Choosing a Lawyer
Allow me to start out this section by stating I am not dispensing legal advice as I am not a lawyer. I have included this area of discussion because it does come up.
In British Columbia we have a bit of a strange situation. The Insurance Corporation of British Columbia (ICBC) is the provincially legislated sole provider of ‘basic’ automotive insurance. In other words there’s no competition. Therefore, it is more the norm than the exception, if you are the plaintiff, in that you have to sue your own insurance provider (ICBC).
This is one area you will definitely want to put some thought into. Once you decide on a specific lawyer, to represent you, it might be difficult to change to another at a later point in time.
Probably the first question to ask is at what point should you consider making an appointment to sit down with a lawyer to discuss your case. That can be when you are feeling harassed or intimidated by your insurance provider, or they are refusing to cover the health-care bills they are required to by provincial legislation. In B.C. ICBC is required, under section 88(1) of the Insurance (Motor Vehicle) Act to fund certain expenses. To quote the legislation “... pay as benefits all reasonable expenses incurred by the insured as a result of the injury for necessary medical, surgical, dental, hospital, ambulance or professional nursing services, or for necessary physical therapy, chiropractic treatment, occupational therapy or speech therapy or for prosthesis or orthosis.”
Section 84(1) directly addresses those who have suffered injury(s) resulting from a motor vehicle collision (MVC) and were not employed at the time of the collision. In this section of the Act it states “(homemakers): ... within 20 days after an accident... an injury is sustained...substantially and continuously disables an insured who is a homemaker from regularly performing most of the insured’s household tasks, the corporation shall compensate the insured for the period of the disability or 104 consecutive weeks... for reasonable expenses incurred by the insured to hire a person to perform the household tasks on the insured’s behalf.” Note (2) “No compensation is payable under this section in respect of household tasks performed by a member of the insured’s family.”
Prior to seeking counsel you can pursue a ‘partial recovery’. Said approach consists of you organizing all of your expenses and getting a letter, from your care provider(s) which typically carries a fee, describing their necessity and what they were for -> send it to your adjustor.
The following are some points to consider:
- Bigger is not always better. Remember someone has to pay for those big 1-2 page Yellow Page ads with all of the firm’s lawyers standing/sitting at the board room table, in front of a wall of books.
- Do they conduct most of their work by fax, email and phone? Make no mistake the insurers know which lawyers are willing to push a case and those who won’t.
- With that last point in mind, how many times has the lawyer actually been to court, in the last year v. 3 years v. 5 years, with a case such as yours?
- How much of their practice is dedicated to personal injury, i.e. 100% v. 50% v. 25%?
- Do they require a minimal amount of vehicle damage to take a case? Know this, it is a scientifically researched FACT, depending on the case specific risk factors, there can be a very high chance of being injured with minimal to no visible vehicle damage.
- Here’s one of my favourites! It still amazes me how much of this still goes on. Will the lawyer only request a report from your medical practitioner, even if you consulted them a couple to few times for the MVC injury(s) in question, “Because ICBC only accepts medical doctors reports.” Think about it, the insurance provider, which has a vested interest in minimizing your injuries and paying you as little as possible, tells your lawyer how they plan to do exactly that and your own lawyer complies! Insurance providers know medical physicians are vested with the highest degree of ‘cultural authority’ in the field of health care. They also know medical doctors have between slim and marginal formal training in these types of injuries. For the most part, medical physicians are primarily schooled in diseases (called pathology), i.e. virus and bacteria and treatment, short of surgery. Whereas chiropractic physicians are primarily schooled in injuries to the skeleton (called neuromusculoskeletal) short of a fracture. It’s fair to say chiropractors receive about as much formal instruction in pathology as medical doctors receive in skeleton injuries, that are less than a fracture. In other words no doctor can be all things to all patients. Go to the Caregivers section of the website to understand this area more.
Not to belabour the point, but by visiting your medical physician, your medical file is now open to scrutiny for the defence to find something other than the actual MVC to blame your pain on. It never ceases to amaze me how often a patient is receiving good to excellent care and the client’s own lawyer sends the person to consult their medical doctor for no other reason than to get the ‘cultural figurehead’ involved, thereby making it much easier for the defence to have access to the person’s medical history that predates the collision. A perfect example is depression which is the second most common reason the general public visits their family medical doctor. Said conditions are commonly trotted out as the reason for blaming a person’s whiplash related pain on, especially considering the majority of medical tests performed on whiplash patients are negative. Don’t believe me, just ask anyone who has gone through the Discovery process.
Another question that gets asked is what factors should be considered when contemplating settlement. Again, I am not dispensing legal advice, just trying to assist in answering this very common question. A sample of points to consider include:
- Were all of your past expenses addressed?
- Lost wages?
- Future expenses, i.e. health care, etc.
There’s a common scenario when you don’t have a lawyer, you are representing yourself, and the insurance adjustor is making an offer to settle. Don’t be surprised when they happen to have 3-4 case files, similar to yours, sitting on their desk. They mention how similar the cases are to yours and what they settled for. Remember the case specific risk factors (see the respective section of the web site) carry far greater weight than whether or not damage is present to the back bumper of one’s car. Simply ask the adjustor if they factored in the intrinsic/extrinsic risk factors specific to your case then ask them if said cases are still similar to yours.
With that last point in mind here’s something to think about. In researching this portion of the web site I found one case that occurred in the B.C. Supreme Court. A former adjustor, under oath, admitted that ICBC would automatically pay 30% more in a settlement offer in which the client had legal counsel. To quote directly from the case “He testified that ICBC’s practice with unrepresented claimants is to deduct 30 per cent from a comparable award on the basis that that is what they would have to pay their counsel.”
There is one final point worth mentioning. Should you have a situation where an insurance adjustor is unilaterally refusing to fund the legislatively mandated costs you incurred, as mentioned above, I have heard of the following approach. Write a letter directly to the adjustor. In it, make it clear that they are unilaterally directly interfering with your care and recovery and you want said letter to become a permanent part of your file. Copy the letter and send it to their direct supervisor and respectfully ask them to look into it and mention you anticipate hearing back from them.
In closing this section, if someone verbally says something that should be on paper, i.e. “You couldn’t have been hurt when there is no/minimal damage to your car”, “Low back pain is impossible in a low speed rear-impact collision”, “Medical doctors are the one’s trained in these types of injuries”, etc, then ask for it! You would be absolutely amazed how many verbal comments never find their way to paper when you suddenly say you would like it in writing and on their stationary.
This, along with all the other areas of the web site, are discussed in our office’s whiplash classes. Book through the web sites Appointment window if you would like to be put on the list for the next one.