WHAT IS THE STATUTORY ACCIDENT BENEFITS SCHEDULE?
What Are Statutory Accident Benefits?
If you or a loved one has been seriously injured in a motor vehicle accident in Ontario, you may be entitled to Statutory Accident Benefits (also known as “SABS”) of the Insurance Act. These benefits are available to pay for necessary expenses that are not covered by OHIP, and may also help replace your income if you are unable to work because of the accident and if you qualify. Unfortunately, Accident Benefits have a lot of red tape, and insurance companies and their representatives tend to treat the process in an adversarial manner. The insurance company's main focus is to protect their bottom line.
Accident Benefits are covered through your own auto insurance or the vehicle of which you were a passenger. In other situations, such as a pedestrian accident, your Accident Benefits claim may be through the vehicle’s insurance that hit you.
The purpose of Accident Benefits is to enable people to have treatment and rehabilitation as early as possible and provide some financial relief. In reality, Accident Benefits insurers deny claims often and make their insureds jump through unnecessary hoops throughout the process. Your lawyer should be well versed with the Accident Benefits legislation and be able to maximize your benefits.
What's Covered by Statutory Accident Benefits?
There are a number of benefits that could be covered under Accident Benefits. For instance, you may be entitled to Income Replacement Benefits, Non-Earner Benefits, Caregiver Benefits, Medical and Rehabilitation Benefits, and Attendant Care Benefits.
If you were working prior to the accident for a specified amount of time, and if you cannot work as a result of the accident, you may be eligible for weekly Income Replacement Benefits of 70% of your gross income, up to a maximum of $400 per week. Unfortunately, the maximum, $400 per week, is usually not enough to cover a mortgage or rent and support a family. Your lawyer would also commence a lawsuit in tort law, which is a claim against the at-fault driver’s insurance, and your lawsuit would factor in the disparity between the Income Replacement Benefits and the amount you would have earned before the accident. In other words, it would top up your benefits when the lawsuit is complete to reflect your true earning capacity if the accident were not to have happened.
Caregiver Benefits are for the most part optional unless you meet the catastrophic impairment threshold. These Benefits are available if you can no longer provide full-time care to a dependant and if you were in the caregiver relationship prior to the accident.
Non-Earner Benefits are for those people that were not working before the accident. If your injuries prevent you from carrying on normal life and result in a substantial inability to function normally, you could be eligible to earn $185 per week. It is not an easy test to meet, but your lawyer should advise you whether they feel you meet the test and should advocate your case if you suffer a complete inability to carry on with your normal activities.
Under a separate section of benefits, you may be entitled to Medical and Rehabilitation Benefits. These are in place to cover costs such as chiropractic treatment, physiotherapy, occupational therapy, psychological treatment, and other forms of care that are not covered by OHIP. Typically, if you have any benefits through your work or private disability insurance, you would have to use that provider first, and your Accident Benefits would kick-in afterward.
Attendant Care Benefits are a similar category of benefits and cover the costs of an attendant at your home or in a healthcare facility. The medical, rehabilitation and attendant care benefits at the moment are combined at $65,000 for non-catastrophic injuries and $1 million for catastrophic injuries. It is important to note that these numbers often change, as the government passes to new legislation, and your lawyer should properly advise you how much money you potentially have access to with your benefits.
There are other benefits available depending on the circumstances of your case, your injuries, and whether or not you purchased optional coverage. Some of these benefits cover death and funeral expenses. Your lawyer will be in a position to review your policy and ensure that you are receiving all of the benefits you are entitled to.
What is the Minor Injury Guideline?
It is worth mentioning that there are special guidelines in place if your injuries are considered minor, and are then capped at $3,500. Typically, insurance companies will argue that your injuries fall in this category if you suffer whiplash or sprains and strains. This guideline is here to protect big insurance companies from having to pay for treatment that some accident victims need. While $3,500 may be enough treatment in the least serious of cases, it often leaves accident victims left to suffer in pain without sufficient treatment. Your lawyer should do the best job possible to try and get your case out of the minor injury guideline.
A number of factors may make that possible. For instance, if you suffer psychological harm as a result of the accident, you should be able to receive treatment over and above the $3,500. Or, if you suffer pre-existing injuries that have been exacerbated by the accident, your injuries may be considered not minor in nature and your insurance company should take your case out of the Minor Injury Guideline.
You can access the Statutory Accident Benefits Schedule through the following link: https://www.ontario.ca/laws/regulation/100034
What is an Examination Under Oath?
Filing a claim for Accident Benefits begins when you put the insurance company on notice and file the appropriate paperwork. In exchange for the possible benefits, your insurance company could ask that you participate in an examination under oath as part of their investigation into your claim. As a claimant, you must cooperate with the insurance company that is handling your claim, as long as they are acting reasonable. If you were to not cooperate, they may hold your in non-compliance, with would affect your benefits. An examination under oath is your insurer’s ability to question you about the accident, your injuries, and other matters pertaining to your claim for benefits. This questioning takes place in a conference room and begins with you being placed under oath. A court reporter will be there to ensure a transcript is available. Your lawyer will be present and make sure your rights are respected.
You have certain rights in this process. The insurance company must make reasonable efforts to select a date and location that is convenient to you, as well as provide reasonable notice of the examination. The notice must include reasons for the examination so that you are not ambushed, and the questioning must relate strictly to your entitlement to benefits.
If your injuries are too severe to attend an examination under oath, then you may be excused from it. If you are asked to attend and unable to, you should contact a personal injury lawyer to review your situation.
