If you’re involved in a motor vehicle accident and sustained catastrophic or very severe injuries and impairments, and/or a quantifiable loss, then Rudder Law Group will pursue two legal avenues on your behalf to get you the compensation you deserve, and the medical and rehabilitation treatment you need to reach maximum medical recovery, which are as follows:

1. An accident benefits claim on your behalf against your automobile insurance company in the no-fault insurance system;
2. A civil litigation case or tort action or lawsuit for you against the negligent at-fault driver and/or owner of the car through the third-party liability system.

In a tort action involving a motor vehicle accident, the negligent at-fault driver’s insurance company will defend the tort action.

I’ll pursue the tort action to claim monetary compensation for you in the form of compensatory damages, so long as you meet what’s called the legislature threshold, which pursuant to Ontario’s Insurance Act, you suffered at least one of the following:

A permanent and serious disfigurement; or

A permanent and serious impairment of an important physical, mental or psychological function.

If you want to learn more about the compensatory damages I can get for you in tort action, as well as a better understanding of the legislative threshold, then please click the “link” to read my blog entitled “What Damage Awards Do I Get from a Successful Tort Action?”

If you want to learn more about the steps in a tort action for personal injuries, then please click the “link” to read my blog entitled “What are the Steps in a Tort Lawsuit for Personal Injuries?”

In addition to establishing that you meet the legislative threshold, I’ll also prove that the at-fault driver was negligent. The narrow meaning of “negligence” refers to the behaviour or conduct of the tortfeasor or at-fault driver, which falls below the requisite standard of care of a reasonable person in the particular circumstances in question. The broader meaning, however, refers to what constitutes a cause of action for negligence, which entitles you to commence a tort action to seek an award of damages.

If you want to learn more about the broader meaning of negligence in a tort action, as well as the six elements of a cause of action for negligence, then please click the “link” to read my blog entitled “What is the Cause of Action for a Negligence Action in Tort?”

I will proceed with a tort action on your behalf against the at-fault driver, if his or her behaviour or conduct was negligent while operating the vehicle that hit you. Some examples of such negligence are, but not limited to, the following:

The negligent at-fault driver followed your motor vehicle more closely than was reasonable and prudent having due regard for the speed of his or her motor vehicle and the traffic on, and the condition of, the highway, contrary to s. 158 of the Highway Traffic Act, R.S.O. 1990, c. H.8, as amended;

The negligent at-fault driver failed to share the road when overtaking another vehicle, contrary to s. 148 of the Highway Traffic Act, R.S.O. 1990, c. H.8, as amended;

The negligent at-fault driver failed to keep a proper lookout and failed to see the brake lights displayed by your motor vehicle stopped ahead of him or her on street, road or highway;

The negligent at-fault driver could have, and should have, seen your motor vehicle in front of him or her and he or she could have, and should have, avoided the motor vehicle accident;

The negligent driver failed to slow down or stop, or turn sufficiently to the right or left so, as to avoid an accident with your motor vehicle;

The negligent at-fault driver was travelling at an excessive rate of speed considering the circumstances, and as such, he or she could not control his or her motor vehicle within his or her range of vision;

The negligent at-fault driver applied the brakes and used the steering wheel or apparatus of the his or her motor vehicle carelessly and incompetently, thereby causing the said motor vehicle to skid and the negligent driver to lose control thereof;

The negligent driver did not apply his or her brakes in a manner calculated to avoid a collision;

The negligent at-fault driver failed to have the brakes, steering mechanism and/or other equipment on his or her motor vehicle in a fit and proper condition, suitable for its safe operation upon a highway;

On the occasion in question the negligent at-fault driver was an incompetent driver, lacking in reasonable skill, self-command and control, and ought not to have attempted to operate a motor vehicle under the circumstances;

The negligent at-fault driver failed to take any or sufficient steps to avoid the collision, or exercise reasonable care even after the danger of the accident became, or should have become apparent to him or her;

The negligent at-fault driver failed to take the appropriate corrective measure when he or she started to lose control of his or her motor vehicle, and after he or she lost control of his or her motor vehicle;

