S.A.B.S. Essentials
Bill 59

Bill 59-Effective November 1, 1996

Maximum benefit $100,000
($1,000,000 catastrophic injury)
Time limit-10 years post accident.

Health Practitioner: Physician, chiropractor, dentist, optometrist, psychologist, physiotherapist

Medical & Rehabilitation Benefits (Section 38)

Injured person-submit an Application for Benefit including:
· Treatment Plan
· Disability Certificate
· Conflict of Interest
Insurer-14 days to respond.

PAY:
(1) First 15 visits (chiropractic/physiotherapy) or care within 6 weeks following accident, whichever comes first (if a treatment plan has been submitted).
(2) Pay only on submission and acceptance of treatment plan, with provision of 15 visits paid as outlined above.
(3) Deny benefit with a referral for a DAC assessment.

Payment within 30 days of submission of benefit.

Guidelines Quebec Task Force
AMA Guides to the Evaluation of Permanent Impairment, 4th edition

Bill 164

Bill 164-Effective January 1, 1994

Maximum benefit $1,000,000. No time limit.

Health Practitioner: Physician, chiropractor, dentist, optometrist, psychologist.

Medical & Rehabilitation Benefits
(1) Health Practitioner's Certificate
(2) Covered for the first $2,000 or the first 8 weeks, whichever comes first.
(3) Pay now-dispute later.
(4) Insurance can only deny benefit if there is a DAC report stating that treatment is no longer necessary.

Payment within 14 days of submission.

Guidelines - None

AUGUST 14, 1996

(c) 1996 Queen's Printer for Ontario

This is an unofficial version of Government of Ontario Legislation


STATUTORY ACCIDENT BENEFITS SCHEDULE -
ACCIDENTS ON OR AFTER THE DAY SECTION 29 OF THE
AUTOMOBILE INSURANCE RATE STABILITY ACT, 1996
COMES INTO FORCE

ONTARIO REGULATION 776/93
made under the
INSURANCE ACT

CONTENTS


PART I - GENERAL
1. Title
2. Definitions and Interpretation
3. Application

PART II - INCOME REPLACEMENT BENEFIT
4. Eligibility Criteria
5. Period of Benefit
6. Amount of Benefit
7. Collateral Payments for Loss of Income and Maximum Amount of Benefit
8. Gross Income Calculations
9. Adjustment after Age 65
10. Entitlement Arising after Age 65
11. Temporary Return to Employment

PART III - NON-EARNER BENEFIT
12. Non-Earner Benefit

PART IV - CAREGIVER BENEFIT
13. Caregiver Benefit

PART V - MEDICAL, REHABILITATION AND ATTENDANT CARE BENEFITS
14. Medical Benefit
15. Rehabilitation Benefit
16. Attendant Care Benefit
17. Case Manager Services
18. Duration of Medical, Rehabilitation and Attendant Care Benefits
19. Maximum Limits on Medical, Rehabilitation and Attendant Care Benefits

PART VI - PAYMENT OF OTHER EXPENSES
20. Lost Educational Expenses
21. Expenses of Visitors
22. Housekeeping and Home Maintenance
23. Damage to Clothing, Glasses, Hearing Aids, etc.
24. Cost of Examinations

PART VII - DEATH AND FUNERAL BENEFITS
25. Death Benefit
26. Funeral Benefit

PART VIII - OPTIONAL BENEFITS
27. Description of Optional Benefits
28. Dependant Care Benefit
29. Optional Indexation Benefit

PART IX - GENERAL EXCLUSIONS
30. General Exclusions

PART X - PROCEDURES FOR CLAIMING BENEFITS
31. Failure to Comply with Time Limits
32. Notice and Application for Benefits
33. Duty of Applicant to Provide Information
34. Disability Certificate
35. Payment of Income Replacement, Non-Earner or Caregiver Benefit
36. Election of Income Replacement, Non-Earner or Caregiver Benefit
37. Refusal or Stoppage of Income Replacement, Non-Earner or Caregiver Benefit
38. Medical and Rehabilitation Benefits
39. Attendant Care Benefit
40. Determination of Catastrophic Impairment
41. Other Benefits
42. Insurer Examinations
43. Assessments
44. Method of Payment
45. Explanation of Benefit Amounts
46. Overdue Payments
47. Repayments to Insurer
48. Termination of Benefits for Material Misrepresentation
49. Right to Dispute
50. Assessment before Mediation
51. Time Limit for Proceedings

PART XI - DESIGNATED ASSESSMENT CENTRES
52. Establishment of Designated Assessment Centres
53. Place of Assessment
54. Goods or Services after Assessment

PART XII - RESPONSIBILITY TO OBTAIN TREATMENT, PARTICIPATE IN REHABILITATION AND SEEK EMPLOYMENT
55. Treatment and Rehabilitation
56. Employment

PART XIII - INTERACTION WITH OTHER SYSTEMS
57. Accidents outside Ontario
58. Social Assistance Payments
59. Workers' Compensation Benefits
60. Other Collateral Benefits

PART XIV - INCOME CALCULATION
61. Net Weekly Income Formula
62. Income from Self-Employment
63. Income Tax Calculations
64. Severance or Termination Pay

PART XV - MISCELLANEOUS
65. Assignment of Benefits
66. Company Automobiles and Rental Automobiles
67. Copies of Regulation
68. Notice from Insurer
69. Forms
70. Transition
71. Commencement

FORM 1 ASSESSMENT OF ATTENDANT CARE NEEDS

 

PART I

GENERAL

 

Title

1. This Regulation may be cited as the Statutory Accident Benefits Schedule - Accidents on or after the day section 29 of the Automobile Insurance Rate Stability Act, 1996 comes into force.

Definitions and Interpretation

2. (1) In this Regulation,

"accident" means an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device;

"attendant care benefit" means the benefit provided by section 16;

"caregiver benefit" means the benefit provided by Part IV;

"case manager" means a person who provides services related to the coordination of goods or services for which payment is provided by a medical, rehabilitation or attendant care benefit; "catastrophic impairment" means,

(a) paraplegia or quadriplegia,

(b) amputation or other impairment causing the total and permanent loss of use of both arms,

(c) amputation or other impairment causing the total and permanent loss of use of both an arm and a leg,

(d) total loss of vision in both eyes,

(e) brain impairment that, in respect of an accident, results in,

(i) a score of 9 or less on the Glasgow Coma Scale, as published in Jennett, B. and Teasdale, G., Management of Head Injuries, Contemporary Neurology Series, Volume 20, F.A. Davis Company, Philadelphia, 1981, according to a test administered within a reasonable period of time after the accident by a person trained for that purpose, or

(ii) a score of 2 (vegetative) or 3 (severe disability) on the Glasgow Outcome Scale, as published in Jennett, B. and Bond, M., Assessment of Outcome After Severe Brain Damage, Lancet i:480, 1975, according to a test administered more than six months after the accident by a person trained for that purpose,

(f) subject to subsections (2) and (3), any impairment or combination of impairments that, in accordance with the American Medical Association's Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in 55 per cent or more impairment of the whole person, or

(g) subject to subsections (2) and (3), any impairment that, in accordance with the American Medical Association's Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder;

"chiropractor" means a person authorized by law to practise chiropractic;

"death benefit" means the benefit provided by section 25;

"dentist" means a person authorized by law to practise dentistry;

"designated assessment centre" means an assessment centre designated under section 52;

"funeral benefit" means the benefit provided by section 26;

"health practitioner", in respect of a particular impairment, means a physician or,

(a) a chiropractor, if the impairment is one that a chiropractor is authorized by law to treat,

(b) a dentist, if the impairment is one that a dentist is authorized by law to treat,

(c) an optometrist, if the impairment is one that an optometrist is authorized by law to treat,

(d) a psychologist, if the impairment is one that a psychologist is authorized by law to treat, or

(e) a physiotherapist, if the impairment is one that a physiotherapist is authorized by law to treat;

"impairment" means a loss or abnormality of a psychological, physiological or anatomical structure or function;

"income replacement benefit" means the benefit provided by Part II;

"insured automobile", in respect of a particular motor vehicle liability policy, means any automobile covered by the policy;

"insured person", in respect of a particular motor vehicle liability policy, means,

(a) the named insured, any person specified in the policy as a driver of the insured automobile, the spouse of the named insured, and any dependant of the named insured or spouse, if the named insured, specified driver, spouse or dependant,

(i) is involved in an accident in or outside of Ontario that involves the insured automobile or another automobile, or

(ii) is not involved in an accident but suffers psychological or mental injury as a result of an accident in or outside of Ontario that results in a physical injury to his or her spouse, child, grandchild, parent, grandparent, brother, sister, dependant or spouse's dependant,

(b) in respect of accidents in Ontario, a person who is involved in an accident involving the insured automobile, and

(c) in respect of accidents outside Ontario, a person who is an occupant of the insured automobile and who is a resident of Ontario or was a resident of Ontario at some point during the 60 days before the accident;

"medical benefit" means the benefit provided by section 14;

"member of a health profession" means a member of a College as defined in the Regulated Health Professions Act, 1991;

"non-earner benefit" means the benefit provided by Part III;

"optometrist" means a person who is authorized by law to practise optometry;

"person in need of care" means, in respect of an insured person, another person who is less than 16 years of age or who requires care because of physical or mental incapacity;

"personal and vocational characteristics" include,

(a) employment history,

(b) education and training,

(c) vocational aptitudes,

(d) vocational skills,

(e) physical abilities,

(f) cognitive abilities, and

(g) language abilities;

"physician" means a person authorized by law to practise medicine;

"psychologist" means a person authorized by law to practise psychology;

"physiotherapist" means a person authorized by law to practice physiotherapy;

"rehabilitation benefit" means the benefit provided by section 15;

"spouse" has the same meaning as in Part VI of the Insurance Act;

"treatment plan" means, in respect of an insured person who sustains an impairment as a result of an accident, a document prepared by a member of a health profession that includes,

(a) a description of the impairment,

(b) a description of any disability that results from the impairment and an estimate of the duration of the disability,

(c) a description of the goods and services that will be used in the treatment or rehabilitation of the insured person and a description of the benefits that are anticipated from the goods and services,

(d) a statement identifying the persons who will provide the goods and services,

(e) an estimate of the duration of the services,

(f) an estimate of the costs of the goods and services,

(g) a statement identifying a member of a health profession who will supervise the implementation of the treatment plan,

(h) a statement by a health practitioner indicating that he or she approves of the treatment plan and is of the opinion that the expenses contemplated by the treatment plan are reasonable and necessary for the insured person's treatment or rehabilitation, and

(i) the statement required by subsection 38 (3).

(2) Clauses (f) and (g) of the definition of "catastrophic impairment" in subsection (1) do not apply in respect of an insured person who sustains an impairment as a result of an accident unless,

(a) the insured person's health practitioner states in writing that the insured person's condition has stabilized and is not likely to improve with treatment; or

(b) three years have elapsed since the accident.

(3) For the purpose of clauses (f) and (g) of the definition of "catastrophic impairment" in subsection (1), an impairment that is sustained by an insured person but is not listed in the American Medical Association's Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 shall be deemed to be the impairment that is listed in that document and that is most analogous to the impairment sustained by the insured person.

(4) For the purpose of this Regulation, a person suffers a complete inability to carry on a normal life as a result of an accident if, and only if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.

(5) For the purpose of this Regulation, a person is employed if, for salary, wages, other remuneration or profit, the person is engaged in employment, including self-employment, or is the holder of an office, and "employment" has a corresponding meaning.

(6) For the purpose of this Regulation, a person is a dependant of another person if the person is principally dependent for financial support or care on the other person or the other person's spouse.

(7) For the purpose of this Regulation, an aide or attendant for a person includes a family member or friend who acts as the person's aide or attendant, even if the family member or friend does not possess any special qualifications.

(8) For the purpose of this Regulation, payments of severance pay or termination pay are not payments for loss of income.

Application

3. (1) The benefits set out in this Regulation shall be provided under every contract evidenced by a motor vehicle liability policy in respect of accidents occurring on or after the day section 29 of the Automobile Insurance Rate Stability Act, 1996 comes into force.

