ICBCadvice | TYPES OF CLAIMS
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TYPES OF CLAIMS

Types of Claims

 

In this section you will find information on a variety of different types of motor vehicle and personal injury claims. In addition, you will also find some very helpful information about how to begin and maintain a claim against ICBC.

What is a Personal Injury Claim

A personal injury claim is simply a way of describing any ICBC claim where you have a right to compensation as a result of an injury caused by an at-fault motorist. You are not entitled to a personal injury claim if you are at fault for the accident.

 

As a result of your injuries, a number of heads of damages may be available to you, depending on the seriousness of your injuries. The heads of damage that may be available include:

 

  1. Non-pecuniary damages (pain and suffering);
  2. Past wage loss;
  3. Future loss of capacity;
  4. Future care;
  5. Out-of-pocket expenses;
  6. Tax gross-up;
  7. Management fees;
  8. Court order interest; and
  9. Legal Costs and disbursements (expenses to pursue the claim)

 

For a detailed discussion on each head of damage that may be available to you, please refer to the Heads of Damages section of this website.

 

In summary, only individuals that have suffered injury from an at-fault motorist are entitled to a personal injury claim against ICBC.

Whiplash Injuries

Whiplash injuries are the generic word for an injury to your soft tissue (tendons, muscles and ligaments) caused by a sudden acceleration deceleration force. Typically, most whiplash injuries are caused by rear end collisions.

 

The unfortunate part is that most soft tissue injury claims are inherently subjective in nature. That means that there are not a lot of physical signs (herniated disc, broken bones, etc.) to support that an injury has occurred. Rather, much of the injury is based on what you may be telling your doctor or therapist about your pain from the injury.

 

Usually, whiplash injuries are categorized as mild, moderate or severe. Unfortunately, doctors and therapists vary greatly on what injuries they place in each category as do the various ICBC adjusters.

Who is Sued for Injuries and Damages

Although ICBC is the one paying and defending most claims, you actually sue the driver and owner of the at-fault vehicle(s). You do not sue ICBC. For example, if you are a passenger in a vehicle driven by one party, which strikes another vehicle, depending on who is at fault, you may pursue your personal injury claim against one, or both, of the drivers involved in the accident. ICBC simply steps in and appoints its own defense counsel to address the claim. ICBC then pays out the claim settlement or judgment.

 

ICBC is directly sued in a lawsuit if you are trying to pursue Part VII benefits (i.e. disability and medical expense benefits) and ICBC is denying payment. Also, they are directly sued if it is a hit-and-run claim.

Claims Against Family Members

If you are a passenger in a vehicle driven by one of your family members and that vehicle is involved in a motor vehicle accident, chances are you will have to sue your family member especially when it looks like he/ she may be partly or wholly at fault for the accident. At first blush, the thought of suing your own family member may be very concerning to you. However, the reality of the situation is that all you are really doing is suing an individual in order to access their insurance policy with ICBC.

 

Therefore, if you are faced with the prospect of suing a family member to receive compensation from ICBC it should not be an impediment to pursuing your ICBC Claim

Pedestrian / Cyclist Claims

If you are a pedestrian or cyclist who is struck by an at-fault motorist, you have an ICBC claim even though you are not a passenger or driver of a motor vehicle. This claim would be a straight forward personal injury claim.

 

If you are a passenger or driver of a motor vehicle and are injured in an accident, which is caused by a pedestrian or cyclist, ICBC may still be involved but the claim is more complicated. In these types of accidents, ICBC would be involved in the payment of Part VII benefits as well as in compensating you for your injuries suffered in the accident. Often times, pedestrians or cyclists may not have other insurance or personal assets to cover a potential injury claim when it is the pedestrian or cyclist’s fault.

 

In situations where the pedestrian or cyclist does not have any insurance coverage or personal assets to cover the loss then ICBC would be involved under the uninsured and underinsured motorist provisions (“U.M.P.”). For a full review of U.M.P. coverage, please review the section on U.M.P.

 

In summary, motor vehicle accidents involving pedestrians and cyclists often become an ICBC issue.

Out of Province / Country Claims

If you are traveling in a foreign jurisdiction outside of British Columbia you may feel that if you are involved in a motor vehicle accident, ICBC is not involved in the process. However, ICBC is often involved because ICBC insurance in “universal”.

 

If you are driving an ICBC insured vehicle outside the Province and cause an accident then ICBC is very much involved in the defense of any claim advanced against you.

 

If you are driving a rental vehicle or a vehicle licensed outside the Province, ICBC may still be involved. To start with, some of your insurance coverage applies outside of the Province especially if you have Road Star or Road Star Plus coverage. Check your insurance brochure for coverage details.

