This section is intended to provide a brief overview of the benefits available to victims of motor vehicle accidents under the Statutory Accident Benefits Schedule, which are often referred to as “accident benefits” or “no-fault benefits”.
The legislation governing accident benefits has undergone numerous changes in the past. Its current form is O. Reg. 34/10: STATUTORY ACCIDENT BENEFITS SCHEDULE – EFFECTIVE SEPTEMBER 1, 2010 (“the SABS”), which consists of 18 parts. Below, we discuss some of the most common benefits available to victims of motor vehicle accidents.
Part 2 of the SABS is dedicated to Income Replacement, Non Earner and Caregiver Benefits (also known as “weekly benefits”). These benefits are paid on a weekly basis if certain criteria are met. Only one weekly benefit is payable at a given time and in cases where the victim of a motor vehicle accident qualifies for more than one weekly benefit, the victim must elect which benefit to claim.
The Caregiver Benefit
The Caregiver Benefit is meant to compensate victims of motor vehicle accidents who are unable to return to a non-paying caregiving role that they held at the time of the motor vehicle accident. Following legislative changes on September 1st, 2010, the Caregiver Benefit is not available unless it is purchased as an optional benefit or, if the injuries sustained in the motor vehicle accident are deemed to be catastrophic. The result, unfortunately, is that fewer Ontario policy holders are entitled to this benefit. If you are, or may become, the primary caregiver to a person in need of care, it is important to know whether you have access to caregiver benefits or not.
Income Replacement Benefits
If you were working at the time of the accident and are unable to return to work as a result of your accident-related injuries, you may qualify for Income Replacement Benefits. Generally, you will be entitled to Income Replacement Benefits if you are found to suffer a complete inability to perform the tasks of your pre-accident employment. Should your impairment last more than 104 weeks, however, the test becomes more stringent, requiring a finding that you suffer a complete inability to perform any employment or self-employment for which you are reasonably suited by education, training or experience.
Victims who are unemployed at the time of the accident may qualify for the Non-Earner benefit. The test for Non-Earner Benefits is one of the most stringent tests in the SABS, requiring the victim to suffer a complete inability to carry on a normal life in order to qualify for this benefit. This determination requires a detailed analysis of the victim’s pre-accident and post-accident life.
Medical, Rehabilitation and Attendant Care Benefits
Part 3 of the SABS deals with Medical, Rehabilitation and Attendant Care Benefits. Attendant Care Benefits are only available to victims that suffer injuries outside of the Minor Injury Guideline.
Medical and Rehabilitation benefits
The type of injury that you sustain in a motor vehicle accident will govern your entitlement to Medical and Rehabilitation benefits. If your injuries fall within the Minor Injury Guideline, you are entitled to a maximum of $3,500.00 in Medical and Rehabilitation Benefits. If your injuries are outside of the Minor Injury Guideline (but are not catastrophic), you are entitled to a maximum of $50,000 in Medical and Rehabilitation Benefits. If you suffer catastrophic injuries, you will be entitled to significantly more in Medical and Rehabilitation Benefits.
If you have been involved in a motor vehicle accident while you are student and you are unable to complete your program, you may be entitled to a maximum of $15,000.00 in Lost Educational Expenses under Part 4 of the SABS.
Expenses of Visitors
Also found under Part 4 of the SABS is Expenses of Visitors. This benefit is intended to cover eligible expenses incurred by a visiting parent, grandparent, sister, brother, spouse, child, and/or grandchild, in connection with your treatment for the motor vehicle accident. This benefit will cover all reasonable and necessary incurred expenses with respect to visiting the injured person during his/her treatment or recovery.
Housekeeping and Home Maintenance Expenses
Another Benefit found under Part 4 of the SABS is Housekeeping and Home Maintenance Expenses, which reimburses the accident victim for up to $100/week of housekeeping and home maintenance services. This benefit is only payable if purchased as an optional benefit, or if you are deemed to have suffered a catastrophic injury.
Death and Funeral Benefits
Part 5 of the SABS deals with Death and Funeral Benefits. In the unfortunate event of an accident-related fatality, Funeral Benefits will pay up to $6,000 for funeral-related expenses. Death benefits may also be available to the surviving spouse and/or dependents of the victim. In certain situations, other persons may be able to receive Death Benefits.
Tort vs. AB – What’s the Difference?
When a person is involved in a motor vehicle accident, there are two potential avenues for recovery/compensation. One avenue is through accident benefits (or “AB”) and the other is by way of a tort claim against the at-fault party or parties.
In Ontario, almost everyone that is involved in a motor vehicle accident will have access to Accident Benefits. The compensation available through Accident Benefits, as well as the tests that need to be met in order to qualify for benefits, are codified in the Statutory Accident Benefits Schedule (or, the “SABS”). These benefits are usually obtained through the victim’s own insurance company, however, these benefits are still available to those that do not have an insurance policy of their own.
The purpose of accident benefits is to ensure that victims receive timely access to essential benefits, such as medical/rehabilitation, attendant care, and income replacement. Some benefits are standard and apply to all policies, while others are optional benefits that must be purchased from your insurer before the accident occurs.