The negligent at-fault driver failed to yield the right of way;

The negligent at-fault driver was operating his or her motor vehicle without due care and attention, contrary to the provisions of the Highway Traffic Act, R.S.O. 1990, c. H.8, and amendments thereto;

The negligent at-fault driver created a situation of emergency and danger from which, despite all reasonable efforts on his or her part, you were unable to extricate yourself;

The negligent at-fault driver permitted himself or herself to arrive at such a condition from foregoing sleep, drinking alcoholic beverages, or absorbing drugs, such that his or her normal faculties, perception, will and judgment were so affected that he or she no longer had the capacity to operate a motor vehicle with the caution characteristic of a reasonably careful driver who has not foregone sleep, consumed such beverages or absorbed such drugs;

The negligent at-fault driver failed to utilize appropriate eyewear when it was reasonable to do so under the circumstances;

The negligent at-fault driver was talking or texting on his or her cell phone or other electronic device, and was thereby distracted when the accident occurred;

The negligent at-fault driver was operating his or her vehicle while holding or using a hand-held wireless communication device or hand-held electronic entertainment device which was unrelated to the safe operation of the motor vehicle, contrary to Section 78.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8, as amended; and

The negligent at-fault driver failed to observe the Rules of the Road, pursuant to the Highway Traffic Act, R.S.O. 1990, c. H.8, as amended.

I will proceed with a tort action on your behalf against the owner of the car that the at-fault driver was driving during the motor vehicle accident with you, if the owner’s behaviour or conduct was negligent while allowing the at-fault driver to use his or her motor vehicle. Some of examples of such negligence are, but not limited to, the following:

The negligent at-fault owner permitted the negligent at-fault driver to operate his or her motor vehicle when he or she knew, or ought to have known, that under the circumstances, the negligent at-fault driver was an incompetent driver, lacking in reasonable skill and self-command, who ought not to have attempted to operate his or her motor vehicle;

The negligent at-fault owner permitted the negligent at-fault driver to operate his or her motor vehicle when he or she knew, or ought to have known, that the negligent at-fault driver was incapable of operating his or her motor vehicle with the caution and care necessary, having regard to the traffic and weather conditions, there and then existing;

The at-fault owner negligently entrusted the his or her motor vehicle to the negligent at-fault driver when he or she knew, or ought to have known, that the negligent at-fault driver had an extensive bad driving record and was a poor driver;

The negligent at-fault owner failed to inspect his or her motor vehicle for defective mechanical problems;

The negligent at-fault owner failed to maintain his or her motor vehicle in a fit and mechanical working condition; and

The negligent at-fault owner failed to have the brakes, steering mechanism and/or other equipment on his or her motor vehicle in a proper working order.

I’ll pursue a tort action on your behalf against the negligent at-fault driver and owner, if as a result of the car accident, you sustained permanent and serious, personal injuries and impairments of an important physical, mental and psychological function, including, but not limited to, the following:

Paraplegia or tetraplegia pursuant to the American Spinal Injury Association (ASIA) impairment scale or the Spinal Cord Independence Measure (SCIM), Version III, you require urological surgical diversion, an implanted device, or intermittent or constant catheterization in order to manage your residual neuro-urological impairment, or you have impaired voluntary control over anorectal function that requires a bowel routine, a surgical diversion or an implanted device.

Severe impairment of the ambulatory mobility or use of your arm, or an amputation that results in an trans-tibial or higher amputation of your leg, or an amputation of your arm or another impairment that causes the total permanent loss of the use of your arm, pursuant to the SCIM, Version III;

The loss of vision of both of your eyes, even with the use of corrective lenses or medication, provided (1) your visual acuity in both eyes is 20/200 (6/60) or less as measured by the Snellen Chart or an equivalent chart such as, but not limited to the LogMAR Chart or Bailey-Lovie Chart, or (2) the greatest diameter of the field of vision in both of your eyes is 20 degrees or less, and the loss of your vision is not attributable to non-organic causes;

