Legal Information

General Legal Issues

In this section you will learn about a variety of legal issues that are common to ICBC injury claims. You will also get some helpful information about settling your ICBC claim. Further, you will learn about the interplay of an ICBC claim and your disability/ extended health insurer. Finally, you will learn some interesting points about jury trials.

WHEN TO SETTLE YOUR ICBC CLAIM

The decision on when to settle your ICBC claim is the biggest decision you will make. There is no easy answer.

ICBC will often attempt to settle your claim very soon after the accident.  It is to ICBC’s benefit to close files early and save administrative and defense costs. Also, the earlier you settle the ICBC claim, the less ICBC generally pays.

Remember, once you settle your claim, you will not be entitled to any further compensation from ICBC. This is because as part of your settlement, ICBC will ask that you sign a final Release and that Release will end your entitlement to any further compensation from ICBC. If it turns out your injuries are more severe than you otherwise thought when you settled your claim, it’s very unlikely you will be able to continue your claim because of the Release.  Only in relatively rare circumstances will the Court overlook the Release to allow you to continue forward with your ICBC claim. An example would be where the adjuster took complete advantage of you making the settlement unconscionable.

Overall, you should not settle your ICBC claim until you are at least back to your pre-accident level of work/activities and you have largely recovered from your injuries. Also, you do not want to rely on your doctor’s opinion that you will recover fully within a few months because if it turns out you do not recover, then you would have settled for less than what you deserve.

Hence, in most situations where you are self-represented, you want to make sure that you are largely recovered from your injuries before settling the claim.  You can always settle before you are recovered so long as ICBC also pays you for the future problems that are anticipated. Unfortunately, ICBC rarely pays out a claim based on ongoing future problems unless a lawyer is involved. Even then, ICBC often resists payment of future losses.

The first exception to the above general rules is related to the new no-fault scheme of ICBC applying to accidents after April 1, 2019. If your claim is deemed a “minor injury” by ICBC and/or the CRT, your pain-and-suffering award is capped at $5,500, adjusted for inflation.  Therefore, if the progression of the injuries look like your claim will always remain a “minor injury” and there is no continual wage loss, you can certainly settle out the tort/injury claim portion leaving open Part VII benefits to cover further treatment expenses. Waiting for recovery will not increase the $5,500 non-pecuniary damage cap.

Another exception to the above general rule is where the limitation period of two years after the accident is approaching and you do not want to retain a lawyer to start a lawsuit to extend the claim. You need to settle before two years after the accident or you have no claim any more.

If you are untrained in ICBC matters, when presented with an offer from ICBC, your best approach is to at least consult an ICBC personal injury lawyer before accepting the offer from ICBC. Personal injury lawyers most often give a free initial consultation, so it doesn’t cost anything to present a settlement offer to a legal expert. At the very least, you will get a good idea of what the potential claim is worth and then you can weigh the various options as to whether to try to settle your ICBC claim directly with ICBC or hire a lawyer. If the personal injury lawyer is trying to charge you for the initial consultation, go somewhere else.

If you have hired a lawyer and are pursuing the claim through litigation, as a trial date approaches, often there is a need to resolve your case regardless of how far you have recovered.  Your lawyer would be able to best address the disadvantages vs. the advantages of settling at that point.

In summary, the answer to when to settle your ICBC claim is very complicated.  If you are self-represented, you can try to settle your ICBC claim for a reasonable dollar if you are approaching full recovery.  Alternatively, if your condition has not stabilized but ICBC is prepared to compensate you for future problems, then you may wish to settle.  Do not try to settle your ICBC claim early on if your injuries are ongoing and the future is uncertain.  Also, do not settle your ICBC claim if your injuries are ongoing and the ICBC offer is based on your injuries being fully recovered or likely to full recover shortly. The last thing you want to do is settle early for a low dollar figure and end up with serious, life-long injuries.

NON-ICBC DISABILITY BENEFITS AND YOUR ICBC CLAIM

On accidents that occurred before May 17, 2018, there is a significant advantage to having access to a disability plan. In most situations, ICBC cannot deduct the disability benefits paid to you when considering settlement on your injury claim. In other words, if your net wage loss is $10,000 and you were paid $5,000 in disability benefits, ICBC does not pay you $5,000. They pay you $10,000.

ICBC is not allowed to deduct disability benefits in situations where you pay all or part of the premiums of the disability insurance plan. Also, if there is a right of subrogation (i.e. request for repayment), on the part of the insurance company, then ICBC cannot deduct the amount of the disability benefit you received from the ICBC claim. Further, if the disability plan you are receiving through your employer is part of an employment package negotiated on behalf of a union or by you, ICBC cannot deduct the disability benefits paid to you.

As you can see, in almost every situation, ICBC will not be able to deduct the disability payments because it’s quite easy to find yourself in one of the three exceptions noted above.

One of the issues that usually arise when your employer or insurance company pays disability benefits is whether your employer or insurance company has a right to be repaid the disability benefits. This is called a “subrogation” claim. Often, the employer or insurance company wants you to sign a reimbursement agreement so that they can get paid back. Before you do so, it’s wise to get some legal advice.

The first question is whether the employer or insurance company has a right to ask for reimbursement. The answer lies in the insurance plan that gives rise to the payment of disability benefits.

The second question is how much should one pay the employer or insurance company back? Often, they want you to sign a reimbursement agreement, which basically says that you must pay back 100% of the disability benefits if you recover any money from ICBC. This type of agreement is unfair to you because, for example, if you must go the litigation route and spend money on legal fees, why should you have to pay back 100% of the disability benefits when you do not receive, in your pocket, 100% recovery in the settlement? In addition, if there is an issue in the ICBC claim that prevents you from recovering 100% of your damages (e.g. liability fight, intervening accident, pre-accident health issue, etc.), why should the employer or insurance company get 100% recovery? If they did get 100% of their payments back, you would end up paying money to them out of other parts of your settlement (e.g. non-pecuniary damages).

Hence, it is very important to understand what you are signing when your employer or insurance company presents a reimbursement agreement to you. You need to ensure that you do not sign an agreement, which effectively means you are paying more than you are recovering in the ICBC claim. In other words, if you received $10,000 in disability benefits but are only recovering $5,000 from ICBC, you should only have to pay $5,000 back to your employer or insurance company. Also, you need to ensure that the employer or insurance company has a right to share in the settlement from ICBC.

Several governments supported programs, such as Employment Insurance and Crime Victim Services, have a right of subrogation attached to them. Often these government agencies do not take an aggressive stance on collections, so the subrogation claim is seldom pursued.

Of note, TTD benefits paid by ICBC to you under Part VII are deductible from the end settlement of the tort/injury claim with ICBC.

The above has all changed for any accidents occurring after May 17, 2018. The new ICBC no-fault scheme requires you to fully pursue all income replacement sources such as private insurance plans, Employment Insurance, CPP and Government disability programs before ICBC pays. The reason being, ICBC can deduct income replacement benefits paid or payable from the tort/injury claim. That is, ICBC can deduct payments you received as well as payments that you should have received if you had taken all the necessary steps to receive the income replacement benefits.

ICBC has specifically legislated away the right of private insurance companies to receive their money back as part of a subrogation claim. In response, the private insurance companies are not taking this new change in legislation sitting down and are still requiring claimants to sign subrogation agreements.

This approach is placing the claimant into a very difficult position. Basically, ICBC does not have to pay any past wage loss that has been or should have been covered by wage replacement benefits, so the claimant will not receive any money in his/her pocket to pay back the private insurance company. However, the private insurance company still wants to get paid back so the claimant is caught in the middle and may end up having to pay money to the private insurance company that he/she never received from ICBC. Clearly, it is the claimant that is the victim of this legal battle between ICBC and the private insurance companies.

The other approach taken by private insurance companies is to deny payment of any benefits on the basis that the policy of insurance excludes payments resulting from the negligence of a liable third-party. In other words, the private insurance companies will pay disability benefits when it’s a non-ICBC claim but not when you have an ICBC claim. This approach seems patently unfair to a person that is paying insurance premiums regularly and now doesn’t have the benefit of the plan when he/she is involved in an ICBC injury claim.

In summary, under the ICBC no-fault scheme, the law is unsettled as it relates to income replacement benefits. Be very careful on signing any subrogation agreement with any private insurance company as the result of the agreement is you may have to pay back money that you never received from ICBC.

USING YOUR EXTENDED HEALTH COVERAGE

Many individuals avoid using their extended health coverage when they have an ICBC claim on the basis that they may need to access the plan for unrelated treatment and expenses and do not want to go beyond the maximum allowed under the plan. Unfortunately, this is not in keeping with the law. The reason being, ICBC will expect you to access the extended health plan first before they pay anything under Part VII. Hence, you will have to use the plan to get upfront coverage of expenses.

In accidents before May 17, 2018, ICBC is generally not allowed to deduct payments by the extended health carrier so they end up paying for the full expenses at the end of the claim despite the same expenses already being covered by the extended health carrier. All you need to show is you paid part or all the premiums of the extended health plan, the extended health carrier is pursuing a right of subrogation (i.e. repayment), or the plan is part of your negotiated employment package. In those three instances, which cover most situations, ICBC has no right to deduct the extended health carrier payments.

