Have you been injured in an accident?

LAWYER INSIGHT FOR CAR ACCIDENT VICTIMS

If you’ve been involved in a car accident, you might be feeling concerned about what to do once the shock of the accident wears off. You’ve exchanged information with the other driver, perhaps taken down the names of any witnesses and spoken with police, but now what?  

First thing’s first: you may want to get yourself checked out. Medical assessment within several hours to several days after an accident is a good place to start. A physician or nurse practitioner can diagnose your acute injuries and give you medical advice on how to treat them, including prescribing any medications and rehabilitative therapies, as well as determining whether you are fit to report to work. Make sure to rest, apply ice as needed, and take care of yourself. Your first call doesn’t have to be to the lawyer’s office.

However, one of the first few calls you do make should include a call to your auto insurance company. There are time-sensitive deadlines for applying for the benefits available to you from your own insurance company, so make sure to notify your insurance company of your involvement in an accident as soon as possible. 

Regardless of whether you are responsible for causing the accident (the “at fault” party), you are entitled to what is called “Section B benefits” from your own insurance company. If you are the passenger of a vehicle that was involved in an accident, Section B benefits are available to you from the insurer of the vehicle in which you travelled. 

In Nova Scotia, Section B Benefits include coverage for necessary medical services relating to the injuries you sustained in the accident. Medical services include rehabilitative treatment, such as physiotherapy and chiropractic care, plus necessary ambulance services, medical, surgical, and dental treatment. The coverage available for necessary medical services is up to $50,000.00 in the first four years following the accident. 

When you give your insurance company a call, they may advise you that they will cover a physiotherapy or chiropractic assessment. Note that you do not have to receive treatment or assessment at a certain physiotherapy clinic just because your insurance company recommended the clinic to you. If you have a preference on where to go for physiotherapy or chiropractic treatment, you are entitled to go to that clinic. Don’t hesitate to select your own physiotherapist or chiropractor. 

Your insurance company also might mention the “Protocols” to you. The Protocols refers to the approach used for rehabilitative treatment for certain types of soft-tissue injuries, which are outlined in the Nova Scotia Automobile Accident Diagnostic and Treatment Protocols Regulations. The Protocols cover sprains, strains, and whiplash-associated disorder (WAD) injuries caused by car accidents. The Protocols apply if (1) your treatment provider (physiotherapist or chiropractor) diagnoses you with a sprain, strain, or WAD injury and (2) you agree to be treated under the Protocols. 

Under the Protocols, your treatment provider will assess you and develop a treatment plan. The treatment plan is created using standardized insurance claim form, which is submitted to your insurance company for approval (and therefore coverage for the treatments that are recommended in the plan). Typically, the treatment plan involves a total of 10 or 21 initial sessions with the treatment provider. The number of sessions depends on the degree of sprain, strain, or WAD injury you are diagnosed with. At the end of the treatment plan, your treatment provider will reassess you. They may request additional treatment from your insurance company, which could include other types of treatment, such as massage therapy, occupational therapy, or psychological counselling. 

There is nothing stopping you or your treatment provider, either during the initial treatment plan or afterwards, from asking for coverage for additional types of treatment if this would improve your overall situation. The sooner you can access the care you need, the better off you will be in the long run. Do not be afraid to advocate for yourself when dealing with your insurance company. 

You are only expected to exhaust any other medical benefits you might have (such as a group plan through your employer) if you are not treated under the Protocols. If you are treated under the Protocols, your auto insurance company will cover the cost of your treatment. Once your treatment plan is approved by the insurance company and the invoices/receipts are submitted (either by you or your treatment provider), your insurance company is required to pay for the treatment within 30 days. If your treatment provider has direct billing, your insurance company can pay for the treatment directly. If your insurance company says that they will only reimburse you for treatment already provided and you cannot undertake this expense, ask the insurance company about the situation. 

Another type of Section B benefit that may be available to you is income replacement, called “weekly indemnity”. This benefit is available if you are (1) employed at the time of the accident and (2) substantially unable to perform the essential duties of your employment due to your accident-related injuries. You have to be “substantially unable” to work for at least seven days during the first 30 days immediately following an accident. If you work seasonally, were laid off at the time of the accident, or otherwise not actively working for wages/profit at the time of the accident, you may still qualify for weekly indemnity if (1) you worked during any of the six months out of the 12 months preceding the accident, and (2) you are between the age of 18-65. 

