- What if you were injured in a motor whicle accident and the accident is not your fault?
You have the legal right to claim:
(1) General Damages
(2) Special Damages
(3) Family Law Act Damages against the at fault driver’s insurance company
- What are General Damages?
General Damages is a claim for money for pain and suffering and the loss of enjoyment of life.
The law says if “you are not at fault for an accident” and you sustain a serious and permanent impairment of an important physical, psychological or mental function, you will be entitled to claim money for your damages.
- How much money will I receive for my pain and suffering and loss of enjoyment of life claim?
There are several factors that are taken into account in determining how much you will receive for your pain and suffering and loss of enjoyment of life claim. Some important factors are:
(a) The nature and extent of your physical, psychological and mental injuries
(b) Whether surgical intervention was or will be required
(c) Whether there has been a substantial interference with respect to your pre-motor vehicle family, vocational, day-to-day, social and recreational activities
All claims for General Damages are subject to a Statutory deductible (which as of January 1, 2017 is approximately $39,000 and adjusted for inflation) unless your General Damages claim has been assessed at $124,616.21 (again, as at January 1, 2017, subject to inflation) or greater in which case there is no deductible.
It is important to know that Jury’s in Ontario are not told in the course of the trial of this threshold or deductible when deciding a personal injury case.
You have the option to purchase insurance to reduce the amount of the statutory deductible and this should be discussed with your insurance broker.
- What are Special Damages?
Special Damages are claims for money for various claims.
These claims include money for:
(1) past and future lost employment income
(2) past and future housekeeping and home maintenance expenses
(3) any expenses denied by your own Insurance Company for medical and rehabilitation expenses not covered by OHIP
(4) any other out of pocket expenses resulting from the accident
- Family Law Damages
Close family members of an innocent injured person have the right to advance Family Law Act Claims, which include:
(1) loss of guidance, care and companionship
(2) the value of nursing, housekeeping and other services the family member has performed or will perform on behalf of the injured person
(3) loss of income as a result of the accident
(4) reasonable expenses incurred on behalf of the insured person
These damages are also the subject of a statutory deductible, adjusted annually for inflation.
- What are Accident Benefits?
Accident Benefits are the legal ways you can claim compensation or money as a result of sustaining injuries in a motor vehicle accident regardless of who was at fault for the accident.
- How can I claim Income Replacement Benefits?
The law says that you can claim Income Replacement Benefits up to 104 weeks (two years) as long as you suffer a substantial inability to perform the essential tasks of your pre-accident employment.
- Can I claim Income Replacement Benefits beyond 104 weeks?
Yes, you can claim Income Replacement Benefits beyond 104 weeks as long as you are suffering a complete inability to engage in any employment for which you are suited given your education, training or experience.
- Caregiver Benefits – Am I entitled?
This benefit is payable if you have, at an increased premium, added this benefit to your insurance policy or if you have sustained a catastrophic injury as defined in the accident benefit schedule. If you qualify for either of these reasons, the benefit is payable provided the expense is incurred (that is – there is an absolute liability for the payment of the expense) and the person providing the service is doing so in accordance with his/her regular pre-accident employment or is incurring an economic loss as a result of providing the services.
If you are the injured person, not at fault for the accident, you can, in all other circumstances, recover the costs of caregiver expenses from the insurer of the party at fault for the accident.
- Can I claim Caregiver Benefits?
If you have purchased this added benefit, or if you have sustained a catastrophic impairment (as defined in the benefit schedule), you can claim this benefit for up to 104weeks (2 years) following the accident. You can also claim this benefit beyond the 104 weeks if your injuries and impairments result in your being unable to engage in substantially all the regular pre-accident activities in which you engaged.
- Caregiver Benefits – How much can I get?
If you are a primary caregiver for a person in need of care and you suffer a substantial inability to engage in the caregiving activities you can claim $250 per week for the first person in need of care and a further $50 per week for each additional person in need of care. The law says a person in need of care is a person under the age of 16 years or who requires care because of physical or mental incapacity. For example, a mother with four children all under the age of 16-years old and an additional person who is mentally incapacitated can claim $450 per week.
- Non-Earner Benefits – Am I entitled? How much can I get?
If you (a) don’t qualify for Income Replacement Benefits, or (b) if you received a caregiver benefit and there are no longer persons in need of care, or (c) you are a full time student over 16 years of age and you suffer a complete inability to carry on a normal life, which means you are unable to engage in substantially all your pre-accident activities in which you ordinarily engaged prior to the accident, may be entitled to claim $185 per week commencing 4 weeks post-accident date.
- Does the amount of Non-Earner Benefit increase?
Yes. The weekly amount of Non-Earner Benefit increases from $185 per week to $320 per week if more than 104 weeks have elapsed from the date of the accident and provided you were a full time student at the time of the accident.