More and more extended health carriers are now looking to get paid back the expenses they covered through their right of subrogation. If the extended health carrier does not pursue subrogation, you may be entitled to double recovery for the expenses, once from the extended health carrier and once from ICBC.

As noted above, often the extended health carrier is looking to apply their right of subrogation. Do not sign any agreement unless you confirm they have the right in the contract of insurance and that their entitlement only is for the net amount you receive from ICBC after paying legal fees. You do not want to pay back the extended health carrier more than you recovers from ICBC.

For accidents after May 17, 2018, the system has changed in favor of ICBC. You must now exhaust funding from private insurance sources or from government assistance programs before ICBC is required to step in and cover any treatment expenses and medication costs. ICBC can deduct from your tort/injury claim all benefits that you were paid or should have been paid if you had applied. Therefore, you cannot simply ignore the fact that you have an extended health plan. You must use it fully.

ICBC has also legislated away the right of subrogation of the private insurance companies. In turn, the private insurance companies are not accepting this new change in legislation and are still pursuing their subrogation rights by requiring claimants to sign subrogation agreements.

This approach is placing the claimant into a very difficult position. Basically, ICBC does not have to pay for any medical expenses that should be covered by the extended health plan, so the claimant will not receive any money in his/her pocket to pay back the private insurance company. However, the private insurance company still wants to get paid back so the claimant is caught in the middle and may end up having to pay money to the private insurance company that he/she never received from ICBC. Clearly, it is the claimant that is the victim of this dispute between ICBC and the private insurance companies.

The other approach taken by private insurance companies is to deny payment of any medical expenses on the basis that the policy of insurance excludes payments resulting from the negligence of a liable third-party. Technically, because the benefits are not “payable”, ICBC becomes the primary insurer for the benefits and must pay the medical expenses. It remains to be seen what ICBC will do to counteract this new approach.

In summary, maximize your use of your extended health plan. Be very cautious about signing any subrogation agreement in favor of the private insurance company.

WORKSAFE SUBROGATION RIGHTS

If you were injured in a car accident while working but the at fault driver/owner is not a worker or employer, the Workers’ Compensation Act allows an ICBC claimant to elect to pursue the ICBC claim on his/her own so long as the claimant has not accepted WorkSafe benefits. The ICBC claimant is then entitled to advance the claim on his/her own or hire a lawyer. If that is the choice, you need to file an “Application for Compensation and Report of Injury or Occupational Disease” (Form 4) within a year of the accident, along with a letter advising WorkSafe you are suing a third party and wish to preserve your rights under section 10(5) of the Workers’ Compensation Act.

Filling out the Application will preserve your right to pursue WorkSafe benefits in the event you are fully or partially unsuccessful against ICBC. The catch is that you need to have WorkSafe approve the settlement first or lose your right to a WorkSafe top up.

If you decide to pursue compensation through WorkSafe, the injured person needs to submit an “Election to Claim Compensation in British Columbia” (Form 25W78) within 90 days of the accident. However, this election will greatly affect the way you deal with your ICBC claim. The reason being, pursuant to section 10 of the Workers’ Compensation Act, if a worker elects’ benefits, the legal action belongs to the Board. That is, the Board has control over the legal action and can decide to what extent they plan to pursue the ICBC claim, if at all. The Board has the final decision-making power on all issues including settlement although the staff lawyer on your case will get you involved in the process out of necessity.

WorkSafe BC has a statutory subrogation right to recover all the money the Board paid out on the claim regardless of how well you do on your ICBC claim.  WorkSafe can even clawback a “reserve” for future payments as well. In addition, WorkSafe charges an “administration fee” on the expenditures made by WorkSafe on your behalf such as wage loss, rehabilitation expenses, transportation costs, medical expenses and pension reserves. The good news is that you don’t have to pay extra legal fees of the staff lawyer as that cost is in the “administration fee”.

The subrogation right is so strong that even if you can’t recover full compensation from ICBC, WorkSafe still receives their payments plus an administration fee.  If, for example, you receive a $100,000 settlement from ICBC and WorkSafe had paid $20,000 in wage and medical benefits, WorkSafe gets the first $20,000 of the settlement plus an administration fee (usually 25%) on the $20,000 regardless of whether you were able to recover the full extent of the wage and medical benefits from ICBC.

After the deductions, you get the balance of the payment which often is less than if you had hired your own lawyer and not elected to go through WorkSafe. The simple reason is that you must pay the administration fee which is tacked onto the expenditures of the Board.

In the result, think twice before you apply for and accept WorkSafe compensation. It may be in your best interest to not accept WorkSafe benefits and pursue the ICBC claim outside of WorkSafe.

STRUCTURED SETTLEMENTS

In ICBC claims, a structured settlement is usually available to you, if requested. You must negotiate the structured settlement before judgment or during the settlement process. After judgment, the option of a structured settlement is no longer available.

A structured settlement, in simple terms, is an annuity purchased at the time of the settlement, which provides a stream of income over a certain period. The significant advantage to a structured settlement is that you receive a certain stream of income tax-free over a given period. Also, the principal of the investment and the monthly payments are creditor proof and are generally not reportable to government agencies if you are on disability. The amount you receive and the length of time over which you will receive it is highly dependent on the annuity that you purchase and your own individual choices and needs.

ICBC is usually in favor of providing a structured settlement even though they must guarantee the structure. That is, if the insurance company that sells the structure goes out of business, ICBC may be on the hook to pay the structure.

Because ICBC may have to honor a guarantee, they limit the number of insurance brokers that can place the structured settlements together with the number of insurance companies that can sell the structured settlement through the insurance broker. The result is that there is less competition and the rate of return on your annuity is usually lower than what you could otherwise potentially achieve in a riskier and less conservative investments.

The number one advantage is if you are unable to manage your money, the structure will prevent you from using your money too quickly. The structure allows set payments for a long time. In other words, the structure prevents you from blowing your settlement quickly and being left with nothing for the rest of your life.

The obvious disadvantage of a structured settlement is that you do not get immediate use of the entire net settlement funds to be used as you see fit. Once you buy the annuity you are struck with its terms and there is no turning back. However, it is no different than having a pension plan where you know you are getting a certain amount of income each month.

JURY BIAS - A RARE LOOK INTO THE DELIBERATING ROOM OF A BRITISH COLUMBIA JURY

In a jury trial (Sharamandari v. Ahmadi) the Court received, in open Court, some rare insight from several jury members about deliberations and jury interaction. The law in Canada is that jury deliberations are to remain confidential but in this case, there were some allegations of jury misconduct and several jury members were asked by the trial judge to explain what was happening in the jury room during breaks.

There are probably only a handful of cases in Canada where the details about jury room deliberations has become available to the public in open court.

The disclosure is shocking but in a way, predictable.

The rumour has it that juries can have racial bias. We often feel that at times the jury is trying to rush through of the deliberations as quickly as possible. We worry that jury members are sitting on the computer at home “Googling” information to be used in deliberations. We wonder what they feel about ICBC. We question whether juries respect experts who are “hired guns”. We question whether the jury is following the rules.

For at least one jury, the above concerns were front and center.

1. Racial Bias
In Canada one would expect that racial biases would not be a major discussion in a jury room. This is particularly so in Vancouver where more than 50% of the households speak another language at home other than English.

In Sharamandari, supra, one jury described in open Court:

“There has been, you know, inappropriate remarks, value judgment… Well, racial bias. For example, about the plaintiff regarding…the entire Iranian people, Persian… It’s coming from two or three people. There’s been mockery of the way the Iranian people are dancing. One juror was motioning, making with his body you know, motioning with his body mocking the Iranian people when they dance. There has been so that’s the racial prejudice.”

Later, the same jury member commented:

“…I heard that, oh, there is an Iranian doctor and Iranian friends, family. Well, I guess they’re all getting together. You know, they’re all getting together on this case…”

For a Plaintiff who has an ethnic background, the above is obviously very troubling.

2. Speedy / Early Deliberations
On occasion you see a jury return quickly with a verdict despite the fact that the case seemed somewhat complicated. One wonders how this possibly can occur.

Also, we all worry that the jury is deliberating before the cases has even been concluded.

In Sharamandari, supra, the jury room events are rather telling. The jury foreperson took the opportunity before the Plaintiff’s case was completed to hand out sheets of paper with eight issues on them asking each jury member to summarize the evidence on the issue so that there could be early deliberations. As pointed out by one jury member:

“The whole idea was that this was going to be used to hurry the deliberation. Now, I asked about what about the other side? What about the defendant? Are you going to do the same thing with the defendant’s exhibits? And she said yes. So each jury is going to have well, we’re all going to have 16 pieces of paper on eight topics that was picked by the (foreperson)… The jury foreperson said that we don’t want to stick around for the deliberations. We don’t want to waste time. We want to get out of here by the weekend. This is just to hurry the process…”

This event clearly solidifies that the Plaintiff needs to establish a good early impression because the jury members may make up their mind quickly.

3. Outside Research

In Sharamandari, supra, it was disclosed that one jury member took the opportunity to spend some computer time one evening researching a point of law. The jury member then brought his research to the jury room to share with his fellow jury members.

On first blush, this may not be overly concerning if we assume the jury is simply trying to understand a legal principle. However, in this situation, the jury member was able to uncover the United States law on the issue which is quite different than that of Canada.