 

If you are injured outside the Province then you may still have access to ICBC insurance coverage. In many jurisdictions in the United States, the amount of third-party liability coverage that is available to pay your damages suffered in an accident is very modest and sometimes as low as $10,000. Also, in the United States, it is not uncommon for vehicles to be driven without insurance. In situations where there is not enough insurance coverage to pay the full extent of your damages, ICBC may have to compensate you for your damages under the underinsured motorist protection (“U.M.P.”) plan. Please see the section on U.M.P. coverage for a full description.

 

In other situations where you are injured outside the Province, disability benefits and medical expenses coverage may not be available to the same extent as Part VII benefits available through ICBC. Your entitlement to Part VII benefits applies regardless of the location of the accident but Part VII benefits are secondary insurance meaning that you have to claim against other insurance first before going to ICBC for the Part VII benefits.

 

If the injury occurs in Saskatchewan, Manitoba, Quebec or Ontario, ICBC will have to comply with the legislated higher limits of medical and rehabilitation coverage in those jurisdictions.

 

The best suggestion is that whenever you are involved in an out-of- Province accident, you should contact ICBC and report the accident to dial-a-claim. It may be that any dealings you have with respect to this out-of-Province accident do not involve ICBC but to be safe you should report the accident to ICBC.

Infant Claims

When a person under the age of 19 suffers injury and has an ICBC claim, the matter is complicated because of the involvement of the Public Guardian and Trustee. The infant cannot simply enter into a settlement with ICBC and then receive the settlement funds. Rather, the Public Guardian and Trustee has to be involved in the decision-making process and any settlement funds have to go to the Public Guardian and Trustee until the infant reaches 19 years of age.

 

Where the award of pain and suffering and loss of amenities of life (nonpecuniary damages) is less than $50,000, the procedures to get approval of an infant settlement are easier. In a situation where the lawsuit has been commenced, you need to provide written submissions to the Public Guardian and Trustee. Assuming that approval of the settlement is granted, a Consent Order can be filed in the Court so long as it is signed by all the parties to the lawsuit and a representative of the Public Guardian and Trustee.

 

If the settlement for non-pecuniary damages is more than $50,000, the process is slightly more complicated. The Public Guardian and Trustee must provide statutory comments, which are presented to the Court at a hearing. The Court generally will approve the settlement so long as the Public Guardian and Trustee approves the settlement. If the Public Guardian and Trustee does not approve the settlement, you can still proceed to a hearing seeking a Court Order to approve the settlement, but the hearing is usually contested.

 

As you can gather from the above, whenever an infant is involved, the complexities associated with settlement increase. If the child is close to the age of majority, the best thing to do is simply wait until the child reaches 19 before settling because you can avoid the Public Guardian and Trustee. Not only do you avoid the need to provide written submissions to the Public Guardian and Trustee but also, the Public Guardian and Trustee fees associated with the approval of the settlement and their administration charges on managing the settlement funds can be avoided. The latter point is significant because the management fees are not cheap.

 

Because of the procedural requirements for an infant claim, you may wish to retain a lawyer because you may find it difficult to deal with the Public Guardian and Trustee yourself. Also, the Public Guardian and Trustee usually require extensive document and some medicolegal reports.

Hit-and-Run Claims


Under Section 24 of the Insurance (Vehicle) Act, ICBC is required to compensate you for death or injury or for damage to a vehicle even if the at-fault motorist is unknown.

 

In terms of vehicle damage, it is simply a matter of making a claim to dial-a-claim and then bringing your vehicle in to ICBC for inspection. ICBC has a policy in place whereby only certain claim centers inspect vehicles involved in hit-and-run accidents. The local police force may be present at the claims center so as to keep motorists “honest”. Therefore, it is best not to try to get ICBC to cover vehicle damage which is not truly caused by an unidentified motorist. Don’t try to “pull one over” on ICBC as you may be charged with fraud criminally.

 

As to a bodily injury or death claim, although ICBC has to cover these losses, the current law requires that you take all reasonable steps to identify the at-fault vehicle and its driver. The reason being, in order to succeed in a hit-and-run claim, you must show that the identity of the driver and the vehicle involved in the accident were not ascertainable.

 

Section 24 provides clear reporting requirements. One reporting requirement is that you give written notice to ICBC of the accident as reasonably practicable as possible, but no later than six months after the accident. The courts have interpreted this provision as requiring a motorist to give ICBC notice within days of the accident unless for some reason your injuries preclude you from doing so.

 

In addition to providing early reporting to ICBC about a hit-and-run accident, you actually have to take positive steps to determine the identity of the at-fault motorist and the vehicle involved in the accident. Section 24 (5) provides that:

 

(5) In an action against the corporation as nominal defendant, a judgment against the corporation must not be given unless the court is satisfied that:
(a) all reasonable efforts have been made by the parties to ascertain the identity of the unknown owner and driver or unknown driver, as the case may be, and
(b) the identity of those persons or that person, as the case may be, is not ascertainable.

 

The courts have interpreted this section to mean that you have to take some positive steps to identify the other vehicle and driver. The Courts have found the duty to identify to not only exist at the time of the accident but also in the days after the accident.

