Types of Claims

Types of Claims

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

WHAT IS A PERSONAL INJURY CLAIM

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

Because of your injuries, several heads of damages may be available to you, depending on the seriousness of your injuries. The heads of damage that may be available include:

  • Non-pecuniary damages (pain and suffering);
  • Past wage loss;
  • Future loss of capacity/opportunity;
  • Out-of-pocket expenses;
  • Future care;
  • Loss of Housekeeping Services;
  • Loss of Marriageability
  • Tax gross-up;
  • Management fees;
  • Court order interest; and
  • Legal Costs and disbursements (i.e. legal expenses to pursue the claim)

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

In summary, only individuals that have suffered injury from an at-fault motorist are entitled to a personal injury claim against ICBC. If you are at-fault for the accident, you are only potentially entitled to payment of disability benefits and medical and rehabilitation expenses under Part VII.

WHIPLASH INJURIES

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

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

Usually, whiplash injuries are categorized as mild, moderate or severe by the Courts and by many doctors/therapists. In bucking the trend, ICBC has been using short form medical legal reports called CL-19s to grade the whiplash injury as Grade I, II, III or IV. That grading system largely deals with objective measures such as reduced range of motion, fractures and neurological abnormalities. It does not address chronic and real pain which cannot be objectively measures.

Unfortunately, doctors and therapists vary greatly on what injuries they place in each category as do the various ICBC adjusters.

The grading of whiplash injury will have a significant impact on accidents that occur after April 1, 2019 because most whiplash injuries will be deemed a “minor injury” which in turn limits the pain-and-suffering to only $5500 adjusted for inflation.

WHO IS SUED FOR INJURIES AND DAMAGES

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

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

CLAIMS AGAINST FAMILY MEMBERS

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

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

PEDESTRIAN / CYCLIST CLAIMS

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

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

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

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

OUT OF PROVINCE / COUNTRY CLAIMS

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

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

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

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

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

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

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

INFANT CLAIMS

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

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

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

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

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

HIT-AND-RUN CLAIMS

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

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

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

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

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

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

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

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

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

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

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

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

Like other ICBC cases, all defenses open to ICBC are also available in a hit-and-run claim, including arguing liability, even though the other motorist involved in the accident is not available to testify at trial. The limits on the claim are $200,000 but if the claim is worth more than $200,000 there is a potential secondary level of insurance called underinsured motorist protection (UMP) which can be accessed up to $1 million (or $2 million if you carry excess UMP coverage).

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

UNINSURED AND UNDERINSURED MOTORIST PROTECTION CLAIMS

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

In British Columbia, the minimum Third-Party limits allowed for ICBC insurance is $200,000.  As a result, most ICBC claims will never involve UMP because most claims are under $200,000.  However, if, for example, you are one of several individuals that are injured by an at-fault motorist with the minimum $200,000 Third Party liability coverage, it is not very difficult to have all the injury claims exceed the Third-Party limits and require the claims to move into UMP coverage.

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

Most British Columbians would have access to UMP coverage.  To have access to UMP coverage, you need to be an occupant of the vehicle with valid ICBC insurance. Alternatively, you can have your own valid ICBC insurance on an unrelated vehicle or be a member of a household with somebody with valid ICBC insurance. Further, having a driver’s license or being in a household with another person with a driver’s license would be enough.

Under UMP, the basic coverage you receive is $1 million without paying anything more.  However, you can buy excess UMP coverage, which provides coverage to $2 million. The premiums for the excess UMP coverage are quite reasonable.

The limits on UMP coverage are all inclusive limits meaning that the maximum is either $1 or $2 million. From that coverage, ICBC gets to deduct the following according to Section 148.1 of the Regulations:

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

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

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

WORK RELATED INJURIES AND YOUR ICBC CLAIM

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

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

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

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

If ICBC believes they have even a small shot at defeating your claim because of a worker vs. worker defense, you can be rest assured that ICBC will pursue that defense.  What the defense involves is making submissions to the WorkSafe BC under Section 257 of the Workers Compensation Act.  The WorkSafe BC independent board, called WCAT, accepts written submissions and decides as to whether you have an entitlement to pursue the at-fault driver outside the WorkSafe BC scheme.

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

FAMILY COMPENSATION (DEATH) CLAIMS

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

The compensation is essentially limited to:

  1. Damages for loss of love, guidance and affection (generally for infant children of the deceased only);
  2. Damages for the loss of services that would otherwise have been rendered by the deceased to the remaining family members;
  3. Damages for the loss of financial support to the remaining family members as a result of the death. The deceased’s take home income is reduced by the portion of that income that would have been used to cover the deceased’s own personal expenses with the balance left being for the support of the remaining family members;
  4. Limited out-of-pocket expenses incurred as a direct result of a death (funeral and related expenses);
  5. Damages for loss of inheritance; and
  6. Tax gross-up and management fees on the future loss award.