4. ICBC Insurance Premiums
In law, the amount of ICBC insurance premiums paid by the motorist is completely irrelevant to the qualifications of damages in an ICBC claim. If you feel that jury members do not factor in the impact of the claim on their own insurance, guess again.

In Norsworthy v. Greene 2009 BCSC 617, Mr. Justice Macaulay stated:

“This already creates the risk that prospective jurors may believe that the higher the award in a given case, the greater the likelihood that their own insurance premiums will rise. Such thinking is, of course, completely improper and would, if disclosed, demonstrate bias on the part of the juror contrary to his or her own. This is the elephant in the corner that cannot be ignored.”

In Sharamandari, supra, one juror commented:

“…the jury said this… well, if the plaintiff is asking for all of these medical expenses to be paid by ICBC, our insurance rates will go up, so we can’t let that happen…”

The moral of the story is that you have to overcome the self-centered jury member who is worried about the impact of the claim on his/her own pocketbook.

5. Hired Experts

Using hired experts often results in reports supportive of the claim. The question becomes whether or not the jury ignores the reports simply because the expert is hired and not a treating doctor.

The jury in Sharamandari, supra was not overly excited about experts hired to provide an opinion:

“… In front of people, I heard that the plaintiff’s expert witnesses are all, they’re all paid consultants. They’re not, you know, they’re not really genuine. They’re all paid consultants. I heard that kind of remark. I found that troubling…”

The above conclusion from the jury came without the usual questions about how much the expert makes from Plaintiff work.

6. Jury Member Interaction

We all know if you throw individuals into a small room there is going to be personality conflicts at times. In Sharamandari, supra there was a complete meltdown between one of the jury members and the foreperson to the point of causing the mistrial. The disagreement can be fairly summarized as being created by the fact that the foreperson was trying to cut corners and “cheat” the rules whereas another jury member wanted to strictly adhere to the rules of court.

7. The Moral of the Story

The fair conclusion from a rare look into the jury room is that many of the biases and irrelevant factors we worry about actually do come into play with the jury. The best approach to a jury trial is to assume these biases and irrelevant factors are in the minds of the juries and then try to frame the case to overcome these obstacles or turn the obstacles in the favor of the Plaintiff.

For a jury that wants to deliberate early and make a decision early, set a good first impression. Maintain a theme in the early stages of the case that will help set the mind of the jury in favor of the Plaintiff. For the jury member that is going to be “Googling” after Court hours, ensure that the Plaintiff does not have a negative web presence. For the experts, focus on the favorable reports from the treating physicians and focus on the fact the defense has hired experts. For the jury member that is set on following the rules, ensure that the rules are very much known to the jury.

In summary, although a jury trial is always a crapshoot, understanding why juries may award a low judgement will help overcome inevitable biases and lead to a fairer result for the Plaintiff.

BORROWING ON YOUR ICBC CLAIM

An increasing number of lending companies are prepared to advance money to you if you have an ICBC claim. They tend to charge substantial administration fees to set up the account and then charge interest monthly. They are reluctant to tell you what the interest rate really is.

The interest rate charged can easily reach 20-60% per year and if your ICBC case drags on a few years, then you will be paying huge dollars for the advanced money.

You should carefully review all administration fees and the actual annual interest charged to determine what sort of interest rate you are going to pay. In most cases, you will probably find the rate to be in the 20% to 60% range, which makes credit card companies look reasonable when it comes to the interest rate they charge.

It is strongly recommended that you don’t borrow against your ICBC claim through these lending companies unless the interest rate is reasonable, and the administration fees are modest. Sourcing out funding from family members or friends as well as a conventional bank or even your lawyer is the best approach.

TAX IMPLICATIONS OF THE SETTLEMENT

Fortunately, when you receive a settlement from ICBC, even if it is partly for past wage loss, you do not have to pay any income taxes.

If you are receiving ICBC Part VII disability benefits, you don’t have to pay income taxes on that amount either.

In calculating the past wage loss claim, ICBC is able to reduce the amount based on the income taxes you would have paid if you had received the income. This is done before the settlement of the claim.

If you received a large future award in your ICBC claim you may be entitled to a tax gross up award which gives you extra money because of the long-term tax implications of investing your settlement funds for the long-term.

ICBC Defence Tactics

ICBC uses many of the same arguments in cases to try to minimize the amount they pay out in any injury claim. They also use some defense tactics that invade your privacy such as video surveillance, reviewing your social media and even accessing your personal computer. While ICBC almost always stays within the bounds of the law, the law is quite broad in the sense of allowing the defense to pursue many avenues of defence. The following articles help you understand some of the tactics used by ICBC.

PRE-ACCIDENT INJURIES / HEALTH ISSUES

One of ICBC’s biggest arguments is to point to a pre-accident health issue and suggest that most, or all, of your current problems are attributable to that pre-accident health issue and not to the car accident. However, the law is generally against ICBC on this defense because you need only prove that the car accident caused or contributed to your current problems. You do not have to prove that the car accident was the sole cause of your problems but rather, just a “material” contributing factor.

In other words, ICBC cannot argue that because the accident was one of many causes to your injuries you are not entitled to full compensation for those injuries. The car accident need only be one of many material causes to your injuries.

As a result, the courts generally put little weight on the pre-accident problems that ICBC is able to point to unless the pre-accident problems are ongoing in the period leading up to the accident, or are the type of problems that would have developed further in any event, without the accident.

In fact, in some cases pre-accident health concerns can improve your case. If you have an increased susceptibility to injury and have suffered more severe injuries than the average person would in the same accident, ICBC gains no advantage by pointing this out. The legal doctrine for this is called the “Thin Skull” rule.

Basically, the at-fault motorist takes the victim as he/she finds that person. It is no defense to argue that the at-fault motorist should not pay as much because of a person’s susceptibility to injury.

The pre-accident problems become an advantage for ICBC if ICBC can argue a “Crumbling Skull” scenario. This is where the Court finds that you would have still had certain problems irrespective of whether the accident occurred. Again, if there is no history of problems in close proximity to the accident then it’s unlikely that a court would make this finding.

The other time when the pre-accident problems become an advantage for ICBC is if the pre-accident problems are ongoing at the time of the accident and some of the current problems can be attributed to those pre-accident ongoing difficulties.

Where you may create trouble is if you do not fully disclose the preaccident problems, whether in an initial statement provided to ICBC, at your doctor’s office, or when you are testifying in a lawsuit. You can rest assured that ICBC will get your pre-accident clinical records from every doctor you have seen for 5-10 years before the car accident, especially if your case becomes more than just a minor claim. Hence, the last thing you want to do is try to hide a pre-accident problem and think that you can get away with it because ICBC is almost certain to find out.

If you are caught in a lie about your pre-accident problems, even though the pre-accident health issue probably would not have made much of a difference in the lawsuit, the lie does taint your credibility and hence, affect your overall claim. Therefore, it is recommended that you err on the side of full disclosure.

In summary, in most situations, pre-accident health issues are not a significant issue in the lawsuit except if they are ongoing at the time of the accident or are progressive in nature. Full disclosure of the preaccident problem should be made to avoid any credibility issues being raised by ICBC. Any failure to fully disclose pre-accident health issues will taint your whole case.

ICBC MEDICAL ASSESSMENTS

ICBC has a right to retain their own doctor to assess you for injuries in an ICBC claim. This right comes about if you make a Part VII benefit claim (i.e. disability and medical benefits through ICBC) and/or if you are bringing an ICBC claim in a lawsuit (a “tort claim”).

Over time, ICBC has generated a list of doctors who are more likely to provide a favourable opinion to them than other doctors. The most common type of doctor used by ICBC for physical injuries is an orthopedic surgeon. The reason being, many orthopedic surgeons tend to focus on the need for clear objective signs of injuries and if an individual does not have these objective signs, then the outcome for full recovery is very positive.

If you are making a claim for Part VII benefits, Section 99 of the Regulations of the Insurance (Vehicle) Act gives ICBC virtually unlimited access to sending you to their own doctors:

(1) An insured who makes a claim under this Part shall allow a medical practitioner, dentist, physiotherapist or chiropractor selected by the corporation, at the expense of the corporation, to examine the insured as often as it requires.

(2) The corporation is not liable to an insured who, to the prejudice of the corporation, fails to comply with this section.

As a result, if your claim is more than a straightforward personal injury matter, ICBC, early on after the accident, will likely use this section of the Regulations to force you to go see their own doctor. In most cases, the doctor ICBC chooses will provide an optimistic outlook for your recovery or otherwise, ICBC would not be using that doctor. Therefore, ICBC often uses this medical assessment to cut you off of Part VII benefits or to limit your entitlement to Part VII benefits. ICBC then uses the medical opinion they received under Part VII in your tort claim to say that your damages are less than otherwise claimed.

When faced with an early medical assessment request by ICBC, it is highly recommended that you get legal advice if you have not already retained a lawyer. At the very least, your lawyer should be imposing terms for your attendance at the medical assessment such as payment of travel expenses, production of the expert report to you, and requesting that the medical assessment also be for the tort claim.

