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Insurance Act

ONTARIO REGULATION 403/96

STATUTORY ACCIDENT BENEFITS SCHEDULE — ACCIDENTS ON OR AFTER NOVEMBER 1, 1996

Consolidation Period: From March 31, 2008 to the e-Laws currency date.

Last amendment: O. Reg. 63/08.

This is the English version of a bilingual regulation.

SKIP TABLE OF CONTENTS

CONTENTS

PART I
GENERAL

Title

1.  This Regulation may be cited as the Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996. O. Reg. 462/96, s. 2.

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; (“accident”)

“assessment of attendant care needs” means a written assessment of attendant care needs that satisfies the requirements of section 39; (“évaluation des besoins en soins auxiliaires”)

“attendant care benefit” means the benefit provided by section 16; (“indemnité de soins auxiliaires”)

“business day” means a day that is not,

(a) Saturday, or

(b) a holiday within the meaning of subsection 29 (1) of the Interpretation Act, other than Easter Monday and Remembrance Day; (“jour ouvrable”)

“caregiver benefit” means the benefit provided by Part IV; (“indemnité de soignant”)

“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; (“gestionnaire de cas”)

“chiropractor” means a person authorized by law to practise chiropractic; (“chiropraticien”)

“death benefit” means the benefit provided by section 25; (“prestation de décès”)

“dentist” means a person authorized by law to practise dentistry; (“dentiste”)

“designated assessment” means an assessment arranged or conducted by a designated assessment centre under section 43; (“évaluation désignée”)

“designated assessment centre” means an assessment centre that was designated before January 1, 2005 under section 52 as that section read on February 28, 2006; (“centre d’évaluation désigné”)

“disability certificate” means, in respect of a person, a certificate from a health practitioner of the person’s choice that states the cause and nature of the person’s impairment and contains an estimate of the duration of the disability in respect of which the person is making or has made a claim for a benefit set out in this Regulation; (“certificat d’invalidité”)

“funeral benefit” means the benefit provided by section 26; (“indemnité pour frais funéraires”)

“Guideline” means,

(a) a guideline issued by the Superintendent under subsection 268.3 (1) of the Act that is published in The Ontario Gazette,

(b) a Pre-approved Framework Guideline,

(c) a guideline that is included in the professional fee guidelines, the Transportation Expense Guidelines or the Optional Indexation Benefit Guidelines, as published in The Ontario Gazette by the Ontario Insurance Commission or Financial Services Commission of Ontario,

(d) a guideline published in The Ontario Gazette that is an amended version of a guideline referred to in clause (a), (b) or (c); (“directive”)

“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,

(b.1) an occupational therapist, if the impairment is one that an occupational therapist 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,

(e) a physiotherapist, if the impairment is one that a physiotherapist is authorized by law to treat; (“praticien de la santé”)

(f) a registered nurse with an extended certificate of registration, if the impairment is one that the nurse is authorized by law to treat, or

(g) a speech-language pathologist, if the impairment is one that a speech-language pathologist is authorized by law to treat;

“impairment” means a loss or abnormality of a psychological, physiological or anatomical structure or function; (“déficience”)

“income replacement benefit” means the benefit provided by Part II; (“indemnité de remplacement de revenu”)

“insured automobile”, in respect of a particular motor vehicle liability policy, means any automobile covered by the policy; (“automobile assurée”)

“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 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 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; (“personne assurée”)

“medical benefit” means the benefit provided by section 14; (“indemnité pour frais médicaux”)

“member of a health profession” means a member of a College as defined in the Regulated Health Professions Act, 1991; (“membre d’une profession de la santé”)

“non-earner benefit” means the benefit provided by Part III; (“indemnité de personne sans revenu d’emploi”)

“occupational therapist” means a person authorized by law to practise occupational therapy; (“ergothérapeute”)

“optometrist” means a person who is authorized by law to practise optometry; (“optométriste”)

“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; (“personne ayant besoin de soins”)

“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; (“caractéristiques personnelles et professionnelles”)

“personal information” means information that is personal information for the purposes of the Personal Information Protection and Electronic Documents Act (Canada) and personal health information for the purposes of the Personal Health Information Protection Act, 2004; (“renseignements personnels”)

