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A Guide to Your Accident Benefits Claim

Updated: 4 days ago

Being injured in a motor vehicle accident can have a devastating impact on your ability to earn income, attend school, engage in your daily activities, and most importantly, your health. Individuals injured in a motor vehicle accident are typically feeling vulnerable, stressed, and overburdened. Such individuals should promptly retain legal counsel to help them navigate the complicated process of initiating a claim for accident benefits against their insurance companies.


The purpose of this article is to briefly outline the benefits available through an accident benefits claim.


Before outlining the types of accident benefits available, it is important to understand what an accident benefits claim is. Such a claim is made to your own insurance company and is distinct from a lawsuit. This process does not impact your auto insurance premiums. An accident benefits claim may be made regardless of whether you were at fault for a motor vehicle accident or not. By contrast, a lawsuit may only be advanced against an at-fault driver whose auto insurer will respond to the lawsuit.


Accident Benefits provide payments/benefits for ongoing expenses that have been incurred and losses of income that have already occurred. A tort lawsuit will cover past losses not covered by an accident benefits claim, as well as future losses that have not yet occurred. Furthermore, tort lawsuits proceed in the Ontario Superior Court of Justice and are tried by a judge or jury (more often a jury).  Accident benefits disputes, which may arise when your insurer disputes paying a certain benefit, are litigated before the Licence Appeal Tribunal. 


Theoretically, accident benefits and a tort lawsuit are intended to work together to fully compensate an individual for past and future losses. In reality, accident benefits insurers often disagree with and deny certain expenses being claimed. Therefore, it is important to hire a personal injury lawyer to dispute these denials and as well provide you with an understanding of what expenses may be validly claimed.


Deadlines


The law requires individuals to notify their insurer of an accident within 7 days of the accident or as soon as possible. It is good practice to notify your insurer within this timeline.


To advance a claim for benefits against your own insurance company, you must submit an application for Accident Benefits (“OCF-1”) within 30 days of an accident. If you fail to meet this deadline, you will be required to provide a reasonable explanation for the delay in order to receive benefits.



After an application is initiated, your auto insurance company will typically respond with a letter outlining the types of benefits available. The types of benefits available are dependent upon the severity of the injuries you sustained in an accident. There are three classes of injuries: (i) minor injuries, subject to the minor injury guideline; (ii) non-catastrophic and non-minor injuries; and (iii) catastrophic injuries.


Minor Injury versus Non-Catastrophic Injury versus Catastrophic Impairment


A minor injury, which will be subject to the Minor Injury Guideline, is defined as follows:

minor injury means a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. This term is to be interpreted to apply where a person sustains any one or more of these injuries.

Complete joint dislocations (subluxation) or complete tears of a ligament(s) are not subject to the minor injury guideline. However, partial tears or dislocations (subluxations) are subject to the Minor Injury Guideline. Furthermore, individuals experiencing chronic pain disorder and/or a concussion should be removed from the minor injury guideline.


Whether your injury falls under the minor injury guideline can be subject to some debate, however individuals experiencing minor sprains, strains, contusions, abrasions, lacerations, and partial tears that are temporary in nature often fall under the minor injury guideline. Alternatively, if you have a pre-accident medical condition that may prevent you from achieving maximal medical recovery under the minor injury guideline, then you will be removed from this guideline.


non-catastrophic injury/impairment  is an injury that does not fall within the definition of the minor injury guideline. These include but are not limited to psychological injuries, fractured bones, completely torn ligaments, chronic pain, and concussion or brain injury.


catastrophic injury/impairment is an injury that is severe and is typically life-altering. The definition of catastrophic impairment is defined by the Statutory Accident Benefits Schedule. The definition includes paraplegia or tetraplegia that meet certain criteria, severe impairment of mobility of an arm or an arm or leg amputation that meet certain criteria, loss of vision in both eyes, brain injuries that meet certain criteria, physical or mental behavioural impairments that on their own or combined significantly impair an individual’s functioning. The definition of catastrophic impairment is a vast topic not fully covered in this article.


TYPES OF BENEFITS


Medical Rehabilitation and Attendant Care Benefits


Medical rehabilitation benefits may be paid to treatments such as chiropractic, psychological therapy, occupational therapy, physiotherapy, medical assistive devices, and other types of medical treatments. Medical rehabilitation benefits may include workplace or home modifications or financial counselling. An insurer will only agree to pay for medical rehabilitation benefits that are reasonable and necessary to a claimant's recovery.


Attendant care benefits are intended to cover the services of a personal support worker who assists an injured claimant in their home and in the community.


Individuals under the minor injury guideline have access to a maximum of $3,500 in medical rehabilitation benefits that are reasonable and necessary to their recovery. An insurer is not liable to pay a medical rehabilitation benefit to an individual in this category after five years have elapsed since the accident.


