide the defence in part to Deerhurst, but it was appealed soon after because the parties felt the decision lacked clarity.  The cases ended up being resolved before the appeal was heard and the clarity never came to be. Since the decision was not in line with previous decisions, there was confusion as to how to apply the law. 

Although the Markahm v. Intact decision has shed some light on how insurance companies must interpret the additional insured’s clauses of their liability policies, we will have to wait for a new Ontario Court of Appeal decision to provide clearer instructions and guidance in this area of litigation law.

 

 


What you need to know about a workplace injury.

Workplace Injury

A workplace injury can happen anywhere. A workplace injury can also go far beyond the industrial and construction site accidents that we hear about in the news. Workers are often injured in offices, retail stores, restaurants and many other industries. In fact, the Association of Worker’s Compensation Boards of Canada reported in 2015 that there were 281 fatalities in Ontario: that’s one about every 31 hours. Non-fatal injuries amounted to 51,570: that’s one every 10 minutes.

Employees injured on the job and their families have a lot to cope with including a wide range of expenses and losses. If you suffer a workplace injury, you or your family are entitled to benefits or compensation to recover these losses. · Loss of Earnings · Compensation for Non-Economic Loss · Loss of Retirement Income · Compensation for Future Economic Loss · Health Care Benefits · Health Care Equipment and Supplies

Most workers are able to claim benefits for their losses either through workers’ compensation or by suing their employer for damages.

Filing a workers’ compensation claim after a workplace injury

The Workplace Safety and Insurance Board is an independent agency of the Ministry of Labour in Ontario responsible for providing workers’ compensation to Ontario workers who become injured on the job

This is a “no-fault” system which means you can get workplace insurance benefits without proving that your employer was to blame for your injury or disease. Even if you think that the accident at work was your own fault, you are still entitled to benefits and services from the WSIB. Work-related injuries include those sustained while running errands off the premises or while travelling for work. It does not cover break periods or travelling / commuting back and forth to work.

To qualify for a workplace injury insurance benefits, you must meet the requirements set out in the Ontario law that governs workplace insurance. It is really important to file the claim as soon after you are injured as possible. Employees who wait too long have a harder time gaining full compensation. As always, report early, take a lot of pictures, write down the details and get the names and numbers of any witnesses.

If you are covered by the WSIA (Workplace Safety and Insurance Act) , you cannot sue your employer in court for your injuries

Suing your employer or a third party for a work place injury

If you believe that your employer was to blame for your injury or disease, and you are not covered by the WSIA,  you can sue for damages. It is important you inform yourself of your options and of which category you fall into before you file for workers’ compensation.”

If your workplace was unsafe, the equipment was unsafe, or your employer was unintentionally reckless, you can sue . You could also sue a third party, for example a cleaner, visitor or contractor to your work place if they have unintentionally done something that contributed to your injury.

Injuries at work can be complicated. Whether filing a workers’ compensation claim or suing your employer, you should take the time to first consult with a lawyer. Consultations are free. Call us today.


Should you settle your personal injury lawsuit out of court?

Settling Personal Injury Lawsuit Out of Court

If you have been injured in an accident and are considering a personal injury lawsuit you may be somewhat familiar with the process – accident, evidence, lawyers, court rooms, trial and compensation. But what about settlement? Most accident victims don’t consider settlement, yet the majority personal injury cases do not go to trial. Most are, in fact, settled out of court.

Ottawa personal injury lawyer referrals

Our personal injury lawyers in Ottawa will work closely with you to ensure maximum compensation.

A settlement happens when both parties involved in the suit come to an agreement. The victim is offered compensation and the trial process can be avoided.

Knowing the ins and outs of the settlement process will help to decide if it is an option to consider. Either way, the decision always remains with the victim as to whether or not they will choose to settle. There are many reasons why it may be an option depending on the circumstances of case.

Trials are very time consuming. Appearing in court means time off work, travel expenses and hours of preparation. Some personal injury cases can take years to settle.

