Accident Benefits Lawyer
Accident Benefits Lawyer
An accident benefits claim provides a path for treatment and medical assistance, attendant care assistance, income replacement assistance, caregiver assistance, housekeeping assistance, and other forms of assistance that may be needed by the injured person.
Who is Eligible for the Benefits?
In Ontario, the Statutory Accident Benefits Schedule (“SABS”) sets out the benefits an injured person can obtain for a motor vehicle accident under the no-fault insurance coverage system.
You are eligible to receive the benefits provided under the SABS whether you were at fault or not at fault for the accident.
Medical and Rehabilitation Benefits
Medical and Rehabilitation Benefits are dealt with in Part 3 of the SABS.
Accident victims who have been seriously injured usually don’t receive adequate health care funding from OHIP.
A serious injury can potentially bankrupt an accident victim.
Insurance medical care incorporates dental procedures, surgical procedures, mental therapy, physiotherapy, chiropractic sessions, nursing services, and hospital services to name a few. Also, medical care includes prescription medications and aiding devices like hearing aids, wheelchairs, prosthesis, in-home elevators, ramps, stair-lifts, grab bars, and hospital beds. Rehabilitation assistance comprises of social recovery therapy, job-related tests, residence and job-site changes in addition to other coverage.
There are three categories that outline the amount of funding that is available to accident victim:
- Minor Injury Guideline
Minor Injury Guideline
As a client, if the insurance company has placed you into the Minor Injury Guideline (“MIG”), your medical treatment coverage is limited to $3,500 under section 18(1) of the SABS.
Minor injuries are defined as whiplash-related injuries, muscular strains/sprains, contusions, and lacerations.
Unfortunately, this figure is usually not an adequate amount to assist you with the usual medical treatments needed by a person who has suffered injuries after a motor vehicle accident.
Gupta Law Firm fights wholeheartedly to make sure we always remove our clients from the MIG. As a client, if you don’t fit into the MIG, yet your injuries have not been defined as “catastrophic”, the combined Medical, Rehabilitation, and Attendant Care Benefits coverage is up to $65,000 under section 18(3)(a) of the SABS. This $65,000.00 of funding lasts up to five years.
At any time, if your injuries are deemed by your insurance company to be a catastrophic impairment, then your Medical and Rehabilitation benefits are covered up to $1,000,000 under section 18(3)(b) of the SABS.
If you categorized under the catastrophic impairment category, then your medical rehabilitation and attendant care limits are funded up to $1,000,000.00 for lifetime.
If you are considered catastrophic, then housekeeping benefit is also made available at $100.00 a week.
A catastrophic impairment is defined under section 3.1(1) of the SABS as impairment that resulted in paraplegia or tetraplegia, severe impairment of mobility or use of arm/leg or amputation, loss of vision in both eyes, traumatic brain injury that meets the criteria if the victim is over 18, 55% or more physical impairment of the whole person, 55% or more mental or behavioural impairment of the whole person, a class 4 impairment in 3 or more categories due to mental/behavioural disorder, or a class 5 impairment in one or more categories due to mental/behavioural disorder. Since June 1, 2016, catastrophic impairment has been changed to 8 categories of impairments.
The insurance company requires an OCF-19 (Application for Determination of Catastrophic Impairment) to be considered Catastrophic. A physician must complete this form.
Attendant Care Benefits
As a victim of a motor vehicle accident, you could receive attendant care benefits should you need to hire an aide to help with your day to day support.
If you have traumatic injuries that have diminished your mobility and affected your daily personal care like bathing, dressing, grooming, making/eating meals, and/or using the washroom, then you could be eligible to receive attendant care benefits.
Attendant care benefits also include payment for a long-term care home or facility, which is not covered by OHIP.
Section 19 of the SABS covers attendant care benefits. Under section 19(1)(a) of the SABS attendant care benefits will pay for reasonable and necessary expenses that are incurred on behalf of the insured as a result of the accident for hiring an attendant or aide or for staying at a long-term care home. In order to ensure that you will get attendant care benefits, you should keep a copy of all your medical visits and records related to your accident. Section 3(7)(e) of the SABS covers the definition of “incurred expenses”. Under Section 3(7)(e), an expense is incurred by the insured person if the received the goods or services, payed/ promised to pay/ is legally obligated to pay for the goods or services, and the person who provided the goods and services normally would provide them or suffered an economic loss for providing them.
Attendant care benefits can also be received by attendants who do not normally provide professional attendant services. Case law has provided that family members who are not normally professional attendants can receive attendant care benefits under the SABS. However, in order to qualify the family member must have suffered an economic loss, such as loss of employment, as a result of attending to the injured person. For students who have dropped out of school to attend to the injured person, it is possible that they may be eligible to receive attendant care benefits if they can establish some form of economic loss, like loss of tuition. A stay at home parent, however, would not be eligible to receive attendant care benefits. The cap for how much a non-professional attendant can receive is covered under section 19(3)(4) of the SABS. Under section 19(3)(4), the non-professional attendant can only receive the amount of the economic loss they suffered while providing attendant services.
