Contingency Fees in Personal Injury Claims

Almost all personal injury claims involving a lawyer in BC are taken on a contingency basis. A "contingency" fee literally means that the lawyer's fee is contingent on the lawyer obtaining monetary compensation for the client. In all cases the fees are based on a percentage of the compensation that is obtained.

First, it is important to understand that all lawyers have only one thing to sell you: their time. They use that time to implement their expertise in resolving your claim. Normally, lawyers charge by the hour and they require up-front retainers to guarantee their fees.  This can be very expensive for most people and would prevent them from pursuing a claim for personal injuries against large insurance companies, such as ICBC.

A contingency fee is really just a different way for lawyers to sell their time. Rather than charging by the hour, the lawyer takes a percentage of the compensation obtained for the client.  Sometimes this can result in a fee which would be more per hour than their regular rate.  Sometimes this can result in the lawyer receiving considerably less per hour than their hourly rate.  This can often depend on how the contingency fee is structured.

Contingency fees amongst law firms vary, with some firms offering flat percentage, while others offer an incremental scale.  There are potential advantages and disadvantages to both systems.

Flat Percentage Fee

If a firm offers a flat percentage fee, they will receive only a fixed percentage of the compensation obtained, no matter how much work they are required to do.  For example, if a firm were to charge a flat percentage of 20% no matter the stage of litigation, the lawyer's effective hourly rate might be reasonable if the matter settles before any court filings are necessary.
However, what if the client should really proceed to trial in order to get a fair result.  In that case, the fixed percentage fee results in the lawyer being required to do a tremendous amount of work, but his/her fee rate remains at 20%.  The effective hourly rate in such a case would be considerably lower.

The question becomes: How likely is the lawyer going to be motivated to take a case to trial when his effective hourly rate decreases the more work he has to do?

Incremental Percentage Fee

Many forms offer an incremental percentage fee, with typical arrangements allowing for small increases in the percentage rate at the following stages of litigation: filing the lawsuit, conducting the examination for discovery, and conducting a trial.

This system recognizes that conducting a trial takes essentially all of the lawyers time during that period, and that there should be compensation in keeping with that commitment.

The question in this case becomes: How likely is the lawyer going to be motivated to take a case to trial when his effective hourly rate reasonable no matter how much work he/she has to do?

Conclusion

Why is this important?  Because there are many times when a case should be taken close to or through a trial in order to obtain fair compensation.  It is therefore important to know that your lawyer will be motivated to take a case to trial if necessary.

While a flat percentage fee may seem attractive, incremental percentage fees can be more effective in a situation where litigation, including a trial is necessary. 

When it comes to concussion recovery, time is important 

A concussion is not generally a life-threatening injury.

However, according to research published in the American Journal of Sports Medicine, age and sex are critical to the treatment of concussions.

The study, conducted by Michigan State University (MSU), reveals that young and female athletes take longer to recover from concussions.

Tracey Covassin, Assistant Professor at MSU, found that high school athletes performed worse than college athletes on memory tests. Similarly, female athletes were out-performed by male athletes.

A concussion does not ordinarily result in permanent damage. However, if a person suffers another concussion before the first one has completely healed, this can have devastating consequences including bleeding inside the skull, brain swelling and even death. This is known as 'second-impact syndrome' (SIS), a form of traumatic braininjury that disproportionately affects females and athletes under 25.

Covassin noted that, "Younger athletes appear more at risk of second-impact syndrome...While it is rare, there is a serious risk of brain damage, and the risk is heightened when athletes are coming back before they heal."

According to Covassin, the key message is to allow more recovery time for female athletes and high school students. The American Academy of Paediatrics recommends that young athletes with concussions obtain clearance from a doctor before returning to the playing field. This, Covassin points out, ensures that any head injury is fully healed.

This research appears no less relevant to those who suffer a traumatic brain injury in a motor vehicle collision.

If you or your loved one has suffered a concussion as a result of a motor vehicle collision or fall in a commercial establishment, contact lawyer René Gantzert, a lawyer experienced in concussion claims, to explore your legal options.

Spinal Injuries Sustained in Auto Accidents are Never Minor

Injuries to the spinal cord can cause permanent damage to an individual. Pain, loss of mobility and sometimes loss of cognitive abilities can result from a spinal cord injury. Spinal cord injuries include whiplash, herniated discs and fractures. In some cases, medical therapies and treatment may be able to reduce the chance of the injury resulting in a permanent condition. However, some spinal cord injuries result in permanent paralysis.

Whiplash

Probably the most common injury sustained in motor vehicle accidents, whiplash is often thought of as a temporary condition that goes away with time. However, soft tissue damage can cause permanent and debilitating conditions.


Whiplash can occur when the muscles in the neck stretch and tear during an auto accident. When muscle tissue tears, it heals by creating scar tissue to mend itself. Unfortunately, this scar tissue does not grow in the exact manner as the original tissue in the neck and can protrude and put pressure on the spinal cord. This pressure can cause instances of migraines, stiffness and loss of mobility in the neck and shoulders.


Vertebrae damage

Traumatic damage to the spine can result in fractures or disc displacement. Any time a bone in the spine is damaged or a disc is herniated or bulging, it puts more pressure on the other vertebrae and discs to maintain the mobility of the spine. This weakens the spine and can cause a so-called domino effect of damage. Severely fractured vertebrae can be mended or replaced through surgery, but the spine will forever be weakened.