Additionally, court order interest is payable on loss of love guidance and affection, on past services, on past financial support and on out-of-pocket expenses.

Our law does not allow any recovery for the grief and sorrow caused by the death of a family member. The award must be based on pecuniary (money) losses and not non-pecuniary (pain and suffering) losses

a. Class of Claimants

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

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

The action must be brought by the personal representative of the deceased on behalf of all claimants (Family Compensation Act, s. 3(1)). In that case, there is a 2-year limitation period to start the lawsuit or settle with ICBC.

However, if there is no personal representative or if the action has not been commenced within six months of the death, the claimants may themselves commence the action in their own names (Family Compensation Act, s. 3(4)). In that case, the limitation period does not commence running until after six months have passed since the death.

Only one action for all claimants may proceed (Family Compensation Act, s. 6), and if more than one lawsuit has been commenced, the lawsuits ought to be combined into one legal action.

b. Loss of Love, Guidance and Affection

An award made for loss of love guidance and affection is meant to provide monetary compensation for the loss of the guidance, companionship, care, and training that the family member would have received from the deceased on the theory that the claimant’s prospects are now worse without the guidance of the family member. Age and degree of dependency are factors to consider.

 

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

 

The accepted range of damages is usually between $30,000.00 and $35,000.00 for younger children and $20,000 to $25,000 for teenagers.  When a child reaches the age of majority and becomes independent, limited compensation is allowed ($0- $5,000.00) but only in unusual situations.

c. Loss of Services

The claimant is entitled to compensation for the loss of household services that the deceased had previously provided, including housekeeping and handyman services. The court will consider the cost of replacing the services with hired help but will not normally award the full replacement cost. It doesn’t matter if replacement services are obtained or another person provides them gratuitously. However, when the services are replaced by a surviving parent’s new spouse, there will be a substantially reduced award to the children of the deceased.

d. Loss of Financial Support

The award for loss of financial support is determined based on the cost to the claimant of maintaining a similar lifestyle as he/she had with the deceased living and supporting him/her.

You need to present enough evidence regarding the income earning and spending history of the deceased and the likely future earnings had there been no death. Typically, the court is presented with actuarial evidence in support of the claim. That evidence is of assistance, but the overriding principle is that the claimant is to receive no than is necessary to provide a reasonable approximation of the lifestyle that he/she would have enjoyed, but for the death.

To determine the award for loss of a stream of income, the court determines the present value of a lump sum that, if invested, would provide payments of enough over a given number of years in the future, extinguishing the fund in the process (Keizer v. Hanna). The typical approach in calculating the award is to assess the deceased’s after-tax income stream, deduct an amount for the deceased’s personal consumption, factor in various contingencies, and then, with the assistance of actuarial evidence, determine a present value lump sum for that net stream of income.

If both the deceased and the surviving spouse had been employed prior to the death, the Courts in British Columbia do not deduct from an award the amount of the surviving spouse’s income that is no longer spent on the deceased.

Note that where financial support formerly provided by the deceased family member is replaced by another, there may be a reduced award for loss of financial support. For instance, where a parent dies and the child has a step-parent, that step-parent has a legal obligation to provide those replacement support payments in favor of the child, thus offsetting the claim for loss of financial support by the child.

e. Out of Pocket Expenses

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

f. Loss of Inheritance

An award for loss of inheritance, also described as “loss of wealth”, represents an amount the deceased would have bequeathed to his/her family had he/she lived to a normal life expectancy, reduced to present-day value. The amount the claimant would have later inherited, had there been no premature death, is adjusted for any offsetting benefit the claimant receives from the acceleration of the inheritance. That is, because of the death, the claimant receives the immediate benefit of the capital assets that were previously controlled by the deceased.

In many cases, there is no award due to the significance of the offset.

g. Contingencies / Reduction in Claim

In a death claim, the courts will consider negative and positive contingencies.  Negative contingencies include the chances of remarriage, the chances of divorce, the chances of early death, etc.  Examples of positive contingencies include the chance that the deceased would have received a promotion at work, consideration for the fact that the deceased would have greater employment opportunities over time and the expectation that the deceased would have increased the level of services provided to the family members over time.

h. Tax Gross Up

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

i. Management Fees

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

i. Punitive and Aggravated Damages

You might have read or heard in the US that there are large punitive and aggravated damage awards for death claims. However, in British Columbia no such award can be granted.

j. Death of a Child

If the law every needed a change this is the situation.