“physician” means a person authorized by law to practise medicine; (“médecin”)

“Pre-approved Framework Guideline” means a guideline,

(a) that is issued by the Superintendent under subsection 268.3 (1.1) of the Act and published in The Ontario Gazette, and

(b) which establishes, in respect of one or more impairments, a treatment framework; (“directive relative à un cadre de traitement préapprouvé”)

“psychologist” means a person authorized by law to practise psychology; (“psychologue”)

“physiotherapist” means a person authorized by law to practice physiotherapy; (“physiothérapeute”)

“registered nurse with an extended certificate of registration” means a person authorized by law to practise nursing who holds an extended certificate of registration under the Nursing Act, 1991; (“infirmière autorisée ou infirmier autorisé titulaire d’un certificat d’inscription supérieur”)

“rehabilitation benefit” means the benefit provided by section 15; (“indemnité de réadaptation”)

“social worker” means a member of the Ontario College of Social Workers and Social Service Workers who holds a certificate of registration for social work under the Social Work and Social Service Work Act, 1998; (“travailleur social”)

“speech-language pathologist” means a person authorized by law to practise speech-language pathology; (“orthophoniste”)

“spouse” has the same meaning as in Part VI of the Insurance Act; (“conjoint”) O. Reg. 403/96, s. 2 (1); O. Reg. 114/00, s. 1 (1, 2); O. Reg. 281/03, s. 1 (1-4); O. Reg. 458/03, s. 1; O. Reg. 314/05, s. 1 (1, 2); O. Reg. 546/05, s. 1; O. Reg. 533/06, s. 1; O. Reg. 295/07, s. 1.

(1.1)  For the purposes of this Regulation, a catastrophic impairment caused by an accident that occurs before October 1, 2003 is,

(a) paraplegia or quadriplegia;

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

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

(d) the 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), an 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), an 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. O. Reg. 281/03, s. 1 (5); O. Reg. 314/05, s. 1 (1, 2).

(1.2)  For the purposes of this Regulation, a catastrophic impairment caused by an accident that occurs after September 30, 2003 is,

(a) paraplegia or quadriplegia;

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

(c) the amputation or other impairment causing the total and permanent loss of use of one or both arms and one or both legs;

(d) the total loss of vision in both eyes;

(e) subject to subsection (1.4), 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 (1.4), (2.1) and (3), an 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 (1.4), (2.1) and (3), an 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. O. Reg. 281/03, s. 1 (5).

(1.3)  Subsection (1.4) applies if an insured person is under the age of 16 years at the time of the accident and none of the Glasgow Coma Scale, the Glasgow Outcome Scale or the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, referred to in clause (1.2) (e), (f) or (g) can be applied by reason of the age of the insured person. O. Reg. 281/03, s. 1 (5).

(1.4)  For the purposes of clauses (1.2) (e), (f) and (g), an impairment sustained in an accident by an insured person described in subsection (1.3) that can reasonably be believed to be a catastrophic impairment shall be deemed to be the impairment that is most analogous to the impairment referred to in clause (1.2) (e), (f) or (g), after taking into consideration the developmental implications of the impairment. O. Reg. 281/03, s. 1 (5).

(2)  Clauses (1.1) (f) and (g) do not apply in respect of an insured person who sustains an impairment as a result of an accident that occurs before October 1, 2003 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. O. Reg. 403/96, s. 2 (2); O. Reg. 281/03, s. 1 (6).

(2.1)  Clauses (1.2) (f) and (g) do not apply in respect of an insured person who sustains an impairment as a result of an accident that occurs after September 30, 2003 unless,

(a) the insured person’s health practitioner states in writing that the insured person’s condition is unlikely to cease to be a catastrophic impairment; or

(b) two years have elapsed since the accident. O. Reg. 281/03, s. 1 (7).

(3)  For the purpose of clauses (1.1) (f) and (g) and (1.2) (f) and (g), 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. O. Reg. 403/96, s. 2 (3); O. Reg. 281/03, s. 1 (8).

(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. O. Reg. 403/96, s. 2 (4).

