Articles Posted in Accident Benefits

Here’s the scenario:

You or a loved one was hit by a negligent driver. The driver was texting on their cell phone at the time of the collision. The driver was charged and convicted of distracted driving and careless driving under the Highway Traffic Act.

Liability is clearly not an issue. The distracted driver was at fault. There will be no arguments from the Defendant Insurer’s Lawyer in that regard.

As a result of the collision, the Plaintiff sustained a brain injury, along with multiple orthopedic injuries to her neck, back, knees and wrists. The injured accident victim has under gone  6 surgeries at different hospitals across Ontario; each with different orthopedic analyst. After each surgery, the accident victim has been bed ridden for between 1-3 weeks at a time.

The person’s arms will never be the same.

The person’s legs will never be the same.

The person’s back will never be the same.

The person’s mind will never be the same.

The accident victim is completely BROKEN, and no amount of treatment, therapy, surgery or medication will ever make them whole again.

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One of the most commonly asked questions of our personal injury lawyers is how innocent car accident victims can get the insurance company to pay for their medical/rehab treatment following a car accident. This involves the proposed service provider completing the OCF-18 Treatment Plan Form.The Toronto Injury Lawyer Blog has already written on the topic of completing the OCF-18 Treatment Plan Form. This previous entry can be accessed here. But, since this question is asked of us so much, we thought it would be of great use to re-visit the topic. After all; getting the car insurer to pay for your post accident treatment is important to your rehabilitation and peace of mind. It certainly seems unfair if you would have to pay for the treatment out of your own pocket when you’re not able to earn an income following a serious collision.

Treatment payments are generally covered after a car accident through Ontario’s No Fault Accident Benefit regime. But, the accident benefit scheme is very complicated and can be very tricky to manage on your own. Even for lawyers, the system is tricky.

For starters, the first form that needs to be completed is the OCF-1 Application for Accident Benefits. This form opens up an accident benefit claim for the insurance company. Once an accident benefit claim has been opened, you’re then eligible for med/rehab benefits such that the insurer ought to pay for the cost of your treatment.

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For anyone who practices in the field of accident benefit law (dare I now call it litigation), what we all need is more paper work, more records, and more forms to be completed by insureds, and insurers alike. What is already a complicated and confusing system has been rendered even more complex with the shift of accident benefit disputes from the Financial Services Commission of Ontario (FSCO) to the Safety, Licensing Appeals and Standards Tribunals of Ontario (SLASTO) License Appeals Tribunal (LAT). How’s that for a mouthful?

Accident benefits, at their most basic, are designed to protect an insured accident victims following a motor vehicle accident. The Insurance Act is consumer protection legislation supposedly aimed to help rehabilitate and make ends meet for somebody whose livelihood and health has been impaired in an accident. Items in dispute can range from simple physiotherapy treatment, to weekly income replacement benefits, to more complicated catastrophic disputes.

Since 1997, FSCO has been hearing accident benefit disputes between injured car accident victims and their accident benefit insurers. FSCO was mandated to hear these types of cases. FSCO had its own mediators, arbitrators, practice code and a wealth of case law built over the years to guide the public and insurers. Continue reading →

When I first began practicing personal injury law, I quickly noticed how COMPLICATED Ontario’s regime of car accident law was. This was completely unnecessary.  Our government has made things so complicated, that lawyers need to focus on in car accident law in order to get results.

Car accident law should not be rocket science. In its purest sense, an innocent accident victim is seriously injured by another party who made a mistake or driving error. Rarely is there deliberate intent on the at fault party to cause a serious accident (save for drunk driving cases). There is no requirement for the parties involved to be sophisticated, knowledgeable of the law or wealthy. The at fault party should be responsible to compensate the injured party for the losses and pain and suffering. This sounds easy enough.

At Goldfinger Injury Lawyers, we have always engaged in making the law easy to understand for our clients. We want to break things down, so that people understand how things work, and how their case works.

This task has been made exponentially more difficult since April 1, 2016. The Ontario Government has moved all accident benefit disputes to a new Tribunal. New rules. New forms. More forms. More expensive to start the process for the injured. NO ACCESS TO THE COURT.

It used to be when you had a problem getting paid accident benefits, that you were able to apply for a FREE MEDIATION to the Financial Service Commission of Ontario (FSCO). FSCO was a Ontario Government body responsible for hearing all sort of accident benefit disputes between insurers and injured accident victims. There was a rich body of case law and detailed rules of procedure which had evolved. Insurers, paralegals, lawyers and even some members of the public knew how the system worked. There was familiarity. It was tailored specifically for accident benefit claims. And if matters didn’t pan out of FSCO, it was within the claimant’s power to keep pursuing the claim via Arbitration at FSCO, or leave FSCO entirely and sue instead before the Ontario Superior Court of Justice. There was a level of flexibility and control there which allowed the claimant to control the process to some extent. There were also many opportunities for settlement along the way.

