injury lawyer

Nova Scotia has long had caps on the amount of damages that accident victims can recover for injuries sustained in personal injury accidents. If you are in an accident, it is vital to understand how these caps work, how they can limit your recovery, and how to ensure that you do not hurt your own case by failing to get proper medical attention after an accident.

Remember that these special rules apply only to car accidents. They do not apply to other kinds of injuries, such as falls, malpractice, or other injury cases.

Damages Affected and Limited by Caps

Nova Scotia laws define the types of injuries that are considered minor, and limit what a victim can recover in cases in which only a minor injury is sustained. These limitations are called “caps.”

A cap is a maximum limit that can be legally awarded to a victim. The compensation that someone can receive for what are known as non-pecuniary damages (sometimes also called non-monetary damages) are now capped at $8,579, although the maximum amount changes regularly.

These are damages that generally cannot be counted numerically, or damages for which there is no out-of-pocket expense attached.

Non-monetary damages can include suffering, pain, anxiety, mental distress, and loss of the quality of or enjoyment of life. These all have a value but not a specific dollar attached to them. They are open to greater interpretation by a jury. It may be fair to think of them as “qualitative” damages, as opposed to damages that are “quantitative.”

Because there is no obvious “price tag” attached to these kinds of damages and no agreed upon way to count them, it can be hard to speculate what a jury or court will or will not award. If a victim shows that because of her injury she no longer can ever jog in the morning the way that she used to, and she has anxiety every time she is at an intersection in her car, one court may find these losses worth $10,000 and another worth $1 million.

Governments (and lobbyists for businesses and insurance companies) often seek to cap damages on these kinds of losses, to avoid inconsistent verdicts, or those that are considered to be “runaway juries,” a term used to describe jurors who award more than what businesses and insurance companies want to pay.

Contrast non-monetary damages with monetary damages, which can be counted or quantified. For example, things like medical bills, lost wages, or even the cost of future medical procedures are monetary.

Definitions of Minor Injury

As a general rule, anything related to whiplash will be considered a minor injury. Medically, this can include muscle strains and sprains, which are common injuries that result from car accidents (although these injuries can occur in the lower back as well as the upper back).

This, however, is not the end of the analysis because even these whiplash type injuries can be considered more than minor if they result in what is known as a “serious impairment.” Nova Scotia law provides some guidance as to what serious impairment is and how it is evaluated.

To be a serious impairment, the victim must show a “substantial inability” to perform any or all of the following:

• The tasks of someone’s employment, even after efforts are made by the employer to accommodate the victim’s injuries
• The tasks of someone’s training or education even after efforts are made to accommodate the victim’s injuries.
• The activities of the victim’s daily living

First, it is important to note that the law specifies that “any or all” of these categories must be met. That means that to qualify as a non-minor injury, only one of these three categories needs to be proven.

The first two categories are often documented by employers or in employee files (or by an educational institution).

In some cases, it may be obvious that someone cannot return to his or her previous employment. For example, someone who was a truck driver and has sustained a serious lower back strain would likely be considered to have a substantial inability to perform his or her job. Sitting for so many hours in the cabin of a truck may not be physically possible for that person, and there are no accommodations an employer can make in such a situation.

The third category can be more difficult to prove. Activities of daily living include the ability to manage one’s own finances, shop, maintain a home in a safe and sanitary way, take care of personal finances, and take care of one’s own medical needs.

Victims may need to be very careful to document how their daily lives are affected by their injuries, and the testimony of friends and family members will become important. Remember that the statute says there must be a “substantial inability” to perform these activities. This does not mean they have to be impossible to do by the victim, but it is still a high threshold.

Practical questions that victims may want to ask themselves are whether they are able to do laundry, make the bed, walk the dog, sweep the floor, cook dinner, and do the regular activities of their lives on a day to day basis.

Victims should always give truthful testimony when discussing how injuries affect their ability to do daily chores or perform their jobs, and refrain from exaggeration. Insurance companies routinely will put surveillance on victims to see if they are going to work, walking the dog, carrying groceries, or doing anything that the victim is claiming that he or she is incapable of doing.

Primary Factor

If someone has suffered a whiplash type injury that is so serious that he or she cannot work or perform the activities of daily life, the injury sounds like it is non-minor, and thus, the damage cap will not apply. However, there is yet another step in the legal analysis: The whiplash injury must be a primary cause of the substantial inability to work or perform the activities of daily life.

