Bicycle Accidents – Toronto Personal injury lawyers
Often other drivers on the road simply don’t see cyclists or drive in a way that subjects cyclist to harm. Cyclists driving properly and wearing safety gear are still at a disadvantage when involved in an accident with other motor vehicles. Injuries often include traumatic brain injury, spinal cord or serious orthopaedic injuries and amputation of limbs.
There are several “rules of the road” that are useful in pursuing bicycle accident claims. The Highway Traffic Act states that when loss or damage is sustained by any person by reason of a motor vehicle on a highway, the onus of proof that the loss or damage did not arise through the negligence or improper conduct of the owner, driver, lessee or operator of the motor vehicle is upon the owner, driver, lessee or operator of the motor vehicle. That essentially means that if you were hit by a motor vehicle it will be up to the driver of the vehicle to prove he or she was not negligent.
The Highway Traffic Act also states that no person shall open the door of a motor vehicle on a highway without first taking due precautions to ensure that his or her act will not interfere with the movement of or endanger any other person or vehicle; or leave a door of a motor vehicle on a highway open on the side of the vehicle available to moving traffic for a period of time longer than is necessary to load or unload passengers.
Immediately after an accident it is important to investigate and gather information to establish who is at fault for the accident. Raphael Barristers has access to accident reconstruction professionals that can be available on short notice.
In circumstances where the accident is found to be your own fault, you would still be entitled to significant accident benefits for income loss; medical treatment and rehabilitation care (see Accident Benefits Claims).
If you have been involved in a bicycle accident involving a motor vehicle, the following statutory accident benefits may be available to you:
a SUPPLEMENTARY MEDICAL BENEFITS & REHABILITATION BENEFITS
If an insured person sustains an impairment as a result of the accident, the insurer may be required to pay for all reasonable expenses incurred by or on behalf of the insured person, including medical, hospital and nursing care, chiropractic, psychological, occupational therapy and physiotherapy services, medication, prescription eye wear, dentures and dental devices, medical devices including aids, wheelchairs, prostheses and orthotics, and transportation to and from treatment sessions.
An insurer may also be required to pay for reasonable measures to reduce or eliminate the effects of any disability and to facilitate the insured person’s reintegration into his or her family, the labour market and the rest of society, including social and vocational rehabilitation, home renovations and vehicle modifications.
For motor vehicle accidents occurring after September 1, 2010, the maximum amount of supplementary medical benefits and rehabilitation benefits payable is $3500.00 for each person who has suffered a “minor injury”, which is statutorily defined as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury” unless a health practitioner determines and provides compelling evidence that the insured person has a documented pre-existing medical condition that would prevent the insured person from achieving maximal recovery from the minor injury if the insured person was subject to the $3,500.00 limit.
For all other injuries, the maximum amount of supplementary medical benefits and rehabilitation benefits payable is $50,000.00 for each person who qualifies for these benefits, or $1,000,000.00 if the person has sustained a “catastrophic impairment”.
A person claiming any medical or rehabilitation benefits must submit a Treatment Plan to the insurance company. This should be done before any treatment is undertaken. The Treatment Plan must be prepared by a Health Professional (a doctor, psychologist, massage therapist, occupational therapist, etc).
b ATTENDANT CARE BENEFITS
An insurer may be required to pay the cost of providing for an aid or attendant for an injured person. These benefits include the services of a family member caring for an injured family member at home, the cost of an in-home care attendant, or for services provided by a long-term care facility including a nursing home, home for the aged or chronic care hospital.
For accidents occurring after September 1, 2010, those who suffer a “minor injury” are no longer entitled to accident benefits unless they have purchased optional benefits
For all other non-catastrophic injuries, the maximum payable each month is $3,000.00, up to a maximum of $36,000.00 for the 104 weeks for which attendant care benefits are payable. However, if a person has sustained a “catastrophic impairment”, a monthly maximum of $6,000.00 may be payable up to a $1,000,000 lifetime limit.
An insurer may require a certificate or “Form 1” from an occupational therapist or nurse stating that the expense is reasonable and necessary for the person’s care.
For accidents that occurred prior to September 1, 2010, the full “Form 1” amount for attendant care services was payable if attendant care services were provided by anyone, even a family member or other non-professional attendant care provider.
However, for accidents occurring after September 1, 2010, attendant care benefits are now only payable if provided by a professional attendant care provider who does so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident, or if a non-professional attendant care provider sustains an economic loss as a result of providing the attendant care services. Since February 1, 2014, the attendant care payable for attendant care services provided exclusively by family members and other non-professional attendant care providers cannot exceed the amount of the economic loss sustained.
c FUNERAL AND DEATH BENEFITS
When an insured person dies as a result of a motor vehicle accident, the insurer may be required to pay funeral expenses incurred to a maximum of $6,000.00.
The insurer may also pay death benefits. If the deceased was married, a sum of $25,000.00 would be payable to his or her spouse. If the deceased was not married but was survived by a dependent or dependents, the $25,000.00 payment that would be payable to a spouse would be divided equally among the dependents.
In any case, the insurer would also be obligated to pay an additional $10,000.00 to every surviving dependent of the deceased and possibly to each former spouse of the deceased.