The amount you’ll receive for weekly indemnity will be the lesser of $250.00 per week or 80% of your gross weekly employment income (less any wage/salary continuation plans available to you, such as EI or through your employer). You will need to provide your insurance company with documents to prove that you are employed and what you are earning. 

If you are off work and you’re approved for weekly indemnity, you can try to return to work if this is supported by your physician. If you return to employment but can’t continue working due to your accident-related injuries within 30 days of returning to work, you will be eligible for further weekly indemnity benefits. 

The criteria for eligibility for weekly indemnity changes at the 104 week mark (two years). At that point, you will be eligible for weekly indemnity only if your accident-related injuries continuously prevent you from engaging in any occupation or employment for which you are reasonable suited by education, training, or experience.  

Generally speaking, medical benefits and weekly indemnity are the most common types of Section B benefits available to you from your insurance company. If your vehicle was damaged because of the accident, your insurance company may cover certain costs associated with repairing/replacing your vehicle under Section C coverage. Similar to Section B benefits, you should contact your insurance company about vehicular damage as soon as you can after an accident, as deadlines to make a claim are time-sensitive. 

You may be able to claim Section C benefits regardless of whether you are at fault for the accident, but it depends on whether you have opted for “collision coverage” under Section C. If you have collision coverage, your insurance company will pay for your repairs regardless of whether you are at fault for the accident. 

If you did not opt for collision coverage, the insurance company will pay for the repairs or a portion of the repairs depending on what percentage of fault is attributed to you for the accident. Fault is assessed under the “Automobile Insurance Fault Determination Regulations”. If the circumstances of your accident are such that the fault rules would attribute 100% fault to you, but you do not have collision coverage, your insurance company is not responsible to cover any costs associated with your repairs. 

Your insurance company will want proof of the damage sustained in the accident and an estimate for repairs. They may recommend a certain auto repair company to you, but you aren’t obligated to follow that recommendation. If you don’t follow the recommendation on their preferred shop, you may be asked to obtain multiple estimates. What really matters is that an estimate on repair costs is obtained from an auto repair shop and the insurance company approves the estimate before the work is done. 

You are only responsible to pay the deductible amount listed in your policy if you are found at fault for the accident. Repair costs over and above the amount of the deductible will be covered by your insurance company depending on whether 1) you have collision coverage, or 2) the percentage of fault attributed to you if you do not have collision coverage. Pre-existing damage will not be covered – there’s no obligation for the insurance company to make your vehicle better in condition than it was before the accident. 

Don’t hesitate to contact one of the personal injury lawyers at Presse Mason for help if you feel that the coverage you’re receiving is lacking, or if your insurance company is not treating you fairly. Every situation is unique, and we are here to help you navigate the process. 

Depending on the circumstances of the accident, part of the process may involve the opportunity to bring a claim against the other driver. If the other driver (or the driver of the vehicle in which you travelled as a passenger) is at fault for the accident, you can bring a claim against the driver’s insurance company. Alternatively, it may mean that the other driver can bring a claim against you if you are at fault for the accident.

This is called a Section A claim, which provides coverage for third-party liability. Damages are payable for personal injury and certain types of economic loss. The types of damages that can be paid are unique to the injured person’s own circumstances, but generally fit into the follow categories:

• Damages for pain and suffering
• Damages for loss of income, past and future
• Damages for loss of valuable services (housekeeping capacity)
• Damages for the cost of future care to treat accident-related injuries
• Damages for certain out-of-pocket expenses

Getting checked out by a physician as soon as possible after the accident is beneficial not only for your own health and your medical benefits claim, but also for your Section A claim. It is important to gather objective evidence on your injuries and physical condition after an accident. Your lawyer will have to prove your pain and suffering claim by disclosing medical evidence to the Section A insurance company. 

While your own word about your injuries would not be enough on its own to prove the full extent of your loss, it is still a good idea to record your initial symptoms and any limitations you’re experiencing with daily activities. The more information you can give to your lawyer about your injuries, the more compelling of a case your lawyer will be able to advance for you. It’s also prudent to keep receipts for any out-of-pocket expenses you incur, such as for medications prescribed to treat your accident-related injuries. Just as you need objective information to prove your pain and suffering, you will need proof of your expenses as well. 

You only have a certain amount of time to bring a Section A claim after an accident, and you can only make one claim. Once the claim is settled, it generally can’t be reopened, so it is very important to make sure you know what all your losses are before you try to settle. The Section A insurance company will expect that you have obtained the coverage available to you under your own Section B coverage, including weekly indemnity. 

Don’t hesitate to speak with us to ensure that your rights are protected and that your interests are advanced.