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 Posted by  Rupa Karyampudi , Partner,  MK Disability Lawyers
Posted by Rupa Karyampudi , Partner, MK Disability Lawyers

If you are injured in a motor vehicle accident (“MVA”) in Ontario, you are well aware that the law is complex and confusing. In this blog article, I give an overview of the current MVA law in Ontario.

There are two potential sources of insurance that you can access if you are injured in an MVA. The first is benefits provided by your own auto insurer, which are regulated by the Statutory Accident Benefits Schedule (also referred to as “SABS” or “Accident Benefits”). These benefits are available to you regardless of fault (they are sometimes referred to as “no-fault benefits”). If you do not have your own auto insurance policy and you were in an MVA as a passenger, cyclist, or pedestrian, you can make a claim for accident benefits through the insurance company of the driver of the vehicle involved in the accident.

If you are injured in an MVA and you were not at fault, you may also be entitled to compensation from the at-fault party (or parties). This involves starting a civil lawsuit against the parties responsible for the MVA.

 

Accident Benefits

If you are injured in an MVA, you must inform your insurance company within seven days following the accident. They will send you a package of documents, which you will need to complete to start your claim for accident benefits. You must complete and return the application for accident benefits to the insurance company within thirty days.

Under the SABS, there are three categories of injuries: minor injury guideline (“MIG”), non-catastrophic impairment, and catastrophic impairment. The type and amount of benefits that you are eligible for will depend on the level of your injuries and which category you fall into.

Below is an overview of the main accident benefits that are available under a basic auto insurance policy. This is not an exhaustive list, and you may be eligible for more benefits if you purchased optional benefits or if you have a catastrophic impairment.  

Please note that the SABS legislation was amended as of June 1, 2016. The descriptions below apply to accidents occurring on or after June 1, 2016, under a renewed policy.  

 

Medical and Rehabilitation Benefits

This benefit is for medical and rehabilitation expenses that are not covered by the Ontario Health Insurance Plan (“OHIP”) or by your extended health care plan. In addition to various therapies (such as physiotherapy, chiropractic therapy, massage therapy, occupational therapy, psychotherapy, etc.) these benefits may compensate you for medications, assistive devices, and transportation to and from treatment. Your treatment provider must submit a “treatment plan” to the insurance company for approval to be eligible for these benefits.  

If you fall into the minor injury guideline (MIG), you are only eligible for a maximum of $3,500 for medical and rehabilitation benefits. A “minor injury” is defined as a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.  

If your injuries are non-catastrophic, you are eligible for a combined total of $65,000 for medical and rehabilitation benefits and attendant care benefits (see description below). These benefits are available for 5 years, or until age 28 for minors. If you have a catastrophic impairment, you are eligible for a combined total of $1,000,000 for medical and rehabilitation and attendant care benefits, and the benefits are available for life.

 

Attendant Care

Attendant care benefits are to compensate you for any expenses incurred by you or on your behalf as a result of the accident for services provided by an aide or attendant or by a long-term care facility. If a family member provided personal care, you must show that the expense was incurred and that the family member suffered an “economic loss” as a result of providing care to you.

Attendant care benefits are not available for MIG claims. For non-catastrophic injuries, you are eligible for a maximum of $3,000 per month for 5 years or until age 28 for minors. There is a total combined maximum of $65,000 for medical and rehabilitation benefits and attendant care benefits (see description above). If you have a catastrophic impairment, you are eligible for a maximum of $6,000 per month for life for attendant care. You have a $1,000,000 combined total limit for medical and rehabilitation benefits and attendant care benefits.

 

Income Replacement Benefits

Income replacement benefits (“IRB”) are available for people who were employed or self-employed before the MVA and have a reduced income as a result of their injuries. If you were not working at the time of the MVA, but you were employed for at least 26 weeks out of the 52 weeks before the accident, you may be eligible for IRB.

