*This article is not legal advice. It is for informational purposes only and represents general information as of February 2008. The author makes no representations or warranties about the correctness or accuracy of the information. Please immediately contact a lawyer to discuss your specific situation.
1. I was injured in a car accident. Am I entitled to compensation?
In addition to the possibility of a lawsuit to recover a money award or settlement for injuries, pain and suffering and other losses, Ontario’s government requires automobile insurers to provide certain mandatory benefits to most people who are injured or killed in car accidents. These benefits are called “statutory accident benefits”. The statutory accident benefits system operates on a “no-fault” basis. This means that, subject to some limited restrictions, you may be entitled to compensation even if you are the one that caused the accident.
As an injured party, you may well be entitled to receive benefits regardless of whether you were a driver, passenger, bicyclist or pedestrian. You, as well as your family members and dependants, can often receive benefits even if you did not have car insurance at the time of the accident.
There are often disputes about what benefits you are entitled to and what insurance assessments you are required to attend. It is often a good idea to consult with a personal injury lawyer to determine what you are entitled to and what steps you need to take to protect your interests.
2. What kind of benefits can I receive?
Income Replacement Benefits – these benefits are designed to reimburse you for some of the money you lose as a result of being unable to work due to an injury suffered in a car accident. Benefits are not payable for the first week and you must meet a disability test to qualify for the benefits. The disability test becomes more difficult to meet after more than two years have passed since the accident.
You can receive income replacement benefits whether you are an employee or a self-employed individual. The maximum that you can receive is generally $400 per week, unless other optional increased benefits are purchased.
If you are self-employed, your income calculation will be more complicated and insurers often hire accountants to assist them with these calculations.
Non-earner Benefits – you may receive these benefits if you are 16 years of age or older and have suffered a complete inability to carry on a normal life as a result of the accident within 104 weeks after the accident. A lawyer can assist in explaining what “complete inability to carry on a normal life” means and how that term has been interpreted by the cases. The benefits are only available to certain classes of people, ie: unemployed but enrolled in school on a full-time basis, or have completed your education less than one year before the accident and not be employed in a job that reflects your education and training.
The amount of the non-earner benefit is generally $185 per week, although nothing will be payable for the first 26 weeks of the disability. However, if your disability has lasted for more than 104 weeks, you will be entitled to receive $320 per week following the initial 104 week period.
Caregiver Benefits – these benefits may be payable if you (the injured person) were living with a person in need of care (such as a young child or an elderly parent) prior to the accident and were not being paid for these services. You may be able to recover reasonable and necessary expenses up to a maximum of $250 per week for the first person in need of care and $50 per week for each additional person. You should note that when it comes to the income replacement, non-earner and caregiver benefits, only one of these three benefits can be paid at any given period of time.
Medical and Rehabilitation Benefits – this benefit deals with reimbursement for reasonable and necessary expenses such as medical, surgical, dental, optometric, hospital, nursing, ambulance, audiometric, speech-language pathology, chiropractic, psychological, occupational therapy, physiotherapy, medication, prescription eyewear, dentures, hearing aids, wheelchairs, prostheses, orthotics, transportation to and from treatment sessions (excluding the first 50 kilometers of the trip in the injured person’s vehicle), workplace/home/vehicle modifications, life skills training, counseling, and vocational assessments.
Subject to some exceptions set out in the pre-approved framework guidelines, you must submit a treatment plan to the insurance company prior to beginning treatment. If you do not submit a treatment plan, the insurance company could refuse to compensate you for treatment. The treatment plan must be prepared by a health professional and signed by one of the following – physician, psychologist, physiotherapist, dentist, or optometrist.
You can receive a maximum reimbursement of $100,000 for “reasonable and necessary” expenses acquired in the period of 10 years following the accident. If you suffered “catastrophic impairment”, you may be entitled to receive up to $1,000,000 incurred over your lifetime.
Attendant Care Benefits – this benefit may provide compensation for services of an aide or an attendant who is assisting you due to your injury. This could include services of a family member or other aide looking after you at home, or services provided by a long-term care facility including a nursing home, home for the aged or chronic care hospital.
You may be entitled to a maximum of $3,000 per month for two years following the accident. If you suffered “catastrophic impairment”, you may receive up to $6,000 per month up to a maximum of $1,000,000 without a time limit. The insurer may ask you to provide it with a certificate from a health professional confirming that you require attendant care services.
Funeral and Death Benefits – when a person dies due to a car accident, his or her estate may be entitled to reimbursement of funeral expenses to a maximum of $6,000.
