After you’ve been seriously injured, or even not so seriously injured in a car accident, or motorcycle accident in Ontario, the injured party; regardless of fault is entitle to accident benefits.
This is what Ontario’s “no fault” scheme of accident benefits is all about.
If you are not at fault for the car accident you’re entitled to receive accident benefits.
If you are completely at fault for the car accident you’re entitled to receive accident benefits.
If you were the passenger of a vehicle involved in a car accident you’re entitled to receive accident benefits.
If you were a pedestrian or cyclist struck by a motor vehicle; even if you don’t know the identity of the other driver; guess what: you’re entitled to receive accident benefits (even if you’re at fault for causing the car accident in the first place!).
Crazy right? Even if you cause the accident, you are entitled to receive accident benefits to assist with your recovery, attendant care needs, income replacement benefits or non earner benefits.
Making an accident benefit claim is REQUIRED in order to pursue a tort action for pain and suffering against the at fault party.
Section 258.3(1)(a) of the Insurance Act R.S.O. 1990, c.I.8 states:
An action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile shall not be commenced unless,
(a) the plaintiff has applied for statutory accident benefits;
These accident benefits are just helpful; but they’re necessary to making a tort claim against the other driver.
So; if these accident benefits are necessary; and there’s no fault requirement to receive said accident benefits; then why is it that there is a portion of accident victims who either don’t apply for accident benefits; or if they do, don’t want to receive them?
For starters, the simple answer to this question is that the vast majority of accident victims have NO IDEA that accident benefits exist! And if accident victims don’t know about accident benefits, then how would they apply for these benefits in the first place?
This is the most simple and direct answer. Once an accident is reported to an insurance company, they have an obligation to let them know about the injured party’s ability to apply for accident benefits. Most accident victims also find out about accident benefits from their personal injury lawyer.
There is also another subset of accident victims who have applied for accident benefits; and who are eligible to receive those accident benefits; but decline receiving them.
There are a few unwritten rules when it comes to accident benefits:
- If you don’t use ’em; you lose ’em. Do you honestly think a large for profit insurance company wants to pay for your care costs? For every dollar of care they spend on your treatment, it’s a dollar less in profit. Accident benefits are not meant to be saved for a rainy day. They are meant to be used. There is no guarantee that saving accident benefits for a undetermined date in the future will ever come to pass. There’s also a risk of what’s approved and available today; won’t be approved or available tomorrow. So if you don’t use your benefits, you will lose them.
- Don’t stare a gift horse in the mouth: Consider accident benefits to be that gift. Although it may not appear that the gift immediately meets your needs, there may come a time you appreciate that gift for what it is; and how it’s helping you on the road to recovery.
In both instances, if the accident victim fails to either use their accident benefits; or simply declines to receive accident benefit which they have been approved for; the insurance company will draw a negative inference and simply stop approving or stop paying benefits. They will infer that because you failed to use your benefits; or declined to use them that you simply don’t need their assistance any more. If the accident benefits were of value to the claimant; s/he would have used them or not declined them in the first place. It’s not only to accident benefit insurer who will draw this negative inference. It will also be drawn by the tort insurer and their lawyer(s). They may even go one step further suggesting that because you aren’t either using your accident benefits or declining them entirely; that you have now returned to health and no more treatment is reasonable or necessary. If you have returned to health, there is an argument that your injuries won’t meet the legal test for pain and suffering to recover compensation.
A few tips:
- Don’t decline services. If you think that you aren’t benefiting from the services being provided to you, speak with your personal injury lawyer immediately so that you can find a appropriate alternative instead of throwing the baby away with the bathwater. Your personal injury lawyer will be able to help find an appropriate alternative so that you aren’t cancelled out of services altogether once a rash decision is made..
- If you aren’t getting along with your service provider and want a new one; speak with your personal injury lawyer. Your personal injury lawyer will help you make the transition from one provider to another so that there is no gap or lapse in benefits to you.
- Consider that your availability to accident benefits is here today, and may very well be gone tomorrow. Accident benefits aren’t everlasting in perpetuity. The fact the insurance company has approved your treatment is a great opportunity to get treatment to get better. So seize that opportunity instead of sitting on it because they may change their mind tomorrow.
- Your accident benefit insurer would much rather keep the money for themselves, instead of paying it out to you for treatment. Retained benefits translate to profit. Always keep that in mind when dealing with accident benefits.
There is no doubt that the world of accident benefits, and car accident law can be very complicated (although it shouldn’t be). This is why it’s important to have a knowledgeable and experienced personal injury lawyer fighting for your rights.