A herniated or bulging disc can mean a lifetime of pain and discomfort. When the cushioning disc is not in its proper place, it causes the vertebrae to be tilted and can even cause them to rub against each other as the person moves. There are treatments to temporarily relieve pain, but most disc injuries are lifetime concerns. Severe cases of disc herniation require surgery to relieve the pressure on the vertebrae.


Consult a personal injury attorney after sustaining a spinal cord injury

Spinal injuries can result in medical bills, time spent in the hospital and therapy and, in some cases, loss of employment. This can put a further strain on the patient, which can slow the recovery process. In many cases, the injuries are a result of a car accident, and the victim is entitled to legal recovery. It is important to consult with an experienced personal injury lawyer who has experience helping victims with spinal cord injuries.

Spinal injuries are not minor injuries. Pain can linger for months or could last a lifetime. Legal recovery to help pay medical bills and replace lost income can be an option for spinal injury victims involved in an auto accident. It is important to seek legal counsel after the accident to preserve your rights and help you get the proper diagnosis and treatment.

 

If you would like the opportunity to discuss your ICBC whiplash claim with an experienced personal injury lawyer, please contact René Gantzert at GantzertLaw Office for a free consultation.

Decrease in Discount Rate Means Increased Compensation for Personal Injury Victims

The Chief Justice of British Columbia has announced a decrease in the discount rate under the Law and Equity Act.  The discount rate is used by economists to calculate the current dollar value of future compensation awards.


By decreasing the discount rate, the Court has recognized that the previous rate unfairly penalized victims of personal injuries, including ICBC claims.  Compensation for these victims will now more accurately reflect the current economic climate and rates of return on investments.  The discount rate had not been changed in 33 years.


It is important that personal injury claims take into account the new discount rate when calculating fair compensation, including for ICBC claims.


If you require advise about your personal injury claim, including ICBC claims, and how the change in discount rate affects your claim, please feel free to contact René Gantzert at Gantzert Law Office.

ICBC's refusal to repay Sick Bank benefits for accident victim denied by BC Courts

The Supreme Court of British Columbia released a ruling on January 18, 2013 which denied ICBC's attempts to not repay sick bank benefits to an car accident victim.  The case involved a Vancouver City police officer who was forced to use part of his accumulated sick bank while recovering from injuries.

The officer was succesful in obtaining a judgment against the uninsured driver who caused the accident.  ICBC was responsible for paying the judgment on behalf of the uninsured driver, but asked the court to reduce the judgment by the amount of the sick bank payments received by the officer.

If ICBC had been successful, the officer would not have been able to repay the sick bank, thereby leaving him with fewer sick days should he suffer an illnes in the future.

Mr. Justice Willcock determined that ICBC could not legally refuse the pay the amount of sick days used if these formed part of the judgment against the uninsured driver.

The judgment can be found at: http://www.courts.gov.bc.ca/jdb-txt/SC/13/01/2013BCSC0151.htm

NEW WEBSITE LAUNCHED

We are please to announce the redesign of our website at www.Gantzertlaw.com.  Our new site offers more in-depth information on a variety of topics, including all aspects of ICBC Claims such low velocity impact, personal injuries, whiplash, brain injuries, and spinal cord injuries.

ICBC Ordered to Re-instate Disability Payments

In a judgment released today, ICBC was ordered to reinstate wage loss benefits after a judge of the BC Supreme Court found that ICBC had improperly terminated the benefits.

After a March 2010 accident, the claimant had received one week of disability benefits from ICBC.  At that point, she started receiving EI Disability payments.  When her EI ran out, she re-applied for the ICBC benefits, but ICBC refused to pay them.

ICBC's adjuster based the denial on a report by DR. Malloon, an orthopaedic surgeon regulalrly retained by ICBC.  Dr. Malloon found that she was not totally disabled, eventhough her family doctor and a rheumatologist had both indicated that she was totally diabled from work.

In making the decision to re-instate the benefits, the judge noted that Dr. Malloon's opinion was restricted to his speciality, i.e. musculoskeletal problems, but that he could say nothing of her ligament injuries.

The judge also made a comment that adjusters should not overstate what is in a medical report:

• "I close by noting, once again, the grounds on which ICBC terminated benefits.  The claims representative did fairly describe Dr. Maloon as finding that there was no further disability, and that may very well have been the case within Dr. Maloon's limited field as a specialist in orthopaedic medicine opining only on musculoskeletal as opposed to musculoligamentous injuries.  That was all fair on the part of ICBC.  However, the claims representative, in his denial letter, also stated that Dr. Maloon felt that much of the claimant’s complaints may relate to a pre-existing degenerative condition.  As I have noted, that is not what Dr. Maloon’s report says.  Claims representatives should read their independent medical reports carefully before citing them as grounds for denying coverage."

This demonstrates that ICBC's decision on termination of benefits can be succesfully challenged when based on erroneous facts and if proper medical evidence can be provided to the courts.

The case of Derbyshire v. ICBC can be found at: http://www.courts.gov.bc.ca/jdb-txt/SC/11/01/2011BCSC0170.htm