This sounds like it would be obvious, but causation can present problems for people with injuries that pre-date the accident or people with pre-existing disability or disease. In our example of the truck driver, assume he or she had a herniation in the lower back many years before the current accident, or has a history of arthritis. The insurance company will argue that the reason why the truck driver cannot drive has nothing to do with the sprain/strain sustained in the accident, but rather is caused by the pre-existing problems.

In people who allege that they cannot perform the activities of daily life, the insurance company will argue that the victim may not have been able to perform those activities even before the accident, and thus, it is not the sprain/strain causing the inability to perform the victim’s daily activities.

This does not mean that someone with a pre-existing injury, or pre-existing disability or disease can never recover damages if they suffer a whiplash or sprain/strain. It just means that their injury lawyer must do a careful job demonstrating that the victim’s problems were caused by the accident.

Some things that a diligent injury law firm can do include gathering medical evidence and records not just from the current accident, but from the accidents the victim suffered in the past.

Nova Scotia courts have held that a victim’s belief that injuries were caused by an accident, and that the injuries did not pre-date the accident, is not sufficient evidence by itself to show causation.

Minor and Non-Minor Injuries Combined

As anybody who has been in an accident knows, a large percentage of car accident victims do not suffer just one type of injury. They may have multiple injuries, and some of those injuries may be minor and non-minor. For example, someone may have both a cervical strain, which is minor, and a torn rotator cuff in the shoulder, a non-minor injury.

Nova Scotia law says that these injuries need to be considered separately. If a victim suffers both minor and non-minor injuries, the victim can only recover the capped damages for the minor injury, but can, in addition to the cap, recover additional damages for the non-minor injury.

Disfigurement

The Nova Scotia Insurance Act contains additional definitions that help determine whether an injury is considered minor or not. One area where an injury will not be considered minor is when there is “permanent serious disfigurement.”

This can be a difficult category to fully define. For example, some types of disfigurement may not be readily observable, but can still be considered to detract from someone’s appearance.

Take someone who has a finger severed. A hand with four fingers may not be readily observable to everyone, and may not even be considered to detract from someone’s overall physical appearance. However, the loss of a finger is certainly permanent and serious.

Contrast this with someone who suffers only a minor small scar on his or her finger, which certainly is not serious, and may not even qualify as a disfigurement. Of course, many definitions depend on circumstances. What if the person who has a small hand scar is a beauty queen or fashion model? What if the loss of a finger causes someone to lose the inability to pick up their infant?

The Obligation to Seek Treatment

Many people delay, do not follow doctor’s orders and recommendations, do not attend therapy sessions, or otherwise disobey or ignore a doctor’s recommendations after an accident. Some may think they are OK, or just do not want to deal with the “hassle” of getting medical treatment. Nova Scotia’s injury laws punish victims who make these errors.

If a victim has an injury that is otherwise considered major, but the victim did not seek treatment or follow medical recommendations, the injury will be considered minor if the injury was made worse (that is, made into a major injury) because of the failure to follow medical recommendations.

This means that many court cases may hinge on hypothetical situations when victims do not get the treatment they need. Experts may be needed to testify as to what injuries or disabilities could have been avoided and which would have happened anyway, had the victim obtained medical treatment.

Treatment is also important because in many cases, injuries that seem minor at first may end up being non-minor. For example, the definition of a minor injury (which will mean the damage cap applies), clearly includes a sprain/strain to the neck after a whiplash-type injury. However, a herniated disc, an associated but more serious injury, is often confused with a sprain/strain, and in fact, many people initially diagnosed with sprains in the cervical or lumbar region of the back end up in fact having injuries to the discs in the spine.

Someone who does not get medical care may never discover that they in fact have a herniation, and not just a strain. Because a herniated disc could take an injury out of the category of “minor injury,” the distinction between these injuries in a given victim becomes very important in an automobile accident case.

Burdens and the Courts That Hear Minor Injury Cases

Parties can agree before a case is even filed that injuries are minor. However, in most cases, accident victims can expect to get disagreement from the other side if they allege that their injuries are major or significant.

In cases where the parties dispute whether the injury is minor or not, or where there may be disputes over the victim’s diligent pursuit of medical care, the default legal position is that the victim’s injuries are minor. This means it is assumed that the injury is minor until and unless the victim demonstrates that the injury is not minor. This puts the burden on the plaintiff to demonstrate that the injuries are not minor.

Victims must be diligent about pursuing treatment, and getting the medical attention they need as soon as possible after an accident. Victims also may have to be patient, to see if an otherwise minor injury becomes something major down the line, if the injuries do not heal as anticipated.