 

At the scene of the accident, if you do not record the information necessary to identify the other driver and vehicle, you have no claim. That is, if you let the other driver leave the scene without recording plate numbers and driver’s license information thinking the claim is minor in nature, you lose your right to an ICBC claim. It is only when the other driver flees the accident scene and you cannot record the information that you have a valid hit-and-run claim.

 

Even after the initial accident, you have to try to ascertain the identity of the other vehicle. At a very minimum you should take the following steps:

 

  1. If possible, follow the other vehicle to try to get the license plate information;
  2. Notify the police at the accident scene and definitely within hours of the accident;
  3. Notify ICBC within hours of the accident, if possible;
  4. Place a sign at the accident scene looking for witnesses and the other driver;
  5. Place an advertisement in the local newspaper looking for witnesses and the other driver;
  6. Follow-up with the police regarding the investigation; and
  7. If the accident occurred nearby to some buildings, knock on some doors to see if there are any witnesses.

 

In other words, you are really asked to play detective so that ICBC cannot turn around later and argue that had you taken certain steps you may have been able to identify the driver and vehicle involved in the accident.

 

Assuming that you meet the initial threshold test, you then pursue ICBC for payment of damages. If it is necessary to start a lawsuit, you would sue ICBC as a nominal defendant. If the identity of the vehicle and driver becomes known later, you would amend the lawsuit so that you sue the owner and operator of that vehicle.

 

Like other ICBC cases, all defenses open to ICBC are also available in a hit-and-run claim, including arguing liability, even though the other motorist involved in the accident is not available to testify at trial. The limits on the claim are $200,000 legal costs and disbursements at which time called underinsured motorist protection (“U.M.P.”) would kick in.

 

In summary, whenever you are involved in an accident where you cannot identify the driver or owner of a vehicle, it’s very important to make an early reporting to ICBC and the police. You also have to take positive steps to try and identify the vehicle and the driver of the other vehicle because if you do not, you will not have a claim against ICBC.

Uninsured and Underinsured Motorist Protection Claims

If you are injured in an accident caused by an individual with limited or no insurance, B.C. has a statutory program in place which allows compensation regardless of no insurance or limited insurance. For no insurance situations, you can apply for coverage with ICBC under Section 20 of the Insurance (Vehicle) Act, which provides coverage up to $200,000 plus legal costs and disbursements for all claims. For losses above the $200,000 level, Section 148.1 of the Regulations under the Insurance (Vehicle) Act provide for a program called underinsured motorist protection (“U.M.P.”). Payment under U.M.P. is by ICBC.

 

In British Columbia, the minimum third-party limits allowed for ICBC insurance is $200,000. As a result, most ICBC claims will never involve U.M.P. because most claims are under $200,000. However, if, for example, you are one of several individuals that are injured by an atfault motorist with the minimum $200,000 third party liability coverage, it is not very difficult to have all the injury claims exceed the limits and move the case into U.M.P. coverage. Another example is accidents caused by USA insured where the third party limits are almost always $200,000.

 

U.M.P. coverage is considered coverage of last resort. That is, ICBC can force you to take all steps necessary to try to recover money from the atfault motorist before you can even access U.M.P. This includes litigating against the at-fault motorist and then when you have a judgment, trying to recover against the at-fault motorist. If the at-fault motorist cannot pay the judgment, you can then proceed against ICBC to get payment under U.M.P.

 

Generally speaking, most British Columbians would have access to U.M.P coverage. To have access to U.M.P. coverage, you need to be a considered an insured under the Insurance (Vehicle) Act. An insured includes a member of a household where one of the family members owns an ICBC licensed vehicle. Alternatively, you are entitled to U.M.P. coverage if you have a driver’s license or you have your own vehicle licensed with ICBC.

 

Under U.M.P., the basic coverage you receive is $1 million without paying anything more. However, you can buy excess U.M.P. coverage, which provides coverage to $2 million. All you or a family member needs to do is pay a premium of around $25 when placing ICBC insurance on one of the vehicles in the household. Obviously, this is $25 well spent because the last thing you want is less than maximum insurance coverage in the event that you or your family member is severely injured by an at-fault motorist carrying minimum or no insurance coverage.

