Delayed claim for injury compensation

The seriousness and long-term nature of personal injuries that occur as the result of a motor vehicle collision, slip and fall or any other kind of accident are often not immediately apparent. Some injuries heal quickly and completely, while others may persist.

In the latter case, the pain and weakness from injuries can undermine physical mobility for the remainder of a person's life. The real challenge is in determining the true nature of one's injuries as soon as possible and insuring that the necessary compensation properly reflects the severity and longevity of the injuries resulting for the accident.

Case example

While walking on a Toronto street in January 2011, Sven Lindhe was hit by a car driven by Woderyelesh Chalte.

Following the collision, Lindhe immediately visited his family doctor and sought physiotherapy treatment for shoulder and back pain. At this time, Lindhe also underwent x-rays of his spine, pelvis and hips, which indicated various trauma to his back but no fractures or abnormalities to his pelvis and hips.

During 2011, Lindhe initially believed that his injuries would improve and heal.

In February 2012, he switched to a less demanding job because Lindhe felt his injuries prevented him from performing his duties. He continued to experience left shoulder and knee pain throughout 2011 and 2012, and in November 2012 was told by his doctor that his injuries may be permanent.

Following the collision, Lindhe had been approached by a paralegal office, who helped him to complete an Activities of Normal Life (OCF-12) Form to apply for accident benefits from State Farm Insurance. The form stated that he was no longer able to complete many daily activities due to ongoing pain, and that prolonged driving, standing and working 12 hour shifts had become difficult since the accident.

In the aftermath of two years of living with pain, Linde finally consulted with a lawyer and issued a claim in Dec 2013. Lindhe declared that his left shoulder and knee injuries are severe and permanent and interfere with work-related and miscellaneous daily activities such as driving, shovelling snow, taking out garbage and his hobby of restoring furniture.

At this point, Lindhe asserted he was not advised in January 2011 of his right to commence civil action for his injuries or of the existence of a limitation period to make a claim. Further, Lindhe alleged he was not aware that he initially consulted with a paralegal firm rather than a law firm.

Woderyelesh Chalte brought forth a motion for summary judgement to dismiss Lindhe's claim on the grounds that it was introduced after the expiry of the limitation period set by the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B.

In court, the discussion for this judgement cited Huang v. Mai wherein it was determined that the test for a summary judgement motion governed by the Insurance Act is not when the plaintiff subjectively believed the injury was serious and permanent, but when they had enough information to form an objective decision that commencing an action would be an appropriate solution.

Specifically, in this case, Lindhe asserted that he did not have a sufficient body of evidence of the severity of his injuries until June 2012.

The court rejected Chalte's motion for summary judgement to dismiss this action, with the view that such cases are complex and should consider the testimony of expert witnesses such as Lindhe's health care providers. Therefore, the discoverability requirement in the legislation that relates to the limitation period must be determined at trial. It is not uncommon for car accident victims to sustain injuries that become permanent disabilities or increasingly worsen over time. Some injuries are not immediately symptomatic.

In addition to broken bones, fractures or internal bleeding, victims may have injuries to soft tissue, tears to ligaments or tendons, or head injuries that may not be painful until months after the accident. The importance of seeking comprehensive medical assessment following an accident cannot be overstated.

The law team at Gluckstein Lawyers have extensive experience in developing successful claims for car accident victims. Our professionals provide guidance for essential short and long term decisions, including but not limited to injury assessment, accident claims and benefits, and medical and rehabilitation benefits.

Our goal is to simplify the claims process for our clients and to seek the most favourable long-term solution based on complete appraisal of physical and psychological injuries.