Effects of Minor Injury Laws

Victims can anticipate constant challenges not just to the severity of injuries, but to whether the injuries pre-dated the accident, in efforts to cap damages, and many liable parties will try to argue that major injuries are in fact minor. Victims may have to wage legal war on two fronts—one to determine whether the injury is minor, and the other to determine the common issues in any injury case, such as who is negligent.

Do not navigate Nova Scotia’s injury system by yourself. The lawyers at Preszler Injury Lawyers can help explain what you can expect, and can assist you in obtaining the damages that you deserve if you are injured in any kind of accident. Call today to speak with one of our lawyers.

If you are injured in a car accident you are likely to find yourself in need of medical care. Getting traditional health insurance to pay for your medical care and treatment can be difficult and time consuming. If your accident involved another driver, and that driver was negligent in causing the accident, you may want him or her (or his or her insurance) to compensate you for medical bills and other expenses. Getting that driver to accept responsibility and pay your bills caused by the accident can take time, however.

A Quicker Way to Get Insurance Benefits

Nova Scotia’s Section B benefits under existing insurance laws provide a solution for those in need of immediate medical attention.

Section B benefits can provide access to needed funds no matter how the accident occurred. Nova Scotia implemented Section B benefits out of a recognition that even those who may be at fault for a car accident still need to be able to pay for medical care. Even accidents that only involve one vehicle, such as a car driving off the road, can result in the need to obtain medical treatment.

In cases in which an accident is caused by a negligent driver, you may need to resolve a dispute over who caused the accident before getting the other driver or his or her insurance to pay damages to you. This can take a significant amount of time. People injured in accidents cannot sit around waiting for their case to resolve in order to get needed medical treatment. In fact, newly enacted laws require accident victims to obtain medical attention as quickly as they can, and can hold those drivers responsible for injuries that are caused by, or made worse by, the failure to get immediate and appropriate medical attention.

Section B insurance is available to victims regardless of fault and regardless of how the accident happened or who caused it. You do not need to prove anything (other than the fact you were actually in a car accident) before being able to access the benefits. This is why Section B is often called “no fault insurance.” Think of the insurance as an immediate “fund” that a victim can use to at least get preliminary medical attention.

Who is Insured by Section B Benefits?

Section B benefits do not only insure the driver or owner of the vehicle involved in the accident. The insurance will cover any person occupying the vehicle.

The insured’s Section B will also cover pedestrians (including cyclists) that the insured driver may hit, as well as members of the insured’s family, if they are pedestrians hit by another car, if that car owner or driver doesn’t have insurance. The law defines family as those who reside with the insured.

If you are in a car accident in your vehicle (whether you are the driver or the passenger), your own Section B benefits will pay whatever benefits you are determined to be entitled to under the policy. However, if you are in someone else’s car and are injured in an accident, you will look to their Section B policy to make payments to you. If they do not have Section B benefits, you would then look to your own insurance.

In cases in which there are multiple insured parties, figuring out which person’s Section B benefits will provide for your expenses can be a complex question. A lawyer from Preszler Injury Lawyers can help you navigate these scenarios so that you can get the medical attention that you need as soon as possible.

Section B Medical Expenses

Section B benefits cover a wide variety of medical treatments. Hospital treatment, ambulance, chiropractic care, dental work, necessary surgeries, nursing care and service, and medical supplies can all be covered by Section B benefits. Supplies that in the opinion of medical providers are necessary for rehabilitation, therapy including occupational and physical therapy, and even job/professional retraining are included.

Courts have required Section B to pay for things like tools to clean teeth when a patient’s jaw was wired shut, traveling expenses to get to medical providers, eyeglasses, and modifications to a victim’s home to accommodate disabilities caused by an accident.

Your Section B benefits will cover all of these expenses incurred for up to four years, to a limit of $50,000. This maximum is for all Section B benefits, excluding lost wages.

In cases where emergency surgery is needed immediately following an accident, that amount may be used up after just a few weeks. With other injuries, which may require extended medical care, multiple smaller surgeries, or other ongoing therapy, it may take a few years to hit the $50,000 maximum.

However, after four years, your Section B medical benefits will no longer be available. This means that your benefits will terminate after four years, even if you have not yet hit the $50,000 mark.

Lost Wages

Accidents can put their victims out of work for extended periods of time. Victims can be left with no way to pay their household bills while they recover from their injuries. Section B benefits can provide assistance with these lost wages.

Lost wages after an accident that causes injury in Nova Scotia can be obtained so long as the victim was employed at the time of the accident, or employed for six of the previous 12 months. Those seeking lost wages must show that they have suffered a “substantial inability” to perform their job for at least seven days.