(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. O. Reg. 403/96, s. 2 (5).

(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. O. Reg. 403/96, s. 2 (6); O. Reg. 114/00, s. 1 (3); O. Reg. 314/05, s. 1 (3).

(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. O. Reg. 403/96, s. 2 (7).

(8)  For the purpose of this Regulation, payments of severance pay or termination pay are not payments for loss of income. O. Reg. 403/96, s. 2 (8).

(9)  For the purpose of this Regulation, payments for loss of income under an income continuation benefit plan shall be deemed to include the following payments:

1. Payments of disability pension benefits under the Canada Pension Plan.

2. Periodic payments of insurance, if the insurance,

i. is offered by the insurer only to persons who are employed at the time the contract for the insurance is entered into, and

ii. is offered by the insurer only on the basis that the maximum benefit payable is limited to an amount calculated with reference to the insured person’s income from employment. O. Reg. 482/01, s. 1.

(10)  Subsection (9) only applies in respect of accidents that occur on or after January 1, 2002. O. Reg. 482/01, s. 1.

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 November 1, 1996. O. Reg. 403/96, s. 3 (1); O. Reg. 462/96, s. 3.

(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. O. Reg. 403/96, s. 3 (2).

(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. O. Reg. 403/96, s. 3 (3).

(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. O. Reg. 403/96, s. 3 (4).

PART II
INCOME REPLACEMENT BENEFIT

Eligibility Criteria

4.  (1)  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. O. Reg. 403/96, s. 4.

(2)  Despite subsection (1), paragraph 3 of that subsection applies only if the accident occurs before April 15, 2004. O. Reg. 458/03, s. 2.

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. O. Reg. 403/96, s. 5 (1).

(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;

(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;

(d) for any period longer than 12 weeks after the accident, in the case of an insured person whose impairment is a Grade I whiplash-associated disorder that comes within a Pre-approved Framework Guideline, if the accident occurred after April 14, 2004; or

(e) for any period longer than 16 weeks after the accident, in the case of an insured person whose impairment is a Grade II whiplash-associated disorder that comes within a Pre-approved Framework Guideline, if the accident occurred after April 14, 2004. O. Reg. 403/96, s. 5 (2); O. Reg. 458/03, s. 3; O. Reg. 295/07, s. 2.

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. O. Reg. 403/96, s. 6 (1).

(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. O. Reg. 403/96, s. 6 (2).

(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 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. O. Reg. 403/96, s. 6 (3).

(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. O. Reg. 403/96, s. 6 (4).

(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. O. Reg. 403/96, s. 6 (5).

(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). O. Reg. 403/96, s. 6 (6).

Collateral Payments for Loss of Income and Maximum Amount of Benefit

7.  (1)  Despite subsections 6 (1) and (5), but subject to subsection 6 (2), 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 subsections 6 (1) and (5), 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 benefit 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 benefit 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. O. Reg. 403/96, s. 7 (1); O. Reg. 462/96, s. 4; O. Reg. 281/03, s. 2 (1, 2).

(2)  For the purposes of paragraph 1 of subsection (1), the amount determined under subsections 6 (1) and (5) 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. O. Reg. 403/96, s. 7 (2); O. Reg. 281/03, s. 2 (3).

(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. O. Reg. 403/96, s. 7 (3).

(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. O. Reg. 403/96, s. 7 (4).

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. O. Reg. 403/96, s. 8 (1).

(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. O. Reg. 403/96, s. 8 (2).

(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 from employment for that fiscal year. O. Reg. 403/96, s. 8 (3); O. Reg. 462/96, s. 5.

(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. O. Reg. 403/96, s. 8 (4).

(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. O. Reg. 403/96, s. 8 (5).

(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. O. Reg. 403/96, s. 8 (6).

(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). O. Reg. 403/96, s. 8 (7).

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:

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.

O. Reg. 403/96, s. 9 (1).

(2)  An income replacement benefit that has been adjusted under subsection (1) is payable until the person dies. O. Reg. 403/96, s. 9 (2).

(3)  Section 5 and subsections 6 (2) to (6) do not apply to an income replacement benefit that has been adjusted under subsection (1). O. Reg. 403/96, s. 9 (3).