If you’re an adult, then a traumatic brain injury that’s either established by (1) positive findings on a computerized axial tomography scan (CAT scan), a magnetic resonance imaging (MRI) or any other medically recognized brain diagnostic technology indicating intracranial pathology, including, but not limited to, intracranial contusions or haemorrhages, diffuse axonal injury, cerebral edema, midline shift or pneumocephaly, or (2) when assessed pursuant to the Extended Glasgow Outcome Scale (GOSE) you have a rating of either vegetative state, upper severe disability, lower severe disability, or lower moderate disability;

If you’re a child, then a traumatic brain injury that’s established by (1) acceptance for admission, on an in-patient basis, to a public hospital with positive findings on a CAT scan, a MRI, or any other medically recognized brain diagnostic technology indicating intracranial pathology, including, but not limited to, intracranial contusions or haemorrhages, diffuse axonal injury, cerebral edema, midline shift or pneumocephaly; (2) acceptance for admission, on an in-patient basis, to a program of neurological rehabilitation in a paediatric rehabilitation facility that is a member of Empowered Kids Ontario – Enfants Avenir Ontario; or (3) when assessed pursuant to the King’s Outcome Scale for Children Head Injury (KOSCHI) your level of neurological function does not exceed category 2 (vegetative), category 3 (severe disability), or your level function remains seriously impaired such that you are not age-appropriately independent and require in-person supervision or assistance for physical, cognitive or behavioural impairments for the majority of your waking day;

A physical impairment or combination of physical impairments that, in accordance with the American Medical Association’s (AMA’s) Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in 55 percent or more physical impairment of your whole person;

A mental or behavioural impairment, excluding a traumatic brain injury, determined in accordance with the rating methodology in Chapter 14, Section 14.6 of the AMA’s Guides to the Evaluation of Permanent Impairment, 6th edition, 2008, that, when your impairment score is combined with a physical impairment described in paragraph 6 in accordance with the combining requirements set out in the Combined Values Table of the AMA’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in 55 percent or more impairment of your whole person;

An impairment that, in accordance with the AMA’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 results in a class 4 impairment (marked impairment) in three or more areas of function that precludes useful functioning or a class 5 impairment (extreme impairment) in one or more areas of function that precludes useful functioning, due to your diagnosed mental or behavioural disorder;

Chronic pain;

Chronic pain syndrome;

A torn rotator cuff;

Myofascial issues to your cervical and lumbar spine;

Extreme pain and stiffness in the neck, shoulders, back, legs, hips, arms and fingers;

Arthritic degeneration;

Burning sensations in the thighs;

Swelling in the right knee;

A pinched nerve;

Numbness in the little finger and ring finger on the left hand;

Whiplash associated disorder;

Severe and chronic headaches;

Inflammation;

Urinary and bowel urgency;

Cauda equina syndrome;

Debilitating sleep apnea;

Memory lapses and forgetfulness;

Nausea;

Anxiety;

Fear;

Major depression;

Anger;

Problems concentrating;

Low energy;

Post-traumatic stress disorder;

Adjustment disorder;

Pain disorder;

Fibromyalgia;

Numerous cognitive impairments;

Subgaleal hematoma on right or left posterior occipital and right or left posterior occipital area;

Suspicion fracture of distal radius and ulna;

Fracture of metacarpals;

Nondisplaced fractures;

Multiple fractures through cervical, thoracic and lumbar spine;

Chance type fracture involving vertebral bodies;

Compression fractures involving vertebral bodies;

Acute compression fracture over vertebral bodies;

Small, medium or large volume subarachnoid hemorrhage within interpenduncular and suprasellar cisterns;

Large bilateral parietal and right or left frontal subgaleal hematoma;

Posterior mediastinal hematoma, even if secondary to vertebral fracture;

Comminuted intra-articular fracture of radial head; and a

Nondisplaced olecranon tip fracture.

Typically in these tort actions your injuries and impairments have been accompanied by great pain and suffering and profound physical and emotional shock. Your enjoyment of life and your ability to participate in your normal recreational, social, employment, athletic and household activities have been and remain, permanently impaired.

If you want to learn more about the compensatory damages I can get for you in tort action, then please click the “link” to read my blog entitled “What Damage Awards Do I Get from a Successful Tort Action?”