 

The limits on U.M.P. coverage are all inclusive limits meaning that the maximum is either $1 or $2 million. From that coverage, ICBC gets to deduct the following according to Section 148.1 of the Regulations under the Insurance (Vehicle) Act:

 

  • (a) paid or payable by the corporation under section 20 or 24 of the Act, or recoverable by the insured from a similar fund in the jurisdiction in which the accident occurs,
  • (b) paid or payable under section 148,
  • (c) paid or payable under Part 7 or under legislation of another jurisdiction that provides compensation similar to benefits,
  • (d) paid directly by the underinsured motorist as damages,
  • (e) paid or payable from a cash deposit or bond given in place of proof of financial responsibility,
  • (f) to which the insured is entitled under the Workers Compensation Act or a similar law of the jurisdiction in which the accident occurs, unless;
    • (i) the insured elects not to claim compensation under section 10 (2) of the Workers Compensation Act and the insured is not entitled to compensation under section 10 (5) of that Act, or
    • (ii) the Workers’ Compensation Board pursues its right of subrogation under section 10 (6) of the Workers Compensation Act,
  • (f.1) to which the insured is entitled under the Employment Insurance Act (Canada),
  • (f.2) to which the insured is entitled under the Canada Pension Plan,
  • (g) paid or payable to the insured under a certificate, policy or plan of insurance providing third party legal liability indemnity to the underinsured motorist,
  • (h) paid or payable under vehicle insurance, wherever issued and in effect, providing underinsured motorist protection for the same occurrence for which underinsured motorist protection is provided under this section,
  • (i) paid or payable to the insured under any benefit or right or claim to indemnity, or
  • (j) paid or able to be paid by any other person who is legally liable for the insured’s damages;

 

As already indicated, U.M.P. coverage is coverage of last resort. ICBC uses this to their advantage, in some cases, by forcing you to pursue the at-fault motorist in a lawsuit in Supreme Court. Even if you get a judgment against the at-fault motorist, ICBC can make it difficult to recover money from them by forcing you to go after the at-fault motorist for his/her personal assets. Even after taking all the steps, you still do not have access to the ICBC money as ICBC can force the case to an arbitration hearing, which can include a rehearing of some of the issues in the Supreme Court.

 

Like other ICBC claims, ICBC is involved in the defense of these matters. This is the case even when you are going after an at-fault motorist that does not have ICBC coverage.

Work Related Injuries and Your ICBC Claim

If you are working at the time of the motor vehicle accident and the accident occurred within the scope of your employment, you may only have a claim through the Workers Compensation Act and your right to claim against ICBC may be statute barred.

 

Under the Workers Compensation Act, a worker acting within the scope of his/her employment cannot sue another worker or employer also acting within the scope of his/her employment. The only entitlement to compensation is through WorkSafe BC.

 

For example, if you a courier delivering a package during work hours and is hit by a semi-truck driven by a truck driver delivering a load of goods to a client, you may not have an ICBC claim despite the fact that you are in a motor vehicle and are injured.

 

The effect of being statute barred from an ICBC claim is significant because WorkSafe BC does not provide compensation for many of the same heads of damages that you may otherwise be entitled to with ICBC. For example, WorkSafe BC does not pay non-pecuniary damages (pain and suffering), future loss to capacity, tax gross-up, management fees, full wage loss, etc.

 

If ICBC believes they have even a small shot at defeating your claim because of a worker vs. worker argument, you can be rest assured that ICBC will pursue that defense. What the defense involves is making submissions to the WorkSafe BC under Section 257 of the Workers Compensation Act. The WorkSafe BC independent board, called WCAT, accepts written submissions and makes a determination as to whether or not you have an entitlement to pursue the at-fault driver outside the WorkSafe BC scheme.

 

The issues involved in a Section 257 determination are usually complicated and involve extensive legal argument. Also, you require other similar WCAT decisions to support your position. In the result, if you are faced with an argument from ICBC that you do not have any entitlement to ICBC money because of the worker vs. worker argument then it’s best to get a lawyer

Family Compensation (Death) Claims

The law in British Columbia provides limited compensation arising out of the death of a family member. The right to claim for the loss of a family member is a statutory right coming from the Family Compensation Act. Otherwise, in common law, there are no rights to claim due to the loss of a loved one.

 

The compensation is essentially limited to:

1. Damages for loss of love, guidance and affection (generally for infant children of the deceased only);
2. Damages for the loss of services that would otherwise have been rendered by the deceased to the remaining family members;
3. Damages for the loss of financial support to the remaining family members as a result of the death. The deceased’s take home income is reduced by the portion of that income that would have been used to cover the deceased’s own personal expenses with the balance left being for the support of the remaining family members;
4. Limited out-of-pocket expenses incurred as a direct result of a death (funeral and related expenses);
5. Damages for loss of inheritance; and
6. Tax gross-up and management fees on the future loss award.
Additionally, court order interest is payable on loss of love guidance and affection, on past services, on past financial support and on out-ofpocket expenses. Our law does not allow any recovery for the grief and sorrow caused by the death of a family member.
Note that at the time of writing this article, amendments to the Family Compensation Act are being considered by the legislature to expand the potential losses.

 

a. Class of Claimants

The family members that are entitled to compensation are limited under the Family Compensation Act to the following:

1. Children of a deceased;
2. Parents of the deceased; and
3. Grandparents of the deceased who have taken over the role of the parent.

 

b. Loss of Love, Guidance and Affection

The Courts of British Columbia have held that children are entitled to an award under this head of damage but unfortunately, a spouse is not. In some instances a parent may receive compensation but the compensation is usually under $5,000 and only awarded in rare situations.

