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SUMMARY OF ACCIDENT BENEFITS UNDER "BILL 59"
The definition of accident has been changed. It is now defined as an incident in which the use or operation of an automobile "directly causes an impairment".
This is more restrictive than the O.M.P.P. and the Bill 164 language which require only that the use or operation of an automobile "caused directly or indirectly" the impairment.
Note it is also more restrictive than the no-fault threshold and deductible sections of the Act.
Therefore one may be subject to the threshold, the deductible, and have restrictions on his right to recover economic loss, but yet still not have entitlement to accident benefits.
First level of benefits payable for two years while entitled. Note: O.M.P.P. was three years, Bill 164 was two years, Bill 59 is again two years.
Two Year Test
- Substantial inability to perform essential tasks of one's employment
Post Two Year Test
Insured entitled to benefits after 2 years only if he or she suffers a:
Complete inability to engage in any employment for which he or she is reasonably suited by education, training and experience.
Compared to Bill 68 - the post three year test was: "where injury continuously prevents the insured person from engaging in any occupation or employment for which he or she is reasonably suited".
Note deletion of "continuously prevents"; and inclusion of "complete inability"
Qualify If:
Employed at the time of the accident;
employed for at least 26 weeks during the previous 52 weeks before the accident; or on unemployment insurance at the time of the accident;
was entitled to start work within one year under a legitimate contract of employment, that was made before the accident, and that is evidenced in writing.
(the debate about whether the contract need to be made in writing before the accident continues)
Quantum of Benefit:
no benefits payable for the first week
80% of net to a maximum of $400.00.
no minimum payment for the first 104 weeks.
for the post 104 week benefit there is a minimum ($185.00 a week).
collateral benefits are to be deducted.
note Cugliari decision which indicates that C.P.P. benefits are not loss of income benefits (therefore likely will not be deductible from a-b's either).
with respect to collateral benefits, if the benefit is not received but is available it is not to be deducted. U.I.C. payments are not deducted.
Entitlement
Payable only where there is a complete inability to carry on a normal life.
Note the change from Bill 164 where one had to show a partial inability for the first 104 weeks, and a complete inability post 104 weeks.
Under Bill 59 the test does not change after 2 years because it is already the tougher test.
Quantum
The non-earner benefit is at $185 per week.
Six month waiting period; there are no non-earner benefits payable during the first 26 weeks of disability, nor before the insured turns 16.
Reimbursement of actual expenses incurred prior to the accident of up to $15,000.00 for lost tuition, books, room and board (if unable to attend as a result of accident).
Student is entitled to non-earner benefit after age 16.
Quantum is $185.00 per week (after six months waiting period) for two years.
After two years benefit increases to $320.00 per week if insured suffers a complete inability to carry on a normal life.
Reimbursements of expenses actually incurred to replace caregiver services to a maximum of $250.00 per week for first dependent and $50.00 per additional dependent.
Payable (for first 104 weeks) where claimant cannot substantially perform caregiving activities.
Post 104 weeks benefit is payable only if as a result of the accident the insured person is suffering a complete inability to carry on a normal life.
Note under Bill 59 there is no additional dependent care payments like there is under Bill 164. Under Bill 164 the caregiver expenses were payable if the insured suffered a substantial inability to carry on a normal life and were not based on the amount the insured had to expend to replace the caregiver services.
Under Bill 164 there were also dependent care expenses payable which went to $75.00 per week for first dependent and $25.00 for each additional dependent to a maximum of $150.00 per week.
A similar procedure as in Section 64 of the Bill 164 S.A.B.S. is to be followed.
Insurer must give insured two weeks' notice of intention to cease paying benefits.
If the insured requests a D.A.C. the insurer is to schedule one and pay the benefits pending the D.A.C.
Only if the D.A.C. confirms no ongoing entitlement may the insurer cease payments.
Limits Non-Catastrophic
- $100,000.00 or ten years (or 25 years less the claimant's age).
Catastrophic Injuries
- Limit is $1,000,000 payable over claimant's lifetime.
Limits Non-Catastrophic
- Maximum of $3,000.00 per month for a maximum of two years, to an overall maximum of $72,000.00.
Catastrophic
- Maximum of $6,000.00 per month for life to a maximum of $1,000,000.
Insured must submit a treatment plan from health practitioner. If insurer does not accept treatment plan, prompt referral to a D.A.C. is required. No payment required by insurer with respect to expenses incurred more than 30 days before the treatment plan is received unless there is a reasonable explanation.