(2) The benefits set out in this Regulation shall be provided in respect of accidents that occur in Canada or the United States of America, or on a vessel plying between ports of Canada or the United States of America.

(3) Benefits payable under this Regulation in respect of an insured person shall be paid by the insurer that is liable to pay under subsection 268 (2) of the Insurance Act.

(4) Subject to Part IX, the insurer shall pay the benefits under this Regulation despite section 225, subsection 233 (1), section 240 and subsection 265(3) of the Insurance Act.

 

PART II

INCOME REPLACEMENT BENEFIT

 

ELIGIBILITY CRITERIA

4. The insurer shall pay an insured person who sustains an impairment as a result of an accident an income replacement benefit if the insured person meets any of the following qualifications:

1. The insured person was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment.

2. The insured person,

i. was not employed at the time of the accident,

ii. was employed for at least 26 weeks during the 52 weeks before the accident or was receiving benefits under the Employment Insurance Act (Canada) at the time of the accident,

iii. was 16 years of age or more or was excused from attendance at school under the Education Act at the time of the accident, and iv. as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of the employment in which the insured person spent the most time during the 52 weeks before the accident.

3. The insured person,

i. was entitled at the time of the accident to start work within one year under a legitimate contract of employment that was made before the accident and that is evidenced in writing, and

ii. as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of the employment he or she was entitled to start under the contract.

PERIOD OF BENEFIT

5. (1) Subject to subsection (2), an income replacement benefit is payable during the period that the insured person suffers a substantial inability to perform the essential tasks of the employment in respect of which he or she qualifies for the benefit under section 4.

(2) The insurer is not required to pay an income replacement benefit,

(a) for the first week of the disability;

(b) for any period longer than 104 weeks of disability, unless, as a result of the accident, the insured person is suffering a complete inability to engage in any employment for which he or she is reasonably suited by education, training or experience; or

(c) in the case of an insured person who qualifies for the benefit under paragraph 3 of section 4, for the period before the day he or she would have been entitled under the contract to begin employment.

AMOUNT OF BENEFIT

6. (1) The amount of the income replacement benefit shall be,

(a) for each of the first 104 weeks of disability, 80 per cent of the insured person's net weekly income from employment determined in accordance with section 61; and

(b) for each week after the first 104 weeks of disability, the greater of the amount specified in clause (a) and $185.

(2) The insurer may deduct from the amount of the income replacement benefit payable to an insured person 80 per cent of the net income received by the insured person in respect of any employment subsequent to the accident.

(3) For the purpose of subsection (2), the net income received by an insured person in respect of employment subsequent to the accident shall be determined by subtracting the following amounts from the gross income received by the person in respect of the employment subsequent to the accident:

1. The premium payable by the person under the Employment Insurance Act (Canada) on the gross income.

2. The contribution payable by the person under the Canada Pension Plan (Canada) on the gross income.

3. The income tax payable by the person under the Income Tax Act (Canada) and the Income Tax Act (Ontario) on the gross income.

(4) For the purpose of subsection (2), net income from self- employment for an insured person who was self-employed at the time of the accident shall be determined without making any deductions for,

(a) expenses that were not reasonable or necessary to prevent a loss of revenue;

(b) salary expenses that were paid to replace the person's active participation in the business, except to the extent that those expenses were reasonable for that purpose; and

(c) non-salary expenses that were different in nature or greater than the non-salary expenses incurred before the accident, except to the extent that those expenses were necessary to prevent or reduce any losses resulting from the accident.

(5) If the insured person was self-employed at the time of the accident and the person incurs losses from self-employment as a result of the accident, the insurer shall add to the amount of the income replacement benefit payable to the person 80 per cent of the losses from self-employment incurred as a result of the accident.

(6) For the purpose of subsection (5), losses from self- employment shall be determined in the same manner as losses from the business in which the person was self-employed would be determined under subsection 9 (2) of the Income Tax Act (Canada) and the Income Tax Act (Ontario), without making any deductions for,

(a) expenses that were not reasonable or necessary to prevent a loss of revenue;

(b) salary expenses that were paid to replace the person's active participation in the business, except to the extent that those expenses were reasonable for that purpose;

(c) non-salary expenses that were different in nature or greater than the non-salary expenses incurred before the accident, except to the extent that those expenses were necessary to prevent or reduce any losses resulting from the accident;

(d) expenses that are eligible for capital cost allowance or an allowance on eligible capital property; or

(e) losses deductible under section 111 of the Income Tax Act (Canada). Collateral Payments for Loss of Income and Maximum Amount of

COLLATERAL PAYMENTS FOR LOSS OF INCOME AND

MAXIMUM AMOUNT OF BENEFIT

7. (1) Despite subsection 6 (1) but subject to subsections 6 (2) to (6), the weekly amount of an income replacement benefit payable to a person shall be the lesser of the following amounts:

1. The amount determined under subsection 6 (1), reduced by,

i. net weekly payments for loss of income that are being received by the person as a result of the accident under the laws of any jurisdiction or under any income continuation plan, and

ii. net weekly payments for loss of income that are not being received by the person but are available to the person as a result of the accident under the laws of any jurisdiction or under any income continuation plan, unless the person has applied to receive the payments for loss of income.

2. The greater of the following amounts:

i. $400.

ii. If the optional income replacement benefit referred to in section 27 has been purchased and is applicable to the person, the amount fixed by the optional benefit.

(2) For the purpose of paragraph 1 of subsection (1), the amount determined under subsection 6 (1) shall not be reduced by,

(a) benefits under the Employment Insurance Act (Canada) that are being received by or are available to the person;

(b) payments under a sick leave plan that are not being received by the person but are available to the person; or

(c) payments under a workers' compensation law or plan that are not being received by the person and to which the person is not entitled because the person has elected under the workers' compensation law or plan to bring an action.

(3) For the purpose of this section, net weekly payments for loss of income shall be determined by subtracting from the gross weekly amount of payments for loss of income the income tax payable by the person under the Income Tax Act (Canada) and the Income Tax Act (Ontario) on the gross weekly amount of payments for loss of income.

(4) For the purpose of subsection (3), the person whose net weekly payments for loss of income are to be determined shall be deemed to be a resident of Ontario.

GROSS INCOME CALCULATIONS

8. (1) An insured person who is eligible for an income replacement benefit under paragraph 1 of section 4 and who was not self-employed at any time during the four weeks before the accident shall designate one of the following time periods:

1. The four weeks before the accident.

2. The 52 weeks before the accident.

(2) An insured person who is eligible for an income replacement benefit under paragraph 1 of section 4 and who was self-employed at any time during the four weeks before the accident shall designate one of the following time periods:

1. The 52 weeks before the accident.

2. The last fiscal year completed before the accident for the business in which the person was self-employed, if the business completed a fiscal year before the accident.

(3) For the purpose of determining the amount of an insured person's income replacement benefit, the gross annual income from employment for a person who qualifies for a benefit under paragraph 1 of section 4 shall be deemed to be the following amount:

1. In the case of a person who designated the four weeks before the accident under paragraph 1 of subsection (1), the person's gross income from employment for the four weeks before the accident, multiplied by 13.

2. In the case of a person who designated the 52 weeks before the accident under paragraph 2 of subsection (1) or paragraph 1 of subsection (2), the person's gross income from employment for the 52 weeks before the accident.

3. In the case of a person who designated the last fiscal year completed before the accident under paragraph 2 of subsection (2), the person's gross income for that fiscal year.

(4) For the purpose of determining the amount of an insured person's income replacement benefit, the gross annual income from employment for a person who qualifies for a benefit under paragraph 2 of section 4 shall be deemed to be the person's gross income from employment for the 52 weeks before the accident.

(5) For the purpose of determining the amount of an insured person's income replacement benefit, the gross annual income from employment for a person who qualifies for a benefit under paragraph 3 of section 4 shall be deemed to be the gross income payable under the contract of employment, extrapolated to reflect an annual income.

(6) A determination of gross income under subsection (3) or (4) shall include any benefits received under the Employment Insurance Act (Canada) or a predecessor of that Act in respect of the relevant period.

(7) If a person qualifies for an income replacement benefit under paragraph 1 or 2 of section 4 and also qualifies under paragraph 3 of section 4, the person's gross annual income from employment shall be determined under subsection (3) or (4), as the case may be, until the day he or she would have been entitled to begin employment under the contract described in paragraph 3 of section 4, and thereafter the person's gross annual income from employment shall be determined in accordance with subsection (5).

ADJUSTMENT AFTER AGE 65

9. (1) Despite sections 6 and 7, if a person is receiving an income replacement benefit immediately before attaining 65 years of age, the weekly amount of the benefit shall be adjusted, on the later of the date the person attains 65 years of age and the second anniversary of the date the person began receiving the benefit, to the amount determined in accordance with the following formula:

A = B ( 0.02 ( C

where,

A = the amount to which the weekly amount of the income replacement benefit shall be adjusted,

B = the weekly amount of the income replacement benefit that the person was entitled to receive immediately before the adjustment, including any additions required by subsection 6 (5) but without making any deductions permitted by subsection 6 (2),

C = the lesser of,

i. 35, and

ii. the number of years during which the person qualified for the income replacement benefit before the adjustment is made.

(2) An income replacement benefit that has been adjusted under subsection (1) is payable until the person dies.

(3) Section 5 and subsections 6 (2) to (6) do not apply to an income replacement benefit that has been adjusted under subsection (1).

ENTITLEMENT ARISING AFTER AGE 65

10. (1) Despite sections 6 and 7, if a person becomes entitled to receive an income replacement benefit after attaining 65 years of age, the weekly amount of the benefit shall be the amount determined under section 7 multiplied by the factor set out in Column 2 of the Table to this subsection opposite the number of weeks that have elapsed since the person became entitled to receive the benefit.

TABLE

Column 1 Column 2

Number of weeks since Entitlement Arose Factor

Less than 52 weeks 1.0

52 weeks or more but less than 104 weeks 0.8

104 weeks or more but less than 156 weeks 0.6

156 weeks or more but less than 208 weeks 0.3

208 weeks or more 0.0

(2) An income replacement benefit is no longer payable to a person to whom subsection (1) applies if more than 208 weeks have elapsed since the person became entitled to the benefit.

(3) Subsections 6 (2) to (6) do not apply to the income replacement benefit paid to a person to whom subsection (1) applies.

TEMPORARY RETURN TO EMPLOYMENT

11. A person receiving an income replacement benefit may return to or start an employment at any time during the 104 weeks following the onset of the disability in respect of which the benefit is paid without affecting his or her entitlement to resume receiving benefits under this Part if, as a result of the accident, he or she is unable to continue in the employment.

 

PART III

NON-EARNER BENEFIT

 

12. (1) The insurer shall pay an insured person who sustains an impairment as a result of an accident a non-earner benefit if the insured person meets any of the following qualifications:

1. The insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and does not qualify for an income replacement benefit.

2. The insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident, received a caregiver benefit as a result of the accident and there is no longer a person in need of care.

3. The insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and,

i. was enrolled on a full-time basis in elementary, secondary or post-secondary education at the time of the accident, or

ii. completed his or her education less than one year before the accident and was not employed, after completing his or her education and before the accident, in an employment that reflected his or her education and training.

(2) Subject to subsection (3), the amount of the non-earner benefit shall be $185 for each week that the insured person is eligible to receive the benefit.

(3) If a person qualifies for a non-earner benefit under paragraph 3 of subsection (1) and more than 104 weeks have elapsed since the onset of the disability, the amount of the non-earner benefit shall be $320 for each week that the insured person continues to be eligible to receive the benefit.

(4) The insurer may deduct the following amounts from the amount payable to an insured person as a non-earner benefit:

1. Net weekly payments for loss of income that are being received by the insured person as a result of the accident under the laws of any jurisdiction or under any income continuation plan.

2. Net weekly payments for loss of income that are not being received by the insured person but are available to the insured person as a result of the accident under the laws of any jurisdiction or under any income continuation plan, unless the insured person has applied to receive the payments for loss of income.

