Month: January 2019

Ontario law requires all drivers on the road to be covered by a valid motor vehicle insurance policy. However, if you are involved in an accident and you or the party at-fault is uninsured, you are still eligible for insurance benefits. Whether it’s a hit-and-run or one party was driving drunk or driving without a license, accident benefits may be available. The process can be long and complicated (and sometimes confusing if you’re not fluent in legal jargon), but having a personal injury lawyer by your side can help you get the compensation you deserve.

What is the Motor Vehicle Accident Claims Fund?

When the responsible insurance company is unknown or nonexistent, the Motor Vehicle Accident Claims Fund (MVACF) steps in.. Benefits may include income replacement, medical care costs, and rehabilitation needs like at-home attendants or physical therapy.

Certain requirements must be met before the fund will grant payment, however. Governed by the Financial Services Commission of Ontario, the functions of the MVACF are:

• “To provide statutory accident benefits directly to persons involved in an automobile accident who have no recourse to automobile insurance.”
• “To provide compensation for personal injury or property damage to victims involved in an automobile accident with an uninsured or unidentified driver or a stolen vehicle when no liability insurance exists.”
• “To recover from the owners and drivers of uninsured vehicles monies paid out on their behalf, where legally permissible.”
  (From the FSCO website)

The fund is a last resort means of claiming compensation after all other avenues have been exhausted, and the commission is clear about the process by which claimants can be compensated. It will only consider payment of claims under the Statutory Accident Benefits Schedule (SABS) if there is no recourse to auto insurance. MVACF is last on the priority list, specified under Section 268 (2) of the Insurance Act:

The priority for payment is as follows:

• “Recovery from your own automobile insurer (you are a named insured).”
• “Recovery from the insurer of the automobile in which you were an occupant.”
• “Recovery from the insurer of any automobile involved in the accident.”
• “If no other recovery is possible, MVACF may consider payment as mandated by Section 6 of the Motor Vehicle Accident Claims Act.”

What Does the Claimant Need to Do?

Determining if the MVACF is your last recourse is relatively straightforward, but bringing a tort claim against an uninsured or unidentified at-fault driver can be a complicated process. The Minister is only required to pay out of the MVACF for judgments in the claimant’s favour if the criteria established in the Motor Vehicle Accident Claims Act have been met. That burden rests with the claimant and his or her lawyer must help satisfy it.

Before making a tort claim under the MVACF, you must make every effort to identify the at-fault driver. Once identified, the next step is to establish that the other party is uninsured and that no other possible coverage is available. If the party at fault is protected under a family member’s insurance policy via the Family Protection Endorsement, you would not be eligible to receive assistance from the MVACF. This Endorsement was set up to protect family members of named policyholders in the event of injury or death as a result of wrongdoing by an under- or uninsured motorist.

Finally, the accident victim and his or her lawyer initiate an action and obtain a judgment; only then will the MVACF consider payment. Once this has been obtained, the claimant must also provide:

1. “The original (or certified copy) of the judgment. (For Small Claims Court, an Affidavit for Enforcement Request is required.)”
2. “A copy of the Statement of Claim.”
3. “A copy of the assessed Solicitor and Client Account (in accordance with section 27 of the Act).”

What Are a Victim’s Rights?

Victims can sue for general and specific damages as well as Family Law Act claims and are required to pay a statutory deductible. The limit for third-party liability under the MVACF is $200,000 per occurrence (which includes pre-judgment interest), plus partial indemnity legal costs and disbursements. The sum is reduced by amounts payable for property damage claims if they exist.

MVACF isn’t required to pay a judgment unless it was first given notice of the uninsured motorist’s failure to defend the court action. In this case, a Notice of Default form must be submitted if the defendant (or defendants) have defaulted on the court action.

Property Damage Claims

You can also make a claim for compensation from the MVACF if you sustained property damage during a motor vehicle accident (i.e. if your wheelchair or bicycle was destroyed). Damage to an actual motor vehicle is not permitted under this program, however. The claims process for property damage is slightly different than it is for personal injury:

You must complete an application and submit the following to the MVACF:

• “Police Officer Report”
• “Damage estimates and/or repair invoice”
• “Notice of Collection of Personal Information form. (These forms need to be signed and returned only if the application is being made on behalf of a private individual and not a business or entity.)”
• “If an insurance policy is referenced on the police report, a letter from the insurer is required that outlines when the insurance policy was cancelled (date and time) and the reason for cancellation.”

Help is Available

Obtaining compensation can be a lengthy process, but there is recourse for your pain and suffering. The MVACF is available to all Ontarians if an accident occurred within the province and you or another driver does not have motor vehicle insurance. Hire a personal injury lawyer who will help you during this stressful time.

If you have been in a motor vehicle accident involving an uninsured or unidentified driver, call Rooz Law at (416) 229-6000. Our dedicated team of personal injury lawyers in North York and Toronto will fight for the compensation you deserve.

The Minor Injury Guideline (MIG) is part of the Statutory Accident Benefits Schedule (SABS) and is in place to guide how accident victims are covered for goods and services by their insurers if their injuries fall within the definitions in the MIG. Treatment does not require the insurer’s approval for minor injuries sustained in an accident, if an application is properly made with respect to a motor vehicle accident. Although that might sound complicated, here’s what the MIG means to you.

