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Personal Injury Awards - What You Need to Know

May 22, 2008, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

When deciding whether to settlement a personal injury action, it is important to take into account any other subrogated interests - other third parties that will have to be repaid for monies provided to the injured person while waiting to obtain a personal injury settlement.  Common examples of subrogated interests include social welfare benefits, Ontario Health Insurance Plan (OHIP) and the Ontario Disability Benefits Plan (ODSP).  The basic reasoning is that while you get some assistance from the Ontario government while you are injured, you cannot "double dip" by receiving certain government benefits and then recover damages from the at-fault party.  This particularly applies to income replacement plans and recovering of past income loss from the at-fault party.

Where the injured person recovers general damages (pain and suffering), those amounts are not used to calculate any repayment of previously received benefits.  The same principle applies to future income losses that are recovered in the personal injury lawsuit.  A recent case considered whether any prejudgment interest that was recovered (interest on the general damages claim that accrues from the date that first notice of the claim was provided to the at-fault party to the date of settlement) would have to be included in the amount repaid for any ODSP payments received.

Initially, a Director of the ODSP plan had determined that pre-judgment interest would be included in the repayable calculation.  This decision was affirmed by a Social Benefits Tribunal.  However, the Superior Court (Mule v. Director of the Ontario Disability Support Program) noted that prejudgment interest only arose as a result of the injured person´s entitlement to general damages.  If there was no general damage award then no prejudgment interest would be payable.  The general damages and prejudgment interest were paid for the pain and suffering that arose as a result of injuries suffered in the accident.  Therefore prejudgment interest is exempt from income.

Posted under Personal Injury, Disability Insurance, Pain and Suffering

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About Deutschmann Law

Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us toll-free at 1-866-414-4878.

The opinions expressed here, while intended to provide useful information, should not be interpreted as legal recommendations or advice.

Practice Areas

  1. Car accidents
  2. Motorcycle accidents
  3. Automobile accident benefits
  4. Catastrophic injury
  5. Brain or Head injury
  6. Paraplegia and Quadriplegia
  7. Spinal cord injury
  8. Drunk driving accidents
  9. Concussion syndrome
  10. Post Traumatic Stress Disorder
  11. Business Interruption Insurance
  12. Birth Trauma Injury
  1. Wrongful death
  2. Bicycle accidents
  3. Disability insurance claims
  4. Slip and fall injury
  5. Fractures or broken bone injury
  6. Pedestrian accidents
  7. Chronic pain
  8. Truck accidents
  9. Amputation and disfigurement
  10. Fibromyalgia
  11. Nursing Home Fatality Claims

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