An Overview of Accident Benefits and How to Build Your Accident Benefits File

Statutory accident benefits (“accident benefits”) are a type of no-fault insurance coverage attached to every automobile insurance policy in Ontario. The law which governs accident benefits is contained in a regulation made under the Insurance Act[1]. Familiarity with this document is essential if you intend to work in this area. I keep a copy of the relevant regulation at my desk and refer to it almost daily.

It should be noted here that the law governing these benefits was amended for motor vehicle accidents occurring on or after September 1, 2010. All references in this paper are to the current legislation. For accidents which occurred between November 1, 1996 and August 31, 2010 (“old accidents”) the reader should refer to the Statutory Accident Benefits Schedule – Accidents on or After November 1, 1996 – O. Reg. 403/96[2].

How does a person qualify for these benefits?

If a person in Ontario suffers an impairment[3] that is directly caused by the use or operation of an automobile[4] then that person will be entitled to apply for accident benefits. This is true regardless of whether or not the injured party was an insured person or the spouse or dependent of an insured person under a policy of auto insurance. This is also true even if the motor vehicles involved in the accident were uninsured or fled the scene of the accident[5].

The only restrictions on benefits available related to the circumstances of the accident are contained in section 31 of the SABS. In a nutshell, this section sets out that income replacement benefits, non-earner benefits, visitor expenses, lost educational expenses and housekeeping and home maintenance benefits are not available to the driver of the vehicle if he or she was driving at the time of the crash without a valid licence or without valid insurance or without consent of the owner. In addition, if the driver is convicted of a criminal offence[6] relating to the accident then the above noted benefits are taken away. Medical and rehabilitation benefits and attendant care benefits are not effected by this section.

What benefits are available?

There are three categories of injuries under the current SABS. These are the minor injury guideline (“MIG”), catastrophic impairment claims (“CAT”) and all other claims.

For accidents occurring on or after September 1, 2010, the following benefits are available to an injured party who meets the applicable tests but are not CAT or MIG:

  • A maximum of $50,000 in medical and rehabilitation benefits payable over 10 years following the accident[7];
  • Attendant care benefits to a maximum of $3,000 per month (up to a maximum of $36,000).  This benefit is only payable for the first 104 weeks following the accident or until $36,000 is exhausted, whichever is earlier;
  • An income replacement benefit of a maximum of $400 per week or 70% of weekly pre-accident gross income, whichever amount is lower. These benefits are payable up to age 65 with a reduced benefit thereafter but the test to qualify for the benefit becomes stricter after 104 weeks[8];
  • Lost educational expenses of up to $15,000;
  • Visitor expenses for 104 weeks following the accident[9];
  • A non-earner benefit of $185 per week[10] if the injured party was not working at the time of the collision and now suffers a complete inability to carry on a normal life. There is a six month waiting period before you can qualify for this benefit. This benefit is payable up to age 65 with a reduced benefit thereafter; and,
  • Reimbursement for damaged clothing, glasses, hearing aid, etc.

In the event of a death – the following benefits are available:

  • a death benefit of $25,000 to a spouse, $10,000 to each dependent and one benefit of $10,000 to be split amongst the persons in respect of whom the deceased was a dependant at the time of the accident[11];
  • a funeral benefit of $6,000.

Minor Injury

Section 40 and Section 18 of the SABS sets out that if a person sustains an injury that is “predominately” a minor injury[12] that person is limited to a maximum of $3,500 in medical and rehabilitation benefits and is not eligible for any attendant care benefits. Injured people who fall under this guideline are still eligible for income replacement benefits if they meet the applicable test in the SABS. The definition of minor injury would include serious injuries such as a partial tear of an anterior cruciate ligament.  This is relatively new legislation and it is unclear as of yet how much evidence will be required in order to remove an injured person from the MIG. I believe that if a health practitioner is prepared to attest that the injured person suffers from depression, poor sleep and anxiety in addition to physical injuries and that the physical injuries are not predominate then the insurer ought to remove the injured party from the MIG and restore them to the ordinary non-catastrophic level of accident benefits.