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

O. Reg. 403/96, s. 10 (1).

(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. O. Reg. 403/96, s. 10 (2).

(3)  Subsections 6 (2) to (6) do not apply to the income replacement benefit paid to a person to whom subsection (1) applies. O. Reg. 403/96, s. 10 (3).

10.1  The age distinctions in sections 9 and 10 apply despite the Human Rights Code. O. Reg. 536/06, s. 1.

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. O. Reg. 403/96, s. 11.

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. O. Reg. 403/96, s. 12 (1).

(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. O. Reg. 403/96, s. 12 (2).

(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. O. Reg. 403/96, s. 12 (3).

(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 benefit 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 benefit plan, unless the insured person has applied to receive the payments for loss of income. O. Reg. 403/96, s. 12 (4); O. Reg. 462/96, s. 6.

(5)  For the purpose of subsection (4), subsections 7 (2) and (3) apply with necessary modifications. O. Reg. 403/96, s. 12 (5).

(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. O. Reg. 403/96, s. 12 (6).

(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. O. Reg. 403/96, s. 12 (7).

(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. O. Reg. 403/96, s. 12 (8).

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. O. Reg. 403/96, s. 13 (1).

(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. O. Reg. 403/96, s. 13 (2).

(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. O. Reg. 403/96, s. 13 (3).

(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. O. Reg. 403/96, s. 13 (4).

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. O. Reg. 403/96, s. 14 (1).

(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. O. Reg. 403/96, s. 14 (2).

(3)  The insurer is not liable to pay a medical benefit for goods or services that are experimental in nature. O. Reg. 403/96, s. 14 (3).

(4)  The insurer is not liable to pay a medical benefit for expenses related to professional services described in clause (2) (a), (b) or (h) rendered to an insured person that exceed the maximum rate or amount of expenses established under the Guidelines applicable to the claim. O. Reg. 281/03, s. 3.

(4.1)  If the Guidelines applicable to the claim establish a range of rates or amounts for expenses related to professional services rendered to an insured person,

(a) the highest rate or amount in the range shall be deemed, for the purposes of subsection (4), to be the maximum rate or amount established under the Guidelines applicable to the claim; and

(b) an insurer that is liable to pay a medical benefit for expenses related to the services described in clause (2) (a), (b) or (h) shall not pay less than the lowest amount or rate in the range unless the insured person’s claim is for less than the lowest amount or rate in the range. O. Reg. 281/03, s. 3.

(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 or Financial Services Commission of Ontario, as they may be amended from time to time. O. Reg. 403/96, s. 14 (5); O. Reg. 303/98, s. 1 (2).

(6)  The insurer is not liable to pay a medical benefit under clause (2) (g) for expenses related to,

(a) the first 50 kilometres of transportation in the insured person’s automobile to and from a treatment session if the accident occurred before April 15, 2004; or

(b) the first 50 kilometres of transportation to and from a treatment session if the accident occurred after April 14, 2004, unless the insured person sustained a catastrophic impairment as a result of the accident. O. Reg. 458/03, s. 4.

Rehabilitation Benefit

15.  (1)  The insurer shall pay an insured person who sustains an impairment as a result of an accident a rehabilitation benefit. O. Reg. 403/96, s. 15 (1).

(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. O. Reg. 403/96, s. 15 (2).

(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. O. Reg. 403/96, s. 15 (3).

(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. O. Reg. 403/96, s. 15 (4).

(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 and training sessions, including transportation for an aide or attendant;

(l) other goods and services that the insured person requires, except services provided by a case manager. O. Reg. 403/96, s. 15 (5); O. Reg. 281/03, s. 4 (1).

(6)  The insurer is not liable to pay a rehabilitation benefit for expenses related to professional services described in any of clauses (5) (a) to (g) or clause (5) (l) rendered to an insured person that exceed the maximum rate or amount of expenses established under the Guidelines applicable to the claim. O. Reg. 281/03, s. 4 (2).