What is Catastrophic Impairment?
One could write a few novels on what exactly constitutes a Catastrophic Impairment. There are many types of injures that could potentially fall under this category, however, the test is extremely difficult to meet. Additionally, the definition of Catastrophic Impairment evolves over time, and the legislation often changes. This results in certain cases that would have been found catastrophic under the older legislation, may not meet it under the new framework.
Since June 1, 2016, Catastrophic Impairment has been defined to include 8 categories of impairments, that can be summarized as follows:
- Paraplegia or tetraplegia
- Severe impairment of ambulatory mobility or use of an arm or leg, or amputation of an arm or leg
- Loss of vision of both eyes
- If the person is over 18: traumatic brain injury, provided that the brain injury is confirmed by medical imaging and a Glasgow Outcome Scale assessment determines that the injury result in one of the following ratings:
- Vegetative State, one month or more after the accident,
- Upper Severe Disability or Lower Severe Disability, six months or more after the accident, or
- Lower Moderate Disability, one year or more after the accident
- If the person is under 18 years of age: a traumatic brain injury, confirmed by medical imaging, and the person has been admitted into hospital, or, the person has severely impaired neurological functioning
- A physical impairment or combination of physical impairments that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in 55 percent or more physical impairment of the whole person
- A mental or behavioural impairment, excluding traumatic brain injury, determined in accordance with the rating methodology in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th edition, 2008, that, when the impairment score is combined with physical impairment described above results in 55 percent or more impairment of the whole person
- An impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in a class 4 impairment (marked impairment) in three or more areas of function that precludes useful functioning or a class 5 impairment (extreme impairment) in one or more areas of function that precludes useful functioning, due to a mental or behavioural disorder
We would not expect any layperson to fully grasp the criteria under Accident Benefits and the Catastrophic Impairment Designation as it is very complex. A skilled personal injury lawyer should be able to explain the category, if any, that your case could potentially fall under, and then provide a more fulsome and simplified look at what that means from a legal perspective.
What is an OCF-19?
If you are applying to be deemed Catastrophically Impaired, which could provide you with significantly more benefits (for instance, $1 million as compared to $65,000 in Medical Rehabilitation and Attendant Care Benefits), then a physician must complete the OCF-19 form and send it to the auto insurer. In the case of a traumatic brain injury, a neuropsychologist must complete this form. As you can see from the above, some injuries are automatically deemed catastrophic such as blindness in both eyes or the loss of a limb.
Once the form is submitted to the auto insurance company, they can either accept the application or as seen in most cases, require you to attend a number of Insurer Examinations (“IE’s”) for the purposes of determining whether you meet the criteria. If the insurance company’s assessments do not support the finding of Catastrophic Impairment, then your lawyer should assist in obtaining an assessment from their experts, and proceed with an application to the License Appeal Tribunal to resolve the dispute.
How to Apply for Accident Benefits
The OCF-1 is a crucial component to your Accident Benefits package. By filling it out, and sending it to your insurance company, it should trigger your claim for Accident Benefits. You should report your accident to your insurance company within 7 days of the accident, and make a request for the Application for Benefits package. By contacting a personal injury lawyer, they should help ensure the forms are filled out properly. Some of the information that is requested in these forms needs to be completely accurate, and it could have a negative impact on your lawsuit if they are filled out incorrectly. We suggest you contact a personal injury lawyer at the outset of your case to make sure your rights are protected, and that nothing is filled out in these forms improperly that could prejudice your claim.
What Are Optional Benefits?
Optional Benefits are essentially increased coverage amounts and are over and above what a standard policy includes. There are Optional Benefits that you could purchase for Medical, Rehabilitation, and Attendant Care Benefits. There is an option that would increase your coverage from $65,000 to $130,000 for non-catastrophic injuries and up to $2,000,000 for catastrophic injuries. This can be very helpful to ensure that you do not burn through all of your benefits too quickly.
You could also purchase Housekeeping and Home Maintenance Expenses as an optional benefit. This benefit is offered typically only in cases of Catastrophic Impairment. If you purchase it as an Optional Benefit, it could extend the coverage to include all injuries. The Housekeeping and Home Maintenance Benefits can be extremely important to maintaining your household and living a more normal life during your recovery.
Death and Funeral Benefits are covered in a standard insurance policy, but an insured person could increase this coverage to $50,000 to an eligible spouse, and $20,000 to an eligible dependant as well as $8,000 in funeral expenses.
Income Replacement Benefits can also be increased with the purchase of optional benefits. As indicated, 70% of one’s income, up to a maximum of $400 per week is usually not enough to support a household. The optional coverage increases that amount to $1,000 per week.
When discussing your auto insurance policy with your agent or broker, you should carefully consider adding Optional Benefits to your coverage. If you have disability benefits through your work that would be helpful to assist you with getting more care. Your Accident Benefits will be there to subsidize where your other benefits are missing or run out. It is important to get the insurance coverage that you need, so that if a car accident happens, you and your family members can have some peace of mind. The Optional Benefits help an injured person to cover rehabilitation expenses and expenses incurred that the standard policy may not cover.
Every family is different, and if you have small children, or have dependants that rely on you, adding the Optional Benefits could be imperative to the aftermath of a car accident. You should consult with your agent or broker to discuss optional coverage that will help manage the risk and provide the most comprehensive coverage to suit your budges. Optional Benefits are often overlooked unfortunately, but if you haven’t already, you should consult with your agent or broker and we strongly encourage you to consider this additional coverage. Our office offers free consultations to discuss your benefits and review your case.
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