Catastrophic Impairment

If the insured person suffers an impairment which rises to the level of catastrophic impairment[13] then the available medical and rehabilitation benefits increase to $1,000,000 payable over the insured person’s lifetime and the available attendant care benefits increase to a maximum of $6,000 per month payable over the person’s lifetime or until $1,000,000 has been exhausted.  In addition, insured people with catastrophic impairments are eligible for a housekeeping and home maintenance benefit of $100 per week for life and are eligible for a caregiver benefit of $250 per week for the first person in need of care and $50 per week for each additional person in need of care.  The caregiver  benefit is payable for the first 104 weeks of disability unless as a result of the accident the insured person is suffering a complete inability to carry on a normal life in which case it is payable for life[14]. Case Management services are also available to people who have suffered a catastrophic impairment. The cost of case management is payable out of the medical and rehabilitation limits described above.

In addition, the following benefits apply:

  •  An income replacement benefit of a maximum of $400 per week or 70% of weekly pre-accident gross income, whichever amount is lower. These benefits are payable up to age 65 but the test to qualify becomes more strict after 104 weeks[15];
  • Lost educational expenses of up to $15,000;
  • Visitor expenses for life[16];
  • A non-earner benefit of $185 per week[17] if the injured party was not working at the time of the collision and now suffers a complete inability to carry on a normal life. There is a six month waiting period before you can qualify for this benefit. This benefit is payable up to age 65 with a reduced benefit thereafter; and,
  • Reimbursement for damaged clothing, glasses, hearing aid, etc.

It is important to note that even though an insured person may qualify for more than one weekly benefit (i.e. income replacement benefit, caregiver benefit or non-earner benefit) the insured person must elect to receive only one of these weekly benefits and in most circumstances cannot re-elect.

Optional Coverage

For an additional premium, policy holders can buy optional coverage that increases the income replacement benefit maximum to $600, $800 or $1,000 per week. They can also buy optional dependent care coverage and optional indexation of future benefits coverage. In addition, optional medical and rehabilitation benefits are available to increase medical and rehabilitation coverage to $100,000 in non-catastrophic cases or, for a larger premium, $1,000,000 in non-catastrophic cases and $2,000,000 in catastrophic cases. Optional attendant care coverage increases the total amount available to $72,000 in non-catastrophic cases or, for a larger premium, $1,072,000 in non-catastrophic cases and $2,000,000 in catastrophic cases. An insured person can also purchase coverage that allows for housekeeping and home maintenance benefits and caregiver benefits in non-catastrophic cases. Lastly, an insured person can purchase a death benefit that increases to $50,000 for the spouse and $25,000 for the dependants and $8,000 for a funeral benefit. The optional benefits are further described in section 28 of the SABS. It is important to check with your clients on every file to confirm whether they purchased optional coverage on their policy.

Post-September 1, 2010 Accidents before renewal of policy

Section 68 of the SABS sets out that for accidents occurring after September 1, 2010 but which involves an auto policy that has not been renewed between September 1, 2010 and the date of the accident those policies are deemed to include optional coverage for housekeeping and home maintenance benefits, caregiver benefits, attendant care benefits up to $72,000 and medical and rehabilitation benefits up to $100,000.

Which insurer does the injured party apply to for accident benefits?

How does one open an accident benefits file and ensure that the injured person is receiving all the benefits that they may be entitled to?  The insured must first complete and submit an “OCF-1- Application for Accident Benefits Form” to the appropriate insurance company.  Ordinarily the insurance company that the injured person applies to is the insurance company that insures the injured person.  However, this is not always the case. If you are unsure about which company to apply to there are priority rules set out in the Insurance Act[18]. If there are no insured vehicles involved in the accident the injured party can still access accident benefits from the Motor Vehicle Accident Claims Fund[19].

The next order of business is to complete a “Disability Certificate (OCF-3)”.  This must be completed by a health care professional as defined in the SABS and must set out that the insured was in an accident and that the insured person meets the relevant disability tests set out in the SABS for various benefits.

If the client is eligible for and elects to apply for income replacement benefits an “OCF-2- Employer’s Confirmation of Income Form”, must be submitted by the employer.  This sets out the amounts that the employer paid the employee over the previous 4 or 52 weeks before the accident.  If the client was self employed then the client’s business records must be submitted to the accident benefits insurer. The accident benefits insurer will hire an accountant to prepare a calculation of the gross income of the client before the accident in order to calculate the weekly income replacement benefit.