The deceased’s spouse, dependants and caregivers may also be entitled to death benefits. Death benefits are usually only payable if the deceased died within 180 days after the accident, or, if the deceased was continuously disabled as a result of the accident, within 156 weeks after the accident. No benefits will be payable to a person who dies before the deceased or within 30 days after the deceased.
A spouse may receive $25,000 if the deceased was married. If the deceased was not married, but had dependants, the $25,000 would be divided equally among the dependants. On top of the $25,000, each of the dependants and former spouses of the deceased (to whom the deceased had an obligation to pay spousal support) will be entitled to $10,000.
If the deceased was himself or herself a dependant at the time of the accident (ex. if the deceased was a minor child), $10,000 would be payable to the person upon whom the deceased was dependent (ex. parent or grandparent) or, if that person is dead, to that person’s surviving spouse or dependants.
Visiting Expenses – if you sustained injury in a car accident, your family members and individuals who were living with you at the time of the accident may be entitled to reimbursement for all of their reasonable and necessary expenses incurred as a result of coming to visit you during your treatment or recovery. The visitors will only be reimbursed for expenses incurred within 104 weeks after your accident, unless your injury is catastrophic.
Lost Education Expenses – if, due to your injuries, you are unable to continue in the education program in which you were enrolled at the time of the accident, you may be entitled to claim for your lost education expenses up to the maximum amount of $15,000. You may get reimbursed for expenses incurred before the accident including tuition, books, equipment or room and board.
Housekeeping and Home Maintenance Expenses – you may receive compensation for reasonable and necessary housekeeping and home maintenance expenses, if your injury resulted in a substantial inability to do your housekeeping and home maintenance and you normally performed home maintenance services before your accident. Your housekeeping and home maintenance expenses may be paid for 104 weeks to a maximum of $100, unless the injury is catastrophic, in which case the time-limit does not apply.
Psychological and Mental Injuries – your family members and dependants (whether related or not) may be entitled to receive benefits if they have suffered psychological injuries as a result of your accident.
Cost of Examinations – you may be reimbursed for reasonable fees charged by health care providers in preparing disability certificates, reviewing and approving treatment plans, preparing applications for approval of assessments or examinations, preparing assessments of attendant care needs, and preparing applications for determinations of catastrophic impairment. You are normally required to obtain consent of the insurer before incurring examination expenses. However, there are certain exceptions. Your treatment providers may well be able to assist you in applying for these benefits
Other Expenses – you may be entitled to be reimbursed for all reasonable expenses you incurred in repairing or replacing clothing, prescription eyewear, dentures, hearing aids, prostheses and other medical or dental devices that were lost or damaged as a result of the accident.
3. How can I claim my benefits?
Compensation will not be paid to you automatically following your accident. In order to receive benefits, you should notify your insurer within seven days of the date of the accident that you wish to submit an application. Late applications are made in many cases and you could discuss this with a lawyer. The insurer will then be required to send you the application forms as soon as possible. You will have to complete the forms and send them back to your insurer within 30 days. If you will not be able to meet the 30-day deadline because of the severity of your injuries, it is probably a good idea for you to advise your insurance company (but you may well wish to seek legal advice from a lawyer).
4. Which insurance company will provide my statutory accident benefits?
If you have car insurance or if you are a listed driver on someone else’s auto insurance policy, your own insurer will likely be responsible for providing you with benefits.
If you do not have auto insurance, and you were injured in a car accident as a pedestrian or a cyclist, you may be able to apply to the insurance company that insured the car that hit you. If you were a passenger, you may well be able to apply to the company that insured the car in which you were riding.
In some situations, no insured drivers are involved. In such cases, you may be able to claim compensation from a special government fund (the “Motor Vehicle Accident Claims Fund”) set up to handle these type of scenarios.
It is important to remember that statutory accident benefits will generally only compensate you for losses that are not covered by some other private insurance policy or employment benefits plan. If these other policies or plans will cover only part of the losses incurred, the statutory accident benefits can be used to compensate you for the balance, subject to some limitations.
5. What can I do if the insurance company denied my claim for benefits?
If you are having problems recovering benefits to which you are entitled, you may be entitled to sue the insurer in court or try to enforce payment through arbitration. However, before you can proceed to court or to arbitration, you are required to mediate the dispute with the Financial Services Commission. It is extremely important to initiate mediation within two years from the date that the benefit was denied. An injury/car accident lawyer can provide further details with respect to this.