If you’ve been hurt or injured in a car accident in Ontario; there’s a complicated set of rules that you need to follow if you’re planning on making a claim for your injuries, lost wages, damages for pain & suffering or just getting the insurance company to fix your car. Keep in mind that insurance companies won’t pay for any of these things if you don’t report the accident. So if you plan on collecting from the insurance company, you will need to report the accident to them. If you don’t; you’re risking losing out on valuable benefits described in greater detail below; not to mention any monetary damages which you might be entitled to.
Ontario has what’s called a “no-fault” set of rules for car accidents. What this means is regardless whose fault the accident is, you’re entitled to a wide variety of benefits to assist you when you need it most. These benefits are generally paid for by your own car insurance company. If you didn’t have car insurance at the time of the accident, the Insurance Act provides a series of priority rules to set out who is responsible for paying for your benefits.
The benefits which are paid out under Ontario’s “no-fault” system are called “accident benefits”. Accident benefits are a wide variety of benefits which cover a wide variety of categories. These categories include such things as:
Income Replacement Benefits
Attendant Care Benefits
Medical/Rehabilitative Benefits cover such things as the costs of physiotherapy treatment, chiropractic treatment, massage therapy treatment, gym memberships, assistive devices, aquafit clases, and any other medica/rehabilitative treatment, or devices which are found to be reasonable and necessary for your post accident care. Other devices may include therapeutic beds, wheelchairs, canes, ramps and even modified vehicles to accomodate accident victims. In order to recover these benefits, a health care professional like a physiotherapist, massage therapist or a doctor will have to fill out a “treatment plan”. This is a standard form which is submitted to the insurance company, and it’s up to them to wither approve or deny the treatment plan. These benefits are NOT unlimited. For what are called “non-catastrophic” cases, you are entitled to $100,000 in benefits over 10 years in med/rehab benefits. In “catastrophic cases”, you are entitled to $1,000,000 over the course of your lifetime.
Income replacement benefits are supposed to do exactly what their name says; replace your income if you’re unable to work following an accident. You’re entitled to 80% of your net pre-accident income which is averaged from your last year’s pre-accident earnings, or 26 of the 52 weeks before your accident. The maximum income replacement benefit under a standard auto policy in Ontario is $400/week. Some people chose to pay higher premiums to increase this amount. The problem which most people have in claiming income replacement benefits is that they problems showing that they were working before the accident, or they have problems quantifying their pre-accident income. Claiming these benefits can get particularly tricky if you have access to a private short term or long term disability policy which is designed to supplement your income.
Caregiver benefits are for people who, at the time of the accident were the primary caregiver for a dependant, such as a young child, elderly person or sick person. As a result of the accident, these people are no longer able to care for their dependants. To claim these benefits, you don’t have to show that you made any income before the accident. You just have to show that you were a primary caregiver. Caregiver benefits are $250/week, with an additional $50 for each extra dependant.
Housekeeping/Homemaintenance benefits are benefits to replace the accident victim’s ability to do chores, housekeeping or homemaintenance. These benefits are for assistance with such things as cleaning the dishes, preparing meals, dusting, mopping, taking out the garbage etc. These benefits are $100/week. In order to be claimed, you need to submit reciepts or invoices to your insurance company. If you don’t submit the reciepts, you won’t get these benefits, regardless of how hurt you are.
Attendant Care Benefits provide compensation for people, often family members, who perform attendant care services for accident victims after they are injured. These benefits are desinged to pay people for their services in caring for accident victims in activities like grooming, bathing, grocery shopping, brusing hair, putting on clotes, brushing teeth etc, when the accident victim is no longer able to do so as a result of their injuries. In order to recover these benefits, you will need to have a health care professional like an occupational therapist complete what’s called a “Form 1” which shows exactly how much attendant care an accident victim requires following their accident. Not all accident victims require the same levels of care. Some accident victims require minimal amounts of care; others require 24hr care. It all depends on the extent of the injuries sustained in the accident and the specific facts of each case.
This “no-fault” system of insurance was introduced for a wide variety of reasons. One of those reasons was to provide accident victims a wide variety of benefits to foster their rehabilitation. Another reason was to reduce the amount of claims being litigated against insurers. Whether or not this system has worked depends on who you ask.
These accident benefits DO NOT cover damages for pain & suffering, or your future loss of income. In order to make a claim for these things, you will have to retain a personal lawyer to bring a tort action. This tort action is advanced against the other driver who might have caused the accident. In order to advance a tort claim, your injuries will need to be “serious and permanent”. If your injuries are not found to be “serious and permanent”, then you will not be able to advance a claim. This barrier to claiming in tort is called the “threshold”. The threshold is subject to judicial interpretation and is defined by the courts. Because courts hear threshold cases on a frequent basis, the judicial interpretation of the threshold is changing, and it all depends on the facts of the case and the way the case is presented. The threshold was implemented by your government. Most accident victims do not know that it exists, until they need a lawyer.
Each accident victim in a motor vehicle claim has 2 cases; a no-fault case against his/her own insurance company; and a tort case against the person/insurance company for the driver who may have caused the accident. Sometimes there’s an accident benefit claim and no tort claim; sometimes there’s a tort claim and no accident benefits claim; sometimes there’s both an accident benefits claim and a tort claim. It all depends on the facts of the case, and the extent of the injuries.
This article is NOT intended on to be legal advice. Consult a lawyer for legal advice. If you need a lawyer, call Brian Goldfinger of Goldfinger Personal Injury Law at 416-730-1777 for your free consultation. This article does NOT create a solicitor-client relationship.
Brian Goldfinger is the directing lawyer of Goldfinger Personal Injury Law. Goldfinger Personal Injury Law is Ontario’s premier personal injury law firm, dedicated to assisting Ontario’s accident victims and their families. www.goldfingerlaw.com