As a result of the injuries and impairments you sustained as a direct result of the motor vehicle accident, you’ll most likely be forced to undergo numerous medical procedures and will require further procedures in the future. For example, you may have consumed significant quantities of pain medication and undergone extensive rehabilitation treatment including, but not limited to, the following:

Psychological and/or psychiatric treatment;

• • Psychotherapy;
  • Cognitive behavioural therapy;

Neurological treatment;

Neuro-psychological treatment;

Occupational therapy;

Physiotherapy;

Kinesiology;

Massage therapy;

Chiropractic treatments;

Chronic pain management program;

Nerve conduction testing;

Sleep testing;

Caregiving assistance;

Avocational assessment and intervention;

Rehabilitation support worker;

Mobility devices;

Personal care devices;

Family counseling;

Case management;

Community gym; and

Having to use a continuous positive airway pressure (“CPAP”) machine.

You may require further medication and rehabilitation treatment in the future, causing a further reduction to your enjoyment of life. Therefore, I’ll claim on your behalf for this loss of your enjoyment of life and for the value of your medical, rehabilitative, attendant care and other out-of-pocket expenses. I undertake to provide the particulars of these claims on your behalf prior to the trial of your tort action.

As a further result of the injuries and impairments you sustained as a direct result of your motor vehicle accident, you’ll most likely no longer participate in your usual social, athletic, recreational, caregiving and employment activities to the same extent that you were able to prior to your motor vehicle accident. Your accident-related injuries and impairments have resulted in and will continue to result in, a loss of past and future income, a loss of competitive advantage and a permanent impairment and diminution of your income-earning capacity, so I also claim this loss too. I undertake to provide the full particulars of your past and future loss of income claims on your behalf prior to the trial of your tort action.

As a further result of the injuries and impairments you sustained as a direct result of your motor vehicle accident, you’ll most likely be unable to perform your regular housekeeping and home maintenance tasks, and you have  incurred, and will continue to incur, expenses in this regard, so I claim for this loss too. I undertake to provide particulars of your housekeeping and home maintenance expense claims on your behalf prior to the trial of your tort action.

As a further result of the injuries and impairments you sustained as a direct result of your motor vehicle accident, you’ll most likely be put to out-of-pocket expenses and losses, so I also claim for this loss too. Again, I undertake to provide the particulars of your out-of-pocket expenses and losses claim on your behalf prior to the trial of your tort action.

Essentially, when I pursue your tort action on your behalf, I’m setting out to prove that as a direct result of your motor vehicle accident, you sustained permanent and serious impairments of important physical, mental and/or psychological functions and/or permanent, serious disfigurements within the meaning of ss. 267.1 and 267.5 of Ontario’s Insurance Act, R.S.O. 1990, c. I.8, as amended, such that the negligent at-fault driver and owner are in law jointly and/or severally liable for all injuries and losses sustained by you as a result of your motor vehicle accident.

If you have family members who, amongst other things, relied on you for their care, guidance of companionship, then I’ll also add them as plaintiffs to your tort action, and pursue what is known as a Family Law Act claim on their behalf.

If you want to learn more about what’s involved in a Family Law Act tort action and the potential compensatory damages that you can claim, then please click the “link” to read my blog entitled “How Do You Proceed with a Family Law Act Tort Action?”

Typically, as a result of the damages, and injuries and impairments sustained and suffered by you, your immediate family members have been deprived of the benefit of support, care, service, comfort, guidance and companionship provided by you. Therefore, I claim for damages for loss of this past and future support, care service, comfort, guidance and companionship pursuant to the provisions of the Family Law Act, R.S.O. 1990, c. F.3.

As a further result of the damages, and injuries and impairments sustained and suffered by you, your immediate family members have, and will continue to, suffer mental distress and anguish, so I also claim compensatory damages for them as well.

Also, as a further result of the damages, and injuries and impairments sustained and suffered by you, sometimes your immediate family members have expended monies on out-of-pocket expenses and have provided nursing, housekeeping and other services to you. If so, then I will also claim for reimbursement for all of their out-of-pocket expenses they incurred, as well as, for compensation for the value of their services performed.