Unless parents can prove that they were or would have been financially supported or provided with valuable services by their deceased child, the parents will not be seen to have sustained pecuniary loss from the death. However, if there is evidence that, had the child not died, the child would reasonably have been expected to contribute support to the parents in an amount more than the amount of money that the parents would have spent on the child, an award compensating the loss of that financial support is appropriate.

For very young children, this loss is mostly offset by the cost of raising the child if it had survived.

There’s no award to the parent simply for loss of love and affection of a child.

In summary, the loss of a child has a surprisingly low value, often $20,000 or less, under the current law.

i. Summary

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

ICBC’s No-Fault Scheme

INTRODUCTION TO THE ICBC NO-FAULT SCHEME

May 17, 2018 will be a date to remember as the Provincial government, on the insistence of ICBC, introduced legislation that will severely reduce the compensation of injured victims of car accidents. That is the day when amendments to the Insurance (Vehicle) Act and Civil Resolution Tribunal Act became law. The legislation that passed was:

  1. Bill 20 providing amendments to the Insurance (Vehicle) Actand
  2. Bill 22 providing amendments to the Civil Resolution Tribunal Act.

Other than a few exceptions, all the changes are to take effect on motor vehicle accidents occurring on or after April 1, 2019. Although ICBC has tried to spin the changes as being helpful to ICBC claimants, the changes are akin to a “no-fault scheme” since compensation for injured victims is dramatically reduced while the at-fault bad driver gains a substantial increase in benefits and compensation for causing the accident.

When the law treats the victim and the at-fault motorist in a similar manner regarding compensation, it is clearly a “no-fault” scheme.

The most significant amendments to the legislation are:

  1. Limiting pain and suffering on all “minor injuries” to $5,500 (indexed for inflation);
  2. Defining most injuries, including significant and permanent ones, as a “minor injury” and therefore making the word “minor” a misnomer;
  3. Restricting compensation for treatment to ICBC’s prescribed rates so that if the therapist charges a higher fee, the fee exceeding the prescribed rate is no longer recoverable;
  4. Eliminating the ability to recover medical expenses and wage loss from ICBC if the claimant has another source for recovery such as extended health coverage or a disability plan;
  5. Removing the right to pursue an injury claim in Court and forcing a claimant to us the Civil Resolution Tribunal (“CRT”); and
  6. Limiting the ability to pursue a future care payout and instead, forcing the claimant to request care through ICBC’s Part VII program indefinitely such that there is no “closure” on the file.

Of particular concern is that Bill 20 provided the government with broad powers to expand the no-fault scheme without having to go through the rigors of the Legislative Assembly. The government quickly capitalized on this opportunity and on November 9, 2018, through Order in Council, introduced further Regulations that further reduced an injured victim’s rights for compensation. The highlight of these Regulations is to greatly expand the “minor injury” definition to include a concussion, psychological/ psychiatric injuries, TMJ injuries and most whiplash injuries. In the result, most injuries will be classified as a “minor injury” even if the injury is a very serious one, such as chronic pain and/or a brain injury.

Clearly, the use of the term “minor injury” is an attempt by the government to mislead the public as most members of society would assume that only mild strains and scrapes are being capped, whereas serious and severe injuries are captured within the definition. The legislation now provides one of the most restrictive compensation schemes in Canada, far surpassing most Provinces.

WHAT IS A MINOR INJURY?

The use of the term “minor injury” is extremely misleading as many serious and long-lasting injuries are captured within the definition. Based on Bill 20 and the Minor Injury Regulations, a “minor injury” is broadly defined to capture most physical and mental injuries that one could suffer in a car accident. It is estimated that over 90% of all injury claims arising from accidents on or after April 1, 2019 will be initially classified as “minor” by ICBC unless the Civil Resolution Tribunal (the “CRT”) generously interprets the legislation.

The following types of injuries are classified as a “minor injury”:

  1. An abrasion, a contusion, a laceration, a sprain or a strain;
  2. Partial tears to the muscles, tendons or ligaments;
  3. Pain syndromes;
  4. A psychological/ psychiatric condition that does not result in an “incapacity”;
  5. A concussion that does not result in an “incapacity”;
  6. A TMJ disorder (jaw injury);
  7. A WAD injury (whiplash injury) without a fracture or dislocation of the spine or without clinically significant neurological abnormalities; or
  8. Something that is “a prescribed injury or an injury in a prescribed type or class of injury

The catch all phrase “a prescribed injury or an injury in a prescribed type or class of injury” was used by the government in November 2018 to introduce a broader term for “minor injury” through Regulation and not through the Legislative Assembly. In that regard, TMJ disorder, WAD injury, partial tears, concussions and psychiatric/ psychological conditions were all added to the definition in the most recent Regulations.