The accepted range of damages is usually between $15,000.00 and $35,000.00 for children, depending on their age and attachment with the deceased. When a child gets past the age of majority, limited compensation is allowed ($0- $5,000.00) but only in unusual situations.

 

c. Loss of Services

This head of damage provides compensation for the loss of services, past and future, provided by the deceased to the family unit. Usually, an economist calculates the loss based on the average of the hours worked per week helping out in the family unit and then figuring out the loss over the lifetime of the deceased had he/she not died in the accident. This is a very complicated calculation.

 

d. Loss of Financial Support

This head of damage provides compensation for the loss of financial support, past and future, provided by the deceased to the family unit. Generally speaking, an economist is needed to calculate this figure. The economist figures out the income of the deceased and figures out how much personal consumption of that income went only to the deceased’s own needs. The remainder of the income is considered in the calculation of loss of financial support, in the past and into the future.

 

e. Out of Pocket Expenses

The law has evolved such that the out-of-pocket expenses that can be recovered generally only relate to funeral and expenses surrounding the funeral.

 

f. Loss of Inheritance

The loss of inheritance a family member has suffered is the amount the family member will not receive as an inheritance in the future when the deceased normally would have died. Again, this is a very complicated calculation and considers such things as the amount of the inheritance at the time of the accident, the rate of savings of the deceased over time had the accident not occurred and negative/positive contingencies.

 

g. Contingencies / Reduction in Claim

In a death claim, the courts will consider negative and positive contingencies. Negative contingencies include the chances of remarriage, the chances of divorce, the chances of early death, etc. Positive contingencies include the chance that the deceased would have received a promotion at work, would increase services throughout his/ her life to family members, etc.

 

h. Tax Gross Up

This claim is based on the fact that if a family member gets an award now for a future loss, the family member will have to pay taxes on the investment income over time. The amount of the tax gross-up award is basically compensation for having to pay taxes on the investment income.

 

i. Management Fees

The Courts may award money to a family member in order for that person to hire an investment manager to manage the award, especially if the family member has little or no investment experience. The reason for this award is that a family member receiving a large future award needs to invest it to ensure it lasts a lifetime.

 

j. Summary

In summary, there are only a limited number of family members that can receive compensation for the loss of a loved. To determine the loss suffered by the claiming family member, a complicated set of calculations needs to be done which invariably means that a lawyer and economist have to be involved in the claim. It’s important that the lawyer actually has extensive experience in death claims because this is a specialized area of ICBC law.

Part 7/ VII Benefits

 

Part VII under the Regulations of the Insurance (Vehicle) Act provides the statutory scheme for medical and rehabilitation benefits that ICBC is supposed to pay regardless of fault for the accident. The unfortunate situation is that ICBC has set up a series of policies and procedures that limit the pay-out to claimants under the Part VII scheme. In addition, may adjusters resist paying much of anything under Part VII as to do so would otherwise support the personal injury claim.

 

The following articles help you understand Part VII benefits.

What are No-Fault / Part VII Benefits

Every British Columbian, with the purchase of ICBC insurance, is in essence also purchasing coverage for medical expenses, rehabilitation expenses, death benefits and wage loss benefits for himself/ herself and also for family members. These benefits are available regardless of who is at fault for an accident. Hence, the benefits are labeled “No-Fault Benefits”.

 

The actual coverage for these benefits is set out in Part VII of the Regulations to the Insurance (Vehicle) Act, hence the label “Part VII Benefits”.

 

The amount of the Part VII coverage is currently set at a maximum of $150,000. This $150,000 is in addition to the coverage provided by the BC Hospital Plan for hospital treatment and in addition to the coverage provided by the Medical Services Plan for medical treatment. Note that this maximum was set well over a decade ago and has never been adjusted upward for inflation

Who is Entitled to Part VII Benefits

Generally, anyone injured or killed in a motor vehicle accident in British Columbia, or any B.C. resident injured or killed in a motor vehicle accident in North America, is entitled to Part VII benefits either from ICBC or from another insurer for a motorist involved in the accident. Section 96 of the Regulations under the Insurance (Vehicle) Act sets out the various situations where no Part VII coverage is provided but those are rare.

 

The Regulations describe who is entitled to Part VII benefits by defining an “insured” in Section 78 of the Regulations. Meeting the definition of “insured” entitles one to Part VII coverage.

 

For an out-of-province insurer, the law in B.C. requires that the insurer provide the B.C. level of no-fault coverage when the out-of-province vehicle enters B.C. and is involved in an accident.

 

In a few provinces, such as Ontario and Quebec, the amount of no-fault coverage is greater than that provided by ICBC. If the accident occurred in Ontario or Quebec, or occurred in B.C. but involved a vehicle insured in Ontario or Quebec, there is a good chance that greater no-fault benefits would be available.