- Attendant Care Benefits – Am I entitled? How much will I get?
You can claim up to $3,000 per month (up to a policy maximum of $36,000) for all reasonable and necessary expenses incurred by you or on your behalf for services provided by an aide or attendant. The expenses must be incurred (that is there is an absolute liability for the payment of the expenses) and the person providing the services is doing so in accordance with his/her regular pre-collision employment or is incurring an economic loss as a result of providing the services.
If you are the injured person, not at fault for the accident, you can, in all other circumstances, recover the costs of attendant care expenses from the insurer of the party at fault for the accident.
- What will determine how much I receive for Attendant Care Benefits?
A form called Assessment of Attendant Care Needs (Form 1) completed by an Occupational Therapist or Registered Nurse will determine the amount you are entitled to receive by way of Attendant Care Benefits.
- How long can I claim Attendant Care Benefits?
You can claim Attendant Care Benefits for two years following the date of the motor vehicle accident. In the event that you have sustained a catastrophic impairment as defined by the Statutory Accident Benefits Schedule, the Attendant Care benefit is payable at the maximum rate of $6,000 per month and is payable for life up to a maximum of $1,000,000 (combined medical rehabilitation and attendant care benefits).
- Housekeeping/Home Maintenance Benefits – Am I entitled? how much can I get?
In the event that you have purchased this added benefits at an additional premium, or have sustained a catastrophic impairment as defined by the Statutory Accident Benefits Schedule, you are entitled to receive up to $100 per week for reasonable and necessary expenses for housekeeping and home maintenance services if you sustained an impairment that results in a substantial inability to perform the housekeeping and home maintenance services that you normally did prior to the accident.
The expense must be incurred (that is there is an absolute liability for the payment of the expenses) and the person providing the service is doing so in accordance with his/her regular pre-collision employment or is incurring an economic loss as a result of providing the services.
If you are the injured person, not at fault for the accident, you can, in all other circumstances, recover the costs of housekeeping and home maintenance expenses from the insurer of the party at fault for the accident.
- How can I collect Housekeeping and Home Maintenance benefits?
You can claim housekeeping and home maintenance benefits for 2 years following the date of the motor vehicle accident. If you have sustained a catastrophic injury as defined in the Statutory Accident Benefits Schedule, you can claim housekeeping and home maintenance benefits for the balance of your life.
- Medical and Rehabilitation Benefits – How much can I get?
The law says that if you sustain physical and/or psychological impairments that require Medical and Rehabilitation treatment, you can claim up to $65,000 for these expenses as long as the expenses are reasonable and necessary and the expense is incurred within 5 years from the date of motor vehicle accident.
In the event that you have sustained a catastrophic impairment as defined by the Statutory Accident Benefits Schedule, the Medical and Rehabilitation Benefit is payable for life or when a total of $1,000,000 has been paid for Medical and Rehabilitation Expenses and Attendant Care Benefits.
- What you need to know about medical assessments
You have the legal right to have assessments done on your behalf without any cost to you. The insurance company may be obligated to pay for the costs of these assessments.
Your Medical Assessments
The purpose of your medical assessment is two-fold; (1) to provide a diagnosis (the nature and extent of your physical injuries) and (2) make recommendations for treatment and rehabilitation. Your rehabilitation facility will attend to your medical assessment and will complete and submit a Disability Certificate and Treatment Plan to your insurance company for their approval. The costs of the assessments and the expenses for treatment are covered by the $65,000 that is available for medical treatment, rehabilitation, and attendant care. In the event you sustained psychological or emotional injuries such as depression, or panic attacks while driving, a Psychological Assessment will be arranged and the attending psychologist will submit an application for approval of the assessment to your insurance company and upon approval.
You may have to attend for a Psychological Assessment. On completion, the psychologist will submit the assessment along with a Treatment Plan to your insurance for approval. Once approved, you must attend for treatment.
Insurance Company’s Medical Assessments
As you have the legal right to medical and non-medical assessments, so does your insurance company. The insurance company must provide notice in writing and you are obligated by law to attend. Usually, an insurance medical assessment will result in your benefits being reduced or terminated. This does not mean you are not still suffering from the injuries sustained in the accident, but represents a difference in medical opinion. Your lawyer will commence legal proceedings by filling out an Appeal with the License and Appeals Tribunal to have your benefits restored or negotiate a final cash settlement.
The Importance of Attending for Your Medical Treatment
The bottom line, if you don’t attend for approval Medical Treatments such as physiotherapy, chiropractic, psychological counselling, or an approved chronic pain program, it will be interpreted that you are no longer injured, and you can resume all your pre-accident lifestyle activities such as work, housekeeping, caregiving, family social and recreational activities. As a result, you have no chance of obtaining reasonable cash settlement.