Trials are very unpredictable. Working with an experienced personal injury lawyer, and assessing the circumstances, evidence and witnesses, a good lawyer can usually tell how things will go in a settlement. When the case goes to trial, the outcome is in the hands of the judge and jury.

Trials are expensive and they take a long time, which means higher fees for lawyers, expert witnesses and specialists. A settlement reduces the amount of all of these expenses.

Settlement hearings are private, whereas, a trial is open and can be very stressful. Appearing in front of strangers, answering personal questions and sharing the details of your injury can be a huge strain for some.

Some may see accepting a settlement as taking the easy way out, but depending on the circumstances, it may be the best course of action. If you are considering legal action in a personal injury case, call us for a free consultation.  Our personal injury lawyers will work with you to help you get the best outcome possible and maximum compensation, whether through settlement by going to court. 


Accident while travelling? Prepare yourself before you leave.

Accident while travelling? 

Avoiding an accident while travelling is so important. Another blast of winter weather has hit the capital enticing more and more people to travel south to escape the cold and snow. A word of caution to those travelers, take a good look at your travel insurance policy. Know your own health conditions and

Accident while travelling ? Get the right travel insurance.be clear about the details of your trip.

Each winter thousands of Canadians travel south for a little of sun and fun. Unfortunately, many of them will be injured while on vacation. Their injuries can range from minor cuts and bruises to quadriplegia and worse. Sadly, for these travelers and their families, obtaining full and fair compensation can be difficult.

As Canadians, we tend to make assumptions about health care coverage. We buy a travel insurance package and think that, like OHIP, all we have to do is present our card in case of emergency, no exceptions, no upfront costs. Unfortunately, this notion has cost Canadian travelers a lot of money and heartache. Resulting in an accident while travelling not being covered. 

By definition, traveler’s insurance protects you in case of unexpected medical emergencies and related expenses that may happen while you are travelling outside of your home province or country.

Risk takers and binge drinkers beware. Traveler’s insurance may not cover accidents that happen as a result of participation in extreme activities. Skydiving, bungee jumping and cliff diving may not be covered under your policy. In addition, accidents that happen when travelers are overly intoxicated may not be covered.

Traveler’s insurance may  not cover pre-existing medical conditions and pregnancy-related conditions may get limited coverage, this may include apremature delivery.

Travel insurance is not the same as liability insurance

Traveler’s insurance is not liability insurance. If you damage someone’s property while away on vacation and they sue you for damages, traveler’s insurance will not cover you. Separate policies need to be considered for liability.

Cross you Test and dot your Is because if you are found to have given false information on your insurance application, your claim can be denied.


Lanark accident results in compensation for soft tissue injury.

Soft tissue injury compensation- Lanark accident

Soft tissue injury

Accident Scenario:

Our client suffered a serious soft tissue injury. We worked closely with “CW” to ensure she received maximum compensation for her soft tissue injury.  CW was a 38-year-old married woman with two teenage children from Lanark, Ontario. One day, her husband was driving their vehicle when a vehicle travelling in opposite direction swerved into their lane causing a collision.

Injuries Resulting From Accident:

CW suffered soft tissues injuries to her lower back, hip, shoulder and neck. Prior to the collision CW suffered from a pre-existing back injury that prevented her from working for periods of time in the past. Unfortunately, because of her accident, her symptoms of back pain did not resolve and became worse. She continued to experience numbness and tingling in her arms and legs. In addition she was diagnosed with anxiety and depression that was causally related to the motor vehicle collision. CW was unable to return to work as Personal Support Worker.  Thankfully she was able to go back to work on a part time basis as a babysitter.

Compensation for soft tissue injury :

After private settlement conference, we were able to get the insurance company to settle. CW received $157,000 from the tort action and continues to receive monthly  Ontario Accident Benefits to cover her expenses.