The stated objectives of the MIG are as follows:

1. Speedy access to rehabilitation for persons who sustain minor injuries in auto accidents;
2. Improve the utilization of health care resources;
3. Provide certainty around cost and payment for insurers and regulated health professionals; and
4. Be more inclusive in providing immediate access to treatment without insurer approval for those persons with minor injuries

Insurance companies can substantially reduce the amount of money they pay out for a claim within the framework of the MIG. The MIG limits the amount that a victim can access to $2,200, or, with an extension, to an absolute maximum of $3,500. In some minor injury cases, this will be sufficient, but for many of people, this amount doesn’t go nearly far enough to pay for the treatment they need and to be able to function as they did before the accident.

What is Functional Restoration?

Since the MIG provides for goods and services with a functional restoration approach (getting the injured person to a state of health where they can function), there’s plenty of room for a subjective determination of what that might mean. It’s usually perceived differently by the sufferer, compared to the insurer. Regardless, the MIG limits the amount that can be used, and this in turn can limit the ability to fully recover.

The minor injuries defined by the MIG include:

• Sprain
• Strain
• Whiplash associated disorder
• Contusion
• Abrasion
• Laceration
• Subluxation (when a joint begins to dislocate)
• Clinically associated sequelae (this means an injury or other health complaints that arises as a result of the initial concern)

The Structure of Treatment

The MIG outlines a treatment course of 12 weeks (divided into three blocks of four weeks each). During each block health practitioners work with the injured person according to the guideline and oversee all interventions. They can also recommend supplementary treatment or certain therapeutic goods that will aid in recovery, such as ice packs, back supports, lumbar rolls, etc. These are also potentially covered by the insurer, but this amount is included in the $3500 cap.

It’s also important to note that if a person has extended health benefits privately or through their employer, these are to be accessed first, thus depleting a person’s extended health benefits for the year. The good news is that the amount paid by such extended health benefits is not deducted from a person’s MIG allowable amount of $3500.

Finding Compelling Evidence for Removal

Personal injury lawyers are concerned about the MIG’s limited amount available for optimal recovery, and the difficulty people face arguing that their injuries fall outside of the guideline. In order for a victim to claim higher benefits, they must prove that their injuries are beyond the minor classification, or that a pre-existing condition precludes them from for the limits of the MIG. The guideline makes it clear that most pre-existing conditions will not exclude victims from the MIG:

“Compelling evidence is to be provided using the Treatment and Assessment Plan (OCF-18) with attached medical documentation, if any, prepared by a health practitioner.

The existence of any pre-existing condition will not automatically exclude a person’s impairment from this Guideline. It is intended and expected that the vast majority of pre-existing conditions will not do so.” (From the Minor Injury Guideline, Financial Services Commission of Ontario)

The phrase “compelling evidence” is problematic here because of its subjectivity and requires healthcare providers to predict recovery based on pre-existing conditions. These are further complicated by what the MIG and insurance companies would call “minor injuries.” Arguing that an accident victim’s injuries fall outside of the MIG is difficult. Yet for those who are injured more severely, the difference between accessing a maximum of $3500 and being able to access up to $65,000 in a non-MIG claim is significant.

The biggest concern is that an accident victim’s injuries may be labelled “minor” in an effort for insurance companies to keep payments low, and that the result for the individual will be a lifetime of chronic pain and suffering as a result of inadequate treatment. While it may be true that the majority “of persons injured in car accidents in Ontario sustain minor injuries for which the goods and services provided under the MIG are appropriate,” it’s just not always the case, and there’s further concern that there’s room for judicial interpretation in some of the broader definitions.

The MIG and Psychology

On a positive note, since the MIG was written, there was some movement by insurers and adjudicators towards accepting psychological impairments as a qualification for receiving treatment outside the limits of the MIG. There is no mention of psychological injuries in the MIG and many people involved in accidents who suffer whiplash are able to be removed from the MIG if they suffer from psychological issues as well.

There may be are other types of injuries that “help” one get outside the MIG. Doctors are able to identify and diagnose concussions better today than they were five years ago, and this can be good news for victims of car accidents trying to get out of the MIG. Concussions are essentially a type of head injury and can take years to heal. The long-term repercussions of concussion are really just beginning to be fully understood. Nonetheless, head injuries and concussions may be used as a trigger to get one out of the MIG as well.

Despite these, victims still need to prove that their case falls outside of the MIG. This is where having a personal injury lawyer on your side can be of enormous help. Your lawyer can present proper evidence (such as reports, medical records, and more) to establish that your injuries are anything but minor. This will allow you to access benefits that will help you recover, return to work, and/or live life in the manner to which you are accustomed as well as help get you the compensation you deserve.

Talk to a personal injury lawyer who understands the law and knows how to help you get the financial support you need to recover from injuries sustained in an accident. Call Rooz Law Professional Corporation, Personal Injury Lawyers in North York and serving the Greater Toronto Area and Southern Ontario: (416) 229-6000.