The pay pending dispute provisions have disappeared. The insurer is now obligated to pay only for a maximum of the lesser of 15 chiropractic and physiotherapy treatments or six weeks of treatments. Note there are new conflict of interest rules.
Maximum fees for examinations (amount that can be charged by the doctors) will be published by an O.I.C. fee schedule.
Transportation expenses will be set out in an O.I.C. schedule, and only those transportation expenses for using the insured's automobile in excess of 50 km round trip are to be reimbursed.
Insurers need not pay for case managers unless there is a catastrophic injury. If there is a catastrophic injury the insured must pay for the reasonable expenses of a case manager.
Like Bill 164 there is a specific section for this.
However there is now a maximum of $100.00 per week imposed. Furthermore no payment is required under this section for post 104 week expenses (unless the injury is catastrophic).
As in Bill 164 it is specifically provided (section 21) that the insurer shall pay for the reasonable expenses incurred by the insured's family in visiting the insured person during his or her treatment or recovery period.
However, this is now limited to 104 weeks after the accident (unless the injury is catastrophic).
$6,000.00 funeral benefit
$10,000.00 dependent benefit
$25,000.00 spousal benefit (note under Bill 164 this benefit had a minimum of $50,000.00 and a maximum of $200,000.00)
Insured person must notify insurer of the circumstances giving rise to entitlement to a-b's within 30 days after entitlement, or soon as practical thereafter.
Insurer is then to promptly provide an application package.
The insured person must then submit the completed application to the insurer within 30 days.
If insured fails to apply within 30 days insurer is given additional time (45 days from receipt of application) to investigate before making a weekly benefit payment.
If the insurer requests it, an insured must provide the following information within 14 days of the request:
(a) "any information reasonably required" to assist the insurer in determining the person's entitlement to a benefit;
(b) a statutory declaration as to the circumstances that give rise to the application for a benefit;
(c) the number, street and municipality where the person ordinarily resides;
(d) proof of the person's identity.
- No benefit is payable for any period before the insured complies with these requirements.
With respect to I.M.E.'s and D.A.C.'s, if an insured fails or refuses to submit to an examination an insurer may stop payment of the benefit until that person submits.
Once that person submits, the insurer must resume the payment of benefits, but now the insurer does not have to pay for that intervening time period (unlike Bill 164 where the insurer had to resume payments but also had to pay back the benefits payable during the time when the insured refused to attend).
It is now clear that an insurer may be repaid with respect to any benefit that is paid as a result of an error on the part of the insurer, or the insured person or any other person, or as a result of willful representation or fraud.
An insurer may terminate the benefits of an insured person who has willfully misrepresented material facts with respect to an application for accident benefits.
Amendments to the Insurance Act, Section 282(11) state that insurers may now be entitled to receive expenses of an arbitration (note before insurer could only receive expenses if insured was deemed to have brought a frivolous or vexatious proceeding).
Note there is now the introduction of a new dispute resolution concept entitled "neutral evaluations".
Section 280.1 of the Act stipulates that if mediations fail, the parties jointly, or the mediator who conducted the mediation, may refer the matter to a neutral evaluation.
The purpose of this evaluation is to give the parties an opinion as to the probable outcome of a court proceeding or arbitration.
Parties also now have the option to proceed by way of private arbitration.
There has been a great deal of debate about whether one who is given the regular use of an automobile and is therefore deemed a named insured under the regulations is also to be treated as a named insured for the purposes of priority pursuant to section 268 of the Act.
Section 66 of the Bill 59 S.A.B.S. (the deemed 'named' insured provision) has returned the wording to the language that was used prior to January, 1995 under Bill 164. The January 1995 amendment has been seen as an attempt to make it clear that the drafters wanted the deeming provision to refer to priorities as well. The return to the pre-January 1995 language may be an indicator that the case law which holds that these deeming provisions are with respect to entitlement only and not for priority is correct.
©1996, Rogers Partners LLP
The information contained in this paper is a summary of the legislation and it is not meant to represent or replace legal advice.
© Rogers Partners LLP - 1997
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, recording or otherwise without the prior permission of Rogers Partners LLP.
The information contained in this paper is not meant to represent or replace legal advice.
For a more complete and detailed analysis of the issues discussed in this paper please feel free to call the lawyers at Rogers Partners LLP.
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