(5) For the purpose of subsection (4), subsections 7 (2) and (3) apply with necessary modifications.

(6) Subject to subsection (7), the non-earner benefit is payable during the period that the insured person suffers a complete inability to carry on a normal life.

(7) The insurer,

(a) is not required to pay a non-earner benefit for the first 26 weeks after the onset of the complete inability to carry on a normal life; and

(b) is not required to pay a non-earner benefit for any period before the insured person attains 16 years of age.

(8) Sections 9 and 10 apply, with necessary modifications, to a non-earner benefit and, for that purpose, the reference in subsection 10 (1) to "the amount determined under section 7" shall be deemed to be a reference to the amount referred to in subsection (2) of this section.

 

PART IV

CAREGIVER BENEFIT

 

13. (1) The insurer shall pay an insured person who sustains an impairment as a result of an accident a caregiver benefit if the insured person meets all of the following qualifications:

1. At the time of the accident,

i. the insured person was residing with a person in need of care, and

ii. the insured person was the primary caregiver for the person in need of care and did not receive any remuneration for engaging in caregiving activities.

2. As a result of and within 104 weeks after the accident, the insured person suffers a substantial inability to engage in the caregiving activities in which he or she engaged at the time of the accident.

(2) The caregiver benefit shall pay for reasonable and necessary expenses incurred as a result of the accident in caring for a person in need of care.

(3) The amount of the caregiver benefit shall not exceed,

(a) for the first person in need of care,

(i) $250 per week, or

(ii) if the optional caregiver and dependant care benefit referred to in section 27 has been purchased and is applicable to the insured person, the amount fixed by the optional benefit; and

(b) for each additional person in need of care,

(i) $50 per week, or

(ii) if the optional caregiver and dependant care benefit referred to in section 27 has been purchased and is applicable to the insured person, the amount fixed by the optional benefit. (4) The insurer is not required to pay a caregiver benefit for any period longer than 104 weeks of disability, unless, as a result of the accident, the insured person is suffering a complete inability to carry on a normal life.

 

PART V

MEDICAL, REHABILITATION AND ATTENDANT CARE BENEFITS

 

MEDICAL BENEFIT

14. (1) The insurer shall pay an insured person who sustains an impairment as a result of an accident a medical benefit.

(2) The medical benefit shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for,

(a) medical, surgical, dental, optometric, hospital, nursing, ambulance, audiometric and speech-language pathology services;

(b) chiropractic, psychological, occupational therapy and physiotherapy services;

(c) medication;

(d) prescription eyewear;

(e) dentures and other dental devices;

(f) hearing aids, wheelchairs or other mobility devices, prostheses, orthotics and other assistive devices;

(g) transportation for the insured person to and from treatment sessions, including transportation for an aide or attendant;

(h) other goods and services of a medical nature that the insured person requires.

(3) The insurer is not liable to pay a medical benefit for goods or services that are experimental in nature.

(4) The insurer is not liable to pay a medical benefit under clause (2) (a), (b) or (h) for expenses related to professional services rendered to an insured person that exceed the maximum rate or amount of expenses established under the Professional Fees Guidelines published in The Ontario Gazette by the Ontario Insurance Commission, as they may be amended from time to time.

(5) Subject to subsection (6), the insurer is not liable to pay a medical benefit under clause (2) (g) for expenses related to transportation unless the expenses are authorized by, and are calculated by applying the rates set out in, the Transportation Expense Guidelines published in The Ontario Gazette by the Ontario Insurance Commission, as they may be amended from time to time.

(6) The insurer is not liable to pay a medical benefit under clause (2) (g) for expenses related to the first 50 kilometres of transportation in the insured person's automobile to and from a treatment session.

REHABILITATION BENEFIT

15. (1) The insurer shall pay an insured person who sustains an impairment as a result of an accident a rehabilitation benefit.

(2) The rehabilitation benefit shall pay for reasonable and necessary measures undertaken by an insured person to reduce or eliminate the effects of any disability resulting from the impairment or to facilitate the insured person's reintegration into his or her family, the rest of society and the labour market.

(3) Measures to reintegrate an insured person into the labour market include measures that are reasonable and necessary to enable the person to,

(a) engage in employment that is as similar as possible to employment in which he or she engaged before the accident; or

(b) lead as normal a work life as possible. (4) In determining whether a measure is reasonable and necessary for the purpose of subsection (3), the insurer shall consider the insured person's personal and vocational characteristics.

(5) The rehabilitation benefit shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for a purpose referred to in subsection (2) for,

(a) life skills training;

(b) family counselling;

(c) social rehabilitation counselling;

(d) financial counselling;

(e) employment counselling;

(f) vocational assessments;

(g) vocational or academic training;

(h) workplace modifications and workplace devices, including communications aids, to accommodate the needs of the insured person;

(i) home modifications and home devices, including communications aids, to accommodate the needs of the insured person, or the purchase of a new home if it is more reasonable to purchase a new home to accommodate the needs of the insured person than to renovate the insured person's existing home;

(j) vehicle modifications to accommodate the needs of the insured person, or the purchase of a new vehicle if it is more reasonable to purchase a new vehicle to accommodate the needs of the insured person than to modify an existing vehicle;

(k) transportation for the insured person to and from counselling sessions, training sessions and assessments, including transportation for an aide or attendant;

(l) other goods and services that the insured person requires, except services provided by a case manager.

(6) The insurer is not liable to pay a rehabilitation benefit under any of clauses (5) (a) to (g) or clause (5) (l) for expenses related to professional services rendered to an insured person that exceed the maximum rate or amount of expenses established under the Professional Fees Guidelines published in The Ontario Gazette by the Ontario Insurance Commission, as they may be amended from time to time.

(7) For the purpose of clause (5) (i), expenses incurred to renovate the insured person's home shall be deemed not to be reasonable and necessary expenses if the renovations are only for the purpose of giving the insured person access to areas of the home that are not needed for ordinary living.

(8) The amount of the rehabilitation benefit for the purchase of a new home shall not exceed the value of the renovations to the insured person's existing home that would have been required to accommodate the needs of the insured person.

(9) For the purpose of clause (5) (j), expenses incurred to purchase or modify a vehicle to accommodate the needs of an insured person shall be deemed not to be reasonable and necessary expenses if they are incurred within five years after the last expenses incurred for that purpose in respect of the same accident.

(10) The amount of the rehabilitation benefit for the purchase of a new vehicle shall not exceed the cost of the new vehicle, less the trade-in value of the existing vehicle.

(11) Subject to subsection (12), the insurer is not liable to pay a rehabilitation benefit under clause (5) (k) for expenses related to transportation unless the expenses are authorized by, and are calculated by applying the rates set out in, the Transportation Expense Guidelines published in The Ontario Gazette by the Ontario Insurance Commission, as they may be amended from time to time.

(12) The insurer is not liable to pay a rehabilitation benefit under clause (5) (k) for expenses related to the first 50 kilometres of transportation in the insured person's automobile to and from a counselling session, training session or assessment.

ATTENDANT CARE BENEFIT

16. (1) The insurer shall pay an insured person who sustains an impairment as a result of an accident an attendant care benefit.

(2) The attendant care benefit shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for,

(a) services provided by an aide or attendant; or

(b) services provided by a long-term care facility, including a nursing home, home for the aged or chronic care hospital.

(3) Subsection (2) does not apply to expenses for which payment may be obtained under clause 14 (2) (g), 15 (5) (k) or 24 (1) (c).

(4) The monthly amount payable by the attendant care benefit shall be determined in accordance with Form 1.

(5) The amount of the attendant care benefit payable in respect of an insured person shall not exceed,

(a) $3,000 per month, in the case of an insured person who did not sustain a catastrophic impairment as a result of the accident; or

(b) $6,000 per month, in the case of an insured person who sustained a catastrophic impairment as a result of the accident.

CASE MANAGER SERVICES

17. (1) If an insured person sustains a catastrophic impairment as a result of an accident, the insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for services provided, in accordance with a treatment plan, by a qualified case manager.

(2) The insurer is not liable under subsection (1) to pay for expenses related to professional services rendered to an insured person that exceed the maximum rate or amount of expenses established under the Professional Fees Guidelines published in The Ontario Gazette by the Ontario Insurance Commission, as they may be amended from time to time.

DURATION OF MEDICAL, REHABILITATION AND ATTENDANT CARE BENEFITS

18. (1) No medical or rehabilitation benefit is payable for expenses incurred,

(a) more than 10 years after the accident, in the case of an insured person who was 15 years of age or more at the time of the accident; or

(b) after the insured person attains 25 years of age, in the case of an insured person who was less than 15 years of age at the time of the accident.

(2) No attendant care benefit is payable for expenses incurred more than 104 weeks after the accident.

(3) Subsections (1) and (2) do not apply in respect of an insured person who sustains a catastrophic impairment as a result of the accident.

(4) Subsections (1) and (2) do not apply if the optional medical, rehabilitation and attendant care benefit referred to in section 27 has been purchased and is applicable to the insured person.

MAXIMUM LIMITS ON MEDICAL, REHABILITATION

AND ATTENDANT CARE BENEFITS

19. (1) The sum of the medical and rehabilitation benefits paid in respect of an insured person shall not exceed, for any one accident,

(a) $100,000; or

(b) if the insured person sustained a catastrophic impairment as a result of the accident, $1,000,000.

(2) The amount of the attendant care benefit paid in respect of an insured person shall not exceed, for any one accident,

(a) $72,000; or

(b) if the insured person sustained a catastrophic impairment as a result of the accident, $1,000,000.

(3) If the optional medical, rehabilitation and attendant care benefit referred to in section 27 has been purchased and is applicable to the insured person, the maximum limits fixed by the optional benefit apply and subsections (1) and (2) do not apply.

(4) For the purpose of subsection (1), the medical and rehabilitation benefits paid in respect of an insured person include any amount paid in respect of the insured person under section 17.

 

PART VI

PAYMENT OF OTHER EXPENSES

 

LOST EDUCATIONAL EXPENSES

20. (1) The insurer shall pay for lost educational expenses incurred by or on behalf of an insured person who sustains an impairment as a result of an accident if,

(a) at the time of the accident, the insured person was enrolled in a program of elementary, secondary, post- secondary or continuing education; and

(b) as a result of the accident, the insured person is unable to continue the program.

(2) The amount payable under this section shall not exceed $15,000.

(3) In this section,

"lost educational expenses" means expenses incurred before the accident for tuition, books, equipment or room and board in respect of the program term or program year in which the insured person was enrolled at the time of the accident, if the expenses are related to the program that the insured person is unable to continue.

EXPENSES OF VISITORS

21. (1) If an insured person sustains an impairment as a result of an accident, the insurer shall pay for reasonable and necessary expenses incurred by the following persons as a result of the accident in visiting the insured person during his or her treatment or recovery:

1. The spouse, children, grandchildren, parents, grandparents, brothers and sisters of the insured person.

2. An individual who was living with the insured person at the time of the accident.

3. An individual who has demonstrated a settled intention to treat the insured person as a child of the individual's family.

4. An individual whom the insured person has demonstrated a settled intention to treat as a child of the insured person's family.

(2) No payment is required under this section for expenses incurred more than 104 weeks after the accident.

(3) Subsection (2) does not apply if the insured person sustained a catastrophic impairment as a result of the accident.

HOUSEKEEPING AND HOME MAINTENANCE

22. (1) The insurer shall pay for reasonable and necessary additional expenses incurred by or on behalf of an insured person as a result of an accident for housekeeping and home maintenance services if, as a result of the accident, the insured person sustains an impairment that results in a substantial inability to perform the housekeeping and home maintenance services that he or she normally performed before the accident.

(2) The amount payable under this section shall not exceed $100 per week.

(3) No payment is required under this section for expenses incurred more than 104 weeks after the onset of the disability.

(4) Subsection (3) does not apply if the insured person sustained a catastrophic impairment as a result of the accident.

DAMAGE TO CLOTHING, GLASSES, HEARING AIDS, ETC.

