It’s Easy To Get Claims For Personal Injury With The Help Of Personal Injury Lawyer

If you have suffered from personal injury, and are planning to handle your case on your own, you must know that the road ahead is not easy. You would have to deal with cunning and powerful other driver responsible for auto accident, or the insurance company, or the manufacturer of the faulty product, to get claim for your personal injury. Such people adopt several strategies to present themselves as innocent and save themselves from clearing any claims being made by the victim.

It is therefore advisable to look for personal injury claims lawyer. He knows how to deal the personal injury law case and get his clients maximum compensation for the pain and financial loss suffered by them.

Personal injury lawyers are aware of the several claims that a person can make in case of the personal injury case, and the factors that might increase or reduce the value of claims that he is entitled to. The personal injury claims lawyer handles everything on his own, including legal representation, and collecting medical bills, and evidences to strengthen the case, and negotiating with the other party for personal injury claims.

If you have met with an automotive accident or have been rendered disable for the rest of your life due to workplace injury or road accident or medical malpractice, in that situation also you must look for accident lawyer or disability lawyer to get adequate compensation.

Why Hire Personal Injury Lawyers?

Personal injury lawyers are lawyers who specialize in personal injury law. They represent victims of personal injury before court of law and get them fair compensation for the physical injuries and financial loss suffered by them due to the personal injury.

Usually, the personal injury lawyers take up cases where one gets injuries due to exposure to harmful chemicals, or acquires any disease or illness due to medical malpractice, or gets hurt due to use of faulty or defective machinery. Other cases of personal injury include, brain injury, spinal cord injury, and automotive accident.

Regardless of the nature and complexity of the personal injury case, the personal injury lawyers help victims of the personal injury get claims to which he/she is entitled. They make a strong case before the court and prove that the victim has got the injuries due to the negligence of the other person and is therefore entitled for compensation.

Without personal injury claims lawyer, it is almost impossible to get any compensation from the other party. Those who handle their case on their own usually end up wasting their time and money in fighting useless court litigations and lose the battle against shrewd and manipulative companies or employees who are guilty of selling them faulty products or exposing them to harmful substances.

Like personal injury lawyers, accident lawyers and disability lawyers too help victims of auto accident and those who acquire temporary and permanent disability get fair compensation.

TREATMENT, REHABILITATION AND RETRAINING: HOW FAR DOES THE CLAIMANTS DUTY TO MITIGATE GO

The prediction by the World Health Organization is that in less than twenty years, depression will be the second leading cause of disability in the world. In general, recognized symptoms of depression include, anhedonia inability to experience pleasure or loss of capacity for pleasure, appetite disturbance with associated weight loss or gain, sleep disturbance (insomnia or oversleeping), psychomotor agitation or retardation, fatigue or loss of energy, feelings of worthlessness or guilt, impaired concentration or indecisiveness, preoccupation with death or suicide.

A diagnosis of depression does not necessarily connote disability. For some, depression can be managed effectively with antidepressant medications and psychotherapy. For those who do not respond or respond only superficially to these treatment modalities, however, depression can be severely debilitating, affecting activities of daily living, social functioning and functioning in the workplace.

Disability carriers are increasingly being faced with claimants seeking disability benefits on the basis of mental illness. These types of claims pose their own unique challenges. The potentially subjective nature of the symptoms associated with mental illnesses such as depression can lead to disputes as to functional limitations and these types of disabilities are often approached with skepticism by insurers.

Disability insurance policies usually categorize disability into two subsets. "Own occupation" classifications, where the test applied is whether the insured is unable to perform his or her own occupation (the occupation in which he or she was engaged in at the time of commencement of disability) and "any occupation" classifications, where the scope is broadened and the insured must satisfy the insurer that he or she is disabled from performing any occupation.

Generally the "own occupation" test is time limited, often restricted to a two-year period. The "any occupation" test does not encompass any possible occupation but rather, has commonly been interpreted to mean an occupation for which an insured would be "reasonably suited" by means of his or her "training, education and experience".

The application of the "any occupation" test is subjective in that it is tailored to the individual's idiosyncratic "training, education and experience". As such, the determination, although a legal one, is largely based on the specific factual matrix including, the insured's education or lack thereof, age, work experience and medical condition . The interpretation of "total disability" by our courts has further circumscribed the "own occupation" and "any occupation" tests.