Soft Tissue Injuries

Many people believe  that soft tissue injuries are less painful and less severe that other injuries such as fractures; however, a soft tissue injury can have much more long lasting effects. Some soft tissue injuries can be life-altering and can leave individuals with the inability to return to life as they once knew it.  After an accident, it may take  days for the soft tissue damage to appear. Often times, our clients come to us and have symptoms but need to wait to see the full extent of their injuries. Often times, the soft tissue injury isn’t diagnosed until after  x-rays,  CT scans or MRIs have been performed. From there, often times physiotherapy, massage therapy, chiropractic therapy are often recommended. Our Ottawa injury lawyers know that it is important not to rush a settlement in a personal injury case where soft tissue injuries are involved. It’s important to have a full diagnosis so that the life long impact of the soft tissue injury can be determined and properly compensated.

If you are suffering from a soft tissue injury, it’s important that you receive proper medical treatments and that you hire an experienced Ottawa personal injury lawyer to ensure that your soft tissue injury is properly compensated.


Determining compensation for an Ottawa pedestrian accident.

Ottawa Pedestrian Accident Lawyerpede

In a city such as Ottawa,  pedestrian accidents are very common.  Every 5 years, the City of Ottawa collects statistics on Ottawa pedestrian accidents. The last report we could find was in 2013 and it reported that in Ottawa, there were a total of 351 Ottawa pedestrian accidents, 5 of which resulted in death.

Depending on the severity of the injuries and the facts surrounding the accident, pedestrians that are hit by a motor vehicle are entitled to compensation.  The Ontario insurance regime provides accident benefits to compensate for medical expenses and other treatments. Pain and suffering can also be compensated for, depending on the circumstances surrounding the accident.

What factors determine the amount of maximum compensation for an Ottawa pedestrian accident ?

-Severity of injuries

-Liability? Who was at fault? Is the pedestrian partially responsible? Were they crossing at a crosswalk ?

-What are the losses?

If a pedestrian is found to be partially responsible, they can still receive compensation, although the compensation amount may be reduced by a certain percentage. Contributory negligence can impact one’s pedestrian accident claim.

Accident Scenario:

Our Ottawa injury lawyers have built a reputation in Ottawa as being honest, hard-working lawyers who go above and beyond to help our clients. One day we met with “JE”. JE was 25 year old woman who was struck by a vehicle while crossing a street in Ottawa.

Injuries Resulting From Accident:

JE’s Ottawa pedestrian accident resulted in some injuries. Unfortunately she sustained a partial tear of her ACL and continued to suffer from intermittent neck, back and hip pain.  She also suffered from brief period of anxiety.

Compensation for Injury:

Thankfully, JE started her rehabilitation quickly and she was able to go back to her employment full time. This is not always the case with pedestrian accidents. Sometimes the pedestrian accident can result in injuries that change one’s quality of life and they aren’t able to return to work.  Our client, JE was very fortunate in that her injuries were treated and healed and she was able to resume her life and occupation. The fact that she returned to full time employment didn’t mean that she still didn’t need compensation for her accident.  Our Ottawa injury lawyers were able to negotiate a settlement at a private settlement conference in the amount of $40,000.00 for any future medical needs she may that may arise. Every pedestrian accident is different. *Please note: Past results are not necessarily indicative of future results and that the amount recovered and other litigation outcomes will vary according to the facts in individual cases.


Compensation for sports injuries? Where does the line get drawn ?

Sports injury compensation claims                                   skating injury

 
By: Brent Meadows
 
Our Ottawa personal injury lawyers are seeing more and more legal disputes in relation to recreational sports injuries.  One of our lawyers recently posted an opinion piece on this topic when we discussed the Leighton v Best case. This case involved a recreational hockey player who was found liable for punching another player.
 

Compensation awards for sports injuries

 
In R v MacIsaac, a criminal case, the accused was convicted of one count of aggravated assault for an on-ice collision that occurred during a recreational hockey game. On August 31, 2015 the Court of Appeal quashed the conviction and ordered a  new trial. It is also reported that Mr. Casterton, the injured hockey player, commenced a civil lawsuit against MacIsaac for damages caused by the on-ice collision.
 