How To Apply For Part VII Benefits

There is a significant difference between what the law requires of an application for Part VII benefits and what most ICBC adjusters want to see happen.

 

The law requires that ICBC be given notice of the claim for benefits promptly after an accident. Section 97 of the Regulations requires that, within 30 days of the accident, written notice be given providing “particulars” of the accident circumstances and the “consequences” (the injuries or death) of the accident. If the notice is given later than 30 days, there is usually no issue unless the delay has harmed ICBC in some way. Usually ICBC is notified of an accident immediately by one of the motorists involved in the accident anyways but it is still a very good idea to report early to ICBC.

 

ICBC has developed a form called an “Accident Benefits Application Form” (CL-22), which is generally used to provide the required information of the accident and of the injury or death. The required notice does not have to be given by the injured person. It can be filled out by someone else, especially if the injuries are severe and the injured party is not able to meet the reporting requirements.

 

What ICBC generally asks for is:

  • A signed statement covering all of the accident circumstances, and
  • Signed authorizations to obtain medical and wage loss information.

 

The signed statement is intended almost totally to assist ICBC in defending a personal injury or death claim. The statement is not needed or intended to determine whether a person is entitled to Part VII benefits. For example, it does not matter in a Part VII claim if a person was or was not wearing a seatbelt because Part VII is paid regardless of fault. However, ICBC likes to canvass that topic in the signed statement. Similarly, other evidence in the statement that deals solely with fault for the accident has no relevance in a Part VII claim but ICBC likes to get that information.

 

In summary, it is neither necessary nor a good idea to provide ICBC with a detailed signed statement to obtain Part VII benefits.

 

The medical authorizations and the wage/employment authorizations are again intended more for use by ICBC in defending an injury or death claim than in determining if a person is entitled to Part VII benefits.

 

While ICBC is entitled to information on the injuries suffered and the income lost, it is neither necessary nor a good idea to sign the blanket medical and wage/employment authorizations which give ICBC unlimited access to all information.

 

Usually, a brief report is required from one of the treating doctors to confirm that a person is unable to work. The injured person is always entitled to a copy of this form from ICBC or their doctor.

Types of Part VII Benefits

When a person is injured, regardless of fault for the accident, he/she is generally entitled to:

  1. Medical benefits;
  2. Rehabilitation benefits;
  3. Wage loss benefits; and/or
  4. Homemaker Disability BenefitsIn the event of a death, Part VII coverage provides:

 

In the event of a death, Part VII coverage provides:

  1. Payment of funeral expenses, and
  2. Payment of loss of support benefits.

 

However, like any insurance policy, the benefits actually paid are often limited and there is an abundance of “exclusions”, which ICBC uses to restrict the amount they pay out. In many instances, ICBC sets internal policies / procedures, which help them restrict what will be paid under Part VII.

If you do not like the decision made by the adjuster at ICBC, you can go through the ICBC review procedure or sue ICBC under contract. Alternatively, if you have a personal injury claim, you can look for payment of the expenses in that claim when a settlement is reached or you go to trial.

Note that for medical, rehabilitation and wage loss benefits, ICBC is entitled to require a person to rely on any other similar coverage before being entitled to Part VII coverage. The reason being, ICBC Part VII coverage is considered “secondary” to other coverage. As a result, if an individual has a group health plan or a private health plan, those plans must be used first before ICBC can be asked to pay.

 

  1. Medical Benefits:

Under Section 88(1) of the Regulations, ICBC is required to pay for all “reasonable” and “necessary” expenses for medication and therapy. The key here is the distinction between what is “reasonable” and what is “necessary”. This requirement is often the source of dispute with ICBC as often they take the view that the expense is not reasonable and/or necessary.

 

Unfortunately, ICBC has instituted policies/procedures for its adjusters, which limit payment for medical or therapy expenses. For example, most adjusters currently will not pay for physiotherapy or massage unless these therapies are taken shortly after an accident, and then will only pay for a limited number of treatments. Such rules are not set out in the Regulations (essentially the insurance policy), but are followed by most adjusters. Also, adjusters generally do not pay the “user fees” for physiotherapy and massage therapy, until a settlement on the tort claim is reached.

 

ICBC is also resistant to paying alternative medicine expenses such as acupuncture, IMS, etc… despite the fact these treatments often help an injured party and are recommended by the treating physician.

 

  1. Rehabilitation Benefits:

Under Section 88 (2) of the Regulation, ICBC may pay for a variety of treatments or items if they “are likely to promote the rehabilitation” of the injured person. ICBC has much more discretion with rehab expenses than with the medical expenses described above. As a result, if you get a tough adjuster, chances are the answer to a request for reimbursement will be “NO”.

 

The rehabilitation services and items include the one-time purchase of a motor vehicle (usually in the case of someone who is left unable to use public transport), one-time alterations to a home (again for someone who cannot get in and around a normal home), attendant care at home, wheelchairs and various other equipment items. While the items that may be covered under Section 88 (2) of the Regulations appear unlimited, the section is usually interpreted narrowly by the ICBC adjuster.