In Sucharov v. Paul Revere Life Insurance Co. the court rejected the interpretation that being able to perform each employment task individually, amounted to a determination that the insured was not completely unable to engage in his regular occupation. Instead, the court adopted a more holistic interpretation and looked at whether the insured was unable to perform "substantially all" of his employment duties.

In Foden v. Co-Operative Insurance Association Reid J. held that a person who was unable to perform a "substantial portion" of his or her employment, or an essential or material aspect of it, or, in general was unable to perform tasks to the standard of a reasonable employer, was totally disabled.

In considering whether an insured is totally disabled from "any occupation", our courts have held that the test is not, whether there is a job within the insured's capability but whether there is a full time job for which the insured is reasonably fitted by what he or she has done before. Thus, issues such as reasonably comparable remuneration and status and, whether the proposed alternative employment is of a similar nature to the insured's previous employment, are taken into consideration.

A determination by the insurer that an insured is "totally disabled" from his or her "own occupation" or from "any occupation" and therefore entitled to benefits, does not mean that an insured is automatically entitled to continue receiving benefits indefinitely. There is an obligation on the insured to make reasonable efforts to rehabilitate. A failure to do so could result in a termination of benefits by the insurer and may result in a reduction in the benefits awarded by a court based on mitigation of damages principles.

The law on mitigation of damages is set out in the Supreme Court of Canada decision of Janiak v. Ippolito as follows:

"Every plaintiff has a duty to minimize losses from personal injury by surgery or other medical treatment. The general rule of mitigation of damage applicable to both breach of contract and tort is that the aggrieved party must take all reasonable steps to mitigate the loss and cannot claim for avoidable loss"¦Failure to mitigate, however, does not mean that the total claim of the plaintiff is barred or has disappeared. It is merely reduced in the case of contract and tortious damage to property, to the loss the plaintiff would have suffered if he had acted reasonably. There is no reason in principle why the same rule should not apply in personal injury cases." (My emphasis)

With respect to the burden of proof, Madam Justice Wilson states in Janiak v. Ippolito 7 that:

"While a plaintiff has the burden of proving both the fact that he has suffered damage and the quantum of that damage, the burden of proof moves to the defendant if he alleges that the plaintiff could have and should have mitigated his loss".

Although mitigation of damages is an accepted principle in our law, many disability insurance policies now specifically incorporate rehabilitation clauses. These clauses may require the insured to undergo therapy, treatment, rehabilitation programs or retraining aimed at reintegrating the insured into the workforce.

In considering whether a plaintiff has failed to mitigate damages, our courts generally consider the steps that the plaintiff would have been required to take to prevent or minimize the loss, the reasonableness of those measures and the extent to which pursuing those measures would have minimized or prevented the loss.

Thus a defendant alleging that a plaintiff has failed to mitigate his or her damages has the burden of proving these elements.

Long Term Disability Claims and Lump Sum Awards

I have been asked to discuss the topic of Coombe v. Constitution - Dead or Alive? There are a number of perspectives to this series of cases from which to consider that question.

For the uninitiated, Mr. Coombs and Constitution have been litigating entitlement to weekly income benefits arising from a motorcycle accident in June, 1974, since 1976. The amount in dispute is a weekly benefit in the amount of $70. I won't continue with the history of the litigation but will instead move on to the substantive question behind whether this case is "dead or alive".

Does a declaration of entitlement to weekly or periodic benefit payments bring the matter to a close? Coombs has answered this with a resounding no.

In litigation arising out of Long Term Disability contracts ("LTD") or Statutory Accident Benefits disputes in automobile accidents, courts have declined to order or award a lump sum amount in lieu of the declaration of ongoing entitlement (with a discount for present value calculations of future entitlements, reduced by relevant contingencies, such as prospects for future employment, life expectancy, and other factors). The courts have just not seen fit to cross the line into the murky area of substituting their judgment, for the ongoing scrutiny of insurance companies. The basis for denying the lump sum award appears to be the constraints of the LTD contract, or legislation providing for disability and other benefits. Payments are only due for so long as the claimant can establish varying degrees of disability, although most of the litigation focuses on permanent, total or partial disability.