23. The insurer shall pay for all reasonable expenses incurred by or on behalf of an insured person in repairing or replacing,

(a) clothing worn by the insured person at the time of an accident that was lost or damaged as a result of the accident; or

(b) prescription eyewear, dentures, hearing aids, prostheses and other medical or dental devices that were lost or damaged as a result of an accident.

COST OF EXAMINATIONS

24. (1) The insurer shall pay for all reasonable expenses incurred by or on behalf of an insured person for the purpose of this Regulation in obtaining and attending an examination or assessment or in obtaining a certificate, report or treatment plan, including,

(a) fees charged by a person who conducts an examination or assessment or provides a certificate, report or treatment plan;

(b) fees charged by a designated assessment centre; and

(c) transportation expenses incurred in transporting the insured person to and from an examination or assessment, including transportation expenses for an aide or attendant.

(2) The insurer is not liable under clause (1) (a) or (b) to pay for expenses related to professional services rendered to an insured person that exceed the maximum rate or amount of expenses established under the Professional Fees Guidelines published in The Ontario Gazette by the Ontario Insurance Commission, as they may be amended from time to time.

(3) Subject to subsection (4), the insurer is not liable under clause (1) (c) to pay for expenses related to transportation unless the expenses are authorized by, and are calculated by applying the rates set out in, the Transportation Expense Guidelines published in The Ontario Gazette by the Ontario Insurance Commission, as they may be amended from time to time.

(4) The insurer is not liable under clause (1) (c) to pay for expenses related to the first 50 kilometres of transportation in the insured person's automobile to and from an examination or assessment.

 

PART VII

DEATH AND FUNERAL BENEFITS

 

DEATH BENEFIT

25. (1) The insurer shall pay a death benefit in respect of an insured person if he or she dies as result of an accident,

(a) within 180 days after the accident; or

(b) within 156 weeks after the accident, if during that period the insured person was continuously disabled as a result of the accident.

(2) The death benefit shall provide for the following payments:

1. A payment to the insured person's spouse of,

i. $25,000, or

ii. if the optional death and funeral benefit referred to in section 27 has been purchased and is applicable to the insured person, the amount fixed by the optional benefit.

2. A payment to each of the insured person's dependants, and to each person to whom the insured person had an obligation at the time of the accident to provide support under a domestic contract or court order, of,

i. $10,000, or

ii. if the optional death and funeral benefit referred to in section 27 has been purchased and is applicable to the insured person, the amount fixed by the optional benefit.

3. If no payment is required by paragraph 1, an additional payment of $25,000 to the insured person's dependants and the persons, other than a former spouse of the insured person, to whom the insured person had an obligation at the time of the accident to provide support under a domestic contract or court order, to be divided equally among the persons entitled.

4. A payment of $10,000 to each former spouse of the insured person to whom the insured person was obligated at the time of the accident to provide support under a domestic contract or court order.

5. A payment of $10,000 to,

i. a person in respect of whom the insured person was a dependant at the time of the accident,

ii. the spouse of a person in respect of whom the insured person was a dependant at the time of the accident, if the spouse was the insured person's primary caregiver at the time of the accident and the person in respect of whom the insured person was a dependant at the time of the accident dies before the insured person or within 30 days after the insured person, or

iii. the dependants of a person in respect of whom the insured person was a dependant at the time of the accident, if no payment is required by subparagraph i or ii, to be divided equally among the persons entitled.

(3) No payment shall be made under this section to a person who dies before the insured person or within 30 days after the insured person.

(4) If at the time of the accident the insured person had more than one spouse who is entitled to a payment under this section, the payment shall be divided equally among them.

(5) If requested by the insurer, a person who conducts an autopsy of the insured person shall provide a copy of his or her report to the insurer.

(6) In this section, "spouse" means a person who was a spouse at the time of the accident.

 

FUNERAL BENEFIT

26. (1) The insurer shall pay a funeral benefit in respect of an insured person who dies as a result of an accident.

(2) The funeral benefit shall pay for funeral expenses incurred in an amount not exceeding,

(a) $6,000; or

(b) if the optional death and funeral benefit referred to in section 27 has been purchased and is applicable to the insured person, the amount fixed by the optional benefit.

 

PART VIII

OPTIONAL BENEFITS

 

DESCRIPTION OF OPTIONAL BENEFITS

27. (1) Every insurer shall offer the following optional benefits:

1. An optional income replacement benefit that fixes the amount referred to in subparagraph ii of paragraph 2 of subsection 7 (1) at $600, $800 or $1000, as selected by the named insured under the policy, for the purpose of determining the weekly amount of an income replacement benefit.

2. An optional caregiver and dependant care benefit that,

i. fixes the maximum payment for expenses incurred in caring for a person in need of care at $325 per week for the first person in need of care and $75 per week for each additional person in need of care, instead of the amounts specified in subclauses 13 (3) (a) (i) and 13 (3) (b) (i), and

ii. provides for the dependant care benefit described in section 28.

3. An optional medical, rehabilitation and attendant care benefit that provides for the following maximum limits on medical, rehabilitation and attendant care benefits, instead of the limits specified in subsections 19 (1) and (2), and that provides for no limitation on the period of time for which expenses shall be paid for medical, rehabilitation and attendant care benefits:

i. The sum of the medical and rehabilitation benefits paid in respect of an insured person shall not exceed, for any one accident,

A. $1,100,000, or

B. $2,000,000, if the insured person sustained a catastrophic impairment as a result of the accident.

ii. The amount of the attendant care benefit paid in respect of an insured person shall not exceed, for any one accident,

A. $1,072,000, or

B. $2,000,000, if the insured person sustained a catastrophic impairment as a result of the accident.

iii. Despite the limits established by subparagraphs i and ii, the overall total of the medical, rehabilitation and attendant care benefits paid in respect of an insured person for any one accident shall not exceed,

A. $1,172,000, or

B. $3,000,000, if the insured person sustained a catastrophic impairment as a result of the accident.

4. An optional death and funeral benefit that,

i. fixes the amount payable to a deceased person's spouse at $50,000, instead of the amount specified in subparagraph i of paragraph 1 of subsection 25 (2),

ii. fixes the amount payable to each of a deceased person's dependants and to each person to whom the deceased person had an obligation at the time of the accident to provide support under a domestic contract or court order at $20,000, instead of the amount specified in subparagraph i of paragraph 2 of subsection 25 (2), and

iii. fixes the maximum payment for funeral expenses at $8,000, instead of the amount specified in clause 26 (2) (a).

5. An optional indexation benefit, as described in section 29. (2) The optional benefits referred to in subsection (1) are applicable only to,

(a) the named insured;

(b) the spouse of the named insured;

(c) the dependants of the named insured and the dependants of the named insured's spouse; and

(d) the persons specified in the policy as drivers of the insured automobile.

(3) An optional benefit may be purchased at any time before an accident in respect of which a claim is made.

(4) For the purpose of paragraph 3 of subsection (1), the medical and rehabilitation benefits paid in respect of an insured person include any amount paid in respect of the insured person under section 17.

 

DEPENDANT CARE BENEFIT

28. (1) The dependant care benefit shall pay for reasonable and necessary additional expenses incurred by or on behalf of an insured person as a result of an accident in caring for the insured person's dependants, if the insured person meets the following qualifications:

1. The insured person sustained an impairment as a result of the accident.

2. The insured person was employed at the time of the accident.

3. The insured person is not receiving a caregiver benefit.

(2) No payment is required under this section in respect of an expense incurred after the insured person dies.

(3) The amount payable under this section shall not exceed $75 per week for the first dependant and $25 per week for each additional dependant.

(4) The total amount payable under this section shall not exceed $150 per week.

OPTIONAL INDEXATION BENEFIT

29. (1) The optional indexation benefit shall provide that the following amounts shall be subject to annual indexation in accordance with subsection (3):

1. The weekly amount of any income replacement or non- earner benefit payable under this Regulation, without regard to any reductions made under subparagraphs i and ii of paragraph 1 of subsection 7 (1).

2. The following amounts:

i. The amounts specified in subparagraphs i and ii of paragraph 2 of subsection 7 (1).

ii. The amounts specified in subsections 12 (2) and (3).

iii. The amounts specified in subclauses 13 (3) (a) (i) and (ii) and 13 (3) (b) (i) and (ii).

iv. The amounts specified in clauses 16 (5) (a) and (b).

3. If the optional medical, rehabilitation and attendant care benefit referred to in section 27 was purchased and is applicable to the insured person, the following amounts:

i. The outstanding balance with respect to medical and rehabilitation benefits, as calculated under subsection (4).

ii. The outstanding balance with respect to attendant care benefits, as calculated under subsection (6).

iii. The outstanding balance with respect to medical, rehabilitation and attendant care benefits, as calculated under subsection (8).

4. If paragraph 3 does not apply, the following amounts:

i. The outstanding balance with respect to medical and rehabilitation benefits, as calculated under subsection (10).

ii. The outstanding balance with respect to attendant care benefits, as calculated under subsection (12).

(2) The indexation shall be performed on January 1 of every year following an accident to which the optional indexation benefit applies by adjusting the amount to be indexed by the percentage change in the Consumer Price Index for Canada (All Items), as published by Statistics Canada under the authority of the Statistics Act (Canada), for the period from September in the year immediately preceding the previous year to September of the previous year.

(3) Subsection (2) is subject to the Optional Indexation Benefit Guidelines published in The Ontario Gazette by the Ontario Insurance Commission, as they may be amended from time to time, except that those guidelines shall not provide for an adjustment of the amount to be indexed by a percentage greater than the percentage change in the applicable Consumer Price Index.

(4) For the purpose of subparagraph i of paragraph 3 of subsection (1), the outstanding balance with respect to medical and rehabilitation benefits is calculated by subtracting the total of medical and rehabilitation benefits paid by the insurer in the year preceding January 1 of the year to which the optional indexation benefit applies from the indexation balance calculated under subsection (5).

(5) The indexation balance for the purpose of subsection (4) is,

(a) in the first year the optional indexation benefit applies, the amount specified in sub-subparagraph A or B, as the case may be, of subparagraph i of paragraph 3 of subsection 27 (1);

(b) in each subsequent year, the outstanding balance for the previous year, as calculated under subsection (4) and indexed under subsection (2).

(6) For the purpose of subparagraph ii of paragraph 3 of subsection (1), the outstanding balance with respect to attendant care benefits is calculated by subtracting the total of attendant care benefits paid by the insurer in the year preceding January 1 of the year to which the optional indexation benefit applies from the indexation balance calculated under subsection (7).

(7) The indexation balance for the purpose of subsection (6) is,

(a) in the first year the optional indexation benefit applies, the amount specified in sub-subparagraph A or B, as the case may be, of subparagraph ii of paragraph 3 of subsection 27 (1);

(b) in each subsequent year, the outstanding balance for the previous year, as calculated under subsection (6) and indexed under subsection (2).

(8) For the purpose of subparagraph iii of paragraph 3 of subsection (1), the outstanding balance with respect to medical, rehabilitation and attendant care benefits is calculated by subtracting the total of medical, rehabilitation and attendant care benefits paid by the insurer in the year preceding January 1 of the year to which the optional indexation benefit applies from the indexation balance calculated under subsection (9).

(9) The indexation balance for the purpose of subsection (8) is,

(a) in the first year the optional indexation benefit applies, the amount specified in sub-subparagraph A or B, as the case may be, of subparagraph iii of paragraph 3 of subsection 27 (1);

(b) in each subsequent year, the outstanding balance for the previous year, as calculated under subsection (8) and indexed under subsection (2).

(10) For the purpose of subsection i of paragraph 4 of subsection (1), the outstanding balance with respect to medical and rehabilitation benefits is calculated by subtracting the total of medical and rehabilitation benefits paid by the insurer in the year preceding January 1 of the year to which the optional indexation benefit applies from the indexation balance calculated under subsection (11).

