Motor Vehicle Accident Rights and Entitlements
Wintertime is cozy family time! But it is also a time where statistically, accidents occur often due to a combination of uncontrollable weather conditions and distracted driving. So before hitting the road to warm up by the fireplace or snuggle up with family, make sure you know what to do if you or someone you know has a motor vehicle accident.
If you or a family member get injured in a car crash, you have rights and entitlements.
Why is this even important? Because a serious injury is more than just a pain in the neck. It can also be costly. Your Ontario Health Card won’t cover all the medical care you might need. Nor will it cover other forms of assistance.
Victims of car crashes have two ways to get compensation. One of these will apply to you:
- If another driver is deemed to be at fault, you might be entitled to tort damages. This compensates you for the pain and suffering that comes from “serious and permanent injury”. This is what you typically see in those American movies and TV shows, where one driver sues the other.
- But you don’t have to sue to get compensation. Regardless of who is at fault, you have insurance. In fact, you can’t drive in Ontario without it. You might be entitled to accident benefits on your own insurance policy. But are you adequately covered?
The basic insurance policy you are required to carry as an Ontario driver is Statutory Accident Benefits Schedule. If this is not enough for you, you might want to buy additional optional coverage. That’s why it’s worth knowing how well you are covered before making your way up the slopes or even to work on a winter snowy day.
To understand what you are now entitled to, it helps to review what you traditionally were entitled to before the Ontario government made changes in 2010 and 2016. These were:
- Attendant care benefits. Up to $72,000 over a two-year period to help with bathing, dressing and feeding, if the accident left you unable to do any of these.
- Medical and rehabilitation (med/rehab) benefits. Up to $100,000 over a ten-year period to help pay for physical therapy, such as chiropractors, massage therapists and physiotherapists, and for assistive devices, such as wheelchairs and handrails in the bathroom.
- Housekeeping benefits. Up to $100 per week for two years to do housework, such as cleaning and repairs, that you can no longer do yourself.
- Income replacement benefits. Up to $400 per week or 80 percent of your net income, whichever is less, for as much as 104 weeks.
Both med/rehab and attendant care benefits would increase to $1,000,000 for life if you are deemed to have suffered a “catastrophic” impairment. So you could qualify for up to $2,000,000 for a catastrophic injury.
These benefits are not just payouts. You don’t break some bones and win the lottery. These payments would cover incurred expenses. In other words, you have to actually spend the money on care that the insurance system then reimburses you for. The sole exception to this rule is that family members could be reimbursed for the time they spend caring for you.
In 2010, the Ontario government overhauled the benefits regime for victims of motor vehicle crashes. Then it made more changes in 2016.
By overhaul, we mostly mean that they reduced your benefits so that now the basic coverage is often not enough. They did this first by restructuring injuries into three categories:
- Minor Injury Guideline (MIG)
You can now be awarded up to $6,000 per month for attendant care and up to $1,000,000 million over your lifetime for medical and rehab expenses. However, the cap of the two combined is set at $1,000,000, or half of what it was before the changes in 2016.
Costs went up. Benefits are cut in half.
Important to note: what seems catastrophic to you, because it devastates your life, might not meet the legal definition of “catastrophic”, which below are the 8 possible criteria that define ‘catastrophic.’
- paraplegia or quadriplegia
- if the accident occurred on or after September 1, 2010, the amputation of an arm or leg or another impairment causing the total and permanent loss of use of an arm or a leg
- if the accident occurred between October 1, 2003, and August 31, 2010, amputation or other impairment causing the total and permanent loss of use of both arms or both legs, or one or both arms and one or both legs
- if the accident occurred between November 1, 1996, and September 30, 2003, amputation or other impairment causing the total and permanent loss of use of both arms or both an arm and a leg
- the total loss of vision in both eyes
- brain impairment that, in respect of an accident, results in
- a score of 9 or less on the Glasgow Coma Scale according to a test administered within a reasonable person 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 percent or more impairment of the whole period of time after the accident by a person trained for that purpose.
- a score of 2 (vegetative) or 3 (severe disability) on the Glasgow Outcome Scale according to a test administered more than six months after the accidents by a person trained in that purpose
- 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 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) or class 5 impairment (extreme impairment) due to mental or behavioural disorder.
Med/rehab benefits remain up to $50,000 over a ten-year period, as they have been for years. But with costs rising, this effectively means you can buy much less care than you could a decade ago. The same goes for the $100 per week housekeeping benefit. And that $400 per week income replacement won’t go as far as it went a decade ago, either.
You can also get up to $250 per week of caregiver benefits.
Attendant care remains a two-year benefit, but it is capped at $36,000, or half of what it was before 2010. Once again, costs go up as benefits are cut in half.
The MIG category was brand new. A “minor injury” includes a sprain, strain, whiplash-associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae, as well as partial tears to muscles, ligaments and tendons, and dislocated joints.
If you have nothing more serious than these categories, your benefits will be assigned under the MIG.
What does this mean?
It means that your benefits are reduced, not just a little (which would be fair, if your injuries are minor), but a lot. In fact, you get no attendant care benefits.
You get no housekeeping benefits.
You get no caregiver benefits.
And your med/rehab benefits get capped at $3,500.
For many minor injuries, that’s enough. But if you are in a lot of pain, if you already have some other condition or if you are suffering from more than one minor injury, you might end up with some pretty hefty bills that Ontario motor vehicle accident insurance no longer covers.
For instance, partial tears to muscles can lead to permanent mobility limitations and can require surgery and extensive therapy. Neither attendant care benefits nor sufficient medical benefits are available to a MIG victim. You’re on your own.
In theory, you can be brought out of MIG if you can show the insurance company that you had a pre-existing condition that is prolonging your recovery, and therefore is costing you more than the $3,500. But you’ll have to present compelling medical evidence. On the other hand, sometimes pre-existing conditions can nullify your claim if it does not look like the accident made the symptoms worse.
There are so many ways to fall seriously short of basic coverage under the new rules.
What should you do to protect yourself?
Optional insurance benefits have been expanded significantly over the past decade. Buying these benefits can increase:
- the income replacement benefit cap to $1,000/week
- the attendant care benefit cap to $72,000
- the med/rehab cap to $100,000
- and it can allow the housekeeping benefit, even where basic default coverage does not include it.
Since June 2016, provided you with your benefits, the combined attendant care and medical rehab caps are $65,000 and $130,000
Ask your insurance company to give you a complete list of optional benefits available. Make sure you have the coverage that best meets your needs and those of your family. Don’t forget that if you are in a car crash on a summer road trip, your whole family might be injured…and that’s a lot of medical, therapy and care costs to juggle at once if the benefits don’t fully cover you.
How important are these optional benefits? Here’s a clue: most individuals in the industry we know have bought them all.
Motor vehicle accidents are an unfortunate risk that comes with the freedom to enjoy the open road and go on a vacation. Make sure you are protected before you go out to have fun this summer. If anything happens and you need accident rehabilitation in Ottawa, make sure to contact us.