Accident Benefits - What Are They and Who is Eligible to Receive Them?
All insured drivers in Ontario, and many others as well, can access accident beneﬁts if they are injured as a result of a motor vehicle accident that occurs in Canada or in the United States of America. Accident beneﬁts are most typically accessed through the injured person’s own automobile insurance policy. Accident beneﬁts include Medical and Rehabilitation Beneﬁts, Attendant Care Beneﬁts, Income Replacement, Non-Earner and Caregiver Beneﬁts, Housekeeping and Home Maintenance Beneﬁts, Death Beneﬁts, Funeral Beneﬁts, as well as beneﬁts for Payment of Other Expenses. Each of these beneﬁt categories will be fully described in the subsequent sections of this manual.
Often described as “No Fault Insurance Beneﬁts”, accident beneﬁts are available to every person injured in a motor vehicle accident, regardless of whether the injured person was at fault for causing the accident. However, there may be some limitations applied to the accident beneﬁts available in certain circumstances, including when a person is convicted of driving while impaired or when a person is involved in an accident while driving without a valid driver’s license. Such limitations, usually referred to as “exclusions of beneﬁts”, are best discussed with a personal injury lawyer.
Any individual injured in an accident may access accident beneﬁts through their own automobile insurance policy as an insured person. An insured person is deﬁned as a person who is named as the insured person on the policy, any other drivers listed on the policy, the spouse of the named insured, the dependant of the named insured, or the dependant of the named insured’s spouse.
For individuals who are injured in motor vehicle accidents, but who are not an insured person on a policy of automobile insurance, there is still opportunity to access a claim for accident beneﬁts through the insurance policy of any other vehicle involved in the accident or, in other cases, through the Motor Vehicle Accident Claim Fund (MVAC).
Sadly, there are also instances in which an individual is not directly involved in an accident, but suffers a psychological or mental injury due to an accident involving injury to a loved one. In the event that a person’s spouse, grandchild, parent, grandparent, brother, sister, dependant or spouse’s dependant is injured in an accident, and if psychological or mental injury is suffered as a result, then the affected person may make a claim for accident benefits.
What is a Motor Vehicle Accident?
An accident is deﬁned as “an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device”.
An automobile includes a car, truck or motorcycle. Snowmobiles, ATV’s and dirt bikes can also qualify as being automobiles for the purposes of accident benefits. The issue of when an off-road vehicle qualifies as an automobile for accident beneﬁts purposes is a complicated one. Consultation with an experienced personal injury lawyer on this issue is very important.
There are many ways in which a person may suffer an impairment due to the use or operation of an automobile. Apart from the typical roadway motor vehicle collision, individuals may also be injured in a parking lot, driveway or trailer mishap, while using off-road vehicles, in slip and fall accidents occurring in the vicinity of an automobile, in connection with a crime, as well as in a variety of other circumstances.
Insurers are often pressed to consider claims for accident beneﬁts in which individuals are injured in highly unusual ways. When a mishap with some connection to a vehicle occurs, but does not clearly fall into the deﬁnition of an accident, consultation with an experienced personal injury lawyer is recommended to ensure that available accident beneﬁts can be accessed, where possible.
The Accident Benefit Application Process - When to Submit a Claim?
To access a claim for accident beneﬁts, a claim must be reported to the insurance company promptly; the legislation dictates that the insurer must be notiﬁed of the injured person’s intention to apply for accident beneﬁts within seven days from the day that the circumstances arose which gave rise to the entitlement, or as soon as practicable thereafter.
In the event that the insurer is not notiﬁed within the seven day period noted above, and if there is no reasonable explanation for the late report of the claim, the insurer may delay determining if the injured person is entitled to receive accident beneﬁts. In such cases, the insurer may delay the determination until the later of 45 days after the insurer receives the person’s application, or 10 days after the injured person complies with the insurer’s request for certain information or an examination under oath. Considering this, it is of the utmost importance to promptly notify an insurer of an injured person’s intention to make a claim for accident beneﬁts in order to ensure immediate access to accident beneﬁts.
The Accident Benefit Application Process - Where to Submit a Claim?
Under Ontario law, there is a hierarchy as to which insurance company will be obliged to pay a claim for accident beneﬁts. In many instances, it is quite clear which insurer should respond to a claim, but in others, the decision can be complicated by the availability of multiple insurers. Determining which insurer is most appropriate to respond to a claim for accident benefits can be a difficult and important decision. In order to ensure that accident benefits are accessed quickly and effectively, it is recommended that an injured person consult with a personal injury lawyer whenever there is question as to which insurer a claim should be submitted.