Other Tips

Communication between the client, the treatment team and the legal professionals representing the client is the most important element of a file. You need to find out everything from your client about their pre-accident medical and employment history. If you know about any pre-accident health problems early on it will allow you to address them before they become a problem for the accident benefits insurer.

Establishing a good line of communication with the accident benefits adjuster is also important. If the adjuster knows you are on top of the file and that you are knowledgeable about the SABS it becomes more likely that the file will be adjusted in a manner that is favourable to your client. If there are problems with the adjuster do not be afraid to ask to speak to a supervisor.

When setting up a treatment team on a file it is important to ensure that all therapists on the team are client-focused as well as team players who work together and communicate their findings. A therapist may be great at their profession but if they do not inform everyone (including legal counsel) of what is going on with the file then that will create serious problems going forward.

It is also essential to find therapists who have a good rapport with the client. Not every therapist is right for every client. If the relationship is not going well do not be afraid to replace the therapist before things get out of hand.

It is crucial that you submit visitor and other out of pocket expenses to the accident benefits insurer early on in the process. The longer that you wait to submit them the more likely it is that the request for payment will be denied or that the client will lose the supporting documentation. It is also important to have a tickler system that ensures that you follow up with the accident benefits insurer if it does not respond to a request for payment in a timely manner.

The Treatment Team

When setting up a treatment team, the first course of action is to get a case manager or occupational therapist on the file.  Case managers are only available in catastrophic cases. The role of the case manager is to promote independence and quality of life through the coordination of appropriate services and the provision of continuing support, as needed.

On non-catastrophic cases the occupational therapist (“OT”) usually acts as the quarterback of the treatment team. The OT will go in and assess the client and determine what type of care the client needs and whether they need any assistive devices.  The occupational therapist will usually fill out the Form 1 – Assessment of Attendant Care Needs Form.  It is important to get this form done early so that the monthly attendant care benefit can be assessed as high as possible. If this form is not submitted on a timely basis the accident benefits insurer may send in its own OT to complete the form. The amounts on insurer funded Form 1’s are invariably lower than those done by independent OTs. The OT will also assess the need for housekeeping and home maintenance benefits in cases where those benefits are available. Again, it is important to get the independent OT to do this assessment before the accident benefits insurer sends in its own OT.

Ordinarily the occupational therapist must get pre-approval from the accident benefits carrier and they must submit a Treatment and Assessment Plan (OCF-18) before going in to assess the client. Once a Treatment and Assessment Plan has been submitted the insurer has the right to send the insured to a Section 44 Insurer’s Examination to assess whether or not the requested assessment or treatment is reasonable and necessary. It is important to note that any assessment or examination of a client cannot exceed $2,000 under the new regulation and those costs are all payable out of the available $50,000 non-catastrophic medical and rehabilitation limits.

The next item on the agenda in most cases is to have a physiotherapist put on the file.  There are very few injuries in which a physiotherapist is not beneficial to the client. This is particularly true in the early stages post accident.  Again the physiotherapist will need to submit a Treatment and Assessment Plan.

Other professionals that are often involved in cases I am involved with are:

  • A social worker – to deal with the emotional or psychological issues arising from the accident;
  •  A speech language pathologist – in the event of a head injury in which there are ongoing problems with word finding or other cognitive issues;
  •  A registered massage therapist – if there are ongoing physical issues requiring massage;
  •  A personal support worker – to provide attendant care;
  • A rehabilitation support worker – to assist with the implementation of treatment and to assist in re-integration into the community;
  • A chiropractor – if there are ongoing physical issues requiring chiropractic care; and,
  • A psychologist – if the emotional or psychological issues are more severe;

 

Each of these treatment professionals will provide an important role in your client’s recovery from the accident.  The number of professionals involved obviously depends on the severity of the injuries to the client and whether or not there is a tort claim or if you think the client is eventually going to be found to have suffered a catastrophic impairment.

It is important to remember that Section 16(3) (h) and (i) of the SABS provide that the insurer must pay for all reasonable and necessary workplace and home modifications and home devices that are required to accommodate the needs of the injured person.  This can included items such as a walker or cane, ergonomic keyboard or chair and many other items such as grab bars or handheld showerheads.  These items can be obtained if the occupational therapist completes a home and worksite assessment for the injured person.  These assessments should focus on returning the injured person to their pre-accident level of function as quickly, safely and cost effectively as possible.  These assessments must be pre-approved by the submission of an OCF-18 – Treatment and Assessment Plan.

