Out-of-Pocket Expenses (Special Damages)

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

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.