Generally speaking, if a person injured in an accident is the named insured on a policy of automobile insurance, or if they are the spouse or dependant of a named insured, then application for accident beneﬁts must be made to their own insurance company. In some instances, the automobile policy of an employer’s vehicle can also be considered, as the employee may be considered a deemed named insured for the purposes of making a claim.
In the event that the injured person does not have access to an automobile insurance policy of their own, then the application for accident beneﬁts is to be submitted to the insurer of the automobile in which the injured person was an occupant, or to the insurer of any other vehicle involved in the accident.
In the rare event that no automobile involved in the accident was insured, the Motor Vehicle Accident Claims Fund will be liable to pay for the accident beneﬁts and an application may be submitted accordingly.
Once a claim for accident beneﬁts has been submitted to an insurance company, that insurer is obligated to pay the claim regardless of whether it believes another insurer would be more appropriate to respond to the claim. The ﬁrst insurer to receive an application for accident beneﬁts must pay the accident beneﬁts pending the resolution of any dispute amongst insurers.
The Accident Benefit Application Process - How to Submit a Claim?
Once the insurer is notified of an injured person’s intention to claim accident benefits, the insurer is required to send an “Accident Benefits Application Package” to the attention of the injured person. The package provided by the insurer will include the following:
- The appropriate application forms;
- A written explanation of the accident benefits available;
- Information to assist the injured person in applying for the available benefits; and
- Information about any possible election relating to income replacement benefit, non-earner benefit, and caregiver benefit, if applicable.
The Accident Benefits Application Package is extensive and the application forms can be daunting to complete. At a time when an injured person and their loved ones are already under significant strain, reviewing the Accident Benefits Application Package and completing and submitting the application forms to the insurance company can be overwhelming. Although a failure to comply with the application time limits will not necessarily disentitle an injured person from accessing accident benefits, making a prompt application for the benefits is vital to ensure immediate access to the claim. As time is of the essence in submitting the application forms, we invite you to contact one of our highly experienced accident benefits specialists if our firm may be of assistance in the completion of an injured person’s application.
Upon receiving an application for accident benefits, the insurer has 10 business days to give a response to the injured person. The insurer’s response will typically advise of benefit eligibility and entitlement, and payment of specified benefits may also immediately begin in some cases. Alternatively, the insurer’s response may advise of information required to complete an incomplete application, or may request additional information to assist the insurer in its determination of the injured person’s entitlement to accident benefits, to confirm address, or to confirm identity.
What Happens if the Insurer Refuses to Pay for Accident Beneﬁts?
A denial of a requested beneﬁt will often come as a surprise to an injured person, their family, and their health care team. Any denial can result in lengthy delays. Accordingly, such denials can have devastating consequences for the injured person.
When facing a denial of a beneﬁt, it is highly recommended that the context of the claim and the denial be discussed with an experienced personal injury lawyer and accident beneﬁts specialist at the earliest opportunity.
If the insurer denies an application for one of the available accident beneﬁts, it is usually required to refer the injured person to an Insurer’s Examination. The insurer must give the injured person notice of the examination as well as the medical reason and any other justiﬁcation for the denial. The insurer can choose to schedule such an examination if they wish to determine whether an injured person is or continues to be entitled to receive a beneﬁt in relation to the claim. The insurer may require the attendance of the injured person at the examination. The insurer has the right to schedule the examination with one or more persons of its choosing, but must make an effort to schedule the examination for a date, time and location that is convenient for the injured person, if attendance is required.
The insurer is obliged to forward the insurer’s examination report and determination to the injured party and their health care professional within 10 business days of the report’s receipt. In the event that the denial is maintained, the insurer must give the medical reason and any other justiﬁcation for the denial of the beneﬁt, as well as provide information regarding the opportunity to dispute the determination.
What Are the Limitations on Disputing a Denial or Reduction of a Beneﬁt?
Generally speaking, a dispute must be initiated within two years from the date of a denial or reduction of a beneﬁt. It is important to consult with a personal injury lawyer regarding any such denials or reductions of beneﬁts at the ﬁrst opportunity to ensure that the right to dispute the insurer’s determination is protected.