(11) The indexation balance for the purpose of subsection (10) is,

(a) in the first year the optional indexation benefit applies, the amount specified in clause 19 (1) (a) or (b), as the case may be;

(b) in each subsequent year, the outstanding balance for the previous year, as calculated under subsection (10) and indexed under subsection (2).

(12) For the purpose of subsection ii of paragraph 4 of subsection (1), the outstanding balance with respect to attendant care benefits is calculated by subtracting the total of attendant care benefits paid by the insurer in the year preceding January 1 of the year to which the optional indexation benefit applies from the indexation balance calculated under subsection (13).

(13) The indexation balance for the purpose of subsection (12) is,

(a) in the first year the optional indexation benefit applies, the amount specified in clause 19 (2) (a) or (b), as the case may be;

(b) in each subsequent year, the outstanding balance for the previous year, as calculated under subsection (12) and indexed under subsection (2).

 

PART IX

GENERAL EXCLUSIONS

 

30. (1) The insurer is not required to pay an income replacement benefit, a non-earner benefit or a benefit under section 20, 21 or 22 in respect of a person who was the driver of an automobile at the time of the accident,

(a) if the driver knew or ought reasonably to have known that he or she was operating the automobile while it was not insured under a motor vehicle liability policy;

(b) if the driver was driving the automobile without a valid driver's licence;

(c) if the driver is an excluded driver under the contract of automobile insurance; or

(d) if the driver knew or ought reasonably to have known that he or she was operating the automobile without the owner's consent.

(2) The insurer is not required to pay an income replacement benefit, a non-earner benefit or a benefit under section 20, 21 or 22,

(a) in respect of any person who has made, or who knows of, a material misrepresentation that induced the insurer to enter into the contract of automobile insurance or who intentionally failed to notify the insurer of a change in the risk material to the contract; or

(b) in respect of an occupant of an automobile at the time of the accident who knew or ought reasonably to have known that the driver was operating the automobile without the owner's consent.

(3) Clause (2) (b) does not prevent an excluded driver or any other occupant of an automobile driven by the excluded driver from recovering accident benefits under a motor vehicle liability policy in respect of which the excluded driver or other occupant is a named insured.

(4) If a person sustains an impairment as a result of an accident and,

(a) at the time of the accident, the person was engaged in, or was an occupant of an automobile that was being used in connection with, an act for which the person is charged with a criminal offence; or

(b) the person is charged under section 254 of the Criminal Code (Canada) with failing to comply with a lawful demand to provide a breath sample in connection with the accident, the insurer shall hold in trust any amounts payable under an income replacement benefit, a non-earner benefit or a benefit under section 20, 21 or 22 until the charge is finally disposed of, at which time the amounts and any income on the amounts,

(c) shall be returned to the insurer, if the person is found guilty of the offence or an included offence; or

(d) shall be paid to the person entitled to the payment, if the person is not found guilty of the offence or an included offence.

(5) In clause (4) (a),

"criminal offence" means,

(a) operating an automobile while the ability to operate the automobile is impaired by alcohol or a drug,

(b) operating an automobile while the concentration of alcohol in the operator's blood exceeds the limit permitted by law,

(c) failing to comply with a lawful demand to provide a breath sample, or

(d) any other criminal offence, whether or not the offence is related to the operation of an automobile.

 

PART X

PROCEDURES FOR CLAIMING BENEFITS

 

FAILURE TO COMPLY WITH TIME LIMITS

31. (1) A person's failure to comply with a time limit set out in this Part does not disentitle the person to a benefit if the person has a reasonable explanation.

(2) Subsection (1) does not apply to the time limits set out in section 51.

NOTICE AND APPLICATION FOR BENEFITS

32. (1) A person who wants to apply for a benefit under this Regulation shall notify the insurer within 30 days after the circumstances arose that gave rise to the entitlement to the benefit, or as soon as practicable thereafter.

(2) The insurer shall promptly provide the person with,

(a) the appropriate application forms;

(b) a written explanation of the benefits available under this Regulation;

(c) information to assist the person in applying for benefits; and

(d) information on any possible elections relating to income replacement, non-earner and caregiver benefits.

(3) The person shall submit an application for the benefit to the insurer within 30 days after receiving the application forms.

(4) If a person is required by an insurer to submit an additional application in respect of a benefit that the person is receiving or may be eligible to receive, the person shall submit the additional application to the insurer within 30 days after receiving the additional application forms from the insurer.

DUTY OF APPLICANT TO PROVIDE INFORMATION

33. (1) A person applying for a benefit under this Regulation shall, within 14 days after receiving a request from the insurer, provide the insurer with the following:

1. Any information reasonably required to assist the insurer in determining the person's entitlement to a benefit.

2. A statutory declaration as to the circumstances that gave rise to the application for a benefit.

3. The number, street and municipality where the person ordinarily resides.

4. Proof of the person's identity.

(2) The benefit is not payable for any period before the person complies with subsection (1).

DISABILITY CERTIFICATE

34. (1) An insurer may require a person who claims an income replacement, non-earner or caregiver benefit, or a benefit under section 20 or 22, to furnish a certificate from a health practitioner of the person's choice as often as is reasonably necessary.

(2) The certificate shall state the cause and nature of the impairment and an estimate of the duration of the disability in respect of which the benefit is claimed.

(3) If an insurer requires a certificate, the person shall furnish the certificate within 21 days after receiving the insurer's request.

(4) If the person fails to comply with subsection (3), no benefit is payable for the period more than 21 days after the person received the insurer's request and before the person furnishes the certificate.

 

PAYMENT OF INCOME REPLACEMENT, NON-EARNER OR CAREGIVER BENEFIT

35. (1) On receiving an application for an income replacement, non-earner or caregiver benefit, an insurer shall promptly determine whether a benefit is payable.

(2) If the insurer determines that a benefit is payable, the insurer shall pay the benefit to the person within 14 days after receiving the application.

(3) Despite subsection (2), if the person failed, without a reasonable explanation, to notify the insurer within 30 days after the circumstances arose that gave rise to the entitlement to the benefit, the insurer may delay determining whether the person is entitled to the benefit for up to 45 days from the date the insurer received the person's application.

(4) An insurer that is required to pay an income replacement, non-earner or caregiver benefit shall pay the benefit at least once every second week.

(5) Subsection (4) does not apply if the insurer prepays amounts owing under the benefit.

ELECTION OF INCOME REPLACEMENT,

NON-EARNER OR CAREGIVER BENEFIT

36. (1) Only one of the following benefits may be paid to a person in respect of a period of time:

1. An income replacement benefit.

2. A non-earner benefit.

3. A caregiver benefit.

(2) If a person's application indicates that he or she may qualify for more than one of the benefits referred to in subsection (1), the insurer shall notify the person that he or she must elect within 30 days after receiving the notice which benefit he or she wishes to receive.

(3) The insurer shall deliver the notice under subsection (2) within 14 days after receiving the person's application.

REFUSAL OR STOPPAGE OF INCOME REPLACEMENT,

NON-EARNER OR CAREGIVER BENEFIT

37. (1) If the insurer determines that a person is not entitled or is no longer entitled to receive an income replacement, non-earner or caregiver benefit, the insurer shall give the person notice of its determination, with reasons,

(a) within 14 days after receiving an application for the benefit; or

(b) if the insurer has been paying the benefit to the person, no later than the date the next payment of the benefit is due.

(2) If notice is given under clause (1) (b), the insurer shall specify in the notice a date for stopping the benefit and the insurer may stop payment of the benefit in accordance with the notice.

(3) If notice is given under clause (1) (b) for the reason that the person no longer suffers from the disability in respect of which the benefit was paid,

(a) the date specified under subsection (2) shall be at least 14 days after the person receives the notice;

(b) the notice under clause (1) (b) shall inform the person that he or she has the right to require an assessment in accordance with section 43 by giving the insurer written notice before the date specified under subsection (2); and

(c) despite subsection (2), the insurer shall not stop payment of the benefit if, within 14 days after receiving the notice under clause (1) (b), the person gives the insurer written notice that he or she requires an assessment in accordance with section 43.

(4) If the person gives the insurer written notice under clause (3) (c) that he or she requires an assessment and the report from the designated assessment centre states that the person no longer suffers from the disability in respect of which the benefit was paid, the insurer may stop paying the benefit after it has provided the person with notice of its reasons for stopping payment.

(5) If the person gives the insurer written notice under clause (3) (c) that he or she requires an assessment and the report from the designated assessment centre states that the person continues to suffer from the disability in respect of which the benefit is paid, the insurer may dispute the obligation to pay the benefit in accordance with sections 279 to 283 of the Insurance Act, and, pending the resolution of the dispute, the insurer shall pay the benefit.

(6) Nothing in this section prevents a person from disputing a stoppage in the payment of a benefit in accordance with sections 279 to 283 of the Insurance Act and section 50 of this Regulation and, if it is finally determined that payment of the benefit should not have been stopped, the insurer shall,

(a) resume payment of the benefit; and

(b) pay any amounts under the benefit that were not paid.

MEDICAL AND REHABILITATION BENEFITS

38. (1) Before expenses in respect of which a medical or rehabilitation benefit may be payable are incurred, the insured person shall submit an application for the benefit to the insurer.

(2) The application must include a treatment plan.

(3) The treatment plan shall include a statement by the member of a health profession who prepared the plan,

(a) disclosing any conflict of interest that he or she has relating to the treatment plan;

(b) indicating that he or she has made reasonable inquiries to determine whether any person who referred the insured person to a person who will provide goods or services contemplated by the treatment plan has a conflict of interest relating to the treatment plan; and

(c) disclosing any conflict of interest that a person who referred the insured person to a person who will provide goods or services contemplated by the treatment plan has relating to the treatment plan.

(4) A lawyer or other representative who acts for the insured person in respect of the application or in respect of any civil proceeding arising from the accident shall, at the time the application is submitted, give the insurer and the insured person written notice disclosing any conflict of interest that the lawyer or other representative has relating to the treatment plan.

(5) If a conflict of interest is disclosed under subsection (3) or (4), the insurer may, within 14 days after receiving the application, give the insured person notice that the application is refused and that the insured person may submit a new application.

(6) Subsection (5) does not apply if there is no other person within 50 kilometres of the insured person's residence who is able to provide the goods or services from which the conflict of interest arises.

(7) On receiving the application, the insurer shall promptly determine whether the insurer is required to pay for the goods and services contemplated by the treatment plan.

(8) If no notice is given under subsection (5), the insurer shall, within 14 days after receiving the application, give the insured person a notice,

(a) stating that,

(i) the insurer will pay for all goods and services contemplated by the treatment plan,

(ii) the insurer will pay for such goods and services contemplated by the treatment plan as are specified in the notice, or

(iii) the insurer will not pay for any goods and services contemplated by the treatment plan; and

(b) disclosing any conflict of interest that the insurer has relating to the treatment plan.

(9) If the insurer discloses a conflict of interest relating to the treatment plan, the insured person may, within 14 days after receiving the notice under clause (8) (b), withdraw the application and submit a new application.

(10) Subsection (9) does not apply if there is no other person within 50 kilometres of the insured person's residence who is able to provide the goods or services from which the conflict of interest arises.

(11) If the application is not withdrawn under subsection (9), the insurer shall pay for goods and services described in the notice under subclause (8) (a) (i) or (ii) within 30 days after receiving an invoice for them. (12) If the notice under clause (8) (a) indicates that there are goods or services contemplated by the treatment plan that the insurer will not pay for,

(a) the insurer shall require the insured person to be assessed in respect of those goods and services by a designated assessment centre in accordance with section 43; and

(b) the insurer shall include in the notice under subsection (8),

(i) a statement of the insurer's reasons for not agreeing to pay for all goods and services contemplated by the treatment plan, and

(ii) notice that the insurer requires the insured person to be assessed by a designated assessment centre in accordance with section 43.

(13) Despite clause (12) (a), no assessment by a designated assessment centre shall be required if, within seven days after receiving the notice under subclause (12) (b) (ii), the insured person gives the insurer written notice that he or she will not make any claim in respect of the goods or services that the insurer has indicated it will not pay for.