Attendant care benefits can also be received by attendants who provide attendant care services electronically. In Shawnoo v. Certas Direct Insurance Co., the Superior Court found that attendant care services can be provided electronically through email, phone calls, text messages, and video conferences.
Under section 19(1)(b) of the SABS, transportation expenses covered by attendant care benefits are only for authorized transportation that is not transportation to rehabilitation, to a medical treatment, or to a medical examination.
Victims of motor vehicle accidents who have been categorized as being “catastrophically impaired” could be entitled to about $6,0000.00 per month under section 19(3)(1) of the SABS. A victim who was categorized as being “non-catastrophically impaired” could be entitled to about $3,000.00 per month under section 19(3)(1) of the SABS. These payments are paid monthly within 30 days of the injured person filing an attendant care invoice. The applicable amount is paid in full if the injured person hires a professional attendant. If the injured person has a non-professional attendant, the amount paid is limited under section 19(3)(4) of the SABS.
The duration of attendant care benefits is dependent on several factors including the age of the injured person and the category of their impairment. If the injured person was 18 years old or older at the time of the accident and their injuries are non-catastrophic, then they are eligible to receive benefits up to 5 years after the accident. If the injured person was under 18 years old at the time of the accident and their injuries are non-catastrophic, then they are eligible to receive benefits until their 18th birthday. If the injured person’s injuries are catastrophic, they are eligible to receive benefits until death.
Section 42 of the SABS covers the procedure that needs to be followed to apply for attendant care benefits. In your application, as soon as possible, you need to get a registered nurse or an occupational therapist to complete Form 1: Assessment of Attendant Care Needs. Under section 42(5) of the SABS, the insurance company may begin paying attendant care benefits before Form 1 is filed but must pay after Form 1 is filed. Form 1 needs to be submitted online to the insurance company through Health Claims for Auto Insurance (HCAI) system. The insurance company needs to respond to Form 1 within 10 business days after receiving it. The response by the insurance company will include the expenses they agree to pay, the expenses they refuse to pay, and their reasons. The insurance company must communicate their approval or rejection of the benefits. When the insurance company first pays the attendant care benefit, they should provide you with a benefit statement detailing the amount you will receive and have already received. If you need more care, you are always allowed to file a new Form 1 with the insurance company to be re-assessed.
Insurer examinations are covered in section 44 of the SABS and are requested by the insurance company to assess the extent of an injured person’s injuries. Under section 44(1), an insurance company can require you to attend examinations by one or more examiners who are either regulated health professionals or someone with expertise in vocational rehabilitation. The examiner is chosen by the insurance company and is therefore paid by the insurance company. In the case your insurance company has required you to attend an insurer examination, you must attend. Under section 44(6), the insurance company must give you notice of your insurer examination at least 5 business days before the date of your examination.
If you don’t attend an insurer examination, your insurance company can deny you benefits, like attendant care benefits. If you attend a re-scheduled insurer examination, your insurance company must reconsider the application, resume payments of benefits like attendant care benefits, and pay any benefits that were withheld if you provide a reason for missing the initial examination within 10 days of the date of examination. Your insurance company may also require you to get re-examined from time to time. It’s important to note that the main issue with insurer examinations is that the examiners are meant to give an independent opinion, but their opinions are often questionable.
Investigations can be conducted in an array of ways. For example, requests for an “examination under oath, or statutory declaration, ask for many medical documents to have a better idea of what you are going through”. Insurance firms are known to do research. For example, video surveillance, speaking with people in your neighborhood, your previous workplaces, the searches you do online and on social media.
Income Replacement Benefits
The Statutory Accident Benefits Schedule provides that an injured person has a right to Income Replacement Benefits, which is calculated at 70% of gross income derived from his/her job, up to at least $400/week. For this coverage, there needs to be a high degree of immobility which makes you unable substantially to do what your job requires you to do.
Subsequently, as a client, you should note that if you were not working when your vehicle collision occurred, but were employed for about 26 of the 52 weeks before the collision, or had been getting coverage from the Employment Insurance Act when the collision occurred, you could still be eligible to receive Income Replacement Benefits.
If you were self-employed or working when the motor vehicle accident occurred, acquiring income replacement benefits means you will need to present the insurance company with extra monetary records. You will have to prove that your business is suffering a loss as a result of the accident. Under section 7(4) of the SABS, the insurer needs to pay for the preparation of an accounting report to calculate your income. The insurer is not required to pay more than $2500 for the accounting report under section 7(5) of the SABS.
If you do not qualify for income replacement benefits, and your injuries are preventing you from carrying on with your normal life, then you could be eligible to receive non-earner benefits. Non-earner benefits can be up to $185 per week. Section 3(7) of the SABS explains the criteria of not being able to carry on with your normal life as not being able to engage in all the activities that you normally would engage in. The established test for non-earner benefits is to compare all the victim’s activities prior to the accident with all the victim’s activities after the accident. The test is mainly to evaluate the degree of pain the victim experiences during or after their normal activities. Examples of victims who could be eligible are full-time students, stay at home parents, retired persons, or otherwise unemployed persons.
