Our system of no-fault Accident Benefits here in Ontario is one of the most generous systems in Canada. To help you benefit the most from this system, we will assist you with the completion of originating forms, communicating with the Accident Benefit insurer, submitting expenses, and obtaining the appropriate medical rebuttal reports. We will represent you should the insurer take an unreasonable position with respect to payment of a benefit.
The Sorts Of Action You May Pursue
If you were not at fault in a motor vehicle accident, you may have a tort lawsuit and an Accident Benefits claim. At Hillier & Hillier, we will coordinate both kinds of actions to ensure that you receive full compensation.
Such disputes can be dealt with through direct negotiation with the insurer but will often require mediation and/or arbitration at the Financial Services Commission of Ontario (FSCO).
There are three classifications used when applying for Accident Benefits:
- Minor injury: Minor injury classification applies to accident victims who suffer no more than minor injuries. Pre-existing medical conditions or an inability to recover under the minor injury guideline benefit limits may be relied upon to reclassify a claimant, but it is an arduous task. It requires compelling evidence and likely the assistance of an experienced Accident Benefits lawyer.
- Non-catastrophic (Non-CAT): Non-CAT classification applies to some head injuries; all fractured and broken bones; tears to muscles, tendons and ligaments; dislocations; demonstrable and clinically relevant (confirmed by CT scan, MRI, etc.) damage to the spine and/or neck; and any other impairment permanently affecting the ability to function.
- Catastrophic (CAT): CAT classification may apply to claimants who have the appropriate medical professional complete an application for catastrophic impairment. The physician or neuropsychologist who completes the form must be of the opinion that the claimant meets one of the tests for catastrophic impairment. The new schedule provides a CAT classification in instances of:
- Paraplegia or quadriplegia
- Amputation or impairment causing the permanent loss of an arm or a leg
- Loss of vision in both eyes
- Severe brain impairment
- An impairment that results in a 55 percent whole body impairment or a marked-extreme impairment due to mental or behavioural disorder
The Legislature’s definition of catastrophic impairment was intended to foster fairness for victims of motor vehicle collisions. It ensures that accident victims with the most health care needs have access to expanded medical and rehabilitation benefits. As a result, CAT claimants receive vastly enhanced access to benefits.
The Benefits You May Receive
The various classifications of claimant affect your entitlement to benefits. It is possible to purchase additional benefits when renewing your insurance policy. (It is always prudent to check your policy to see if you purchased benefits that exceed the statutory minimums.)
Medical and rehabilitation benefits: These benefits are crucial to our injured clients. They pay for the reasonable and necessary medical and rehabilitation expenses that are not covered by a government or private health plan. For minor injury claimants, the limit is $3,500. For non-catastrophic claimants, there is a limit of $50,000 ($100,000 for accidents falling under the old regulations) available for 10 years following the accident. For those catastrophically injured, the amount of medical and rehabilitation benefits is increased to $1 million and available to you for your lifetime.
Attendant care benefits: If unable to carry on with your own personal care, attendant care benefits will pay for the reasonable and necessary expenses of an aide, attendant or long-term care facility. These benefits are not available to receiving minor injuries. For the non-catastrophically injured, the attendant care benefit shall not exceed $3,000 per month or a total maximum of $32,000 ($72,000 for accidents falling under the old regulations). However, if your injury is catastrophic, available attendant care benefits may increase to $6,000 per month, and a total maximum of $1 million.
Housekeeping benefits: This weekly benefit, payable to a maximum of $100 per week, is available to Non-CAT claimants falling under the old schedule but is otherwise only available to CAT claimants. Claimants must have sustained an impairment resulting in a substantial inability to perform the housekeeping tasks regularly performed before the accident.
Election of benefits: Each Accident Benefit claim may elect only one of the following three benefits: income replacement benefits, caregiver benefits and non-earner benefits. A claimant may qualify for two of these benefits. It is important to note that any election made is final. Therefore, it may be prudent to seek legal advice before making such election.
Income replacement benefits (IRB): This benefit is available if you were employed or self-employed at the time of the accident 26 of the 52 weeks preceding the date of the accident. In addition, an Accident Benefit claimant may qualify for this benefit if he or she was receiving unemployment insurance at that time of the accident. This benefit is payable for two years after the accident so long as you are substantially unable to perform the essential tasks of your employment. The disability test changes at the two-year anniversary of the accident. After two years, you must demonstrate you are suffering a complete inability to engage in any employment for which you are reasonably suited by education, training or experience. Income replacement benefits are paid on a weekly basis calculated at 70 percent of your pre-accident gross income, up to a maximum of $400 per week.
Non-earner benefits: If you were unemployed at the time of the accident and don’t otherwise qualify for an income replacement benefit, you may qualify for a non-earner benefit. A non-earner benefit is typically paid at the rate of $185 per week and, in some instances, $320 per week. You are not entitled to non-earner benefits for the first six months following an accident. However, if after the first six months you suffer a complete inability to carry on a normal life, you will become entitled to a minimum non-earner benefit two years following the accident.
Caregiver benefits: If you have been deemed to be a CAT claimant, were a caregiver at the time of the accident and are unable to carry on your caregiving activities, you are entitled to receive the reasonable costs of paying for professional care to a maximum of $250 per week plus $50 for each additional child or dependant.
Death benefits: A death benefit of $25,000 is payable to the deceased’s spouse and $10,000 to each dependant and to any person the deceased was legally obliged to provide regular support for. If there is no spouse, an additional $25,000 is available to be equally divided amongst dependants.
Funeral benefit: Funeral expenses are paid to a maximum of $6,000.
Incurred expenses: Under the new schedule, attendant care benefits, housekeeping benefits and caregiver benefits must be provided by a professional service provider (like a babysitter, cleaner or a nurse). Only then will the insurer have to pay. This prohibits family members from receiving payment for performing these activities (which was permissible under the older schedules). Exceptions do exist, however, and it would be advisable to discuss these with an experienced Accident Benefits lawyer.
Miscellaneous benefits: There is provision in the schedule to provide compensation or payment for the cost of medical assessments, medical reports, transportation to medical appointments, the cost of preparing an accounting report for self-employed persons seeking income replacement benefits, the cost of utilizing a qualified case manager to assist with your claim, lost educational expenses, visitor expenses while in hospital, and compensation for clothing and medical devices damaged in the accident.
If a dispute arises between you and your insurer, it must be referred to FSCO for mediation. Mediation is a nonbinding process in which a government mediator will try and bridge the gap between the respective positions of the parties to resolve the dispute. Mediation is a mandatory process under the Insurance Act. Following failed mediation, a claimant can either go to court or apply for arbitration (a binding process unlike a mediation but which is less formal than going to court) at FSCO.
Contact Us For Personalized Legal Advice
Our Brampton personal injury lawyers are prepared to listen to your needs and educate you about the legal process to obtain the justice you deserve. You only have two years to issue a statement of claim after you are hurt, so it is important to contact us by calling 905-453-8636 for a free consultation.