(14) Subject to the determination of a dispute relating to the expense in accordance with sections 279 to 283 of the Insurance Act,

(a) if a report from the designated assessment centre states that, in the opinion of the person or persons who conducted the assessment, an expense is reasonable and necessary for the insured person's treatment or rehabilitation, the insurer shall pay for the expense;

(b) if a report from the designated assessment centre does not state that, in the opinion of the person or persons who conducted the assessment, an expense is reasonable and necessary for the insured person's treatment or rehabilitation, the insurer is not required to pay for the expense.

(15) Despite subsection (12), an insurer shall not require an assessment by a designated assessment centre, and shall not give the notice referred to in subclause (12) (b) (ii), in respect of a claim for the following expenses:

1. Expenses for assistive devices partially paid for by the Ministry of Health, including wheelchairs or other mobility devices, prostheses and orthotics.

2. Expenses for prescription eyewear, hearing aids, or dentures or other dental devices.

3. Expenses for transportation to or from counselling sessions, training sessions, treatment sessions or assessments, including transportation for an aide or attendant.

4. Vocational rehabilitation expenses payable by the insurer until a dispute over whether a benefit is payable under the Workers Compensation Act is resolved.

(16) Subject to subsection (14), if the treatment plan contemplates goods or services provided by a chiropractor or physiotherapist, the insurer shall, despite requiring the insured person to be assessed by a designated assessment centre under subsection (12) in respect of those goods or services, pay for all expenses incurred, after submission of the treatment plan, in respect of those goods and services, up to the lesser of the following amounts:

1. The total expenses incurred on behalf of the insured person in respect of the first 15 treatment sessions with a chiropractor or physiotherapist after the accident.

2. The total expenses incurred on behalf of the insured person in respect of all treatment sessions with a chiropractor or physiotherapist within six weeks after the accident.

(17) If an insured person incurs expenses in respect of which a medical or rehabilitation benefit may be payable without complying with subsection (1), (2) or (3), the insured person shall submit to the insurer an application for payment of the expenses that complies with subsections (2) and (3) within 30 days after incurring the expenses.

(18) Despite subsection (1), if the insurer receives an application under subsection (17), the insurer shall, within 30 days after receiving the application,

(a) pay the expenses; or

(b) give the insured person notice of its reasons for not paying the expenses.

(19) If, after giving notice under subclause (8) (a) (i) or (ii), it comes to the attention of the insurer that a person described in subsection (3) or (4) has a conflict of interest relating to the treatment plan, the insurer may give the insured person notice requiring the insured person, within 14 days after receiving the notice, to amend the treatment plan to remove the conflict of interest.

(20) If the insured person does not comply with a notice under subsection (19), the insurer is not required to pay for any further expenses for goods or services from which the conflict of interest arises.

(21) Subsection (20) does not apply if there is no other person within 50 kilometres of the insured person's residence who is able to provide the goods or services from which the conflict of interest arises.

(22) Subsections (1) to (21) do not apply if the insurer agrees to pay for expenses without the submission of an application or treatment plan.

(23) If the insurer agrees to pay for expenses without the submission of an application or treatment plan, the insurer shall give the insured person a notice disclosing any conflict of interest that the insurer has relating to any goods or services to which the insured person is referred by the insurer.

(24) For the purpose of this section,

(a) a person has a conflict of interest relating to a treatment plan if,

(i) the person or a member of the person's family may receive a financial benefit, directly or indirectly, as a result of the provision, by a member of the person's family or another person, of goods or services contemplated by the treatment plan, and

(ii) the person who may receive the financial benefit is not the employee of the person who will provide the goods or services and does not have a contract with the person who will provide the goods or services under which goods or services of that kind are provided; and

(b) an insurer has a conflict of interest relating to goods or services to which an insured person is referred by the insurer if the insurer may receive a financial benefit, directly or indirectly, as a result of the provision of the goods or services.

(25) In clause (24) (a),

"member of the person's family" means, in the case of a person who is not a corporation, any other person connected with the person by blood relationship, marriage or adoption, and

(a) persons are connected by blood relationship if one is the child or other descendent of the other or one is the brother or sister of the other,

(b) persons are connected by marriage if one is the spouse of the other or of a person who is connected by blood relationship to the other, and

(c) persons are connected by adoption if one has been adopted, either legally or in fact, as the child of the other or as the child of a person who is connected by blood relationship (otherwise than as a brother or sister) to the other.

ATTENDANT CARE BENEFIT

39. (1) Within 14 days after receiving an application for an attendant care benefit, an insurer shall,

(a) give the insured person notice that it has approved the application, if the insurer determines that it is required to pay for the expenses described in the application; or

(b) give the insured person notice that the insurer requires the insured person to furnish a certificate from a member of a health profession who is authorized by law to treat the person's impairment stating that the expenses described in the application are reasonable and necessary for the person's care.

(2) If the application is for an attendant care benefit in respect of expenses that are of a continuing nature, the insurer may require a certificate described in clause (1) (b) to be furnished as often as is reasonably necessary.

(3) If the insurer is required to pay the benefit, it shall begin payment of the benefit within 30 days after receiving the application or, if the insurer has required a certificate, within 14 days after receiving the certificate.

(4) If the insurer determines that an insured person is not entitled or is no longer entitled to receive an attendant care benefit, the insurer shall require the person to be assessed in accordance with section 43 and shall give the person notice of its determination and the requirement for the assessment, with reasons,

(a) within 14 days after receiving the application or, if the insurer required a certificate, within 14 days after receiving the certificate; or

(b) if the insurer has been paying the benefit to the person, no later than the date the next payment of the benefit is due.

(5) Despite subsection (4), if more than 104 weeks have elapsed since the accident, the insurer shall not require an assessment of the insured person unless,

(a) the insured person has not been assessed by a designated assessment centre since the accident; or

(b) at least 52 weeks have elapsed since the insured person was last assessed by a designated assessment centre.

(6) If an assessment is required under subsection (4), the insurer shall pay the insured person the attendant care benefit pending receipt of the report of the designated assessment centre.

(7) The determination by the designated assessment centre is binding on the insured person and the insurer, subject to the determination of a dispute, in accordance with sections 279 to 283 of the Insurance Act, related to the attendant care benefit.

(8) If the insured person requires an increased level of attendant care, the insured person shall submit a new application to the insurer.

DETERMINATION OF CATASTROPHIC IMPAIRMENT

40. (1) An insured person who sustains an impairment as a result of an accident may apply to the insurer for a determination of whether the impairment is a catastrophic impairment.

(2) The insurer shall, within 30 days after it receives the application,

(a) determine that the impairment is a catastrophic impairment and give the insured person notice of the determination;

(b) determine that the impairment is not a catastrophic impairment and give the insured person notice of the determination, including the reasons for the determination; or

(c) give the insured person notice that the insurer requires the insured person to be assessed by a designated assessment centre in accordance with section 43.

(3) If the insured person receives a notice under clause (2) (b) and the insured person disputes the insurer's determination, the insured person may require that he or she be assessed by a designated assessment centre in accordance with section 43.

(4) The determination by the designated assessment centre is binding on the insured person and the insurer, subject to the determination of a dispute, in accordance with sections 279 to 283 of the Insurance Act, relating to whether the impairment is a catastrophic impairment.

OTHER BENEFITS

41. (1) If a person is entitled to a death benefit, a funeral benefit or a benefit under Part VI, the insurer shall pay the benefit within 30 days after the insurer receives the application for the benefit.

(2) If the insurer refuses to pay a benefit referred to in subsection (1), the insurer shall give the person notice of the reasons for the refusal within 30 days after the insurer receives the application for the benefit.

INSURER EXAMINATIONS

42. (1) For the purpose of determining whether an insured person is entitled to a benefit, except a funeral or death benefit, an insurer may give the insured person notice requiring him or her to be examined by one or more persons specified by the insurer, each of whom is a member of a health profession or a person with expertise in vocational rehabilitation.

(2) The notice shall state the benefit to which the examination relates.

(3) The insurer may require examinations as often as is reasonably necessary.

(4) The insurer shall make reasonable efforts to schedule the examination for a time that is convenient for the insured person and shall provide the insured person with reasonable notice of the examination.

(5) For the purpose of the examination,

(a) the insured person shall provide the person or persons who conduct the examination with such information as is reasonably necessary; and

(b) the insured person shall submit to any reasonable physical, psychological, mental and functional examinations requested by the person or persons who conduct the examination.

(6) The person or persons who conduct the examination shall prepare a report and provide a copy of the report to the insurer.

(7) An insurer that receives a report under subsection (6) shall provide the insured person with a copy of the report within seven days.

(8) If an insured person fails or refuses to submit to an examination required by the insurer under this section or fails to comply with subsection (5),

(a) the insurer may stop payment of the benefit related to the examination until the person submits to the examination or complies with subsection (5), after which time the insurer shall resume payment of the benefit; and

(b) no benefit is payable for the period after the giving of the notice under subsection (1) or the failure to comply with subsection (5) and before the insured person submits to the examination and complies with subsection (5).

ASSESSMENTS

43. (1) If an assessment is required to be conducted by a designated assessment centre,

(a) the insurer shall, within 15 days, notify the designated assessment centre; and

(b) the designated assessment centre shall promptly notify the insured person and arrange for the assessment.

(2) For the purpose of the assessment,

(a) the insured person and the insurer shall provide the person or persons who conduct the assessment with such information as is reasonably necessary; and

(b) the insured person shall submit to any reasonable physical, psychological, mental and functional examinations requested by the person or persons who conduct the assessment.

(3) If an insured person does not make himself or herself reasonably available for an assessment or fails to comply with subsection (2),

(a) the insurer may stop payment of the benefit related to the assessment until the person submits to the assessment or complies with subsection (2), after which time the insurer shall resume payment of the benefit; and

(b) no benefit is payable for the period after the insured person failed to make himself or herself reasonably available or failed to comply with subsection

(2) and before the insured person makes himself or herself reasonably available and complies with subsection (2).

(4) After conducting the assessment, the person or persons who conducted the assessment shall prepare a report and provide a copy of the report to,

(a) the insurer;

(b) the insured person; and

(c) the insured person's health practitioner.

(5) If the assessment is required under section 37 in respect of a claim for an income replacement, non-earner or caregiver benefit, the report shall include a statement as to whether the insured person continues to suffer from the disability in respect of which the benefit is being paid.

(6) If the assessment is required under section 38 in respect of a claim for a medical or rehabilitation benefit, the report shall include,

(a) a statement of whether, in the opinion of the person or persons who conducted the assessment, an expense in respect of the benefit is reasonable and necessary for the insured person's treatment or rehabilitation; and

(b) recommendations on the future provision of goods and services to the insured person for his or her treatment or rehabilitation.

(7) If the assessment is required under section 39 in respect of a claim for an attendant care benefit, the report shall include,

(a) a determination in accordance with Form 1 of the amount to be paid by the insurer for the future provision of attendant care services; and

(b) recommendations on the future provision of attendant care services to the insured person.

(8) If the assessment is required under section 40 to determine whether an impairment is a catastrophic impairment, the report shall include a statement of whether, in the opinion of the person or persons who conducted the assessment, the impairment is a catastrophic impairment.

METHOD OF PAYMENT

44. (1) An insurer shall pay a benefit under this Regulation,

(a) by mailing or delivering a cheque payable to the person entitled to the benefit to the address where the person ordinarily resides; or

(b) with the consent of the person entitled to the benefit, by electronic funds transfer to an account in the name of the person.

(2) Despite subsection (1),

(a) an insurer may arrange to be invoiced directly and to pay directly for goods or services provided in respect of an insured person; or

(b) an insurer may pay a benefit into court under section 271 of the Insurance Act.

EXPLANATION OF BENEFIT AMOUNTS

45. When a benefit is first paid or the amount of the benefit is subsequently changed, the insurer shall provide the insured person with a written explanation of how the amount of the benefit was determined.

OVERDUE PAYMENTS

46. (1) An amount payable in respect of a benefit is overdue if the insurer fails to pay the benefit within the time required under this Part.