Shortly after on September 1, 2015 the  Ontario Superior Court of Justice in Levita v Crew and True North Hockey Canada dealt with a similar matter where Levita claimed that Crew intentionally or recklessly checked him into the boards from behind in contravention of the rules of the league. Levita further claimed that the league knew or ought to have known that Crew was a dangerous player, and failed to take adequate steps to protect players in the league.
 The court in Levita reviewed the history of each player, the waiver they signed with the league, eyewitness testimony, and the league’s Rules, Policies and Procedures, among other things.
 
The court held that the evidence was clear that contact did happen and was an assumed and expected risk of the game.  The style of play was high-level and frequently aggressive. Levita understood the nature of the league and assumed the inherent risk that such injury could occur despite the fact that this was a non-contact and recreational league.  The physical contact between the players that happened during the game occurred in the course of play and fell within the accepted inherent risks that come with this type of sport.
 
The court ultimately held that:
 
Insofar as the contact was intentional, Levita impliedly consented to being body-checked in the course of play, even where that body-check might warrant a penalty. Levita’s team were well aware of Crew’s aggressive manner of play and that the sort of contact which did occur could occur. Notwithstanding that fact, they elected to play this game. As a result, I respectively find that no liability should attach to Crew on the basis of an intentional act to cause injury, or negligence.
 
On one hand we have the Leighton v Best case where a player punched an opponent and was found liable for the injuries. On the other hand,  the personal injury claim in theLevita v Crew case was dismissed by the court where the plaintiff was allegedly hit from behind into the boards. 
 

Is there compensation for sports injuries ?

 
With these two cases in mind, it is not clear where the law stands with respect to liability in recreational sports. Have hockey rinks, soccer, and football fields become legal minefields that the ordinary weekend warrior should tread carefully on? The court in Levita v Crew arguably dispels this concern as the court relied on the voluntary assumption of risk doctrine. As can be seen in these cases, it is not entirely clear what constitutes a safe or dangerous play warranting civil liability.  So remember, please have fun and play with care.
 
If you have any questions about an injury you have suffered while participating in recreational sports, contact us for a free consultation www.ottawainjury.ca/contact

 


Injury compensation in recreational sports ?

Assault in Recreational Sports

By: Brent Meadows IMG_2699

Personal Injury and Sports

Recreational sports are a great source of fitness and fun. When we play sports we understand that certain risks may be involved. When people play in any form of organized sports they are consenting to some sort of risk. For example, in hockey, participants consent to some form of bodily contact and the consequential risk of injury that may arise from that. Further, ‘voluntary of assumption of risk’ is a legal principle meaning that incidental or accidental contact that falls within the rules of the game are consented to.
 

Who is responsible for sports injuries?

But what happens when a participant is injured when another player acts well outside of the rules of the game? We know that players are responsible for their actions as evidenced in the Todd Bertuzzi matter. Recreational players should find it reassuring that if another participant acts well outside the scope of the game causing serious personal injuries they will be responsible for any resulting damages including, but not limited to, economic losses.
 

Liability and compensation in sports injuries.

The severe repercussions that an individual may face when acting outside of the scope of the game was recently evidenced in Leighton v. Best where the Superhockey injuryior Court of Justice found the respondent liable in damages for battery on the basis that the punch exceeded the scope of the appellant’s consent. The respondent went bankrupt before satisfying the damage (compensation) award owed to the appellants. Occasionally, when a party goes bankrupt certain debts are eliminated or waived. However, in 2015 the Ontario Court of Appeal in Leighton held that the damage award in this particular circumstance survives bankruptcy.
 
If you have been injured in a sporting activity, it’s important you inform yourself of your rights.  Our Ottawa personal injury lawyers would be happy to discuss with you your injuries and options in pursuing compensation.