Part 1: Accident Benefits
About 9 times out of 10 when I meet with clients who have been in a car accident, to give them a consultation on the law, I am met with two reactions: disbelief and anger. A vast majority of people in Ontario are simply unaware of the obstacles that are in front of them if they are seeking compensation after a car accident.
If you have been injured in Ontario by a motor vehicle, you almost always have some recourse for financial assistance or compensation, what you get is heavily regulated and restrictive.
What are they?
Accident benefits are a form of insurance that applies to every vehicle in Ontario. These benefits exist to provide an injured person with treatment for their injuries or financial assistance if they cannot work. The benefits available to people were significantly reduced in 2016 when the government at that time amended the legislation in response to Insurance companies’ ongoing complaints that they were paying too much to their insureds for benefits.
There are three categories of benefits, Minor Injury Guideline, Non-Catastrophic and Catastrophic. The insurance company will slot you into one of these three categories depending on what injuries you have been diagnosed with.
As you might expect, the first tier is for those who have suffered from minor injuries, such as whiplash, which injuries are expected to resolve in a short time. The Non-Catastrophic category is for those who have sustained more serious injuries, including complete tears of muscles, fractures, or more serious psychological or chronic pain diagnoses. The final category is the most serious and is reserved for those people who have sustained profound, life changing injuries.
It is also important to note that you can be the cause of the accident and still be entitled to benefits. This is what is known as the “no-fault” system. Your fault in the accident plays no role in your
entitlement, unless you are convicted of a crime as a result of the accident, in which case, you entitlement is restricted.
The benefits in each category are as follows:
Minor Injury Guideline (MIG)
Those who are slotted into the Minor Injury Guideline, or MIG, are expected to make a full recovery in a short period of time, usually within months. As such, the benefits available are very limited. You are entitled to $3,500.00 toward medical and rehabilitative benefits. This would provide you with some money for physiotherapy, massage therapy or other similar therapy to relieve your symptoms. The expectation is that this is sufficient to get you back to you where you were before the accident happened.
If you have sustained a more serious injury that includes a fracture or muscle tears, you will be bumped up to the Non-Catastrophic category. This category entitles you to $65,000.00 in physical or psychological therapy as well as attendant care, in the event that your injuries prevent you from caring for yourself. This category also allows you to have access to an occupational therapist who can come to your home and assess what your needs are.
Before the 2016 amendments, the benefits available were $50,000.00 for medical and rehabilitation benefits and $36,000.00 for attendant care. Those two categories are now blended and reduced.
It should be noted that if you are initially placed in the MIG category you can be moved into the Non-Catastrophic category if your symptoms or diagnoses change. There are rules set out in the legislation regarding when this can be done.
Benefits under the MIG and Non-Catastrophic category used to be available for 10 years after the loss. They are now only available for 5.
If you have the misfortune of being placed in the catastrophic category, your benefits jump significantly. You are entitled to $1,000,000.00 for rehabilitation and attendant care benefits in total. While this may seem like a lot of money, it is not nearly enough to cover the life-long needs of those most seriously injured. Before the 2016 amendments, the figure was $2,000,000.00.
You are also entitled to some housekeeping expenses under this category, which is a benefit that was eliminated from the other categories in 2016.
Benefits in this category are payable for the remainder of your life.
It is extremely difficult to qualify as ‘Catastrophic’ under the legislation. Amendments in 2016 changed the test needed to be met under this category, making it significantly more difficult. As a result, there are many people who are stuck in the ‘non-cat’ category and who have exhausted all of their benefits with no recourse for more.
Regardless of the category you are slotted into, all injured people are entitled to Income Replacement Benefits, or IRBs for the first two years after their accident, if they cannot perform the duties of the job they had at the time of the loss. After two years, they must establish that they cannot perform the duties of any job they are suited to, based on their education, training or experience.
The amount you receive for IRBs is based on 70% of your pre-accident income. Your employer must complete forms to assist in those calculations. If you were self-employed at the time of the accident, then the insurance company will usually hire an accountant to make the calculations. The amount you are entitled to is capped at $400.00 per week.
Income loss is payable for the remainder of your life if you meet the test – but the amount you receive is ramped down after age 65.
If you weren’t working at the time of your injury, you may still be entitled to a weekly assistance if you can establish that you can no longer carry on a normal life. This is a difficult test to met but if your medical evidence can establish it, you will be entitled to $185.00 per week for two years.
What Else Can I Get?
There are many other benefits available and they have their own tests and restrictions. If the insurer questions whether you are entitled to a benefit or if they feel they don’t have enough information to make a decision on whether you should get a benefit, they can refuse to pay it and get you assessed by one of their own medical assessors. This is called an Independent Medical Examination, or IME. Sometimes the IME comes back approving the treatment or else it will come back refusing it. This assessment is then used as evidence by the insurance company in the event you dispute their decision and want to appeal it.
When There is a Denial
Appealing the insurers’ decision involves filing paperwork with the License Appeal Tribunal or LAT. A hearing will take place and an adjudicator will decide whether the insurance company was wrong to deny your benefit. Frequently, however, the entire claim is resolved before the matter gets to that stage.
Settling your Claim
It is not unusual for the insurance company to reach out to “cash out” your claim. This would involve the insurance company giving you cash in hand so you manage your own benefits ongoing. They will close your file on their end and no longer monitor your progress. The process for cashing out an accident benefit claim is highly regulated and you should speak to a lawyer before doing so if you have any concerns about your rights.
Collateral and Optional Benefits
You can increase the benefits available to you by purchasing “optional benefits” through your insurance company. If you have other benefits available to you through private health insurance, those benefits must always pay first. Your auto insurer is considered a payer of last resort and they will pay whatever is still owing to you after your private health care provider pays.
Our office handles all accident benefits matters and we are happy to discuss your specific case with you. We provide free consultations.
Disclaimer: Information made available in this article is provided for general information purposes only and is provided without representation for its accuracy or completeness. It is not legal advice and should not be relied upon. You should not take any action or fail to take any action based on the information set out in this article or on this website. Consult a lawyer at Sullivan Mahoney LLP and seek professional legal advice tailored to your unique situation.