(6.1)  If the Guidelines applicable to the claim establish a range of rates or amounts for expenses related to professional services rendered to an insured person,

(a) the highest rate or amount in the range shall be deemed, for the purpose of subsection (6), to be the maximum rate or amount established under the Guidelines applicable to the claim; and

(b) an insurer that is liable to pay a rehabilitation benefit for expenses related to the services described in any of clauses (5) (a) to (g) or clause (5) (l) shall not pay less than the lowest amount or rate in the range unless the insured person’s claim is for less than the lowest amount or rate in the range. O. Reg. 281/03, s. 4 (2).

(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. O. Reg. 403/96, s. 15 (7).

(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. O. Reg. 403/96, s. 15 (8).

(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. O. Reg. 403/96, s. 15 (9).

(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. O. Reg. 403/96, s. 15 (10).

(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 or Financial Services Commission of Ontario, as they may be amended from time to time. O. Reg. 403/96, s. 15 (11); O. Reg. 303/98, s. 2 (2).

(12)  The insurer is not liable to pay a rehabilitation benefit under clause (5) (k) for expenses related to,

(a) the first 50 kilometres of transportation in the insured person’s automobile to and from a counselling or training session if the accident occurred before April 15, 2004; or

(b) the first 50 kilometres of transportation to and from a counselling or training session if the accident occurred after April 14, 2004, unless the insured person sustained a catastrophic impairment as a result of the accident. O. Reg. 458/03, s. 5.

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. O. Reg. 403/96, s. 16 (1).

(1.1)  Despite subsection (1), if the accident occurred after April 14, 2004, no attendant care benefit is payable to an insured person whose impairment is a Grade I or Grade II whiplash-associated disorder that comes within a Pre-approved Framework Guideline. O. Reg. 295/07, s. 3.

(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. O. Reg. 403/96, s. 16 (2).

(3)  Subsection (2) does not apply to expenses for which payment may be obtained under clause 14 (2) (g), 15 (5) (k) or subsection 24 (1.6). O. Reg. 403/96, s. 16 (3); O. Reg. 533/06, s. 2.

(4)  The monthly amount payable by the attendant care benefit shall be determined in accordance with Form 1. O. Reg. 403/96, s. 16 (4).

(5)  The amount of the attendant care benefit payable in respect of an insured person shall not exceed the amount determined under the following rules:

1. If the accident occurred before October 1, 2003, the amount of the attendant care benefit payable in respect of the insured person shall not exceed,

i. $3,000 per month, if the insured person did not sustain a catastrophic impairment as a result of the accident, or

ii. $6,000 per month, if the insured person sustained a catastrophic impairment as a result of the accident.

2. If the accident occurred on or after October 1, 2003 and the optional medical, rehabilitation and attendant care benefit referred to in section 27 has not been purchased and does not apply to the insured person, the amount of the attendant care benefit payable in respect of the insured person shall not exceed,

i. $3,000 per month, if the insured person did not sustain a catastrophic impairment as a result of the accident, or

ii. $6,000 per month, if the insured person sustained a catastrophic impairment as a result of the accident.

3. If the accident occurred on or after October 1, 2003 and the optional medical, rehabilitation and attendant care benefit referred to in section 27 has been purchased and applies to the insured person, the amount of the attendant care benefit payable in respect of the insured person shall not exceed the monthly limit under subsection 27 (5). O. Reg. 281/03, s. 5; O. Reg. 458/03, s. 6 (2).

Case Manager Services

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

(a) the insured person sustains a catastrophic impairment as a result of the accident; or

(b) the accident occurred on or after October 1, 2003 and the optional medical, rehabilitation and attendant care benefit referred to in section 27 has been purchased and applies to the insured person. O. Reg. 281/03, s. 6.

(2)  The insurer is not liable under subsection (1) to pay expenses related to professional services rendered to an insured person that exceed the maximum rate or amount of expenses established under the Guidelines applicable to the claim. O. Reg. 281/03, s. 6.

(3)  If the Guidelines applicable to the claim establish a range of rates or amounts for expenses related to professional services rendered to an insured person,

(a) the highest rate or amount in the range shall be deemed, for the purpose of subsection (2), to be the maximum rate or amount established under the Guidelines applicable to the claim; and

(b) an insurer that is liable under subsection (1) to pay expenses related to the services rendered to the insured person shall not pay less than the lowest amount or rate in the range, unless the insured person’s claim is for less than the lowest amount or rate in the range. O. Reg. 281/03, s. 6.