Individuals with non-catastrophic injuries have access to a maximum of $65,000 in combined medical rehabilitation and attendant care benefits that are reasonable and necessary to their recovery. An insurer is not liable to pay a medical rehabilitation benefit to an individual in this category after five years have elapsed since the accident.


Individuals with catastrophic injuries have access to a maximum of $1,000,000 in medical rehabilitation and attendant care benefits that are reasonable and necessary to their recovery. A claimant will have access to these benefits for life and there is no expiration date for payment of these benefits.


The above amounts may be greater if an individual has purchased optional/enhanced benefits.


Income Replacement Benefits


Individuals with Minor Injuries, Non-Catastrophic Injuries, and Catastrophic injuries may also be entitled to claim an Income Replacement Benefit if they provide their insurer with a disability certificate from a health practitioner (OCF 3) and an employment confirmation form (OCF 2). To be eligible for the benefit, the individual must have been employed or self-employed at the time of the accident and is substantially unable to perform the essential tasks of their employment as a result of their accident-related injuries (ie…”the substantial inability test”). Alternatively, an individual who was not employed at the time of the accident but was employed for at least 26 of the 52 weeks preceding the accident, was at least 16 years of age, and is substantially unable to perform the essential tasks of their pre-accident employment, will be entitled to claim an income replacement benefit.


After 2 years have elapsed since the date of the accident, an individual will continue to receive an IRB only if they are suffering “a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training, or experience” because of their accident-related impairments. This is a much more onerous test than the substantial inability test. An insurer will typically require a claimant to attend a medical assessment to determine if they meet this test.


Individuals meeting the above criteria will be entitled to an income replacement benefit up to the lesser of 70% of their pre-accident income or $400 per week unless they purchased optional and enhanced benefits. This amount will decrease upon an individual’s 65th birthday.


An individual who is over the age of 65 at the time of the accident will receive an income replacement benefit that is gradually decreased to zero over a 208-week period.


Non-Earner Benefit


Individuals who do not qualify for an income replacement benefit because they do not meet the employment criteria, may nevertheless receive a non-earner benefit of up to $185 per week, which is payable for not more than 104 weeks after the accident. The claimant must also suffer a complete inability to carry on a normal life to qualify for this benefit. A non-earner benefit is not payable while the claimant is under the age of 18.


Individuals who sustain minor, non-catastrophic/non-minor injuries, and catastrophic injuries may qualify for this benefit. Individuals must elect to receive either an income replacement benefit, a caregiver benefit (discussed below), or non-earner benefit. An individual may not receive more than one of these types of benefits.


OTHER BENEFITS


Lost Educational Expenses – individuals who were enrolled in a program of elementary, secondary, or continuing education at the time of an accident may received up to $15,000 in expenses if they are unable to continue the educational program as a result of an accident-related impairments.


Housekeeping Benefit – an individual who sustains a catastrophic impairment in a car accident may be entitled to a housekeeping benefit in the amount of $100 per week if they are substantially unable to perform their pre-accident housekeeping and home maintenance tasks as a result of their injuries. This benefit is not available to those who sustain minor or non-catastrophic injuries.


Caregiver Benefit – the caregiver benefit is designed to compensate individuals who provided care to others (ie… children, parents, family, friends) for which they did not receive financial compensation. The benefit is available to an individual who sustains a catastrophic impairment in a motor vehicle accident and as a result suffers a substantial inability to engage in the caregiving activities that the individual was engaged in prior to the accident. The amount of the caregiver benefit is $250 per week for the first person in need of care, and $50 per week for each additional person in need of care. After 2 years have elapsed since the date of the accident, the caregiver benefit is only available if the individual suffers a compete inability to carry on a normal life. This benefit is not available to those who sustain minor or non-catastrophic injuries.


Damaged Clothing – an insurer will reimburse you for reasonable expenses incurred for replacing clothing, prescription eyewear, dentures, hearing aids, prostheses, and other medical/dental devices that were lost or damaged in an accident.


Death Benefit – an insurer shall pay a death benefit in respect of an insured who dies as a result of an accident as follows:

·         Spouse: $25,000

·         Dependant: $10,000 per dependant

·         If the insured did not have a spouse at the time of the accident, $25,000 will be paid to the insured’s dependant’s equally in addition to the payment of $10,000 per dependant. 

 

The personal injury lawyers at Hillier & Hillier combine their knowledge of the law with their expertise in gathering relevant medical evidence to ensure their clients receive all Accident Benefits to which they are entitled. The lawyers at Hillier & Hillier specialize exclusively in personal injury law, and have a combined experience of over 50 years of practice. Contact Hillier & Hillier at 905 453 8636 to schedule a free consultation by zoom videoconferencing, in person, or by telephone.




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