(2) If payment of a benefit under this Regulation is overdue, the insurer shall pay interest on the overdue amount for each day the amount is overdue from the date the amount became overdue at the rate of 2 per cent per month compounded monthly.

REPAYMENTS TO INSURER

47. (1) A person shall repay to the insurer,

(a) any benefit under this Regulation that is paid to the person as a result of an error on the part of the insurer, the insured person or any other person, or as a result of wilful misrepresentation or fraud;

(b) any income replacement or non-earner benefit that is paid to the person if he or she, or a person in respect of whom the payment was made, was disqualified from payment under Part IX; or

(c) any income replacement, non-earner or caregiver benefit or any benefit under Part VI, to the extent of any payments received by the person that are deductible from those benefits under this Regulation.

(2) If a person is required to repay an amount to an insurer under this section,

(a) the insurer shall give the person notice of the amount that is required to be repaid; and

(b) if the person is receiving an income replacement or caregiver benefit, the insurer may give the person notice that the insurer intends to collect the repayment by deducting up to 20 per cent of the amount of the benefit from each payment of the benefit.

(3) The obligation to repay a benefit does not apply unless the notice under subsection (2) is given within 12 months after the payment was made.

(4) Subsection (3) does not apply if the benefit was paid as a result of wilful misrepresentation or fraud.

(5) An insurer that has given the notice referred to in clause (2) (b) may collect the repayment by deducting up to 20 per cent of the amount of the benefit from each payment of the benefit.

(6) The insurer may charge interest on an amount repayable under this section from the fifteenth day after notice is given under subsection (2) at the bank rate in effect on that day.

(7) In subsection (6),

"bank rate" means the bank rate established by the Bank of Canada as the minimum rate at which the Bank of Canada makes short term advances to the banks listed in Schedule I to the Bank Act (Canada).

TERMINATION OF BENEFITS FOR MATERIAL MISREPRESENTATION

48. (1) If an insured person has wilfully misrepresented material facts with respect to an application for a benefit, the insurer may terminate payment of the benefit.

(2) The insurer shall not terminate payment under subsection (1) unless the insurer provides the insured person with notice of the reasons for terminating payment.

RIGHT TO DISPUTE

49. If an insurer refuses to pay a benefit under this Regulation or reduces the amount of a benefit that a person is receiving under this Regulation, the insurer shall inform the person in writing of the procedure for resolving disputes relating to benefits under sections 279 to 283 of the Insurance Act.

ASSESSMENT BEFORE MEDIATION

50. An insured person shall not commence a mediation proceeding under section 280 of the Insurance Act unless,

(a) he or she notified the insurer of the circumstances giving rise to a claim for a benefit and submitted an application for the benefit within the times prescribed by this Part;

(b) he or she made himself or herself reasonably available for any examination required by the insurer under section 42; and

(c) he or she made himself or herself reasonably available for any assessment under section 43 and he or she complied with subsection 43 (2) in respect of the assessment.

TIME LIMIT FOR PROCEEDINGS

51. (1) A mediation proceeding or evaluation under section 280 or 280.1 of the Insurance Act or a court proceeding or arbitration under clause 281 (1) (a) or (b) of the Act in respect of a benefit under this Regulation shall be commenced within two years after the insurer's refusal to pay the amount claimed.

(2) Despite subsection (1), a court proceeding or arbitration under clause 281 (1) (a) or (b) of the Insurance Act may be commenced within 90 days after the mediator reports to the parties under subsection 280 (8) of the Act or within 30 days after the person performing the evaluation provides a report to the parties under section 280.1 of the Act, whichever is later.

 

 

PART XI

DESIGNATED ASSESSMENT CENTRES

 

ESTABLISHMENT OF DESIGNATED ASSESSMENT CENTRES

52. The committee appointed under section 7 of the Insurance Act shall,

(a) designate assessment centres for the purpose of this Regulation;

(b) specify the types of impairments that each designated assessment centre is authorized to assess; and

(c) specify the types of assessments that each designated assessment centre is authorized to conduct.

PLACE OF ASSESSMENT

53. (1) An assessment shall be conducted by the designated assessment centre nearest to the insured person's residence that,

(a) is authorized to assess impairments of the type sustained by the insured person; and

(b) is authorized to conduct the type of assessment that is required.

(2) Before conducting an assessment, a designated assessment centre shall give the insurer and the insured person written notice disclosing any conflict of interest that the centre has relating to the assessment.

(3) If a conflict of interest is disclosed under subsection (2),

(a) the designated assessment centre or another designated assessment centre shall conduct the assessment, if the insurer and the insured person agree; or

(b) if the parties do not agree, the assessment shall be conducted, subject to subsection (2), by the designated assessment centre next nearest to the insured person's residence that,

(i) is authorized to assess impairments of the type sustained by the insured person, and

(ii) is authorized to conduct the type of assessment that is required.

(4) If the designated assessment centre determined in accordance with subsection (1) or clause (3) (b) is more than 100 kilometres from the insured person's residence, the insurer and the insured person shall endeavour to agree on one or more persons, at least one of whom is a health practitioner, to conduct the assessment.

(5) If the insurer and the insured person cannot agree under subsection (4), the insured person shall be assessed at the designated assessment centre determined in accordance with subsection (1) or clause (3) (b), as the case may be.

(6) Subsections (4) and (5) do not apply to an assessment required under section 39 or 40.

(7) The designated assessment centre must begin the assessment within two weeks after receiving a request for the assessment.

(8) If the designated assessment centre is unable to begin the assessment within two weeks after receiving the request, the insured person or the insurer may require that, subject to subsection (2), the assessment be conducted by the designated assessment centre next nearest to the insured person's residence that,

(a) is authorized to assess impairments of the type sustained by the insured person; and

(b) is authorized to conduct the type of assessment that is required.

(9) For the purpose of this section, a designated assessment centre has a conflict of interest relating to the assessment if,

(a) the insurer, the insured person or a lawyer or other representative acting on behalf of the insurer or the insured person has a financial interest in the designated assessment centre; or (b) the designated assessment centre, a related person or a facility owned or controlled, directly or indirectly, in whole or in part, by the centre or a related person,

(i) has provided goods or services to the person to be assessed, other than a previous assessment to which section 43 applied,

(ii) prepared or approved a treatment plan for the person to be assessed, or (iii)is identified by a treatment plan as a person who will provide goods or services to the person to be assessed.

(10) In clause (9) (b),

"related person" means an owner of, employee of, partner in, business associate of or consultant retained by the designated assessment centre.

GOODS OR SERVICES AFTER ASSESSMENT

54. (1) A designated assessment centre that conducts an assessment under this Regulation of a person who sustains an impairment as a result of an accident shall not, after the assessment, provide any goods or services to the person in respect of the accident.

(2) Subsection (1) does not apply if,

(a) the insured person and the insurer agree; or

(b) there is no other person within 50 kilometres of the insured person's residence who is able to provide the goods or services.

(3) Subsection (1) does not prevent the designated assessment centre from conducting another assessment of the person.

 

PART XII

RESPONSIBILITY TO OBTAIN TREATMENT,

PARTICIPATE IN REHABILITATION AND SEEK EMPLOYMENT

 

TREATMENT AND REHABILITATION

55. (1) An insured person entitled to an income replacement, non-earner or caregiver benefit shall obtain such treatment and participate in such rehabilitation as is reasonable, available and necessary to,

(a) permit the insured person to engage in employment that satisfies the criteria set out in subsection (2), in the case of an insured person entitled to an income replacement benefit; or

(b) shorten the period during which the benefit is payable, in any other case.

(2) The criteria referred to in clause (1) (a) are:

1. The insured person,

i. is able and qualified to perform the essential tasks of the employment, or

ii. would be able and qualified to perform the essential tasks of the employment if the insured person obtained treatment and participated in rehabilitation that is reasonable, available and necessary to permit the person to engage in the employment.

2. The employment exists in the area in which the insured person lives.

3. It would be reasonable to expect the insured person to engage in the employment having regard to the possibility of deterioration in the insured person's impairment and to the insured person's personal and vocational characteristics.

(3) Subsection (1) does not apply if compliance with subsection (1) would be detrimental to the insured person's treatment or recovery.

(4) If an insured person does not comply with subsection (1), the insurer may notify the insured person that the insurer intends to reduce the amount of the benefit in accordance with subsection (5).

(5) If at least 14 days have elapsed after giving the notice and the insured person is still not complying with subsection (1), the insurer may reduce the amount of the benefit by 50 per cent.

EMPLOYMENT

56. (1) An insured person who is entitled to an income replacement benefit shall make reasonable efforts to,

(a) return to the employment in which he or she engaged at the time of the accident; or

(b) obtain employment for which he or she is reasonably suited by education, training or experience.

(2) Subsection (1) does not apply if,

(a) employment would be detrimental to the insured person's treatment or recovery; or

(b) the insured person is participating in a vocational rehabilitation program.

(3) If an insured person does not comply with subsection (1), the insurer may notify the insured person that the insurer intends to reduce the amount of the benefit in accordance with subsection (4).

(4) If at least 14 days have elapsed after giving the notice and the insured person is still not complying with subsection (1), the insurer may reduce the amount of the benefit by 50 per cent.

(5) Subsections (3) and (4) do not apply if the insurer is reducing the amount of benefit under subsection 55 (5).

 

PART XIII

INTERACTION WITH OTHER SYSTEMS

 

ACCIDENTS OUTSIDE ONTARIO

57. (1) If, as a result of an accident in another province or territory of Canada or a jurisdiction in the United States of America, a person insured in that jurisdiction dies or sustains an impairment or incurs an expense described in section 14, 15 or 16, the insurer shall pay, as the person may elect,

(a) benefits provided by this Regulation, other than the benefits referred to in clause (b); or

(b) benefits in the same amounts and subject to the same conditions as if the person was a resident of the jurisdiction in which the accident occurred and was entitled to payments under the law of that jurisdiction.

(1.1) Subsection (1) does not apply if the person receives benefits under the law of the jurisdiction to which the accident occurred.

(2) A person who elects to claim a benefit as provided in clause (1) (a) is thereafter eligible only for benefits referred to in that clause.

(3) A person who elects to claim a benefit as provided in clause (1) (b) is thereafter ineligible for benefits referred to in clause (1) (a).

(4) For the purpose of this Part, a person is insured in the jurisdiction in which the accident occurred if the person, at the time of the accident,

(a) was authorized by law to be or to remain in Canada and was living and ordinarily present in Ontario;

(b) met the criteria prescribed for recovery under the law of the jurisdiction in which the accident occurred;

(c) was not the owner or driver of, or an occupant of an automobile registered in the jurisdiction in which the accident occurred; and

(d) was,

(i) an occupant of the insured automobile,

(ii) the named insured, a person specified in the policy as a driver of the insured automobile, the spouse of the named insured or a dependant of the named insured or spouse, while the occupant of any automobile,

(iii) a person who was not the occupant of an automobile and was struck by the insured automobile,

(iv) the named insured, his or her spouse or a dependant of either of them and was struck by any automobile,

(v) if the named insured is a corporation, unincorporated association, partnership or sole proprietorship, a person for whose regular use the insured automobile was supplied, his or her spouse or a dependant of either of them who suffered an impairment,

(A) while the occupant of any automobile,

(B) by any automobile while not the occupant of the automobile, or (vi) a person struck by an automobile that was driven by a person described in subclause (i), (ii) or (v).

SOCIAL ASSISTANCE PAYMENTS

58. (1) The insurer shall pay benefits under this Regulation even though the insured person is entitled to, or has received, benefits under an Act administered by the Ministry of Community and Social Services for Ontario or under similar legislation in another jurisdiction.

(2) For the purpose of subsection (1), a service, benefit or entitlement provided under an Act, the administration of which was transferred from the Ministry of Community and Social Services to the Ministry of Health by order in council, shall be deemed to be provided under an Act administered by the Ministry of Community and Social Services for Ontario so long as the nature of the service, benefit or entitlement remains substantially the same as it was before the transfer.

