Pandemic Perspectives: Personal Injury Law in the Age of COVID
The COVID-19 pandemic has affected every aspect of our daily lives. It has fundamentally changed our ability to work, shop, travel and interact with friends and family. As a result, the pandemic – and the efforts to contain the COVID-19 virus – have had a major impact on the global economy and numerous industries, such as hospitality, air travel, health care and education. The legal industry was no exception.
From the start, the COVID-19 pandemic vastly changed the landscape of our justice system. When the pandemic hit back in March, numerous precautions were implemented to protect the safety of the public – most notably, the unprecedented closure of our courthouses. In-person court operations were suspended indefinitely as of March 17, 2020. As a result, all scheduled trials, pre-trials, and motions were effectively cancelled – thus creating a significant barrier to access to justice for thousands of litigants across the province.
While the pandemic has affected all facets of legal disputes, including criminal, family and civil, I will focus exclusively on the impact of the pandemic on our personal injury clients. Specifically, I will address how the pandemic has affected how personal injury claims are moved through the justice system and how our clients’ remain able to access necessary benefits.
Personal Injury Claims in the Courts
The initial closure of the courthouses in Ontario had a detrimental impact on personal injury litigation.
The civil justice system is adversarial by its very nature. When someone suffers an injury due to the negligence of another, a claim is issued. That claim is then defended. And so begins the adversarial litigation process.
Every step taken thereafter is toward one goal: moving the matter forward to trial. The trial date becomes the finish line of the personal injury action. Litigants must either settle by that date or present their case to a judge or jury.
This ever-looming prospect of trial is instrumental in negotiating a settlement. Trials are lengthy and expensive. If a satisfactory settlement can be reached, most insurance companies will forego the expense of a lengthy trial. As a result, many cases are settled shortly before a scheduled trial date.
Without a concrete trial date in place, the incentive to engage in any meaningful settlement discussions is reduced. While settlement discussions can continue, the “finish line” has been removed. In other words, settlement can be delayed without any meaningful consequence.
In the light of COVID-19, the lack of available trial dates presented a real problem for personal injury lawyers who wanted to push their clients’ claims forward and negotiate a settlement or, in the alternative, obtain a judgment before a jury or judge.
The courts remained closed for months. In the beginning, no one knew what to expect. Most were hopeful that the temporary closure would be short-lived. Unfortunately, that did not happen. As it became clear that COVID-19 was not going away anytime soon, the courts came to the inevitable realization that policies and procedures must adapt to the changing circumstances.
The biggest adaptation that occurred was embracing technological alternatives. Prior to COVID-19, mostly all trials, pre-trials and motions were done in person. Court filings were almost always filed in paper form. As a result of the pandemic, courts began hearing motions in writing or by videoconference. Pre-trials were also scheduled to be conducted over the phone or by videoconference. As Ontario gradually moved toward reopening, courts also began to open their doors. As of July 6, 2020, the Ontario Superior Court of Justice resumed in-court hearings in certain locations.
While this is certainly preferable to a complete closure, it still remains difficult to secure a trial date. Trials that are urgent or were scheduled to be heard during the courthouse closures will be given priority. Criminal and urgent family matters will also be given priority over civil actions, such as personal injury cases. Additionally, incourt proceedings must comply with physical distancing measures, such as limiting the number of people in the courtroom, wearing masks, and undergoing extra screening requirements.
Therefore, although courthouses are beginning to reopen for trials, there will continue to be inevitable delays in the system. Delays, however, can be minimized. In order to minimize delays as much as possible, it is important to ensure cases are moved through the justice system virtually and efficiently.
At Oatley Vigmond, we are well-prepared for this move into virtual litigation. Our firm has been paperless for more than 15 years. We are fully equipped to file materials electronically. Throughout this pandemic, we have continued to commence claims. We have argued motions on behalf of our clients, either in writing or by videoconference. We have continued to attend pre-trials via teleconference. We are also prepared to present our clients’ claims at trial, whether it be done virtually or in-person with social distancing measuring in place. Prior to the COVID-19 pandemic, we were one of the few personal injury firms able to run a completely paperless trial with the use of iPads. We have stayed at the forefront of technological advancement, which makes us uniquely suited to advance our clients’ claims.