Conclusion

In summary, the SABS provide an insured person with the right to access all reasonable and necessary medical and rehabilitation expenses in order to reduce or eliminate the effects of an accident related disability.  It is important to have the injured client seen by the right health care professionals at an early stage in order to have the injuries documented and in order to ensure they reach their maximum level of recovery.  Also it is important to note if goods and services are not requested in the initial six to twelve months following the accident in my experience it is very difficult to get an insurer to approve those services after that time period.

In addition, if one is looking to settle the client’s entitlement to past, present and future benefits certainly the amount of the settlement is in part based on the speed at which the insured has been using up his or her available benefits.  It is therefore important to vigorously pursue all available therapy and benefits from an early stage in order to ensure that the client reaches a maximum medical recovery while still receiving a fair lump sum settlement of the accident benefits file at a later date.

 

[1] O. Reg. 34/10 – Statutory Accident Benefits Schedule – Effective September 1, 2010 (hereinafter “SABS”)

[2] Certain procedural changes in the current SABS will apply to ongoing accident benefits files arising from accidents that occurred between November 1, 1996 and September 1, 2010. For more information please refer to section 2 of the current SABS as well as the Financial Services Commission of Ontario (“FSCO”) guideline to the transition rules: http://www.fsco.gov.on.ca/English/pubs/bulletins/autobulletins/2010/a-04_10.asp (visited December 10, 2010).

[3] Impairment is defined as a “loss or abnormality of a psychological, physiological or anatomical structure or function” in Section 3(1) of the SABS

[4] Surprisingly the word “automobile” is not defined in the SABS. However the word automobile is  defined as “a motor vehicle required under any Act to  be insured under a motor vehicle liability policy, and a vehicle prescribed by regulation to be an automobile.” in s. 224 of the Insurance Act, R.S.O. 1990, c. I.8.  so as long as the vehicle was deemed to be an automobile by a regulation (e.g. snowmobile) or the vehicle required insurance under any relevant statute at the time of the accident then it will be considered an automobile for SABS purposes.

[5] In which case accident benefits will be paid by the Motor Vehicle Accident Claims Fund. For more information please visit: http://www.fsco.gov.on.ca/ENGLISH/insurance/auto/mvacf/ (visited December 10, 2010)

[6] See SABS section 31 (5):  In this section,

“criminal offence” means,

(a) operating an automobile while the ability to operate the automobile is impaired by alcohol or a drug,

(b) operating an automobile while the concentration of alcohol in the operator’s blood exceeds the limit permitted by law,

(c) failing to comply with a lawful demand to provide a breath sample, or

(d) any other criminal offence, whether or not the offence is related to the operation of an automobile.

[7] Section 20(1)(b) of the SABS sets out that if the insured person was under 15 years of age at the time of the accident the medical/rehabilitation benefits are payable to the insured person’s 25th birthday

[8] 6.  (2)  (b)  after the first 104 weeks of disability, unless, as a result of the accident, the insured person is suffering a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience.

[9] See section 22 of the SABS. These expenses are only payable for spouse, children, grandchildren, parents, grandparents, brothers and sisters of the injured party as well as an individual who was living with the insured at the time of the accident, a person who has a settled intention to treat the injured person like a child or a person who the insured person has a settled intention to treat like a child.

[10] In certain situations this can increase to $320 per week. See s. 12(3) of the SABS

[11] See section 26 of the SABS. Other benefits are available.

[12]

a) minor injury means a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. This term is to be interpreted to apply where a person sustains any one or more of these injuries.

b) sprain means an injury to one or more tendons or ligaments or to one or more of each, including a partial but not a complete tear.

c) strain means an injury to one or more muscles, including a partial but not a complete tear.

d) subluxation means a partial but not a complete dislocation of a joint.

e) whiplash injury means an injury that occurs to a person’s neck following a sudden acceleration-deceleration force.

f) whiplash associated disorder means a whiplash injury that:

(i) does not exhibit objective, demonstrable, definable and clinically relevant neurological signs, and

(ii) does not exhibit a fracture in or dislocation of the spine.