Typically, the legislation that’s involved in the pursuit of your tort action involving a motor vehicle accident are, but is not limited to, the following:

The Highway Traffic Act, R.S.O. 1990, c. H.8;

The Insurance Act, R.S.O. 1990, c. I.8;

The Negligence Act, R.S.O. 1990, c. N.1;

The Family Law Act, R.S.O. 1990, c. F.3; and

And all amendments thereto.

In addition to your right to seek compensatory damages through a tort action via the aforementioned third-party liability system, I will first proceed with an accident benefits claim against your own automobile insurance company via the first-party no-fault auto insurance plan, where I’ll claim selected accident benefits on your behalf. Unlike the third-party liability system, where your claim for compensatory damages can potentially be significantly reduced or eliminated depending on the degree to which you were at-fault in the motor vehicle accident, in the no-fault auto insurance system, I can still claim accident benefits on your behalf even if you were 100% at-fault.

After you report your involvement in a motor vehicle accident, your claims adjuster will send you via regular mail, an Application for Accident Benefits Package, which will provide you with information in regards to benefits that you may receive under the Ontario Regulation 34/10: Statutory Accident Benefits Schedule (“SABS 34/10”), under Ontario’s Insurance Act, R.S.O. 1990, c. I.8, as a result of injuries you sustained in your motor vehicle accident.

If you want to know more about what to do immediately after you’re involved in a motor vehicle accident, just before you kickstart the Accident Benefits Application process, then click this “link” to read my blog entitled “What To Do After a Car Accident in Ontario?”

I’ll pursue medical and rehabilitation benefits on your behalf, in order that you get the medication and rehabilitation treatment you need to facilitate your rehabilitation and reintegration back into the labour market and your activities of daily living.

Concerning your medical and rehabilitation benefits, it’s important to understand that there are 3 different injury classifications, tiers or levels that will determine the applicable benefits that are available to you, which are as follows:

1. The Minor Injury Guidelines classification, which have policy limits of $3,500;

2. The Non-Minor Injury or Non-Catastrophic Injury classification, which have policy limits of $65,000 (if optional increased benefits weren’t purchased), in combination with attendant care benefits; and

3. The Catastrophic Injury/Impairment classification, which has policy limits of $1 million (if optional increased benefits weren’t purchased), in combination with attendant care benefits.

Medical and rehabilitation benefits are available to you for reasonable and necessary expenses that have been incurred. This is a fact specific inquiry.

Medical benefits are integrated with rehabilitation benefits for the purposes of the SABS 34/10. The SABS 34/10 outlines what constitutes medical and rehabilitation benefits. Medical benefits include, but are not limited to, the following:

Non-OHIP insured medical services, medication and prescription eyewear.

Rehabilitation benefits focus, again, on reintegrating you to the labour market and your activities of daily living, such as, but not limited to, the following:

Life skills and family or employment counselling, vocational or academic training and workplace or modifications.

I may claim attendant care benefits on your behalf in your accident benefits claim.

Attendant care benefits pay for reasonable and necessary expenses for your self-care. Such benefits are available if you are substantially unable to engage in self-care tasks, such as, but not limited to, the following:

Dressing;

Grooming;

Feeding;

Mobility;

Laundry;

Hygiene; or

You require supervisor care.

And after June 1, 2016, attendant care benefits are now combined up to a maximum of $65,000 with medical and rehabilitation benefits, if you are in the non-minor or non-catastrophic injury classification, and up to $1 million combined with medical and rehabilitation benefits, if you are in the catastrophic injury/impairment classification.

I’ll also claim one of the three weekly disability benefits in your accident benefits claim.

If you sustained injuries as a direct result of your motor vehicle accident, then you may be eligible to receive one of the following three weekly disability benefits, as follows:

1. Income replacement benefits;

2. Non-earner benefits; or

3. Caregiver benefits.

Once your insurer receives your Application for Accident Benefits (OCF-1) form, they will make a preliminary determination about whether any of these weekly disability benefits apply to you, but they don’t have the last word on it, as you can appeal their decision to the Licence Appeal Tribunal if you disagree.