In pushing our clients’ matters forward during this pandemic, it has also been important to keep the lines of communication open with opposing counsel and insurance companies. Litigating in these uncertain times requires the utmost cooperation by all involved. This includes cooperation from defence counsel and insurance adjusters. Throughout the years, we have established a strong reputation within the industry and have maintained collegial relationships with both defence counsel and adjusters. It is the strength of these relationships that have fostered cooperation and will continue to move our clients’ matters forward during this pandemic.
Although the COVID-19 pandemic has resulted in significant changes in how personal injury claims are litigated in the courts, it has actually resulted in very little change in how we manage our clients’ claims. We were already set up to operate remotely and we continue to benefit from our long-standing relationships within the industry. As a result, we have been able to push our clients’ matters forward with as little interruption as possible.
Access to Benefits
During this pandemic, our lawyers and accident benefits specialists have also been working hard to ensure our clients retain access to necessary medical and financial benefits. For most of our clients, this comes in the form of statutory accident benefits.
It has been especially crucial to ensure that our clients’ weekly indemnification benefits, such as income replacement and non-earner benefits, continue non-interrupted. We have had to think creatively and anticipate any problems that may arise. For instance, for many clients, we have arranged for these benefits to be paid via direct deposit, rather than by cheques in the mail. We have also arranged for advance payments of these benefits, in order to ensure our clients have their benefits ahead of time in the case of insurance company office closures.
In addition to financial benefits, we have ensured that our clients continue to receive necessary rehabilitation and treatment. When the pandemic hit, many rehabilitation and medical appointments were cancelled. In collaboration with insurance adjusters and rehabilitation treatment providers, we have successfully arranged alternative ways to continue with necessary treatment, such as phone calls, virtual appointments, and in some cases, in-person appointments with appropriate safety measures in place.
While virtual appointments were better than nothing, many of our clients experienced a decline in their health as a result of the lack of physical, in-person care. As things began opening up, our clients’ conditions deteriorated and many were in need of increased treatment. In order to secure higher levels of treatment than were required pre-COVID-19, it was essential that we remained in direct communication with the insurance adjusters. We advocated on behalf of our clients – educating the insurance adjusters on our clients’ unique needs. We also ensured the necessary documentation and information was provided, in order to ensure approval.
This has often required full cooperation with our clients’ treatment providers. We listened to treatment providers, who advised us of the unique challenges they were facing during the pandemic. For instance, as things began to open up and treatment providers attempted to return to treating their clients/patients in-person, many insurance companies pushed for the continuation of virtual treatment and refused to approve travel fees. Again, in collaboration with these treatment providers, we have often been successful in re-educating adjusters on each client’s unique needs and getting necessary fees approved.
Our ongoing relationships with accident benefits adjusters and treatment providers has been essential to ensuring our clients’ needs continue to be met during this pandemic.
Conclusion
Like most aspects of life, the COVID-19 pandemic has drastically changed the way personal injury claims are handled. Every case is different and depends on its unique facts. But one thing is clear: the pandemic has forced us to become creative in advancing our clients’ claims forward and securing them a just and timely resolution.
[This article originally appeared in Oatley Vigmond’s Fall 2020 newsletter, The Law and You for Healthcare Professionals. Please e-mail events@oatleyvigmond.com to opt-in to receive it.]
About the Authors
Liane is committed to representing individuals who have suffered serious personal injuries and to families who have suffered the losses of loved ones. Liane holds a Juris Doctor from the University of Windsor, where she received the Torkin Manes Cohen and Arbus award for combined academic achievement and service to the community, and the Charles J. Clark scholarship for academic excellence and involvement in community and volunteer activities. She was called to the bar in 2013.