WORKERS' COMPENSATION BENEFITS

59. (1) The insurer is not required to pay benefits under this Regulation in respect of any insured person who, as a result of an accident, is entitled to receive benefits under any workers' compensation law or plan.

(2) Subsection (1) does not apply in respect of an insured person who elects to bring an action referred to in section 10 of the Workers' Compensation Act so long as the election is not made primarily for the purpose of claiming benefits under this Regulation.

(3) If a person is entitled to receive benefits under this Regulation as a result of an election made under section 10 of the Workers' Compensation Act, no income replacement, caregiver or disability benefit is payable to the person in respect of any period of time before the person makes the election.

(4) If a person who would be entitled to benefits under this Regulation in the absence of subsection (1) elects to bring an action referred to in section 10 of the Workers' Compensation Act and there is a dispute concerning the insurer's liability to pay an expense for a vocational rehabilitation program that the person was attending at the time of the election and continues to attend, the insurer shall pay the expense pending resolution of the dispute.

(5) Despite subsection (1), if there is a dispute about whether subsection (1) applies to a person, the insurer shall pay full benefits to the person under this Regulation pending resolution of the dispute if,

(a) the person makes an assignment to the insurer of any benefits under any workers' compensation law or plan to which he or she is or may become entitled as a result of the accident; and

(b) the administrator or board responsible for the administration of the workers' compensation law or plan approves the assignment.

OTHER COLLATERAL BENEFITS

60. (1) The insurer may deduct the following amounts from the amount payable to an insured person as an income replacement or non-earner benefit:

1. Any temporary disability benefits being received by the insured person in respect of a period following the accident and in respect of an impairment that occurred before the accident.

2. Any other periodic benefit being received by the insured person in respect of a period following the accident and in respect of an impairment that occurred before the accident, if the insured person was receiving the other periodic benefit at the time he or she first qualified for the income replacement or non- earner benefit, and, at that time, the other periodic benefit was a temporary disability benefit.

(2) Payment of a medical, rehabilitation or attendant care benefit or a benefit under Part VI is not required for that portion of an expense for which payment is reasonably available to the insured person under any insurance plan or law or under any other plan or law.

(3) In this section,

"temporary disability benefit" means,

(a) an income replacement or caregiver benefit paid under this Regulation,

(b) a non-earner benefit paid under this Regulation, unless the benefit is paid more than 104 weeks after the onset of the disability,

(c) benefits paid under Part II, III or IV or section 32 of Ontario Regulation 776/93,

(d) benefits paid under Part V of Ontario Regulation 776/93, unless the benefits have been paid for more than 104 weeks,

(e) benefits paid under Part IV of Regulation 672 of the Revised Regulations of Ontario, 1990, unless the benefits have been paid for more than 156 weeks,

(f) benefits paid under Part II of Subsection 2 of Schedule C to the Insurance Act as it existed before June 22, 1990, unless the benefits have been paid for more than 104 weeks,

(g) benefits paid under section 37, subsection 43 (9) or subsection 147 (2) of the Workers' Compensation Act,

(h) any other periodic temporary benefit paid under an income continuation plan or law, other than,

(i) benefits under the Employment Insurance Act (Canada),

(ii) a non-earner benefit paid under this Regulation more than 104 weeks after the onset of the disability,

(iii) benefits paid under Part V of Ontario Regulation 776/93 for more than 104 weeks,

(iv) benefits paid under Part IV of Regulation 672 of the Revised Regulations of Ontario, 1990 for more than 156 weeks, or

(v) benefits paid under Part II of Subsection 2 of Schedule C to the Insurance Act as it existed before June 22, 1990 that have been paid for more than 104 weeks.

 

PART XIV

INCOME CALCULATION

 

NET WEEKLY INCOME FORMULA

61. (1) For the purpose of this Regulation, a person's net weekly income from employment shall be determined in accordance with the following formula:

A = B - C - D - E

52

where,

A = the person's net weekly income from employment,

B = the person's gross annual income from employment,

C = the annual premium payable by the person under the Employment Insurance Act (Canada) on the gross annual income from employment,

D = the annual contribution payable by the person under the Canada Pension Plan (Canada) on the gross annual income from employment,

E = the income tax payable by the person under the Income Tax Act (Canada) and the Income Tax Act (Ontario) on the gross annual income from employment.

(2) For the purpose of subsection (1), the person whose net weekly income from employment is to be determined shall be deemed to be a resident of Ontario. Income from Self-Employment

62. (1) For the purpose of this Regulation, a person's income from self-employment shall be determined in the same manner as the person's profit from the business in which the person was self-employed would be determined under the Income Tax Act (Canada) and the Income Tax Act (Ontario), but without taking into account,

(a) expenses that are eligible for capital cost allowance or an allowance on eligible capital property;

(b) capital gains or losses; or

(c) losses deductible under section 111 of the Income Tax Act (Canada).

(2) Despite subsection (1), an insurer and a named insured who is self-employed and not otherwise employed may agree in a contract evidenced by a motor vehicle liability policy that, for the purpose of determining benefits under this Regulation in respect of an accident that occurs during the period covered by the contract, the named insured's gross income from self- employment for every week shall be deemed to be the weekly income amount specified in the contract if, at the time of the accident, the person continues to engage in the self-employment in which he or she engaged at the time the contract was entered into and the person is not otherwise employed.

(3) In specifying a weekly income amount for the purpose of subsection (2), the insurer and insured may use information from any source, including,

(a) personal and corporate income tax returns and assessments;

(b) personal and corporate financial statements; and

(c) published data on the average wage for the industry or occupation in which the insured is self-employed.

INCOME TAX CALCULATIONS

63. (1) For the purpose of this Regulation, the income tax payable by a person under the Income Tax Act (Canada) and the Income Tax Act (Ontario) shall be determined having regard to only the following deductions and tax credits that apply to the person under those Acts:

1. Alimony and maintenance payments deduction.

2. Basic personal tax credit.

3. Married person's tax credit or equivalent to married tax credit.

4. Age tax credit.

5. Disability tax credit.

6. Employment insurance premium tax credit.

7. Canada Pension Plan tax credit.

8. Quebec Pension Plan tax credit.

(2) If a determination of the income tax payable by a person under the Income Tax Act (Canada) and the Income Tax Act (Ontario) is necessary to determine the amount of a benefit under this Regulation, a person who applies for the benefit shall provide the insurer with such information as is reasonably necessary to enable the insurer to determine the income tax payable by the insured person under the Income Tax Act (Canada) and the Income Tax Act (Ontario).

(3) Failure to comply with subsection (2) does not relieve the insurer from any time limit established by this Regulation for the payment of the benefit, but the insurer shall determine the amount of the benefit on the basis of its best estimate of the income tax payable by the person under the Income Tax Act (Canada) and the Income Tax Act (Ontario), subject to later adjustment of the amount of the benefit when subsection (2) is complied with.

SEVERANCE OR TERMINATION PAY

64. For the purpose of this Regulation, payments of severance pay or termination pay shall not be included in a determination of a person's income.

 

PART XV

MISCELLANEOUS

 

ASSIGNMENT OF BENEFITS

65. (1) The assignment of a benefit under this Regulation is void.

(2) Subsection (1) does not apply to, (a) an assignment under section 267.8 of the Insurance Act;

(b) the assignment of a benefit to the Ministry of Community and Social Services; or

(c) the assignment of a benefit to the Ministry of Health in respect of a service, benefit or entitlement provided under an Act the administration of which was transferred by order in council from the Ministry of Community and Social Services to the Ministry of Health.

COMPANY AUTOMOBILES AND RENTAL AUTOMOBILES

66. (1) An individual who is living and ordinarily present in Ontario shall be deemed for the purpose of this Regulation to be the named insured under the policy insuring an automobile at the time of an accident if, at the time of the accident,

(a) the insured automobile is being made available for the individual's regular use by a corporation, unincorporated association, partnership, sole partnership or other entity; or

(b) the insured automobile is being rented by the individual for a period of more than 30 days.

(2) An individual who is not living and ordinarily present in Ontario shall be deemed for the purpose of this Regulation to be the named insured under the policy insuring an automobile at the time of an accident if, at the time of the accident,

(a) the insured automobile is being made available for the individual's regular use by a corporation, unincorporated association, partnership, sole partnership or other entity; and

(b) the individual, his or her spouse or any dependant of either of them is an occupant of the insured automobile.

COPIES OF REGULATION

67. On request, the insurer shall provide a copy of this Regulation without charge to a named insured or a person entitled to benefits under this Regulation.

NOTICE FROM INSURER

68. If an insurer is required or permitted by this Regulation to give a notice to an insured person, the notice shall be given in writing.

FORMS

69. Each of the following documents shall be in a form approved by the Commissioner:

The application forms referred to in clause 32 (2) (a).

A certificate required under section 34.

A notice under subsection 36 (2).

A notice under subsection 37 (1).

A treatment plan submitted to an insurer under section 38.

A certificate required under clause 39 (1) (b) or subsection 39 (2).

An application under subsection 40 (1).

A notice under subsection 40 (2).

A report under subsection 43 (4).

An explanation under section 45.

TRANSITION

70. (1) Despite anything else in this Regulation, if a motor vehicle liability policy is in effect on the day this Regulation comes into force, subsections (2) and (3) apply until the earlier of the following:

The first expiry date under the motor vehicle liability policy.

The date on which the motor vehicle liability policy is terminated by the insurer or the insured.

(2) The following benefits are deemed to be included in the motor vehicle liability policy, and are applicable to an insured person in respect of the motor vehicle liability policy:

The optional income replacement benefit referred to in paragraph 1 of subsection 27 (1) that fixes the amount referred to in subparagraph ii of paragraph 2 of subsection 7 (1) at $1,000.

The optional caregiver and dependant care benefit referred to in paragraph 2 of subsection 27 (1).

 

The optional death and funeral benefit referred to in paragraph 4 of subsection 27 (1).

(3) The sum of the medical, rehabilitation and attendant care benefits paid under the motor vehicle liability policy for any one accident in respect of an insured person who does not sustain a catastrophic impairment as a result of the accident shall not exceed $1,000,000, and the limits set out in clauses 19 (1) (a) and (2) (a) do not apply.

COMMENCEMENT

71. (1) This Regulation comes into force on the day section 29 of the Automobile Insurance Rate Stability Act, 1996 comes into force.

(2) Despite subsection (1),

(a) subsections 14 (4), 15 (6), 17 (2) and 24 (2) come into force on the later of the day section 29 of the Automobile Insurance Rate Stability Act, 1996 comes into force and the day the Professional Fees Guidelines are first published in The Ontario Gazette by the Ontario Insurance Commission;

(b) subsections 14 (5), 15 (11) and 24 (3) come into force on the later of the day section 29 of the Automobile Insurance Rate Stability Act, 1996 comes into force and the day the Transportation Expense Guidelines are first published in The Ontario Gazette by the Ontario Insurance Commission; and

(c) subsection 29 (3) comes into force on the later of the day section 29 of the Automobile Insurance Rate Stability Act, 1996 comes into force and the day the Optional Indexation Benefit Guidelines are first published in The Ontario Gazette by the Ontario Insurance Commission.

Bill 90 (not yet passed)

Bill 90-Two-year review of Bill 59. Will have to be re-introduced in the Ontario Legislature and be given a different Bill number.

Maximum benefit $100,000

($1,000,000 catastrophic injury)

Extended to children under 16

Time limit-10 years past accident.

Health Practitioner Physician, chiropractor, dentist, optometrist, psychologist, physiotherapist, occupational therapist.

Medical & Rehabilitation Benefits

(1) First $2,000 of medical expenses or first 8 weeks after accident, whichever comes first.

(2) Eliminate the requirement for a treatment plan for expenses as outlined in (1).

(3) Permit minimum and maximum fee ranges as outlined in the Professional Fee Guidelines.

(4) Treatment Plan approval in 14 days.

(5) Conflict of interest disclosure in all cases.

(6) DAC system implemented for denied benefits.

Payment within 30 days of submission.

Guidelines Quebec Task Force

AMA Guide to Evaluation of Permanent Impairment