Recent case law indicates that Coombs is very still very much alive.1 The cases noted here all have upheld the concept that only declaratory relief is available with respect to future disability benefit payments. In Richardson v. Great-West Life,2 Justice Holmes stated the following at paragraph 29:

Counsel for the plaintiff argued that the plaintiff should be entitled to terminate the L.T. contract of insurance and receive as damages the present day value of the plaintiff's future benefits to age 65. I agree with representations made on behalf of the defendant, however, that where as here there is some uncertainty as to the permanence of the plaintiff's disabilities and the policy allows the insurer to require the plaintiff to submit to ongoing physical examinations as well as for offsets with regard to receipt of other benefits, a lump sum award for future benefits would not be appropriate. Nevertheless, the plaintiff is entitled to a declaration directing the defendant to pay the plaintiff continuing monthly benefits after April 15, 1996, until such time as she reaches the age of 65 years or dies or is no longer totally disabled within the provisions of the L.T. policy.

While damages in lieu of a declaration may not always be preferable, the possibility of such an award would certainly add a strong weapon to the plaintiff's arsenal. On the basis of the Richardson case, the court has opened a very small window of opportunity in cases where there is certainty as to the permanence of the plaintiff's disability. Tendering evidence with this type of standard may prove to be fruitless in the realm of establishing entitlement to a lump sum award, but it seems to be all that we've got, or is it?

Some of these same recent cases may assist in putting forth more forceful arguments for a lump sum award in the future. Where the plaintiff has had their benefits terminated and has suffered significant mental stress, financial uncertainty and general hopelessness, an argument can be advanced that what is needed is an end to the relationship between plaintiff and defendant insurer.

In the Coombes decision rendered in 1993, 3 the problem of the potential for litigation in perpetuity, was acknowledged at paragraph 1:

"Coombe and Constitution have been battling in court over the payments since 1976 and it appears to me that only the demise of Coombe will bring litigation between these two protagonists to an end.">

Disability insurers, including accident benefit automobile insurers, have the right to require ongoing proof of disability and to periodically scrutinize claimants with respect to claims of permanent and total disability; however, recent cases have shown that a relationship of utmost good faith is frequently anything but.

The Clarfield4 case, which resulted in an unprecedented finding for the plaintiff of aggravated and punitive damages, still did not result in a lump sum award for future benefits. The type of conduct under discussion in that case clearly points to the need for an end to the relationship between claimant and insurer, yet even in those circumstances the Court did not see fit to cross over the line into uncharted territory.

In order to compel our Courts to award a lump sum in these cases, one of two things will have to happen. Either disability contracts or legislation will be amended to contemplate such an outcome in applicable circumstances, or, we need to return to first principles to try and apply existing case law to permit the Courts to make such an award where they are inclined to do so but feel constrained by precedents that do not appear to allow this.

Perhaps we should look into other areas of the law for assistance. For instance, in a rather old case, Zdan v. Hruden 5 the Court upheld a lump sum award in lieu of contract for payment of support. The obvious distinction from disability claims is that in Zdan the contract was for lifetime payments without any obligation to establish ongoing entitlement by virtue of financial need or disability, however, the brief reasons for judgment do raise the spectre of the possibility of a lump sum award:

"When the defendant, for example, absolutely refuses to perform such a contract after the time for entering upon the performance has begun, it would be a great hardship to compel the plaintiff to be ready at all times during his life to be supported by the defendant, if the defendant should at any time change his mind; and to hold that he must resort to successive actions from time to time to obtain his damages piecemeal's

The reference to this case was derived from another case, which upholds the notion that a lump sum award in disability claims is not permissible (see Cram v. Great-West Life ). There the Court's answer to concerns about leaving the plaintiff to the whim of the insurer is that other remedies exist, such as aggravated and punitive damages, which would act as a deterrent to terminating benefits in the future without "the strongest evidence of cessation of disability". We are left wondering as to what Justice Williamson would have said had the history of Coombe v. Constitution been provided during the course of the Cram action.

Despite efforts to find more compelling case law to support the argument in favour of a lump-sum award in these cases, there does not appear to be anything else to unearth, save and except for authorities in other jurisdictions. Clarfield points to a willingness by our courts to broaden the scope of aggravated and punitive damages. Accordingly, particularly in cases where insurer conduct is so severely impugned, it seems that lump sum awards cannot be far away. However, for the present time, Coombe v. Constitution is very much alive.

Source:http://www.sharedisabilitylaw.com/articles/long-term-disability