Ontario No-Fault Insurance And Accident Benefits: Know Your Rights
By Alexander Voudouris | July 9, 2013
Pace Law Firm senior litigator Alex Voudouris was interviewed by 97.7 FM in Collingwood. In this podcast, he explains important facts about no-fault insurance and accident benefits in Ontario. Click the window to hear the podcast, or read the transcript below.
Q: Joining me in the studio once again, from Pace Law Firm, senior litigator, Alex Voudouris. Thanks, welcome back to the studio.
Alex Voudouris: Thank you very much.
Q: So Alex, you do a lot of seminars around Southern Ontario, educating the medical community about the laws that affect the patients in life. Why the medical community? Why are you educating them?
AV: Well, first of all, I’m in the… I practise in the field of personal injury and obviously, so we bump up with the medical profession. But really, what I’m trying to convey to many of them is that, in my view, we’re in the same business, and the same business being health care. The doctors and the paramedics and the nurses and all of these professional medical providers try and improve the life and the health of their patient. And they do it mostly by hands on, by touching the patient, by delivering primary medical care. The problem is that once they leave a hospital, OHIP fundamentally shuts down and they’re left on their own for funding. For example, if you have someone who’s catastrophically impaired, and they’re immobile and they have a catheter, or they have a diaper, or they’re mentally impaired to the point where they would not know what to do if a fire alarm went off, that costs thousands, if not millions, of dollars and it could be up to 24-hour-a-day attendant care. So, who pays for that? Who pays for that is usually insurance companies.
Q: You figure, “Oh, yeah, I’ll just call a guy at the office in the insurance company and say, “Oh, I had an accident, you got to take care of me.” It’s not that simple.
AV: Yeah, it really doesn’t work that way. I mean, on certain levels it does work that way. You know, “My bumper’s dented.” And they’ll probably pay for your bumper.
AV: That’s not particularly controversial. But the more money you ask from someone, the more resistance you naturally may very well get. And so, if you are significantly injured and you’re asking for $100,000, $200,000, a million, $10 million, you can meet with a lot of resistance and they’re going to pull out all the stops. They’re going to hire fancy defence lawyers. And to do what they can, within the law, which is fine, they have their rights as well, but to do what they can within the law, to make sure that they pay out as little as possible. And it’s my job to get you what you deserve, frankly not more and not less, but to get you exactly what you deserve and if that’s $100,000, so be it. If that’s $10 million, that’s what it is as well. So, but the point I’m trying to make is, I try and tell these medical professionals that we’re really in the same business and it’s a different side of the same coin.
AV: That they put their hands on the patient to fix them, but I get the funding for them to do that, once they leave the hospital and once they’re on their own, back into the community. And I think that’s… I think frankly, that’s a very reasonable thing to do and that’s my job.
Q: One of those seminars about Ontario legal system, you talk about the process of getting compensation after an accident. Explain a bit about this process.
AV: Yeah. Well, so first of all, a lot of… Even to this day, people throw in the word, “No Fault benefits,” and they think that maybe sometimes, you can’t even sue in a car accident and that’s not true. So, there are two basic things you can do, if you’re injured in a car accident and if you’re not at fault… So, if someone else caused the accident, you can sue them. You can sue the at fault person and really what you’re doing, to a great extent is suing their insurance company.
AV: You can sue them for what’s called “pain and suffering” and you can also sue them for housekeeping expenses that you now require, that you can’t do on your own. And you can also sue them for your health care, some of the things we’ve been talking about.
AV: And you can also sue them for any loss of income or out of pocket expenses.
Q: Oh, really? Okay.
AV: Now, the other thing you can do, if you’re at fault or not at fault… So, this one doesn’t depend on fault, is you can claim what are called Accident Benefits and you claim those usually against your own insurance company, but if you don’t, there’s a hierarchy of insurance companies that will have to pay. So, there’s coverage for everyone, one way or another. And they pay for things like… They also pay for a form of loss of income, it’s called Income Replacement Benefits. They pay up to 70% of your gross wage, or up to a maximum of $400 a week. If you purchased optional benefits, you can get housekeeping benefits paid for. So, they’ll pay for someone to come and clean your house and take care of your house for a certain period of time. You can also claim what are called, Attendant Care Benefits, and I sort of touched on that earlier, there’s overlap. But they’ll pay for an attendant to come in and care for you. If you’re catastrophically injured, for example, that coverage is up to a million dollars. And they will pay for your medical and rehabilitation expenses that are not covered by OHIP, which unfortunately, many times is almost, practically everything.
Q: So, this is my own insurance company. Now will they offer these things to me, or do I have to go dig and say, “Am I covered for this?” Or how do I know if I’m covered?
AV: Well, I think a lot of times they may suggest coverage, but they do it in a very subtle way that is missed by most people. Usually what they do is, they simply send out a package that you fill out and apply for what are called Accident Benefits. But they don’t really explain it, they don’t sit down with you and, you know, frankly I’m not so sure that, that is completely their job.
AV: They’re there for their own interest. They do have duties to you, but the duty includes sending out the package, adjusting the package, accepting the package and dealing with it. But the real interest comes where you hire your own lawyer and that lawyer is there 100% for you and their only interest is getting you what you deserve.