See: http://www.fsco.gov.on.ca/english/pubs/bulletins/autobulletins/…/A-10_10-1.pdf (visited December 10, 2010)

[13] Section 3(2) of the SABS:

For the purposes of this Regulation, a catastrophic impairment caused by an accident is,

(a) paraplegia or quadriplegia;

(b) the amputation of an arm or leg or another impairment causing the total and permanent loss of use of an arm or a leg;

(c) the total loss of vision in both eyes;

(d) subject to subsection (4), brain impairment that results in,

(i) a score of 9 or less on the Glasgow Coma Scale, as published in Jennett, B. and Teasdale, G., Management of Head Injuries, Contemporary Neurology Series, Volume 20, F.A. Davis Company, Philadelphia, 1981, according to a test administered within a reasonable period of time after the accident by a person trained for that purpose, or

(ii) a score of 2 (vegetative) or 3 (severe disability) on the Glasgow Outcome Scale, as published in Jennett, B. and Bond, M., Assessment of Outcome After Severe Brain Damage, Lancet i:480, 1975, according to a test administered more than six months after the accident by a person trained for that purpose;

(e) subject to subsections (4), (5) and (6), an impairment or combination of impairments that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in 55 per cent or more impairment of the whole person; or

(f) subject to subsections (4), (5) and (6), 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) or class 5 impairment (extreme impairment) due to mental or behavioural disorder.

(3)  Subsection (4) applies if an insured person is under the age of 16 years at the time of the accident and none of the Glasgow Coma Scale, the Glasgow Outcome Scale or the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, referred to in clause (2) (d), (e) or (f) can be applied by reason of the age of the insured person.

(4)  For the purposes of clauses (2) (d), (e) and (f), an impairment sustained in an accident by an insured person described in subsection (3) that can reasonably be believed to be a catastrophic impairment shall be deemed to be the impairment that is most analogous to the impairment referred to in clause (2) (d), (e) or (f), after taking into consideration the developmental implications of the impairment.

(5)  Clauses (2) (e) and (f) do not apply in respect of an insured person who sustains an impairment as a result of an accident unless,

(a) in the case of an impairment that includes a brain impairment, a physician states in writing that the insured person’s condition is unlikely to cease to be a catastrophic impairment;

(b) in the case of an impairment that is only a brain impairment, a neuropsychologist states in writing that the insured person’s condition is unlikely to cease to be a catastrophic impairment; or

(c) two years have elapsed since the accident.

(6)  For the purpose of clauses (2) (e) and (f), an impairment that is sustained by an insured person but is not listed in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 is deemed to be the impairment that is listed in that document and that is most analogous to the impairment sustained by the insured person.

[14] See section 13 of the SABS.

[15] See footnote 8.

[16] See section 22 of the SABS. These expenses are only payable for spouse, children, grandchildren, parents, grandparents, brothers and sisters of the injured party as well as an individual who was living with the insured at the time of the accident, a person who has a settled intention to treat the injured person like a child or a person who the insured person has a settled intention to treat like a child.

[17] In certain situations this can increase to $320 per week. See s. 12(3) of the SABS

[18] Section 268(2) The following rules apply for determining who is liable to pay statutory accident benefits:

1. In respect of an occupant of an automobile,

i. the occupant has recourse against the insurer of an automobile in respect of which the occupant is an insured,

ii. if recovery is unavailable under subparagraph i, the occupant has recourse against the insurer of the automobile in which he or she was an occupant,

iii. if recovery is unavailable under subparagraph i or ii, the occupant has recourse against the insurer of any other automobile involved in the incident from which the entitlement to statutory accident benefits arose,

iv. if recovery is unavailable under subparagraph i, ii or iii, the occupant has recourse against the Motor Vehicle Accident Claims Fund.

2. In respect of non-occupants,

i. the non-occupant has recourse against the insurer of an automobile in respect of which the non-occupant is an insured,

ii. if recovery is unavailable under subparagraph i, the non-occupant has recourse against the insurer of the automobile that struck the non-occupant,

iii. if recovery is unavailable under subparagraph i or ii, the non-occupant has recourse against the insurer of any automobile involved in the incident from which the entitlement to statutory accident benefits arose,

iv. if recovery is unavailable under subparagraph i, ii or iii, the non-occupant has recourse against the Motor Vehicle Accident Claims Fund. R.S.O. 1990, c. I.8, s. 268 (2); 1993, c. 10, s. 1; 1996, c. 21, s. 30 (3, 4).

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