If you are categorized as catastrophically impaired and you are no longer able to care for a child/dependant, then you may be eligible for caregiver benefits. The criteria set out in section 13(1)(a)-(b) of the SABS for caregiver benefits is that you must have been living with the dependant person(s) at the time of the accident and you must have been the primary caregiver without reimbursement for the dependent person(s) at the time of the accident. The purpose of this benefit is for the victim to be able to reimburse someone else to take care of the dependent person(s). Caregiver benefits can be up to $250 per week for the first person in need of car and $50 per week for each additional person in need of care.
Lost Educations Costs
Under section 21(1) of the SABS, if you were a student when you were injured, you are entitled to receive up $15,000 for any education costs that may have resulted from the accident. In order to be eligible, you need to have been enrolled in elementary school, secondary school, post-secondary education, or continuing education at the time of the accident. You also need to have been unable to continue your education as a result of the accident.
Under section 22(1) of the SABS, as an injured person you are also entitled to be paid for the costs of having family members, friends or other visitors come to live with you as a result of your accident. If your injury is classified as non-catastrophic, then you are only entitled to visitor costs up to 104 weeks after your accident. If your injury is categorized as a catastrophic impairment, then the 104-week time limit does not apply under section 22(2) of the SABS.
Housekeeping/Home Maintenance Costs
Under section 23 of the SABS, housekeeping and home maintenance cost are only available for injured persons who have been categorized as catastrophically impaired. If you have been categorized as catastrophically impaired, you are eligible to receive up to $100/week for housekeeping and home maintenance services.
Travel costs are limited to what the SABS has defined under section 3(1) as an “authorized transportation expense”. Travel costs only apply to transportation expenses of the injured person and their aide or attendant. The Transportation Expense Guideline covers the deferent “authorized transportation expenses”. Some of the “authorized transportation expenses” under the Guideline include transportation to and from medical treatments, counselling sessions, training sessions, assessments, and examinations. These costs are included in the different benefits under the SABS like medical and rehabilitation benefits. It’s important to note that travel costs do not cover the first 50km of travel, unless you were categorized as catastrophically impaired. The rate subject to the 50km deductible is $0.40 per kilometer travelled.
Under section 36(2) of the SABS, an applicant for a specified benefit needs to submit a completed disability certificate with their application. Section 36(1) defines specified benefit as income replacement benefit, non-earner benefit, caregiver benefit, or payment for housekeeping/home maintenance.
Who Pays for the Benefits?
Who pays for your benefits after a motor vehicle accident is determined by the priority order under section 268(2) of Ontario’s Insurance Act.
Priority for an Occupant of the Vehicle
Under section 268(2)(1) of the Insurance Act, the first priority party liable to pay for the occupant of the motor vehicle in an accident is the occupant’s own insurance company. If the occupant is not an insured of the motor vehicle, then the second priority party laible to pay would be the insurance company of the person insured for that vehicle. If both the first and second priority party options are unavailable, then the third priority party liable to pay for the occupant is the insurance company of any other vehicle involved in the accident. If the first, second, and third priority options are unavailable, then the occupant can apply for the Motor Vehicle Accident Claims Fund.
Priority for a Non-occupant of the Vehicle
If you were a cyclist or a pedestrian who was injured by a motor vehicle, then you are considered a non-occupant and this section applies to you. Under section 268(2)(2) of the Insurance Act, the first priority party liable to pay for the non-occupant is the non-occupant’s own auto insurance company, if they have one. If the non-occupant does not have automobile insurance, then the second party liable to pay would be the insurance company of the vehicle that injured the non-occupant. If both the first and second priority party options are unavailable, then the third priority party liable to pay for the non-occupant is the insurance company of any other vehicle involved in the accident. If the first, second, and third priority options are unavailable, then the non-occupant can apply for the Motor Vehicle Accident Claims Fund.
Who has the Responsibility to Handle the Claim?
Once the claim is sent, responsibility is on whoever receives the claim first for handling the claim. If the claim goes to the Fund first, then they must assess all the relevant facts of the situation to determine either which insurance company to send it to or if they themselves will handle it.
What is the Motor Vehicle Accident Claims Fund?
The Motor Vehicle Accident Claims Fund (“the Fund”) was created by the government of Ontario as a last resort for injured individuals in a motor vehicle accident. The injured individuals can apply to the Fund if there is no insurance coverage. An example of a situation where there is no insurance coverage is a hit and run where the pedestrian does not have their own insurance. The Fund covers the benefits under the SABS. It also covers any tort claims for personal injury and property damage resulting from the accident. The maximum compensation limit of the Fund for damages is up to $200,000. In order to be eligible for the Fund, you need to be a resident of Ontario and the accident needs to have occurred in Ontario.
What Gupta Law Firm Can do For You?
We can assist you with mediation or arbitration and with any refusals by the insurance company. Call us at Gupta Law Firm at 416-999-6665. We fight for your rights and your justice is our priority.