The current strategy at ICBC is to use this Part VII medical assessment in the tort claim and then use their rights under the Supreme Court Rules to obtain another medical assessment under the tort claim later on in the case. Unfortunately, the law as it currently stands, allows ICBC to basically have more medical assessments for the tort claim than they would otherwise receive under Supreme Court Rules because of this Part VII right to a medical assessment. As a result, you should be very cautious about agreeing to an early medical assessment for the Part VII action without terms of attendance because it will no doubt affect your overall claim with ICBC.

In summary, ICBC does have a right under Section 99 of the Regulations and under the Supreme Court Rules to send you to their own doctors for an assessment. The only real defense you have is to try to minimize the number of times you have to go for an assessment on the request of ICBC because chances are, the assessment will not be favourable to your ICBC case given that ICBC generally uses more conservative doctors who tend to provide them with good, optimistic reports.

WHAT DOES ICBC PAY THE DOCTORS THEY HIRE

Each year ICBC releases financial information. One of the printouts that has much interest is called “The Amount Paid to Suppliers for Goods and Services”. Basically, that document shows how much ICBC is paying their defence doctors each year.

The numbers underestimate the amount of defence work a particular doctor does because the work done for other insurance companies or directly through defence lawyers does not make its way into these figures. Therefore, when you look at the below chart, the numbers represent the minimum amount of defence work that a particular doctor is doing. Probably, although statistics are not available, the actual defence worked done by these doctors is significantly higher than noted below. However, the numbers do give you a good idea who ICBC likes to use:

Name of Doctor Discipline 2010 2011
Dr. John Arthurs Orthopedic surgeon $216,181 $200,4499
Dr. Paul Bishop Orthopedic surgeon $366,266 $199,281
Dr Marc Boyle Orthopedic surgeon $80,243 $193,342
Dr. Dommisse Orthopedic surgeon $236,355 $305,015
Dr. Ken Favero Orthopedic surgeon $304,731 $320,083
Dr Grypma Orthopedic surgeon $304,371 $339,560
Dr. Hawk Orthopedic surgeon $269,908 $229,496
Dr. Jordan Leith Orthopedic surgeon $198,058 $157,277
Dr V. Makin Neurologist $282,509 $152,494
Dr. Maloon Orthopedic surgeon $396,591 $422,401
Dr. Robert McGraw Orthopedic surgeon $387,600 $474,221
Dr. McPherson Orthopedic surgeon $163,153 $126,237
Dr. O’Shaughnessy Psychiatrist $280,850 $286,900
Dr. Reebye Physical and rehabilitation specialist $251,155 $307,179
Dr J. Schweigel Orthopedic surgeon $324,271 $94,140
Dr. Derryck Smith Psychiatrist $431,853 $496,959
Dr. Solomons Psychiatrist $864,917 $653,299
Dr. O. Sovio Orthopedic surgeon $290,427 $349,948
Dr. Tessler Neurologist $440,218 $492,319
Dr. Ian Turnbull Orthopedic surgeon $144,561 $208,674
Dr. Maelor Vallance Psychiatrist $143,575 $125,225
Dr. Peter Wong Orthopedic surgeon $263,284 $337,173
INJURIES AFTER THE CAR ACCIDENT (INTERVENING EVENTS)

One of ICBC’s biggest arguments is to point to an injury after the car accident (an “intervening event”) and suggest that most, or all, of your current problems are attributed to that intervening event and not to the car accident.

In a situation involving an intervening event, the Court is asked to “crystal ball gaze” to determine what your likely outcome would have been in the absence of this intervening event. To the extent the intervening event aggravated your condition, you are not entitled to compensation for this aggravation.

This law generally applies, even in situations where you can say that the car accident injuries made you more susceptible to further injury because generally speaking, the Courts do not accept such an argument.

Where you may fall into trouble is if you do not fully disclose the intervening event, whether in a statement provided to ICBC, at your doctor’s office or when you are testifying in a lawsuit. You can be rest assured that ICBC will get all of your clinical records from every doctor/ therapist you have seen since the car accident especially if your case becomes more than just a minor claim. Hence, the last thing you want to do is try to hide an intervening event and think that you can get away with it because ICBC is almost certain to find out.

If you are caught in a lie about your intervening event, even though the event may not have been a significant factor in your case, the lie does taint your credibility and hence, affect your overall claim. Therefore, err on the side of full disclosure, versus non-disclosure.

In summary, in most situations, an intervening event that has aggravated your ICBC injuries will have some effect on your ICBC claim. You are not entitled to compensation for the aggravation. Full disclosure of the existence of the intervening event should be made to avoid any credibility issues being raised by ICBC because your failure to disclose will taint your whole case.

LOW VELOCITY IMPACT PROGRAM

ICBC implemented the Low Velocity Impact Program (“LVI Program”) back in the early to mid-1990s. ICBC would not pay any claims where they thought the accident was fairly minor. The theory applied by ICBC was that if there was a minor accident how could someone suffer injury in that accident? Hence, the program soon was nicknamed the “no bash / no cash” program.

ICBC applied a number of exceptions to the LVI Program including allowing claims where an individual had a pre-accident condition that predisposed him/her to injury, or where there was an “objective” injury (eg. broken bone, herniated disc, muscle spasm, etc…).

Of course, the medical literature indicates that there is no correlation between the severity of injury and the severity of the accident. Some individuals can walk away from very severe accidents whereas others may die. There are just too many factors that determine whether or not someone will be injured in an accident to correlate injury to the severity of an accident.

The LVI Program also has no sound basis in physics. In any accident there is both momentum and energy to be dissipated. To avoid technicalities, we don’t need to understand the distinction between momentum and energy, we only need to understand that both are present and that the amount of each is determined solely by the mass and velocity of the vehicles at the moment of impact.

The only way momentum and energy can be dissipated is by transferring them to some other object. For example, brakes dissipate the car’s energy by converting it into heat. In an accident where a vehicle crumples, some of the momentum and energy are transferred to the structure of the vehicle and produce the deformation seen. If the vehicle does not crumple, then all of the momentum and energy is transferred to something else, such as the occupants of the vehicle. Car makers know this, and deliberately design their vehicles to crumple as much as possible in severe accidents to protect the occupants.

All other things being equal, physics tell us that:

The more damage to the vehicle, the less injury to the passengers;
and
The less damage to the vehicle, the more injury to the passengers.

Initially, ICBC ran lengthy and costly jury trials and had tremendous success in these trials. The Courts and the legislature responded to the LVI Program by allowing a number of different ways in which to get around a jury trial. As a result, the LVI Program has lost a lot of its initial success.

After the initial jury successes, ICBC expanded the program to include a larger number of accidents into the LVI Program. For example, ICBC felt that many sideswipe type collisions, where the vehicle damage was in the thousands of dollar range, could not cause injury.

Currently, there are several ways of getting around a jury trial:

  1. The Courts have granted judgment in favour of an injured party under summary trial (Rule 9) using only Affidavits without a full jury trial.
  2. Rule 15 was implemented which allows an expedited trial with limitations on the time allowed for examination for discovery and without juries for claims generally under $100,000; and
  3. The legislature allows a personal injury worth less than $25,000 to be tried in Small Claims Court without a jury.

Initially, the program was applied across ICBC with little or no exceptions. This meant that if you wanted compensation from ICBC you would have to go all the way to trial. As the program has been watered down somewhat with time and lack of success on the part of ICBC, often times ICBC initially denies the claim under the LVI Program but then later decides the case is outside the program. However, there is no guarantee that that will happen to your claim.

Therefore, as it stands, if ICBC sends you a letter suggesting that your claim has been denied because of the minor nature the accident, you should not take that as being the answer to whether you have a personal injury claim against ICBC. It is recommended that you consult a lawyer before deciding whether or not to pursue an injury claim.

In summary, you do not have to accept ICBC’s suggestion that you have no claim simply because the accident was minor. If you suffered injury in a car accident and you wish to pursue compensation, there are avenues available to do so. However, if ICBC classified your accident as falling within the LVI Program, you can expect that ICBC will take a harder line and defend the claim more vigorously than other types of claims. Be prepared to go all the way to trial, if necessary.

VIDEO SURVEILLANCE

Although there are no known statistics, probably the number one employer for surveillance companies in British Columbia is ICBC. In a relatively straightforward personal injury claim ICBC probably will not be hiring any investigation firm to follow you and get some surveillance footage. However, some adjusters live by video surveillance and will, relatively quickly after a claim, hire an investigation company. Fortunately, in today’s economic environment, ICBC adjusters are judged by their “allocated expenses” which means that they need to try to minimize the amount of expenses associated with defending any one claim. This desire of ICBC to reduce expenses has also reduced the amount of initial video surveillance.

If you have been off work for more than a few months after an accident then the chances of having video surveillance on you increases. Also, if the size of your claim increases over time and your file becomes rated by ICBC as a “high complexity” file, the chances of ICBC hiring a video surveillance company to follow you increases.

You should not be paranoid about being followed by a video surveillance team but you should be somewhat observant when it comes to video surveillance. For example, if you see a van parked down the street for several hours with a fellow in it, chances are that may be one of ICBC’s investigators. If you see a vehicle following you then the same suspicion should be raised.