Lost wages can only be received for a maximum of 104 weeks, but there is an exception to this maximum. Victims who can show that they cannot engage in any job that they are trained to do or capable of doing, can receive continued lost wages.

So, for example, if you are a nurse and cannot go back to patient care after 104 weeks, but you could work in a medical job where you analyze medical records from a desk, you would not get benefits. However, if you were a trucker, and there are no other driving jobs that you can apply your knowledge or training toward, you may be able to continue to receive benefits.

Section B unfortunately does not pay all of your lost wages, but rather, will pay 80% of your wages to a maximum of $250 per week. In some cases, Section B will pay less, if your lost wages are being paid by another source, such as separate insurance or salary continuation plans. Those who have additional wages than the $250 weekly maximum, and who would like protection, can add traditional employment disability insurance to assist them along with the Section B benefits.

If you were unemployed at the time of the accident, you still may benefit from the lost wages part of your Section B policy. If you do not claim lost wages because you were unemployed, and you were a homemaker—say, for example, a stay at home mother or father—you can opt to receive benefits for housekeeping services.

The payments are a bit less than they would be for lost wages — $100 per week — but that money can assist you in utilizing outside help or services to do things like take care of the lawn or do household chores and only available for 52 weeks.

This is very fact specific and you should consult a Preszler Injury Lawyer as soon as possible.

Death and Burial Expenses

Section B will also pay for funeral and burial expenses, if necessary. In these cases, families may also be entitled to death benefits. Insurance will pay a cash benefit of $25,000 either to the deceased, or the spouse of the deceased. Even those who are not married, but who have lived with the deceased for at least one year prior to the accident/death, can receive the benefits. Dependants can be paid $5,000.00. There is also an increase in the amounts when more than one dependant or survivor exists.

The funeral expense payable is $2,500.00.

Giving Timely Notice

Many kinds of insurances have strict notice periods where the insured must tell the insurer of the loss in order to get benefits, and Section B is no different. Notice of a claim must be made within 30 days of the accident (or as soon as practicable, in cases where someone is unable to give notice sooner).

Another benefit of quickly notifying your insurer (or the insurer that is responsible for paying the benefits, if not yours), is that Nova Scotia allows doctors treating injury victims to provide treatment without getting prior approval from the insurance company for certain categories of injury. Injuries like sprains, strains, whiplash, and similar injuries can be treated by your doctor immediately so long as your insurance company has been notified of the accident.

Cutting Off Benefits

If you start to receive Section B benefits, there may come a time when the insurance company wants to check your progress, to see if you still are in need of medical care and treatment. Although this seems innocent, insurance companies regularly abuse this process.

At any point, the insurance company may send you for what is known as an independent medical exam (IME). Despite the name, these examinations are anything but independent.

An IME is when the insurance company sends you to one of their chosen doctors for a one-time independent evaluation of your medical condition, to see if you have healed, or at least, to see if you have stabilized to the point that continuing benefits are no longer needed. The insurance company chooses the doctor, who of course does not know as much about you or your medical history as your own doctors.

The doctor will conduct a medical examination on you and take a verbal medical history from you. Based on this examination, the doctor will report to the insurance company that you either are in need of further medical care (and thus continuing benefits), or that you are not. As you may have guessed from the fact the doctor is sharing your report with the insurance company, there is no doctor-patient confidentiality, the way there is between you and your own treating doctors.

You must attend the IME. Failure to do so will be considered a breach of your insurance contract, and the insurance company can terminate your Section B benefits, regardless of your injuries or medical condition.

The problem—and why these examinations are not exactly “independent”—is that many of these doctors make a lot of money off of these exams from the insurance companies. They may be biased towards cutting off your benefits, as the insurance company’s payments for these exams can make up a large part of a doctor’s income. It is not uncommon to see even the most catastrophically injured accident victims with IME reports that say that they are fine, or stable, or healed enough that further benefits are no longer needed.

There are rules about what must be in an IME report, and how it can be used against you in a trial. There are also rules that permit rebuttal opinions from your own physicians.

A lawyer from Preszler Injury Lawyers can help prepare you for your IME. Doing things like bringing a friend or family member, writing down what was asked and noting the time and duration of the exam, can all be helpful down the road and can help you continue to receive the benefits that you paid for under your policy.

The experienced lawyers at Preszler Injury Lawyers can help you with insurance problems after an accident and can explain how to make insurance companies and negligent drivers compensate you for injuries that you may have suffered. Call today to speak with one of our lawyers.