The Accident Benefits System
Much like motor vehicle accidents, in Ontario, if you are involved in a motorcycle accident, either by way of a single vehicle or multi-party collision, you are entitled to certain benefits and/or other forms of income assistance through your own insurance policy. The purpose of accident benefits is to provide immediate financial and rehabilitative support to individuals who have been injured, regardless of who was deemed at fault of the collision.
Two categories of accident benefits frequently accessed by injured motorcyclists include Income Replacement Benefits or Non-Earner Benefits and Medical and Rehabilitation Benefits.
- Income Replacement Benefits can be available to motorcyclists whose injuries prevent them from returning to work entirely or where they have suffered a reduction in hours or capacity. The maximum amount for Income Replacement Benefits under a standard insurance policy is $400.00 per week. If you were not working at the time of the accident, you still may qualify based on the total amount of weeks worked over the previous 52 weeks. Alternatively, if you do not qualify for an Income Replacement Benefit, you may be eligible for a Non-Earner Benefit in the amount of $185.00.00 per week.
- Medical and Rehabilitation/Attendant Care Benefits provide access to treatment such as physiotherapy, chiropractic, and psychological counseling. If your injuries are serious enough, you may also qualify for Attendant Care Benefits, which may allow for a personal support worker to attend your home to assist with your personal care. Medical and Rehabilitation/Attendant Care Benefits are divided into three categories, in order of increasing injury severity: $3,500.00 of benefits for Minor Injuries, $65,000.00 for Non-Catastrophic Injuries, and $1,000,000.00 for Catastrophic Injuries.
To avoid any argument related to entitlement, it is imperative that you immediately report the accident to your insurance company and request an application for Accident Benefits. From there, upon request, your insurance adjuster must provide you with the necessary forms, including an OCF-1 (application) and OCF-3 (disability certificate). It is your responsibility to fill out the OCF-1, whereas the OCF-3 will need to be filled out by a treatment provider, such as your family doctor or a physiotherapist. When filling out the OCF-1, be sure to be accurate and concise when describing the circumstances or cause of the accident. It is likely that your insurance adjuster will be helpful, particularly in the early stages, but you should be aware that they don’t always have your best interests in mind.
Eligibility to benefits may vary depending on the policy or coverage purchased, which can be particularly complicated when dealing with motorcycle accidents. If your insurer denies treatment or another benefit, there are formal dispute avenues that are available, which, unfortunately can be both complicated and slow moving.
Do I Need To Start a Lawsuit?
The coverages afforded to you by your own insurance company are rarely sufficient and thus, if you are injured while operating your motorcycle and those injuries were caused or contributed to by the negligence of another driver (motorcyclist, motorist or otherwise), you very likely have a viable tort claim. Lawsuits permit victims of accidents to receive compensation for pain and suffering, as well as for income loss or medical expenses arising from their injuries. To be successful in a lawsuit, a prospective plaintiff must prove that the accident was caused or contributed to by someone else and that the accident caused the injuries and damages which are being claimed. Unlike criminal proceedings, the burden of proof that must be established is “on the balance of probabilities”, which is really another way of saying, more likely than not.
Contributory Negligence
Compensation in a lawsuit is available only where the accident was, at the very least, caused or contributed by the actions of another driver. Motorcyclists are often perceived as aggressive or reckless and as a result, liability can, at times, be difficult to establish due to severity of the injuries sustained, particularly when you are not in a position to provide your version of events, or evidence at the scene. If you are in a motorcycle accident you should always do the following:
- Take photographs of the accident scene;
- If you are too injured to take pictures, consider having a friend or family member attend the scene to take pictures on your behalf;
- Obtain the contact information of any independent witnesses to the accident;
- Report the accident to the police;
- If you are too injured to report the accident immediately, report your recollection of the collision to the police when you are able, even if a Motor Vehicle Accident Report has already been completed by another driver;
- Seek medical attention for your injuries and report the details of the accident to your treating medical professional;
- If you receive a traffic ticket in relation to the accident, consider disputing the charges;
- Consult a lawyer before communicating with any insurance companies about the accident.
The impact of the collision may not be felt until the days, weeks or months following the accident, which could include psychological trauma. It is important to take these steps even if you do not believe that the injuries you sustained warrant a lawsuit.
Safety Measures
In addition to utilizing a full-face shield motorcycle helmet, riders should always do everything to make their motorcycle as visible as possible to all other users of the road, including but not limited to; wearing reflective or bright clothing, wearing a bright or white helmet (rather than black) and turning your headlight on during the day. Taking these proactive measures can not only help prevent an accident in the first place, but they can also support any argument for liability for the accident, should you later determine that a lawsuit is necessary.