Unfortunately, video surveillance is legal in British Columbia. ICBC has imposed certain policies limiting video surveillance but those policies certainly do not exclude the invasion of your privacy. Some of the restrictions imposed by ICBC on the surveillance companies is that the video surveillance should not be done while you are in your home or you are nearby to such places as playgrounds where young children frequent.

ICBC video surveillance is only effective where you are telling ICBC or the doctors/therapists that you are unable to do certain activities yet you are caught doing the activity on videotape. Also, video surveillance is helpful to ICBC if it shows you lifting heavy items, doing vigorous activities, playing sports or generally looking uninjured.

Because of the risk of video surveillance being used in your case, there is no real value to you overstating the extent of your injuries and your limitations from the injuries. If ICBC catches you in a lie by showing videotape of you doing certain activities which you are denying, then this lie compromises the validity of your entire claim. Exaggeration is not a good thing to do.

In summary, ICBC, in more significant claims, will often use video surveillance as a form of defense tool to hopefully show you doing a certain activity, which you are denying doing to ICBC or the doctors/ therapists. It is therefore important not to exaggerate your claim on the off chance that ICBC has been invading your privacy and has run video surveillance of you.

ICBC’S USE OF INVESTIGATORS TO INTERVIEW WITNESSES

If your ICBC claim is viewed as a “large exposure” for ICBC or if the claim is getting close to going to trial, ICBC will often times hire an independent investigator to review the background history of your life.

As you can imagine, this is a tremendous invasion of your privacy but unfortunately, ICBC has the right to proceed with the investigation.

Often, the investigators will do a neighbourhood canvass. This involves knocking on your neighbours’ doors hoping to find out some piece of helpful information about you, for example, that you are doing some home renovations, yard work or sporting activities.

ICBC often tries to talk to your employer or past employer(s) to find out information that may help them in attacking your credibility or limiting your wage loss claim.

ICBC also looks for lay witnesses that knew you before and after the accident to see if they are individuals who might be sympathetic to ICBC. The best witnesses for ICBC are the ones that say that there has been no change in your lifestyle or behavior from before the accident, to after the accident.

Although there is no restriction on interviewing witnesses, no witness is required to speak to the ICBC investigator short of a Court Order compelling them to do so. A witness who is willing to answer the questions of the ICBC investigator may wish to have the questions presented in writing and answer in writing, so as to avoid any misinterpretation. This type of request also tends to discourage the ICBC investigator as they seldom wish to conduct interviews in writing.

From your perspective, you do not have to provide any authorization to allow ICBC to do their investigation. Therefore, if you are asked to provide an authorization to allow ICBC to interview a witness, the best thing to do is say NO. The ICBC investigator is not trying to help you or discover the truth. He/she is looking to find evidence against your case.

In summary, ICBC has a right to investigate backgrounds and often does so in larger cases or cases heading towards trial. There is no obligation on the part of any witness to speak to the ICBC investigator but at the same time, you cannot restrict ICBC from doing this investigation. However, you do not have to authorize the interviews.

FAILURE TO MITIGATE

An argument in many ICBC claims is that the Plaintiff failed to mitigate his/her damages by returning to work earlier, or by carrying out a certain treatment recommendations which probably would have made the injuries better sooner.

Under law, you have a duty to mitigate your damages, which means that you have to take all reasonable steps to reduce the losses that you may suffer as a result of your injuries. ICBC has the burden of proof to establish that you failed to mitigate your damages. This means that they will have to prove this issue in Court.

In terms of your wage loss claim, the best thing to do is to have your doctor closely monitor your progress and to support the fact that you are unable to return to work. In the face of sound medical opinions on your inability to return to work, ICBC will be hard-pressed to argue that there was a failure to mitigate on your part.

If your doctor recommends you try some work than you should try returning to your original job or try getting another form of employment. If you attempt a return to work program and it turns out you are unable to continue at work, make sure that your doctor supports you going off work. The fact that you attempted to return to work and it failed will only benefit your claim because ICBC will have a hard time arguing that there was a failure to mitigate. Of course, if you are able to soldier on and work then that is helpful to you financially because you are back at work. Therefore, it is a win-win situation.

In terms of following medical treatment advice, the simple answer is that you should follow all recommendations by your doctors and therapists regardless of whether or not you believe they are going to be of any value. If a doctor recommends a certain therapy program, you should go to that program. If you are unable to afford the program, you should send a self-serving letter to ICBC asking ICBC to fund the program. If ICBC denies funding, ICBC cannot turn around later and argue you should have gone to the program. This is because you will be able to make a strong argument that you were unable to go to the program because of lack of money.

MALINGERING

Regardless of your honesty, ICBC often throws in the argument that you are a malingerer, which means that you are exaggerating the extent of your personal injuries. The last thing you want to do is give ICBC ammunition so they can argue this point successfully at Court.

You should go on the assumption that it’s unnecessary to overemphasize the extent of your injuries because at the end of the day, it really does not help in terms of increasing your award of damages. You should also go on the assumption that you will not be able to convince ICBC of the seriousness of your injuries especially if the injuries are mainly subjective in nature as opposed to objective. Your injuries are subjective in nature if the proof about your injuries is based on what you are telling everyone about your pain level as opposed to being based on a physical sign such as a herniated disc, broken bone, etc.

You can also go on the assumption that ICBC will find out a lot about you if they perform background searches, obtain the clinical charts of various doctors/therapists, run surveillance video or hire private investigator to interview witnesses. Hence, if you are in any way exaggerating your injury complaints, you are only going to do more damage than good especially if ICBC finds out about your exaggeration. This is because if ICBC can point to exaggeration on your part regarding one issue, they may take a hard-line approach and suggest that your entire claim is exaggerated.

In summary, there is really no value to exaggerating your injuries in order to get a better result. You only run the risk of tainting your entire ICBC claim should ICBC generate proof that you are exaggerating an element of your claim.

HOW SOCIAL MEDIA CAN HURT YOUR ICBC CLAIM

In recent times, social media websites like “Facebook”, “Blogger”, and “Myspace” and “Twitter” have become an excellent source for ICBC to investigate claimants. When you post something on these social media websites, the world can look at what you have posted. For example, you may mention, on a social media site that you went on a trip, hiked a mountain, went on a skiing trip, enjoyed socializing with your friends, etc… In so doing, ICBC will likely find out this information and use it against you.

Imagine if ICBC downloads some photographs of you doing an activity and then uses it in Court against you to say you are not injured?

Imagine if ICBC starts interviewing people that went to an event which you described on a website? Imagine if you talk about getting drunk with some friends? Imagine if you post something that may not be socially acceptable?

On some ICBC files, ICBC or their investigator will access a claimant’s personal information by inventing a “friend” who then contacts you for access. ICBC then thoroughly searches the sites, looking for photographs, notes, blogs, etc. Their purpose is to find photographs of a claimant in situations that could be damaging to the case in front of a judge or jury (eg. drinking or being drunk at a party, engaging in contact or other sports, traveling to far off destinations for vacations, etc…). As well, ICBC looks for notes where a claimant has talked about the case, how s/he is feeling, what s/he will be doing next weekend, and so on. Generally, ICBC looks for anything online that will hurt your case.

Also, ICBC will sometimes bring a Court Application to compel production of the social media account contents if they cannot access the information through the back door. Therefore, even if you maintain a limited number of friends and a tight privacy setting ICBC can get copies of your postings.

Therefore, the rule of thumb when posting anything on a social media website is to assume someone from ICBC or the defense team will be reading it. If it is harmful to your case, don’t post it.

ICBC COMPUTER INVESTIGATIONS

Technology is a great thing but ICBC is now using it to their advantage.

ICBC has been trying to get production of computers of claimants in Court for years so they can look over the entire computer and pick out documents that may incriminate the claimant. Although the Courts are generally resistant to allowing such a disclosure, there are some instances where ICBC has been successful. Armed with a Court Order, what ICBC does is hire a computer consultant who can reconfigure the hard drive and pull out documents that may have even been deleted from your computer earlier. That is, these documents, although they have been deleted by you, are actually still encrypted on the hard drive. Therefore, be cautious when using your computer and setting out your views on the ICBC claim.

Overall, remember that nothing is truly private if it goes into cyberspace.

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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Heads of Damages

In this section, you will learn about the type of claims you can make when another driver causes you injury because of their negligence. These heads of damages are not available if you cause the accident. The various heads of damages are available in more severe injury claims but in minor claims, where full recovery is expected, you are generally only looking at non-pecuniary damages, past wage loss and out-of-pocket expenses. Even then, as of April 1, 2019, the amount of non-pecuniary damages payable is restricted to $5,500, adjusted for inflation, if your injury claim is categorized as a “minor injury”.

NON-PECUNIARY DAMAGES

In most cases where you suffer an injury that was caused by the negligence of another motorist, you are entitled to a claim for non-pecuniary damages. That is a legal term for an award of damages because of pain and suffering along with loss of enjoyment of life.

In 1978, the Supreme Court of Canada capped the amount of non-pecuniary damages that you can recover in a personal injury lawsuit at $100,000, adjusted for inflation. By the end of 2018, the figure is around $382,000 being the maximum recovery in Canada for any injury. Therefore, even the most severely injured person (e.g. severe brain injury with quadriplegia) only gets $382,000 for non-pecuniary damages.