 

  1. Wage Benefits:

Section 80 of the Regulations provides for payment of wage benefits if an accident and injury prevents a person from working. These benefits are called Total Disability Benefits or “TTDs”. To qualify for TTDs, a person must have either been employed at the time of the accident, or have worked at least 50% of the year before the accident.

 

There is a 7-day waiting period for these benefits, and this waiting period is further extended where a person is entitled to EI sick benefits. Unfortunately, EI benefits are often not paid promptly. This creates a long waiting period for receipt of ICBC TTDs. It is a good idea to apply for EI sick benefits immediately after an accident, even if such an application will confirm that the person is not entitled to EI. That way ICBC cannot delay payment of TTDs awaiting a response on EI coverage.

 

ICBC does not have to pay TTDs when EI is available because Part VII benefits are considered “secondary” coverage. In other words, you only go to ICBC if you have no other coverage. The same applies if you have disability payments coming through a private insurer or your work.

 

The amount of TTDs is capped at a maximum of $300/week (unless the injured person was fortunate enough to have bought the optional Part VII coverage), and is calculated at 75% of the injured person’s average weekly earnings in the 52 weeks before the accident. For a student or someone who has not worked full-time in the year before the accident, this formula can result either in not being entitled to TTDs or only being entitled to very modest TTDs. Of note, this maximum figure has been in place for well over a decade and has not been adjusted for inflation so it is obviously inadequate for most claimants.

 

If the injured person has other wage disability coverage, TTDs can still be obtained, provided the total amount received is not greater than 75% of the average weekly earnings in the year before the accident. If the private plan provided payment of 2/3 of the lost income, TTDs can be used to top up the total benefits received to 75%.

 

It may be that an injured person attempts unsuccessfully to stay at or to return to work. The fact that they may have been able to survive in their job for a brief time does not prevent them from being entitled to TTDs.

 

“Total Disability” is a confusing term. It does not mean that the injured person is unable to do each and every part of their job. The Court has held that a person is entitled to TTD benefits if he or she “cannot perform any substantial requirement” of his or her ordinary job.

 

If an injured person cannot do their own job, they are entitled to receive TTDs for a period of 2 years after the accident. Beyond 2 years, they are entitled to continue TTD payments only if they cannot do any job that they would be suited for based on their age, education, and experience. TTD payments beyond 2 years are only payable up to the age of 65.

 

With TTD benefits beyond 2 years, ICBC can require the injured person to apply for CPP disability benefits and, if CPP is received, the amount of the TTDs is reduced by the amount of CPP being received. Again, Part VII benefits are considered “secondary” insurance.

 

The amount of TTD benefits paid by ICBC does not come out of the $150,000 Part VII coverage limit. TTDs are paid in addition to the $150,000.

 

  1. Homemaker Disability Benefits:

Section 84 of the Regulations provides benefits to a homemaker whose injuries prevent him/her from “regularly performing most of the … household tasks”. This coverage will pay for the cost of hiring someone, other than a family member, to come in and do the work. The maximum coverage available is $145/week.

 

While Section 84 specifically says that payments will not be made to cover the services of a family member, the Court ruled that, if the family member did not reside with the injured person before the accident and comes in specifically to help after the accident, then ICBC must pay.

 

  1. Death Benefits:

In the event of a death resulting from an accident, regardless of fault, Part VII provides for payment of certain benefits.

 

Section 91 of the Regulations provides for the payment of funeral expenses up to a maximum of $2,500. You need only show receipts to ICBC exceeding $2,500 and the entire amount will be paid.

 

Sections 92 through 95 of the Regulations provide additional death benefits to the surviving family members. The amount of these benefits depends on the relationship of the deceased to the surviving family members. For example, the benefits are more if the person killed was the “head of household” as defined in Section 92 of the Regulations.

 

For illustration purposes, if the head of the household dies leaving a spouse and 2 young children, the spouse would receive a lump sum payment of $5,000 plus $145/week for 104 weeks for a total payment of $15,080. Each of the children would receive a lump sum payment of $1,000 plus $35/week for 104 weeks for a total payment of $4,640 each. Any money payable to a child under age 19 is paid directly to the Public Guardian and Trustee.

 

It is common for ICBC to pay out the weekly payment amounts in a lump sum rather than pay them over the 104 weeks.

 

Please note that these Part VII death benefits will be deducted from your ICBC “tort” claim so really they just amount to an advance on the death claim.

 

Also, in the event of a death, the family is usually entitled to CPP death benefits over top of any ICBC coverage. Therefore you should apply to CPP.

The Interplay of Part VII and WCB Coverage

Section 82 of the Regulations states that ICBC is not liable to pay any Part VII benefits if the injured person, or the family of someone killed in an accident, is entitled to WCB coverage. This Regulation applies even if the person or family elects not to claim WCB. The one exception to this rule is if the Part VII coverage would supplement WCB by paying for things that WCB will not, which is possible but uncommon.

