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Car Accident Injury Claims

Sept. 5, 2018 - in Car Accident

Overview: There are two parts to the motor vehicle accident claim system.

(1) The first is called accident benefits, which are provided immediately and regardless of fault. The intention is to provide for people’s immediate needs like limited loss of income and treatment needs, some personal care in the home in some cases etc. the government has continually reduced these over the years.

(2) To claim for things like pain and suffering as well as income losses and future care not covered by the accident benefits you have to go through a “tort” claim process where you claim from the at fault party’s insurer by pursuing the at fault party. There are secret deductibles, legal tests to be able to claim and other hurdles that the Ontario government in its infinite wisdom has decided should be borne by the innocent accident victim in a tort claim and the at fault party pays nothing….that is one of the things that has changed me from being a Young Liberal years ago to now being an old political agnostic. It is important to be aware of these ridiculously unjust tests and conditions from the beginning to not be caught off-guard or unprepared.

Below, please find a discussion of a few issues that keep coming up in my conversations with people who have been injured.

Accident Benefits: I am often asked about how the priority of payments works for treatment costs incurred after a car accident injury. People often have accident benefits through their own car insurance company, perhaps they are named under another car insurance policy, maybe they were also an occupant of a car that had a car insurance policy too, and maybe they even had extended health coverage under theirs or a related person’s health insurance/work insurance plan.

It gets confusing for people to understand where they should apply and to who they should apply first. Here is a quick summary of the rules (don’t rely on it for any specific situation – call me for a free consultation about your specific situation instead – its tough to beat free after all):

1. The Insurance Act gives you the right to apply to any insurance policy that could cover you for accident benefits (even if there is more than one). It is then up to the insurers to figure out who should pay. I have, in the past, seen insurance companies refuse to pay benefits to an insured person because they say that the insured should apply to someone else. That is not the correct procedure – the insurance company should be paying you if they are anywhere on the list of available insurers and they should then be seeking to get payment from, and dispute priority, with the other insurer. It’s not your job. However, its usually easiest to get some advice about the right insurer to apply to.

2. You are required to access extended health benefits before you access your MVA insurance accident benefits from your car insurer in Ontario. As a for instance, I have a client in Whitby Ontario who sustained injuries in a car accident and I am acting as his personal injury lawyer – he has coverage for chiropractic and physiotherapy with Manulife up to $500 per year at 80% coverage. He is required to apply to Manulife for payment up to the $500 limit each year before the car insurer kicks in to start covering the full treatment costs. That being said, the 20% short-fall on the Manulife policy amounts should be paid by the car insurer provided that they deem it to be reasonable and necessary. You just have to apply to Manulife first, get the 80% from them and then apply to the car insurer for the additional 20%. Beyond the $500 per year, you just apply to the car insurer.

Most of the licensed clinics know how to do this and will help in preparing the forms and submissions. When my firm is acting as the car accident injury lawyer, we will typically also assist people in making sure that they are getting payments for the benefits owed to them.

There are some newer extended health and disability policies offered by employers that have exclusions for car accident related injuries. I am starting to see this more and more. If there is an exclusion, then its important to bring that to the attention of the car insurer right away.

Disputes with the Accident Benefits Carrier In a dispute with the no-fault benefits carrier (accident benefits insurer) an application can be made to the License Appeal Tribunal. One example of such a case is on January 12, 2018 the License Appeal Tribunal released its decision in A.K. and State Farm Insurance Company. 

In that case, AK, a minor, was injured in a motor vehicle accident on October 2, 2014 when he was struck as a pedestrian. He applied for accident benefits (no fault benefits) through State Farm, a car insurance company. A series of disputes arose and so the matter proceeded to a hearing before the License Appeal Tribunal. The disputes primarily dealt with the question of whether AK was entitled to access catastrophic benefits which can provide over $1,000,000.00 in benefits.

It was acknowledged by the Applicant that AK had a series of pre-existing conditions that existed before the car accident including a brain injury, epilepsy, and autism spetrum disorder.

After the car accident, AK had a worsening of his conditions according to the argument by AK’s personal injury lawyer, Steven Polak of Lerners LLP. The argument was that AK’s condition had resulted in a severe disability consistent with a score of “3” under the Glasgow Outcome Scale and that he therefore qualified for catastrophic benefits.

State Farm Insurance Company denied that AK met the test and, in part, relied upon reports generated by doctors that they had hired, whose opinions were different than those relied upon by AK.

The Tribunal ultimately agreed with the Applicant and found that AK did meet the catastrophic impairment definition.

Accidents while you are a passenger: Many people call me after being involved in a car accident where they were the passenger in a car that was being driven by their husband, wife, family member or friend. They are usually not sure about whether they are allowed to make a claim for their injuries and damages. The answer is that they usually are (there are only very limited exceptions to this).

An immediate concern that people have is whether making a claim will require their friend or family member to spend money to defend it. The reality is that, in almost all circumstances, your friend or family member’s insurance company would pay the entire judgement/settlement of the claim without any deductible or payments being made by your family or friend. The insurer would also almost always pay the cost of hiring a lawyer to defend the claim if it could not be settled before being assigned to a defence lawyer. The exceptions to these rules are very limited provided that the car insurance policy is in good standing.

As well, even before any lawsuit is brought, there would be the ability to make a “Part 1″ application for accident benefits, to cover immediate needs and a portion of your losses. This is made directly to the insurance company and does not require any claim to be made against a driver. The benefits are “no fault” and so you do not have to even prove fault to obtain accident benefit payments for things like medical and rehabilitation needs, income replacement, possibly attendant care or otherwise.

ODSP and Ontario works and their interplay with car accident injury lawsuits: Recently released legislation appears to have made major changes to the law regarding ODSP and OW exemption limits for car accident and personal injury cases. These changes appear to have been made very quietly without any significant announcements.

ODSP appears to have completely eliminated the exemption cap on pain and suffering awards in injury cases (the cap had been $100,000). See the excerpt below and link:

The ODSP general regulation also establishes full income and asset exemptions for the following: •awards for pain and suffering as a result of an injury to or the death of a member of the benefit unit; •expenses actually or reasonably incurred or to be incurred as a result of injury to or death of a member of the benefit unit; •loss of care, guidance and companionship due to an injury to or the death of a family member under the Family Law Act; •non-economic loss under section 46 of the Workplace Safety and Insurance Act, 1997 or section 42 of theWorkers’ Compensation Act.

Income and assets exempted under this policy are payments made as an award or in settlement of a claim by a recipient, and are therefore not voluntary payments. As a result, the gifts and voluntary payments limit does not apply.

http://www.mcss.gov.on.ca/en/m...

The ODSP legislation itself can be accessed here: https://www.ontario.ca/laws/re...

OW appears to have raised the exemption limit to $50,000 (the exemption had previously been $25,000).

The OW changes can be found at section 39, subparagraph 3 of the regulation. There are also changes to categorization of accident benefits etc. The regulation can be found here: https://www.ontario.ca/laws/re...