For accidents following April 1, 2019, if ICBC and/or the CRT designate your injuries as being a “minor injury” you are only entitled to $5500 in pain and suffering adjusted for inflation. You can be rest assured that ICBC will be aggressive on trying to place just about every injury claim in this category to save substantial amounts of money on the backs of injured victims. For a full review of the new no-fault scheme introduced in 2018 please review the previous section of this book.

Assuming your claim is outside of the “minor injury” category or the accident predates April 1, 2019, the amount of non-pecuniary damages is usually determined by way of legal case precedents. In other words, the amount that Courts have awarded for similar types of injuries in previous cases is used to determine the award for your case. The difficulty can be that other cases may have some similarities but will also have many differences. There is seldom a single case that you can point to that is similar on all fronts. Therefore, the best approach is to find some relatively similar cases and argue a range of non-pecuniary damages.

If you do not want to pursue your claim through a lawyer, the best thing to do is go to the government web site (https://www.courts.gov.bc.ca) and search this judgment database to find similar cases.

The problem with finding similar cases is that they may not have an influence on ICBC if you are self-represented. ICBC tends to “lowball” self-represented individuals offering a fraction of what the claim is worth even when faced with compelling evidence to support the claim.

Soft tissue injuries usually bring $1000 to $1500 for every month the claimant is injured. A two- year lasting injury should bring $30,000 to $40,000. For a chronic pain case, judgments are in the range of $60,000 to $85,000 and sometimes up to $140,000.

PAST WAGE LOSS CLAIM

Before settling your ICBC claim, you need to consider the amount of your past wage loss claim. The gross loss of wages you suffer is not the amount of compensation you will receive through ICBC.

To start with, ICBC is only required to pay you the net amount of your wage loss after factoring in your income tax obligations if you had made the income as well as your Employment Insurance premiums you saved by not making the income.

ICBC can deduct several different wage replacements benefits you have received over time to further reduce the amount of past wage loss owing. To start, they can deduct any temporary total disability benefits paid under Part VII. For accidents after May 17, 2018, you need to fully pursue all income replacement sources such as private insurance plans, Employment Insurance, CPP and Government disability programs. The reason being, ICBC can deduct income replacement benefits paid or payable from the tort claim. That is, ICBC can deduct payments you received as well as payments that you should have received if you had taken all the necessary steps to receive the income replacement benefits.

If the accident occurred before May 17, 2018, ICBC had very limited ability to deduct any of these income replacement benefits.

The next argument ICBC may raise is that you were off work for longer than you should have been. While making this argument, ICBC will ignore medical evidence supporting your disability even if they do not have their own medical evidence to support their argument. Unsupported positions taken by ICBC like this one will often force individuals to seek out legal representation.

Another argument from ICBC is they will only pay past wage loss based on reported income only. However, if you have unreported income, you can still make a claim that you lost income because of the accident. The law is clear that so long as you can prove the amount of the loss you are still entitled to it, even though it did not form part of your reported income on your tax return. Therefore, do not allow ICBC to ignore this part of your past wage loss claim especially if you have clear proof that you lost the opportunity after the accident to continue to receive this unreported income. The proof should be in the form of documents or statements from client/employer(s).

In addition, ICBC often argues that past wage loss should be based on the net income of the business if you are a business owner or entrepreneur. This is not the case at all because everyone knows that individuals are able to write off quasi-personal expenditures to lower tax implications. ICBC should not have the advantage of your tax saving endeavors and should pay the true loss.

Finally, when it helps them, ICBC will rely on past earnings and ignore the prospect of pay raises or promotions. However, a promotion or pay raise that you would have received, but for the accident, should be factored into the past wage loss claim.

FUTURE LOSS OF CAPACITY CLAIM

A future loss of capacity claim is a claim for loss of opportunity to earn wages into the future because of the permanent nature of the injuries from the accident. The claim is still available even if you have returned to your pre-accident employment after the accident. This is because the law is clear that where your injuries have a permanent nature to them and preclude you from working at certain occupations, you are still entitled to a future loss of opportunity award even though you are back to your pre-accident employment. The theory goes that at some point in your future, you may not continue to work at your pre-accident employment but try some other employment. If your injuries preclude you from working at a certain job or group of jobs, then you are entitled to compensation.

The claim for future loss of capacity is easier to make out where you have returned to some employment since the accident, but you are not working to the same extent that you were before the accident. Also, if you are still unable to work at the time of the trial or settlement due to the injury suffered in your accident, a future loss of capacity claim is clearly available.

ICBC does not easily agree to provide a future loss of opportunity award in any settlement even when faced with clear medical evidence supporting the loss of capacity to work in certain jobs. ICBC will most often adjust the file on the basis that, with the passage of time, the individual will be completely recovered and not missing any time off work in the future.

If you are self-represented, the chance of getting an allowance for loss of opportunity in the future from ICBC in any settlement is low. Therefore, if your injuries give rise to a future loss of capacity claim, you need legal representation.

OUT-OF-POCKET EXPENSES (SPECIAL DAMAGES)

ICBC is required to pay some of your out-of-pocket expenses, called special damages, reasonably incurred because of the injuries suffered in the accident. They generally require you to produce receipts which substantiate each expense.

For accidents that occurred before May 17, 2018, ICBC pays the entire amount of any reasonable special damages. For accidents after May 17, 2018, you must exhaust funding from private insurance sources or from government assistance programs before ICBC is required to step in and cover the reasonable special damages.

On accidents after April 1, 2019, ICBC only must pay for treatment expenses up to an amount set by ICBC in the Regulations. Unlike in the past, ICBC no longer must pay the injured victim the full cost of the treatment in the settlement/ judgment if the therapist is charging more than the prescribed rate set by ICBC, which is almost always the case given that the ICBC rates are below industry standards. In other words, the injured victim is now forced to cover the “user fees” which could very well be $20-$100 a session.

The result of this new policy is that the injured victim is now getting shortchanged as he/she can no longer get full compensation for treatment expenses from ICBC. This will invariably result in far less treatment for most injured victims involved in a car accident after April 1, 2019 as most individuals do not have spare money to pay for treatment especially when the person may be off work due to the car accident as well. It remains to be seen whether ICBC will follow this harsh legislative change and resist paying for part of the treatment necessary for an injured person to get back to normal.

Unfortunately, many individuals do not do a very good job of keeping receipts for various expenses. Hence, ICBC gets away with not paying a lot of out-of-pocket expenses. For example, how many people who go to the pharmacy and purchase Tylenol or Advil because of pain keep the receipt and submit the receipt to ICBC?

The best way to keep records is whenever you incur any expense reasonably attributable to your injuries, get a receipt and put the receipt in a folder for safekeeping. At the same time, keep a spread-sheet of the expenses incurred. It is worth your effort as this practice will maximize your recovery of special damages.

The other thing you should do is keep track of the number of medical and therapy visits because you are entitled to a mileage claim to and from the medical/therapy centre.

There is no limit on the out-of-pocket expenses you can submit in an ICBC claim so long as the expenses are reasonable and medically necessary to deal with the injuries suffered in the accident. The fact that you are spending money on getting better helps your claim because ICBC will have a harder time arguing that you have failed to mitigate your damages by trying to get better through exercise or treatment. Also, the more you spend on your claim, the easier it is to illustrate the severity of your injuries to ICBC. In fact, it is anticipated that the amount of necessary treatment will have a significant influence on whether ICBC can categorize your post April 1, 2019 injury as a “minor injury” to restrict your non-pecuniary damage claim to $5,500, adjusted for inflation.

The United States has developed a system where the amount paid out on any injury claim is correlated to the amount of medical expenses incurred by the injured party in his/her recovery. ICBC does not work under the same practice but hints of the United States system do creep into the decision-making process at ICBC.

If possible, you should follow your doctor’s advice and try to fund the treatment necessary to help you in your recovery. The expenses could include going to therapy, hiring a housekeeper, purchasing prescription medication, etc. Make sure you discuss the treatment plan with your family doctor and don’t simply rely on the therapist to tell you what is necessary because ultimately you need a medical doctor’s support for any treatment you are receiving. The word of a therapist is not enough.

One word of caution is that ICBC will not pay for excessive treatment and therapy. In some instances, a therapist may over-treat the patient. When the therapy expenses become very high (well over a few thousand dollars) ICBC often will deny paying the entire amount of the claim. This is particularly so when you are going for passive treatment such as massage therapy or chiropractic treatment. The Courts are also hesitant to award a large sum of money for passive treatment. In the result, there are limits to the amount of treatment that you should incur in your case, particularly passive treatment.

Having said the above, as a rule of thumb, if the treatment is being recommended by your family doctor chances are it will be difficult for ICBC to avoid payment of the treatment expense.

In summary, if you want to maximize your recovery for out-of-pocket expenses incurred because of your injuries, accurate record keeping is essential. The more you can spend on reasonable out-of-pocket expenses the better off you are in your ICBC claim because the expenses illustrate the severity of your injuries and prevent ICBC from arguing that you failed to mitigate your damages by not following treatment recommendations. Avoid excessive treatment and make sure that you continually monitor your treatment plan with your family doctor.