Income replacement benefits (“IRBs”) are payable if you were at least 16 years of age or more and employed or self-employed on the date of the motor vehicle accident, or worked at least 26 of the 52 weeks before the accident (or was receiving employment insurance at the time of the accident).

The disability test to be met is a substantial inability to perform the essential tasks of employment within 104 weeks of the accident. After 104 weeks, the test changes to a complete inability to engage in any employment for which you are reasonably suited by reason of education, training or experience.

After September 1, 2010, the calculation changed to 70 percent of your gross income after a one-week waiting period. After 104 weeks, the amount payable is the greater of your weekly income benefit or $185 per week. Unless optional increased benefits were purchased, the maximum payable to you is $400 per week. The SABS 34/10 provides a ramp down calculation after age 65.

The SABS 34/10 sets out the requirements for entitlement to non-earner benefits (“NEBs”), as follows:

1. You must suffer an impairment as a result of an accident; and

2. You must suffer a complete inability to carry on a normal life as a result of and within 104 weeks after the accident.

You must not qualify for an income replacement benefit. Alternatively, NEBs are payable if you were enrolled in educational pursuits on the date of your accident or within one year of the accident, and you meet the disability test.

Effective June 1, 2016, the age requirement for the payment of NEBs was raised from 16 to 18 years of age, the waiting period also changed from 26 weeks to four weeks, and NEBs are now only payable for 104 weeks as opposed to the age of 65 years old. If you’re found eligible, after June 1, 2016, NEBs are only payable at the rate of $185 per week for a maximum of 104 weeks.

After September 1, 2010, if no option was purchased, caregiver benefits (“CGBs”) are only available if you are found to be catastrophically impaired.

Pursuant to the SABS 34/10, in order for you to be found eligible for CGBs, you must live with a person in need of care and be the primary caregiver for the person in need of care, and not receive any payment for caregiving activities. The SABS 34/10 defines a “person in need of care” as one who is under 16 years of age or who requires care because of physical or mental incapacity.

Further to the disability test as outlined in the SABS 34/10, you must suffer a substantial inability to engage in the caregiving activities in which you were engaged in at the time of your motor vehicle accident for the first 104 weeks. After 104 weeks, the test becomes stricter and is the same as that for NEBs – a complete inability to carry on a normal life.

There is no waiting period for CGBs. So, if you’re eligible, you receive $250 per week for the first person in need of care and $50 per week for each additional person in need of care. This amount is reduced as your children turn 16 and are no longer in need of care.

If you elect IRBs or NEBs, and later you’re found to be catastrophically impaired, then the SABS 34/10 allows you to re-elect to the CGB. Elections are otherwise considered final.

If you want to claim any of the aforementioned weekly disability benefits, then your insurer will require you to complete the mandatory Disability Certificate (OCF-3) form. You fill in Part 1 through to 3 of the OCF-3 form, and then give it to your healthcare provider, such as, but not limited to, the following:

Chiropractor;

Dentist;

Nurse practitioner;

Occupational therapist;

Optometrist;

Physician;

Physiotherapist;

Psychologist; or a

Speech language pathologist.

Only an authorized healthcare provider can complete the OCF-3 form.

At Rudder Law Group, we understand that after sustaining severe and permanent injuries and impairments following a motor vehicle accident or car accident, and experiencing a devastating, unforeseen loss, you want to optimize your level of independent living and be able to pay for the exorbitant costs of future care, so as to avoid undue stress and hardship. That’s why we are committed to fighting on your behalf to ensure that we increase your auto insurance policy limits to the highest tier of medical rehabilitation benefits in your accident benefits claim, as well as obtain just compensation in your tort action or lawsuit. We fight to accomplish this goal so you can pay for the exorbitant future costs of care, in order to gain access to the necessary multidisciplinary treatment, care services, and support needed to optimize your level of independent living, and your full mental, physical, social and vocational ability. We are committed to this in order to facilitate the optimization of your social and economic inclusion, and participation in all aspects of your life in society.