When disputes arise over a victim’s entitlement to a benefit, the accident benefits dispute process requires that mediation and arbitration be initiated within the applicable time limits.
A tort claim can be advanced where the victim’s injuries are severe. In order to advance a successful tort claim, the victim must not be 100% responsible for the accident, and the victim must have commenced an accident benefits claim. The tort claim is brought against third parties (usually the owner and operator of the third party motor vehicle) and the claim is usually defended by the third party’s insurer. Damages in tort can include pain and suffering, past and future income loss, out of pocket expenses, and other items.
Who can apply for Accident Benefits?
If you were involved in a motor vehicle accident in Ontario, you are entitled to commence a claim for accident benefits pursuant to the Statutory Accident Benefits Schedule. This holds true in all but very limited circumstances, such as when a victim is involved in a motor vehicle accident while at work (and even in that case, there may still be a viable claim for accident benefits).
By default, accident benefits claims are submitted to the victim’s own automobile insurer. In cases where the victim does not have their own automobile insurance policy, there are “priority” rules to help determine the appropriate insurer. Even in cases where the accident benefits application is submitted to the wrong insurer, however, that insurer is obliged to respond to the victim’s accident benefits claim, and then it is the insurer’s responsibility to later seek reimbursement from the appropriate insurer.
In rare circumstances, there may be no insurance company to respond to your accident benefits claim. This may occur when the victim does not have an automobile insurance policy of their own and the third party is either unidentified or uninsured. In these types of situations where there is no insurer to respond, the victim’s accident benefits claim may be submitted to the Motor Vehicle Accident Claims Fund (“MVAC”). MVAC is the payer of last resort, meaning that they will not respond unless there is no other insurer that will respond. Furthermore, certain criteria must be met before submitting a claim to MVAC.
As you can see, there are various factors to consider when commencing an accident benefits claim. To preserve your rights and ensure you receive the appropriate compensation, you should contact a lawyer as soon as possible after being involved in a motor vehicle accident.
What to expect
When a benefit is denied by an insurer, formal written notification is provided by the insurer to the claimant. The denial usually comes following an Insurer’s Examination – under Section 44 of the SABS. If the claimant then wishes to challenge the denial of benefit, he/she is subject to section 280 of the Insurance Act which provides that the parties must participate in a mandatory mediation with a mediator from the Financial Services Commission of Ontario (“FSCO”), in an attempt to resolve the dispute. Assuming the mediation is unsuccessful, a Report of Mediator is issued to the parties and then, an application for arbitration is submitted with FSCO Arbitration proceedings, which is subject to the Dispute Resolution Practice Code. The Insurer will typically not engage in Settlement negotiations within the first year of your claim.
The Insurer may subject a claimant to medical examinations for several reasons and subsequently may deny one or more benefits based on the opinion (s) of medical doctor(s) who assess the injured victims on behalf of the insurance companies.
These assessments are also known as insurer’s examinations. The insurance company has a right to have the car accident victim assessed and provide the insurer with a copy of the results and the decision that follows such an examination. If benefits are denied, a claimant can enter in a Dispute between the claimant and the insurance.
Examination Under Oath
Insurance companies are entitled to examine a claimant under oath. These examinations are done with the present of your legal reprehensive. The examinations are usually done if there are coverage disputes but can also be done so that the insurer can better evaluate a claimant’s injuries and the claim.
An Examination Under Oath could expedite the approval of benefits previously denied by the insurer. However, it could also be detrimental to a claim, if the claimant is not aware of the procedures and lacks knowledge of the law. We highly encourage you to seek legal advice prior to participating in a EUO.
Also known as Alternative Dispute Resolution (ADR), mediation takes place when a disputes arise as a result of a denial from the insurer. It is an informal process where a Mediator is appointed by the government and helps the parties involved resolve the issues in dispute. Many claims settle at this stage. If the Mediation fails the next step is Arbitration.
Once an application for Arbitration is submitted, a Pre-Arbitration hearing is scheduled. An Arbitrator is now appointed to guide all the parties to either reach a solution or to set orders for an Arbitration. The Pre-hearing requires all parties to attend with full authority to settle the issues in dispute. In many instances, the insurer will be looking to use this opportunity to negotiate a full and final settlement of the entire claim. Although it may be tempting to enter into a full and final settlement at this stage, sometimes the amount of information required is not available or the claim is not ready for settlement. However, a large portion of claims do settle at this stage.
Arbitration is a well-established and widely used means to end disputes. In this stage, an Arbitrator will be appointed and he or she will make the final decision.
As per the legislation, cash settlement discussion can only commence a year after your accident. Your legal representative will help negotiate on your behalf to ensure you receive the maximum amount of benefits you may be entitled to.
At Grillo Barristers, we have over 30 years of experience handling accident benefits claims. We can help you better understand the law and assist you in recovering the compensation that you deserve. If you or a loved one have sustained injuries from a motor vehicle accident, call Grillo Barristers at 416-614-6000 for a FREE consultation.
Remember, you will not pay any fees until your case is won or settled.