AV: And frankly, that’s how we get paid.
Q: Alright, think about it now, I’m in a car accident, my back bumper got munched in when somebody didn’t hit the brake hard enough at a stop light. Okay, damaged bumper, no cuts or bruises. No, I don’t have to go to a hospital. But then, days later, pain starts kicking in. Is there a timeframe? Am I only allowed, say 24 hours or within a week to file a claim? How would you approach that?
AV: Well, that happens a lot. The law says you’re supposed to advise your insurance company of the accident, if you’re going to claim for accident benefits, those accident benefits we talked about, within seven days of the accident or as soon as thereafter… On a time line that’s practical thereafter. So, for example, if you’re in a coma and you only get out of the coma after a month, then you advise them a month later and you’d be fine. The real problem is, you’re right, if you’re fully awake and fully cognisant and you advise them on the 10th day or the 20th day, you may run into trouble. But generally, I’ve seen and I’ve found that insurance companies don’t… Aren’t sticklers for that, especially when you can say, “Listen, at first I didn’t feel a lot of pain, but it went away”.
Q: I had a headache, but it went away. But now my back, my neck hurts, the pains are coming in.
AV: So, I haven’t seen insurance companies to be sticklers in that regard. Now, the other… The next limitation period is once they send you that package to fill in for accident benefits, you have 30 days to send it back. Now, they do become a bit more difficult about that if you delay. Now, I can imagine they’re going to give you a hard time if you’re… I don’t recommend this, but if you send it back on the 31st day, you should be okay, but I don’t don’t recommend it. These are the time lines, seven days to notify them, 30 days to fill in the package, once you get it and send it back.
Other big limitation periods is if there’s a denial or a termination of accident benefits, you have two years in which to commence mandatory mediation at the Financial Services Commission of Ontario, which is a tribunal that deals with these things. You also have… And it does get complicated, but for the sake of argument and for your listeners, you have two years from the date of the accident in which to commence a lawsuit against the at-fault party for your pain and suffering and for those other things, I already mentioned. The truth of the matter is, in terms of lawsuits, the government has made it more difficult for people to sue. There is a… For pain and suffering, that’s determined to be worth less than a $100,000, there’s a $30,000 deductible.
AV: So, you don’t get the first 30,000.
AV: So, if we all agree that your damages, your pain and suffering’s worth a $100,000, you get a cheque for a 100. If we all agree that its worth 99,999, you get a cheque for 69,999. On top of that, to be able to sue for pain and suffering, you have to meet what’s called a threshold. Your injuries have to be a permanent serious impairment of an important mental, psychological or physical function.
AV: And so, the government’s making it more difficult all the time for people to sue. And so, its very complicated and unfortunately, what they’re doing is they’re keeping lawyers employed because the system requires the intervention and assistance of a lawyer. Health care in a lawsuit against an at-fault party also requires you to meet that threshold, but claims for loss of income or housekeeping, you do not have to meet the threshold. So, it goes on and on. So actually, one of the reasons why I mentioned this threshold is, although I said, you have two years from the date of the accident in which to sue, the actual law says that you have two years when you knew or ought to have known that your injuries exceed the threshold, meet or exceed the threshold, or that your injuries would be worth $30,000 or more, is when you actually have time to sue. So, in other words, that can extend a two-year limitation period from the date of the accident, but you’d be much safer diarizing that two years, calling a lawyer right away, and off you go.
Q: The sooner the better. You mentioned lawsuits against at-fault drivers. I know when this came in, it was so confusing, whether do I have coverage? What can you recover in a lawsuit against another driver when we’re at fault?
AV: Yeah, well again, and I’ve been sort of dealing with that, but if you think about it, if you’re at fault, there’s no one to sue, you can’t sue yourself. So, unfortunately if you loose control of a car and end up skidding into a pole, that’s your fault and you can’t sue anyone. But even in that situation, you can claim accident benefits. Now, from the at-fault driver, if someone else is at fault and caused the accident, together with claiming accident benefits from your own insurance company, you can also claim, as I said, you can sue them for your pain and suffering, you can sue them for your loss of income and you can also sue them for your housekeeping assistance, tenant care assistance and medical assistance. So, those are the things you can sue at-fault drivers for. And there’s overlap between the accident benefit world and what you can sue for.
Q: What should someone expect from their lawyer? If I contact you, what are my expectations?
AV: Well, I mean, I think you should expect a lot from your lawyer. You should expect them to be very knowledgeable. You should expect them to have trial experience. You should expect them to be courteous, to be forthcoming, to be honest. You should expect them to maintain contact with you at all times, to maintain a reporting to you. To keep you in the loop as to the status of the case, where we’re going next, what the strategy is. You should be in contact with them all the time. They should be available. They should be receptive and they should move your case forward as though it was their own case.
Q: A lot of questions to think about. If somebody listening right now wanted to ask you questions, how can they get a hold of you?
AV: My direct line is 647-789-1962. We have offices here in Collingwood, in Owen Sound. We have offices in Toronto in Etobicoke and Scarborough in Toronto. And we are always available and we’re also in your community.
Q: Senior litigator from Pace Law Firm. Alex, thanks for coming again.
AV: Thanks a lot.