One of the hardest things for people to understand in Ontario is how our No Fault system of car insurance works.
Ask 10 drivers how their no fault accident benefits work, or how no fault car insurance works, you’ll get 10 different answers. All of them will likely be wrong. Ask 10 lawyers who don’t practice in the field of persona injury law, you’ll probably get the same wrong answers! Even funnier is if you ask 10 different politicians, the ones who actually passed the laws to create no fault accident benefit insurance in Ontario, and they won’t know either.
The only people who truly know how no fault insurance and accident benefits work are personal injury lawyers, insurance defence lawyers, people who work for insurance companies and those service providers who routinely bill insurers through IEs or through OCF claim forms.
What people have a hard time understanding, is that after an accident involving the “use or operation of a motor vehicle” , they will have TWO SEPARATE CLAIMS. The first claim is the claim for no fault accident benefits. These claims are guaranteed provided there are no policy breach issues. This first accident benefit claim is against your OWN INSURER, regardless of fault. If you didn’t have car insurance at the time of the accident, then there are loss transfer provisions under the Insurance Act which create a duty to defend or respond to the claim from another insurer, or, in the last case scenario, from the Ontario Motor Vehicle Accident Claims Fund. These accident benefits will cover such things as medical/rehab benefits, attendant care benefits, non earner benefits, income replacement benefits and out of pocket expenses related to the car accident. Accident Benefits do NOT cover pain and suffering.
Pain and suffering claims are known as “tort” claims. These claims will be successful if liability can be pinned against the other motorist AND your injuries meet a certain threshold. For brevity sake, those injuries need to classified as a “serious and permanent impairment of an important bodily function” AND those injuries are also subject to a $30,000 (soon to be $36,540) deductible for any amount below $100,00 (or soon to be increased over $100,000 as well). That means if you have a trial, and the Judge awards you $30,000 for your pain and suffering, your award will be reduced to ZERO after the application of the statutory deductible. The jury is NOT told about the deductible at trial.
But the focus of this Toronto Injury Lawyer Blog Post will be on some handy tips to complete the Application for Accident Benefits. And without further a due, here they are:
- Get your hands on the Accident Benefit Package ASAP: You don’t have to wait for the insurance company to send you the Accident Benefit Package. You can easily find these forms online on the Financial Services Commission of Ontario website or on the Goldfinger Personal Injury Law website. Things get LOST in the mail all the time. Your case is too important to wait for a large insurance company to getting around at sending you a package which may, or may not show up any day now. Take control of the situation.
- Get help from a lawyer to complete the package! This is likely your FIRST TIME seeing OCF Claim Forms. There is certainly a right way and a wrong way to complete the forms to ensure that you get the compensation you deserve, and the attention you need from the insurance company. Once the forms are completed and submitted, they cannot be retracted. The way those forms are completed at the first instance will dictate how your claim is perceived by the insurer. It’s important to make a first impression. Completing the forms the wrong way is not a good start to your accident benefit claim or your legal case. Get it done right the first time by an experienced lawyer.
- The OCF-10 Election Form is VERY IMPORTANT! There is a single page form, hidden amongst the rest called an OCF-10 Election Form. With that form, the claimant makes an election on receiving either the Income Replacement Benefit, or the Non Earner Benefit. You cannot receive both benefits and you can only elect once. If you don’t elect, some insurers will automatically put in to the Income Replacement Benefit stream. If you weren’t employed in the year preceding the car accident, then the income replacement benefit stream likely isn’t right for you and you won’t be getting the compensation you deserve. Look out for the OCF-10 Election Form and make sure it’s completed the right way. If you aren’t sure how to elect, then ask a personal injury lawyer.
- Attach Original Receipts to the OCF-6 Expenses Claim Form: The OCF-6 Expenses Claim Form is meant to reimburse the accident victim, or his or her family members for any out of pocket expenses incurred which are directly related to the motor vehicle accident and subsequent treatment. Think parking receipts from the hospital parking lot, damaged clothing or glasses from the car accident or mileage over 50km. It’s not enough to just write down these expenses on the OCF-6. You need to attach original receipts. Keep copies of the originals so that you have a record of what was sent, and when it was sent.
- Be consistent with your description of the car accident and injuries: Both the OCF-1 Application for Accident Benefits AND the OCF-3 Disability Certificate contain sections asking you to describe how the accident happened, and your injuries. Be consistent in these descriptions. If you don’t remember, or you aren’t sure of the medical term used to describe your injury (subdural hematoma, cranial fracture, spiral fracture, weber fracture etc.) then you can say that you don’t remember, or you aren’t sure the nature of the injury, just that you sustained multiple orthopaedic injuries. More importantly, if one form states that the accident happened while you were a pedestrian, but the other form indicates that you were a passenger in a car, this is a significant discrepancy which will raise red flags for the insurer and cause additional investigations and headaches for you.
- Get those claim forms in as soon as possible, but have a lawyer check them over before they are submitted: The accident benefit forms need to be submitted to the insurance company as soon as possible. But don’t submit them before you’ve had a chance for a lawyer to review them. Don’t get your case started on the wrong foot.