FUTURE CARE AWARDS

In more serious ICBC injury claims, where there is permanence to the injuries, you may have an entitlement to an award for future care. To receive an award, you require a medical opinion that concludes that the expenses in the future are reasonable and medically necessary.

Therefore, you require a written opinion from a doctor discussing the level of future care needed.  You also need an occupational therapist, who is an expert in assessing future care, to provide an analysis of the cost of the future care recommendations.

The type of items that can be awarded under future care is virtually unlimited.  The list includes such things as gardeners, homemakers, care aids, counselors, babysitters, therapists, etc.  So long as the expense is reasonable and medically necessary, you can claim it.

The award that ICBC is required to pay for future care is the net present value of the stream of future expenses. Usually, an economist must be retained to figure out what the value of the future stream of expenses will be if you get a lump-sum payment at the time of the settlement or trial.

ICBC will sometimes argue that the amount of future care should be reduced by what is available under Part VII of the Regulations. The reason being, the Insurance (Vehicle) Act allows ICBC to deduct past and future Part VII benefits from the tort claim award. With the introduction of the no-fault scheme starting for accidents after April 1, 2019, ICBC may well force more claimants to stay in the Part VII program as opposed to settling out the entire claim and closing the file.

Voluntarily allowing ICBC to deduct Part VII benefits from the future care award in exchange for leaving Part VII open should be avoided because you don’t want to be thrown into the situation of having to deal with ICBC for care needs indefinitely.  There is a real advantage to both ICBC and yourself in terminating the entire relationship when the case is settled, or judgment is rendered.

LOSS OF HOUSEKEEPING SERVICES

If a homemaker is injured in a car accident rendering him/her unable to pursue the various household chores that he/she once did for the family, there may be a loss of housekeeping services award. Alternatively, an award for a replacement housekeeper may be advanced in the past and future care claim.

In most situations, ICBC resists this sort of claim just like they try to resist other future heads of damages. The claim is only applicable in a situation where an individual suffers lasting injuries rending him/her partially or fully disabled from providing homemaking services.

It is unlikely that ICBC will pay this head of damage to a self-represented person so to pursue this claim you will need a lawyer. Also, usually an economist provides the calculation as to what the loss entails for the future.

LOSS OF MARRIAGEABILITY

In relatively few cases there may be a claim for the inability to get married. This is in a situation where the injuries are catastrophic and make the claimant less likely to be able to find someone that is prepared to spend years being their caregiver and wife/husband.

The theory behind this head of damage is that if an individual is unable to get married then the cost savings of having another individual in the household are lost. If this type of claim applies to you, you will need an economist to calculate the loss because this is a very complicated calculation.

TAX GROSS UP AND MANAGEMENT FEES

In cases where an injured party receives a sizable award for future damages, tax gross-up and management fees can be available. ICBC generally resists paying such a claim on the basis that they can force a structured settlement. A structured settlement is where an annuity is purchased and provides for an annual stream of income, which is nontaxable. Please see the section on structured settlements.

1. Tax Gross Up

This claim is based on the fact that if an injured party gets an award now for a future loss, the injured party 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.

To make a claim for tax gross-up requires an economist to consider your income tax returns and the size of the award and then come up with a calculation on the amount of taxes you would have to pay over your lifetime. Obviously, a layperson without a lawyer will have a difficult time advancing such a claim.

2. Management Fees

The Courts may award an amount for the injured party to hire an investment manager to manage the award, especially if the injured party has little or no investment experience or that individual suffered a severe brain injury in the accident. The reason for this award is that an injured party receiving a large future award needs to invest it to ensure it lasts a lifetime.

Over time, the Courts have been less and less likely to award money under this head of damage simply because if you hire an investment manager, the expectation is that you can do better than the “real rate of return” (i.e. better than inflation) so the amount you pay the investment manager will be offset by the extra gains the manager gets you on your investment. Hence, there is little or no loss to you.

COSTS AND DISBURSEMENTS

In addition to receiving an award or settlement of damages for such things as pain and suffering, past wage loss, out-of-pocket expenses, future care and future loss of capacity, there is also a claim available to a successful party in a lawsuit called “taxable costs and disbursements”.

Taxable costs are not available unless you have started a lawsuit. Taxable costs are the amount you can receive based on a tariff scale, which is established by the Rules of Court.  For each unit of work that is done on your file, you receive a credit of around $110.  In cases involving a claim less than $100,000 (i.e. fast track lawsuits), you are entitled to a lump sum amount up to $6,500. The longer your case continues, and the more steps taken on the file, the more legal fees are covered by ICBC.

The expectation is that the taxable costs you will receive are only a partial indemnity for the true legal fees that you pay your lawyer.

In terms of the disbursements, those are the expenses your lawyer pays to pursue the ICBC claim. Examples of disbursements include court-filing fees, expenses for medical legal reports, photocopies, faxes, etc. ICBC will usually compensate you for all your reasonable disbursements regardless of whether a lawsuit has been commenced.

Please note that costs and disbursements are not available if you are found at fault for the accident.  In fact, ICBC may be entitled to their costs and disbursements from you.

If you are partly responsible for the accident you may only receive a portion of the costs and disbursements based on your level of success. As an example, if you are only 50% successful, you only get 50% of your costs and disbursements.

Another way you may not be entitled to certain costs and disbursements is if ICBC has made a formal Offer to Settle after litigation commences. Then, if your case goes to trial and you receive an award from the Court less than the Offer to Settle, ICBC gets their costs and disbursements after the date of the Offer to Settle and you receive your costs and disbursements before the Offer to Settle date.

The same rule applies if you accept ICBC’s Offer to Settles months after they issued it.

There are many other exceptions to the rules on costs and disbursements that are better discussed with your lawyer, but the above gives you a general idea of costs and disbursements.

ICBC Insurance Breaches

It is an interesting concept where ICBC is supposed to be a universal insurance policy for everyone in the Province of British Columbia yet ICBC is trying to run its insurance department in a way that limits insurance coverage. Invariably, when you run a company as a business with a view to the bottom line, you find ways of avoiding paying out money. You find ways of making others pay you money. Therefore, over the last decade ICBC has greatly increased the frequency of breaching motorists of British Columbia of their contract of insurance and pursuing these motorists personally for repayment of money. The articles below provide some insight into ICBC’s practice.

WHEN ICBC DENIES INSURANCE COVERAGE FOR DRINKING AND DRIVING

The number one reason ICBC breaches someone of their contract of insurance is if there is an element of drinking and driving and then a motor vehicle accident. They almost always denied coverage if there is a hint that alcohol may have been a contributing factor in the accident. Indeed, ICBC will often breach you of your contract of insurance despite the fact that the police do not charge you criminally with impaired driving but provide you with an administrative penalty. Equally, ICBC will continue to breach you of your contract of insurance even when you beat the impaired driving charge.

In recent times, the government expanded the use of non-criminal charges (“Roadside Suspension’), as part of their anti-drinking and driving policy. Basically, a Roadside Suspension cannot be disputed unless you ask the police officer to administer a roadside screening device and he refused to do so. In essence, the police officer has become the judge and jury.

Therefore, without any real evidence of state of impairment, you can get a Roadside Suspension from the police. ICBC then turns around and says you are in breach of your contract of insurance because you are impaired by reason of alcohol yet getting a Roadside Suspension is not equivalent to being impaired while driving. Indeed, the cutoff for getting a Roadside Suspension is below the legal limit where experts will testify you are impaired by reason of alcohol. Most experts say that the bloodalcohol level has to be at least .10 (not .05) to impair somebody to the point of causing or contributing to an accident.

The case of Smissen v. ICBC 2004 BCSC deals with the onus on ICBC to prove, on a balance of probabilities, that at the time of the accident the person was under the influence of intoxicating alcohol to such an extent as to be incapable of the proper control of his vehicle.

The breathalyzer test, whether administered on the roadside or at the police station, even when the reading is over the legal limit is not enough to prove that someone is incapable of proper control of his vehicle. In Smissen v. ICBC 2004 BCSC there was a 24-hour Roadside Suspension issued after a failed handheld breathalyzer test, but at trial there was evidence that such a machine had to be calibrated every 2 weeks in order to yield valid results and there were no calibration records. Additionally, the driver in this case had a heart condition that caused blackouts, which was ultimately found to be the reason why he veered into the ditch. There was also a witness who observed the path of the vehicle for 8 miles and didn’t notice any erratic driving.

Despite the above noted law, ICBC simply ignores it. When they find out about the Roadside Suspension, and they will, it is almost guaranteed you will get a breach of your contract of insurance.

One point is if you try to hide the fact of the drinking and driving from ICBC they will turn around and also breach you because of a false statement. At some point, ICBC will receive the police report which will have the indication of impairment charge. Therefore, if asked about the drinking and driving you should fully disclose that fact.

If you do start a lawsuit against ICBC for insurance coverage it will be very difficult for ICBC to prove alcohol consumption caused or contributed to the accident because the evidence necessary for ICBC to win on the point is generally gone. All that is left is a police officer saying he found you to be above the legal alcohol limit for driving but again that doesn’t necessarily establish impairment that caused or contributed to an accident. Of course, if you are well above the legal limit at the time of the accident then ICBC will win the case because the higher your blood-alcohol content the more obvious it is that alcohol consumption influenced the accident. The gray area is where you are in the blood-alcohol range at or below .10.