If the deceased was himself or herself a dependent at the time of the accident, the sum of $10,000.00 would be payable to the person upon whom the deceased was dependent, or if that person is dead, to that person’s surviving spouse or surviving dependent or dependents.
In order to qualify for death benefits, the deceased must have died within 180 days from the day of the accident, or if the deceased was continuously disabled as a result of the accident, within 156 weeks of the day of the accident.
No one is entitled to claim death benefits unless he or she survives the deceased by a minimum of 30 days.
d WEEKLY INCOME REPLACEMENT BENEFITS
An insured person who sustains an impairment as a result of an accident may be entitled to a weekly income replacement benefit if, at the time of the accident:
• he or she was employed;
• he or she was not employed but was employed for at least 26 weeks during the 52 weeks before the accident and was at least 16 years old;
• he or she was at least 16 years old and receiving Unemployment Insurance benefits; or
• he or she was entitled to start work within one year under a contract of employment; (for accidents before April 15, 2004 only)
and as a result of and within 2 years of the accident, he or she suffers a substantial inability to perform the essential tasks of the employment.
A weekly income replacement benefit may be payable during the period the insured person suffers a substantial inability to perform the essential tasks of the employment. No benefit is payable during the first week of the disability.
The amount of the weekly income replacement benefit paid for the first 104 weeks of disability is 70% of the injured person’s gross weekly income from employment. Your “gross weekly income” is determined in accordance with a prescribed formula.
After the first 104 weeks of disability, the weekly income replacement benefit is only payable if the insured person suffers a complete inability to engage in any employment for which he or she is reasonably suited by education, training or experience. The amount of the benefit is 70% of the injured person’s gross weekly income from employment or $185.00, whichever is greater. In any case, the amount payable to an injured person for weekly income replacement benefits shall not exceed $400.00 per week unless optional benefits have been purchased.
The insurer is entitled to deduct from the weekly income replacement benefits net payments for loss of income available to or received by the insured person.
If a person who is entitled to weekly income replacement benefits attained age 65 prior to the accident, an amount to be determined in accordance with the Schedule may be payable only up to 208 weeks after the onset of the disability.
e NON-EARNER BENEFITS
If, at the time of the accident, the injured person was not working but was enrolled in school or had completed his or her education during the year prior to the accident and was not employed in a job that reflected his or her education, he or she may be entitled to a non-earner benefit. An injured person is only entitled to this benefit if he or she suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. The non-earner benefit is not payable for the first 26 weeks of the disability, and is not payable for any period before the injured person is 16 years old.
The amount of the non-earner benefit is $185.00 per week. However, an injured person who was enrolled in school or who had completed his or her education in the year prior to the accident, and whose disability has lasted for more than 104 weeks, is entitled to $320.00 per week for the non-earner benefit, after the first 104 week period
f CARE GIVER BENEFITS
For accidents occurring prior to September 1, 2010, or those occurring after September 1, 2010 in which the injured person has suffered a catastrophic impairment, an insured person who has sustained an impairment as a result of an accident may be entitled to a care giver benefit if the insured person was residing with and was the primary care giver for a person in need of care, providing the insured person did not receive any remuneration for engaging in care giving activities.
The care giver benefit is meant to pay for reasonable and necessary expenses incurred in caring for a person in need of care.
The amount of the care giver benefit shall not exceed $250.00 per week for the first person in need of care plus $50.00 per week for each additional person.
Unless optional benefits have been purchased, caregiver benefits are no longer available for accidents occurring after September 1, 2010, unless an injured person has suffered a catastrophic impairment.
NOTE: The income replacement, non-earner and care giver benefits are payable so long as the insured person suffers from the disability in respect of which the benefits are paid. Only one of these three benefits is payable for any given period of time.
g HOUSEKEEPING AND HOME MAINTENANCE BENEFITS
For accidents occurring prior to September 1, 2010, or those occurring after September 1, 2010 in which the injured person has suffered a catastrophic impairment, the insurer will pay for housekeeping and home maintenance services incurred as a result of the accident, up to a maximum of $100.00 per week. This may be claimed for up to 104 weeks or more if the injuries are “catastrophic”.
Unless optional benefits have been purchased, housekeeping and home maintenance benefits are no longer available for accidents occurring after September 1, 2010, unless an injured person has suffered a catastrophic impairment.
What other losses are covered through the accident benefits insurer?
The insurer may be required to pay a reasonable allowance to cover expenses incurred by certain persons who visit the injured person during his or her treatment or recovery. The people who qualify for this benefit include spouses, children, grandchildren, parents, grandparents, siblings, a person living with the injured person at the time of the accident, a person who has demonstrated a settled intention to treat the injured person as a child of that person’s family, and a person whom the injured person has demonstrated a settled intention to treat as a child of the injured person’s family.
The insurer will also pay for lost educational expenses if the injured person is unable to continue in a program that they were enrolled in at the time of the accident. The amount payable, to a maximum of $15,000.00, is meant to compensate for expenses incurred before the accident for tuition, books, equipment and room and board.
If an injured person has purchased optional benefits or has sustained a catastrophic impairment, an insurer must also pay for a qualified case manager to help co-ordinate the different medical, rehabilitation and attendant care services that an injured person is receiving.
The insurer may also be obligated to replace or repair clothing damaged in the accident, prescription eye wear, dentures, hearing aids, prostheses and other medical or dental devices lost or damaged in the accident.