To receive this benefit in the first two years (or 104 weeks) after the MVA, you must suffer a substantial inability to perform the essential tasks of your employment. After two years (“post-104”), you must show that you suffer a complete inability to engage in any employment or self-employment for which you are reasonably suited by education, training or experience, to continue receiving IRB. The benefit is 70% of gross income to a maximum of $400 per week. This benefit is available to all categories of injuries, as long as you are unable to work due to the MVA.

 

Non-Earner Benefits

Non-earner benefits (“NEB”) are available if you were not working at the time of the MVA, but you are now unable to carry on a normal life as result of your injuries. The benefit is $185 per week for a maximum of two years. There is a waiting period of four weeks after the accident when the benefit is not paid.

 

Compensation From At-Fault Parties

If another party was at fault for your MVA, you can also bring a lawsuit against the at-fault party (also called a “tort” claim). Any claims made against at-fault parties are over and above any accident benefits that you may be entitled to receive. You have two years from the date of the accident to start the lawsuit, so it is very important that you see a personal injury lawyer well before the two-year anniversary of your accident.

The party starting the lawsuit is a “plaintiff” and the person being sued is a “defendant”. When you bring a lawsuit against the defendant, the lawsuit is for “damages”, which are monetary compensation for your losses as a result of the wrongdoing of the defendant. There are several types of damages that you can claim in a lawsuit against the at-fault party. Below is an overview of the main types of damages that you may recover in an MVA tort claim.

 

General Damages

General damages are to compensate you for pain suffering as a result of the MVA. You must prove that you suffer from a permanent serious impairment of an important physical, mental or psychological function or permanent disfigurement. The amount of general damages that a plaintiff is entitled to is determined by precedent, that is by looking at prior cases where the plaintiff had similar injuries.

There is a cap on general damages in Ontario, as set by the Supreme Court of Canada in 1978. At that time, the cap was $100,000. As of 2017, the cap has been adjusted to account for inflation and cost of living and is approximately $362,000. General damage awards less than $124,616.21 are subject to a deductible of $37,385.17.

 

Income Loss

If you are unable to work as a result of your injuries, you can claim for lost income. Damages for lost income are 70% of gross income loss up to the date of trial, and 100% of gross income loss for future losses. You must seek compensation in income replacement benefits from your AB insurer and from any disability insurance policy that you have before you can recover in tort. Any amounts that you do not recover from AB and disability insurers, you can claim from the defendant in a tort action.

 

Other compensation

If you are unable to maintain your home and perform housekeeping as you did before the MVA, you can claim reimbursement for expenses incurred or that you will incur in the future. It is not necessary that you hire outside help to assist you with housekeeping. You only need to prove that you are unable to perform the same level of housekeeping duties as before the accident because of your injuries.

You can also claim any expense that you incurred or that you will incur in the future as a result of the accident that you are not entitled to from any other source. This includes all past, present, and future healthcare expenses not covered by OHIP, extended health coverage, or accident benefits. You can also claim for assistive devices, modifications that you had to make to your home as a result of your injuries, and cost of past and future care.

 

Conclusion

If you are injured in an MVA, you have access to a variety of benefits to compensate you for your losses and to assist you with your recovery. You have seven days to report the accident to your insurer so that you can apply for accident benefits. In addition to an accident benefits claim, you may have a right to sue the at-fault party, but you must do so within two years of your accident.

If you have been injured in an MVA and your accident benefits have been denied or terminated, or if you believe that you were not at fault for the MVA, it is critical that you contact a lawyer with experience in motor vehicle litigation within the time limits.

 

MK Disability Lawyers has over 20 years experience between its two partners in personal injury law. We provide expert, personalized legal representation to clients who were injured in motor vehicle accidents. If you need legal advice on your accident benefits or tort claims, please contact us at info@MKDisabilityLaweyers.com for a free consultation.

The preceding is not intended to be legal advice. This blog is available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog, you understand that there is no solicitor-client relationship between you and the blog publisher.  The blog should not be used as a substitute for competent legal advice from a licensed lawyer in your jurisdiction. If you were injured in a motor vehicle accident and you need legal advice, contact a lawyer specializing in personal injury law.

 

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