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. O. Reg. 403/96, s. 18 (1).

(2)  No attendant care benefit is payable for expenses incurred more than 104 weeks after the accident. O. Reg. 403/96, s. 18 (2).

(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. O. Reg. 403/96, s. 18 (3).

(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. O. Reg. 403/96, s. 18 (4).

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. O. Reg. 403/96, s. 19 (1).

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

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

(b) nil, if the accident occurred after April 14, 2004 and the insured person’s impairment is a Grade I or Grade II whiplash-associated disorder that comes within a Pre-approved Framework Guideline; or

(c) $72,000 in any other case. O. Reg. 458/03, s. 7; O. Reg. 295/07, s. 4.

(3)  If the optional medical, rehabilitation and attendant care benefit referred to in section 27 was purchased and applies to the insured person, the maximum limits fixed by the optional benefit apply and subsection (1) and clauses (2) (a) and (c) do not apply. O. Reg. 458/03, s. 7.

(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. O. Reg. 403/96, s. 19 (4).

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. O. Reg. 403/96, s. 20 (1).

(2)  The amount payable under this section shall not exceed $15,000. O. Reg. 403/96, s. 20 (2).

(2.1)  The insurer may require a person who claims or is receiving benefits under this section to furnish a disability certificate as often as is reasonably necessary. O. Reg. 546/05, s. 2.

(2.2)  If an insurer requires a disability certificate, the person shall furnish a new disability certificate, completed as of a date after the date of the insurer’s request, within 15 business days after receiving the insurer’s request. O. Reg. 546/05, s. 2.

(2.3)  If the person fails to comply with subsection (2.2), no amount is payable for lost educational expenses until the person furnishes the completed disability certificate. O. Reg. 546/05, s. 2.

(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. O. Reg. 403/96, s. 20 (3).

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. O. Reg. 403/96, s. 21 (1); O. Reg. 114/00, s. 2; O. Reg. 314/05, s. 2.

(2)  No payment is required under this section for expenses incurred more than 104 weeks after the accident. O. Reg. 403/96, s. 21 (2).

(3)  Subsection (2) does not apply if the insured person sustained a catastrophic impairment as a result of the accident. O. Reg. 403/96, s. 21 (3).

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. O. Reg. 403/96, s. 22 (1).

(2)  The amount payable under this section shall not exceed $100 per week. O. Reg. 403/96, s. 22 (2).

(3)  No payment is required under this section for expenses incurred more than 104 weeks after the onset of the disability. O. Reg. 403/96, s. 22 (3).

(4)  Subsection (3) does not apply if the insured person sustained a catastrophic impairment as a result of the accident. O. Reg. 403/96, s. 22 (4).

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. O. Reg. 403/96, s. 23.

Cost of Examinations

24.  (1)  The insurer shall pay the following expenses incurred by or on behalf of an insured person:

1. Reasonable fees charged by a health practitioner for preparing a disability certificate required under section 20, 35 or 37.

2. Fees charged in accordance with a Pre-approved Framework Guideline by a health practitioner for preparing a treatment confirmation form for the purposes of section 37.1.

3. Fees charged in accordance with a Pre-approved Framework Guideline by a member of a health profession for conducting an assessment or examination and preparing a report for the purposes of section 37.1.

4. Reasonable fees charged by a health practitioner for reviewing a treatment plan under section 38, and for approving it if appropriate.

5. Reasonable fees charged by a member of a health profession or a social worker for preparing an application under section 38.2 for approval of an assessment or examination.

6. Reasonable fees charged by a member of a health profession for preparing an assessment of attendant care needs under section 39.

7. Reasonable fees charged by a health practitioner for preparing an application under section 40 for a determination of whether the insured person has sustained a catastrophic impairment.

8. Fees charged for a designated assessment of the insured person.

9. Subject to subsection 24.1 (2), reasonable fees charged by a member of a health profession for consulting with a person who is conducting or has conducted an ex