In summary, despite the fact that the law requires ICBC to prove that alcohol consumption caused or contributed to an accident, ICBC ignores the law and in almost all situations will hold you in breach of your contract of insurance. Therefore, you are at the mercy of the police officer who may be overaggressive in providing an administrative penalty to you. The implication could be far greater than simply having to pay a fine for the impaired driving. You could be without insurance coverage and that could be a financial disaster.

PRINCIPAL OPERATOR BREACH

It is a standard process for the ICBC adjuster to consider who was driving the vehicle as compared to who is named as the principal operator on the contract of insurance. If the driver does not have as good a safe driving discount as the owner, ICBC often breaches the owner and driver of the contract of insurance. In doing so, they ignore the explanation of the driver/owner as to use of the vehicle.

Common instances of a breach is where a parent is insuring and owing a vehicle which apparently is being driven by a child. Other common instances are where there is a husband-wife or boyfriend-girlfriend situation and one partner has a much lower discount rate than the other partner. If the good driver is the principal operator for all vehicles in the household than that sends out a red flag to ICBC.

The starting point is when getting interviewed by ICBC, make sure that you are aware of who is the principal operator on the contract of insurance before going into ICBC so that you don’t get tricked into ICBC’s attempt to show that the principal operator is somebody other than the person named on the contract of insurance.

Ultimately, the principal operator that is supposed to be named on the insurance would be that person that is most likely to use the vehicle more than 50% of the time as at the time of placing the insurance. For the limited savings on insurance premiums it is not worth using somebody else as a principal operator when clearly that individual will not be driving the vehicle more than 50% of the time. The end result of doing that is you are basically driving the vehicle without insurance if ICBC finds out about your false declaration and breaches you.

INSURANCE RATING BREACH

Another example of where ICBC is very aggressive on denying insurance coverage is where they feel the vehicle is not insured correctly. The most common situation is where you are using the vehicle to drive to and from work or for the purposes of work but yet have insured the vehicle for pleasure use. The second most common situation is where you have the vehicle insured in one part of the Province but are driving it in another part of the Province where the insurance premiums are higher. Similarly if you have insured the vehicle in British Columbia and are driving it in another Province or in the United States for an extended period time you may be in breach of your contract of insurance.

The simple point is to make sure when you meet with your insurance broker to buy insurance make sure you properly insure the vehicle. As a cost-benefit analysis, the limited savings in insurance premiums does not offset the severe financial implications of being caught insuring the vehicle improperly.

Similarly, if you have a change in your lifestyle such as moving or requiring your vehicle more for work you should go and get the vehicle reinsured properly. The law says that the situation as at the time of purchasing the insurance is applicable and you don’t have to change your insurance on every change in your lifestyle. However, ICBC ignores that law and if they can find a way of breaching you of the contract of insurance they will do that. For example, they don’t care that you may have not been driving your vehicle to work when you placed the insurance. They rely on the fact you are now driving it to work more than 6 days a month and did not insure the vehicle that way.

Be cautious when you see an adjuster after a motor vehicle accident which is your fault if there may be some issues about the insurance coverage. They are trying to set you up to give evidence which may potentially create a breach. You still have to be honest with them because ICBC has been known to do further investigations and if you are caught given them a false statement that is a reason for a breach of the contract of insurance in itself. For example, if you say you never drive your vehicle to work and they phone a colleague that says you do drive to work, they will breach of your contract of insurance due to the misstatement alone.

In summary, it’s very important to ensure that your vehicle is properly rated for travel to and from work, for business use and for territory of operation. Do not try to save on insurance premiums by misleading the insurance broker as to the use of the vehicle.

WHAT HAPPENS AFTER A BREACH?

The system allows ICBC’s breach ruling to be the “final say” on insurance coverage unless you sue ICBC to force them to provide insurance coverage. ICBC knows that most people will not sue them for coverage and will ignore the situation.

Indeed, the majority of individuals that are breached of their contract of insurance simply do nothing and then the one-year limitation period after the denial passes by making ICBC’s decision final and untouchable.

On occasion, ICBC will offer a relief against forfeiture which means that they will reinstate the insurance if you pay a very significant fine. On first blush, you may think that the fine is excessive because it is usually 10 times the amount of premiums that you saved by insuring your vehicle incorrectly. However, the alternative is to allow the breach of contract of insurance to stand and for you to fight ICBC in Court to reinstate your insurance policy. The expense of running a lawsuit is almost certain to outweigh the fine. In addition, if you allow the breach of the contract of insurance to remain, the debt that ICBC will put on your driver’s license almost always greatly exceeds the fine.

Assuming the breach of the contract of insurance stands, the next thing that happens is ICBC sends a demand letter to the breached insured after the claim has been settled with any third parties. The demand letter could be years later and asks the breached insured to pay back all the money ICBC paid for vehicle damage, personal injuries, etc. If you don’t pay immediately, ICBC will aggressively pursue repayment.

The breached insured also has little chance to dispute the amount ICBC pays out on the claim yet it becomes a debt of the breached insured. In other words, ICBC has no obligation to prove that the money they have allocated against you as your debt on your driver’s license is in fact fair and accurate.

Don’t think for a moment that you can ignore this demand for payment. If you don’t pay, ICBC will likely take away your driver’s license or your insurance and even start collection proceedings against you.

The reason being, the government has given ICBC very powerful collection abilities. ICBC doesn’t have to prove the size of the debt nor sue you for the debt. They can simply eliminate your opportunity to drive in the Province of British Columbia until you pay up. Clearly, this ability to limit your driving in British Columbia is a significant collection power.

If faced with the demand letter, you need to consider overturning the ICBC decision on the breach of insurance. The only way to do so is to fight the matter in Court. The problem though is that you have one year from the denial of the insurance coverage to sue and often the demand for payment that is sent to you is years later.

If there is no hope to avoid the breach of the contract of insurance, you need to find a way to pay this debt or negotiate something with ICBC. In the past, ICBC has been willing to accept partial monthly payments of the debt but in recent times, they have not been as generous because the collection department has a mandate to be very aggressive.

In summary, when ICBC sends you a demand for payment this is a very serious matter. You won’t be able to ignore them because they are very aggressive in their collection methods to the point of taking away your driver’s license and insurance if you don’t pay up.

SUING ICBC FOR INSURANCE COVERAGE

The starting point is ICBC has complete control as to the decision on insurance coverage. They do not have to consider the testimony of the driver in their decision. They can use a healthy level of skepticism and conjecture to make their decision without any recourse if they make the wrong decision. Once ICBC makes the decision, the decision is final unless you dispute it. That is, you need to take positive steps to suing ICBC in either small claims court or Supreme Court for insurance coverage. You must do so within a year of the denial. If you do not take positive steps, ICBC’s decision is final and any damages flowing out of their decision will be your responsibility.

Depending on the potential exposure, you have to make a decision whether you want to sue ICBC or simply accept their decision.

For example, if it is a single vehicle accident than the loss to the driver/ owner is there is no coverage for the vehicle damage. In that instance, it may not be worth the legal costs and the general hassle of pursuing ICBC for insurance coverage.

However, if the driver caused an accident to another vehicle then ICBC will be looking to the driver/owner to pay back any damages paid to the other vehicle and its occupants, whether it is a vehicle damage claim or an injury claim. In some instances, the claim by ICBC can be very large, often in the hundred thousand dollar plus range. In this type of situation, it may well be worth pursuing ICBC for insurance coverage because the alternative is to pay them back a very large sum of money.

There is no question that when you are faced with the breach situation and you need to hire a lawyer it’s going to be an expensive endeavor. To make matters worse, the full cost of a lawyer is not something you can claim back from ICBC even if you win. Therefore, it’s a matter of a costbenefit analysis as to whether or not you want to involve a lawyer.

If that was not enough, the Government has placed a rule that in Small Claims Court you cannot seek a declaration so ICBC often tries to stymie due process by arguing that the Small Claims Court has no jurisdiction to consider the insurance breach issue because it’s a declaration of insurance. ICBC tries to force the case to be heard in Supreme Court which necessitates the use of a lawyer and the potential risk of having to pay a portion of ICBC’s legal fees and all their expenses if you lose the case.

These breach cases are also very hard fought by ICBC and they seldom back down even if they are flat-out wrong because they know, due to expense of a lawyer, they have the upper hand.

Ultimately, you need to do a cost-benefit analysis when faced with a breach situation. If the loss is not large, you may wish to walk away from the claim for insurance. If the potential personal financial exposure is very high, especially when there is an injury in the other vehicle, ignoring the breach would be a very bad idea.

THIRD PARTY NOTICE

Where an injured individual is suing you for damages suffered as a result of an accident that is your fault, and ICBC has breached you of your contract of insurance, ICBC will file a Third Party Notice against you. This document will be served on you personally. The Third Party Notice allows ICBC to step into your shoes and defend the lawsuit advance by the injured individual. Just because ICBC has appointed a defense lawyer to work on the file doesn’t mean you are out of hot water. Rather, once ICBC pays out the claim, they will then send you a bill for the entire pay-out to the injured party.

When faced with a Third Party Notice, you should consult a lawyer and decide whether or not you should dispute the Third Party Notice and try to counter sue for insurance coverage.