 

For example, if an individual is left unable to take public transportation, ICBC usually provides funds for the purchase of a motor vehicle. If WCB does not provide funds for this, then the Part VII coverage should be available, as well.

 

Additionally, the Courts have held that where WCB has terminated a claim (that is, refused to pay further benefits), the injured person can then turn to his or her ICBC Part VII coverage and ICBC is obliged to pay. In other words, the injured worker is not required to appeal a WCB ruling before being entitled to claim Part VII benefits.

Further Questions for Part VII Benefits

The following paragraphs answer some of the common questions with Part VII coverage.

 

DOES ICBC GET CREDIT FOR PART VII BENEFITS PAID?
The simple answer to this question is usually “YES”. When ICBC is faced with having to pay an injury claim or a death claim, it is entitled to seek a credit for those amounts, which have already been paid in the form of Part VII benefits to the injured person or to the family.
For example, if an injured person has $5,000 in income loss but ICBC has already paid $1,200 in TTDs, the injured person is only entitled to recover $3,800 in a claim against the driver at fault for the accident.

 

IF ICBC REFUSED TO PAY PART 7 BENEFITS, WHAT CAN I DO?
ICBC can be sued for the payment of Part VII benefits under contract, but the lawsuit must be started within 2 years of the date of the accident or within 2 years of the date of the last Part VII payment, whichever is later. If the only issue is whether a medical or rehab expense is “reasonable”, this question must be decided by arbitration.

 

In most cases, pursuing a lawsuit or arbitration is simply not worth the time and money necessary to have the case decided. ICBC knows that economic reality and will take positions on Part VII claims that are clearly wrong but the adjuster knows full well the insured has very little recourse to get the right decision.

 

There is also the option of pursuing the ICBC internal review procedure but usually that approach is not that productive.

 

WHO AT ICBC HANDLES MY PART VII CLAIM?
ICBC has a Rehab Department with offices across the Province, which deal only with Part VII claims. The adjusters in the Rehab Department, who call themselves rehab coordinators, deal only with the Part VII claims and are not concerned with any additional injury or death claims. Generally, only those cases involving serious injuries with anticipated long-term problems are referred to this department.

 

In most cases, the same adjuster in the ICBC claims center who is dealing with the injury claim deals with the Part VII claim. The problem with this system is that the adjuster who is providing Part VII coverage may feel that providing that coverage will make the injury claim larger or better. Hence, some adjusters tend to deny payment under Part VII so that it will not appear that ICBC has accepted the severity of the injuries. Also, some adjusters at ICBC avoid paying Part VII benefits because the less treatment a person receives, the easier it is to argue the injuries are minor. Similarly, if TTDs are not paid, ICBC may be able to “starve” the injured party back to work.

 

While there is an obvious conflict in one adjuster handling both the Part VII and the injury claim for the same person, ICBC refuses to acknowledge this conflict. A claimant can request that his or her file be referred to the Rehab Department, but there is no way to ensure that this will be done. Also the Rehab Department only accepts serious injury claims.

 

CAN ICBC INSIST THAT I SEE A DOCTOR OF THEIR CHOICE?
The basic answer to this question is “YES”. ICBC is entitled to have a claimant seen by a doctor of its choice to determine if the person is entitled to Part VII benefits. This right is sometime misused by ICBC, as the primary purpose of the assessment is to assist with the injury or death claim, not to determine whether Part VII benefits should be paid. As a result, ICBC will ask claimants to see their doctor of choice earlier and more often than if ICBC was only dealing with an injury claim.

 

If you refuse to attend the assessment, ICBC can cut off your Part VII benefits. In turn, ICBC can then argue, in your injury claim, that they are owed a credit against your damages for expenses they would have paid under Part VII but did not because of your refusal to attend the assessment.

 

One questions the fairness of this situation. Realistically, a claimant will have to fight hard to get ICBC to pay anything under Part VII through the claim, but then ICBC will make the argument that they would have paid for everything when it serves its interests. Also, chances are that the ICBC appointed doctor is going to minimize the amount of treatment you need and suggest an early return to work. Otherwise, ICBC probably would not be using that expert for the opinion.

 

CAN THE ICBC ADJUSTER INSIST THAT I TAKE CERTAIN TREATMENT?
Provided that your own doctor thinks the treatment is likely to help you and ICBC offers to pay for the treatment, Section 90 of the Regulations allows ICBC to insist that you undergo this treatment and allows ICBC to cut off benefits if you refuse to undergo this treatment.

Wes Mussio
Mussio Goodman
2050-1188 West Georgia St
Vancouver, B.C. V6E 4A2
Ph: 604-336-8000
Cell: 604-603-8835
E-mail: mussio@mussiogoodman.com

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