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Dear Ontario Drivers:

I am writing to update you on recent legislative changes that affect your car accident claim; in particular your Accident Benefits claims with your own insurer. There are two sides to any car accident lawsuit; the Accident Benefits file with your own auto insurer, and the main action against the driver who caused the accident. The Accident Benefits file is meant to provide money up front to cover things like income replacement (in part) and treatment expenses. It is important to get everything you can from the Accident Benefits side of the law suit so that you can maximize your recovery and reduce the losses from the car accident. The changes to the law are on the Accident Benefits side.

As you may know, when your insurer refuses to pay for a benefit, you have the right to apply to the Financial Services Commission of Ontario (FSCO). The process starts off with a Mediation teleconference where we try to convince the insurer to pay. If that fails, we proceed to the next step, being the Arbitration, where an Arbitrator makes an official ruling as to your entitlement, or lack thereof, to the benefit in dispute. The insurance company has to pay a $3,000.00 fee towards the Arbitration – we only pay $100. The Arbitrators who decide on the issues are known to be quite fair and whenever there is an ambiguity in the law, they tend to interpret the rules in favor of the injured party. Furthermore, the Arbitrators’ decisions are binding on one another, so if an Arbitrator makes a general ruling about an issue, the insurance companies tend to accept it easier knowing that another Arbitrator will likely make the same ruling. For the above reasons, the FSCO process is an acceptable form of dispute resolution although it is far from perfect and there are often long delays before you get a decision.  Continue reading →

After a serious car or motorcycle accident, chances are you will need a wide variety of treatment. Some of that treatment will be covered by Ontario’s OHIP Healtcare System. That means if you have a valid Ontario Health Card, it will be FREE.  Seeing a medical doctor (not a chiropractor or a psychologist), a hospital visit, and even treatment through the Community Care Access System (CCAC) is all covered. This is fantastic news for accident victims, especially when you compare healthcare in Canada vs. health care costs for our neighbours south of the border.

Some treatment isn’t covered by OHIP. Things like physiotherapy, massage, chiropractic care, occupational therapy, speech language pathology outside of the hospital, psychology treatment, social work, rehab coach etc. All of these things are NOT covered by OHIP (with some exceptions). If you’ve been involved in a serious motor vehicle accident, chances are you will need at least one, if not a few of the aforementioned treatments. Without OHIP or collateral benefits, you will have to pay for these treatments out of your own pocket. If you aren’t working following a serious car accident, you likely won’t have the money to spend out of pocket on these treatments unless you’re incredible well off.

Here is the “good news”. When I put “good news” in quotes, it’s because I’m explaining a text book; best case scenario…And we all know at law; these text book best case scenarios rarely happen. That’s why there are so many personal injury lawyers around.

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It seems that every few months or so, the Toronto Injury Lawyer Blog is discussing the topics to changes in car insurance and accident benefit disputes in Ontario. Is it because we LOVE blogging about accident benefits? Not really. Accident benefits are quite frankly, an incredibly complicated and dense area of the law. The rules for accident benefits, in many respects, are made in favour of large insurance companies and designed to limit an injured claimant’s ability to recover an income. It’s not a committee of accident victims who sit around and make these laws, and tweek them ever so slightly. Rather, it’s deep pocketed insurers and so called “insurance experts” who do so at the behest of the large insurance lobby.

A few quick examples of some arbitrary decisions which accident benefit laws have imposed:

• No monetary reimbursement for a trip to the doctor which is under 50km. Why 50km? Who picked the 50km distance? Your guess is as good as mine
• A maximum recovery of just $3,500 for soft tissue injuries which are classified to fit under the Minor Injury Guideline. Why just $3,500? Because that’s what insurers and our government deems to be reasonable. Interesting enough, that $3,500 is less than you paying the full value of your car insurance premiums over a 3 year period in Toronto, London, Ottawa or another large city in Ontario.
• A maximum recover of $50,000 for claims which aren’t catastrophic, but not Minor. Why a $50,000 limit? Beats me.
• An income replacement benefit of a maximum of just $400/week under a standard Ontario Automobile Policy, which has NOT increased to reflect inflation over the past 15 years.
• A deductible which will be increasing from $30,000 to $36,500 for pain and suffering claims. Why $36,500? Beats me.

As you can see, many of the monetary limits imposed in accident benefit law in Ontario are just numbers which seem to be picked out of a hat to favour insurers. Not once have I ever met an injured accident victim, or an ordinary person who believes that these limits are reasonable or helpful for claims.

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