The potential injuries that may not be covered by the “minor injury” category include:

  1. Disc herniations;
  2. Shoulder separation;
  3. Complete tear of ligaments to the knee, hip and/or shoulder;
  4. Spinal cord injuries;
  5. Brain injury that is not just a concussion (concussion is not defined in the Regulations);
  6. A concussion that results in incapacity;
  7. A psychological/ psychiatric injury that results in incapacity;
  8. A bone fracture;
  9. Permanent scarring;
  10. Fibromyalgia if it is not a pain syndrome;
  11. Dislocated fingers, wrists and shoulders;
  12. Arthritic changes in joints and the spine cause by the accident;
  13. Vestibular mismatch;
  14. Tinnitus and ear issues;
  15. Discogenic Pain;
  16. Dizziness;
  17. Vertigo
  18. Hearing loss and ear issues;
  19. Vision and eye injuries;
  20. Dizziness and inner ear injuries;
  21. Headache conditions not attributable to a pain syndrome;
  22. Pelvic ring dysfunction;
  23. Zygapophyseal (Z-joint) injury;
  24. Dental trauma including chipped teeth;
  25. Neurological injury including decreased tendon reflexes, deep tendon weakness or sensory deficits, or other demonstrable neurological symptoms; and
  26. Range of motion issues in the neck due to disc disfunction.

The above list is not yet proven to be outside the “minor injury” category, so time will tell if the CRT is Plaintiff friendly or ICBC friendly on the interpretation of the “minor injury” definition. Also, expect the government to try to eliminate “loopholes” as they are created by CRT decisions.

If you have one of the above injuries that fall squarely within the “minor injury” definition, all may not be lost, as you may still be able to avoid the cap. However, to do so, you will need to prove that you either have a “permanent serious disfigurement”, “serious impairment”, or “incapacity”.

1.Definitions

Permanent serious disfigurement” means a permanent disfigurement that significantly detracts from the claimant’s “physical appearance”. One example is a contusion or abrasion that results in permanent scarring.

A “serious impairment” “means a physical or mental impairment that is not resolved within 12 months after the date of an accident and meets “prescribed criteria”.

Again, the government can restrict these definitions in the future by introducing further Regulations.

The following are some of the definitions of injuries that can be deemed a “minor injury”:

“TMJ disorder” is an “injury that involves or surrounds the temporomandibular joint”;

“Sprain” “means an injury to one or more ligaments unless all the fibres of at least one of the injured ligaments are torn”.

“Strain” “means an injury to one or more muscles unless all the fibres of at least one of the injured muscles are torn”.

“Pain syndrome” “means a syndrome, disorder or other clinical condition associated with pain, including pain that is not resolved within 3 months.”

“WAD injury” means a whiplash injury other than one involving one or both of the following:

  1. Decreased or absent deep tendon reflexes, deep tendon weakness or sensory deficits, or other demonstrable and clinically relevant neurological symptoms; or
  2. A fracture to or dislocation of the

2. What is Incapacity?

To lessen the blow regarding capping concussions and psychological/ psychiatric injuries, the definition of “incapacity” is easier to meet than “serious impairment”.

“Incapacity” means a physical or mental incapacity that is not resolved within 16 weeks after it arises and is the “primary cause of a substantial inability of the claimant to perform”:

  1. Essential tasks of the claimant’s employment or training or education, enrolled in or accepted into at the time of the accident, despite reasonable efforts to accommodate and the claimant’s reasonable efforts to use those accommodations to continue in the employment/training/education; or
  2. Activities of daily living.

For “activities of daily living”, this has been expressly defined in the Regulations to capture the following activities one must be substantially impaired in or incapacitated from performing:

  1. Preparing own meals;
  2. Managing personal finances;
  3. Shopping for personal needs;
  4. Using public or personal transportation;
  5. Performing housework to maintain a place of residence in acceptable sanitary condition;
  6. Performing personal hygiene and self-care; and
  7. Managing personal medication.

In other words, if a claimant suffers a concussion or psychological/ psychiatric injury and is off work or school for 16 weeks or unable to perform activities of daily living during the first 16 weeks, the claim falls outside the “minor injury” definition. You can be rest assured ICBC adjusters will be pushing hard to get these claimants to return to work or activities before the 16-week threshold is met.

3. What is a Serious Impairment?

The test for “serious impairment” is far more restrictive than “incapacity”. Rather than a 16-week threshold for the injuries to be resolved as required in the definition of “incapacity”, the time line for the injuries to be resolved is 12 months. In addition, to have a “serious impairment”, the claimant must have a “substantial inability” to perform:

  1. Essential tasks of the claimant’s employment or training or education, enrolled in or accepted into at the time of the accident, despite reasonable efforts to accommodate and the claimant’s reasonable efforts to use those accommodations to continue in the employment/training/education; or
  2. Activities of daily

For “activities of daily living”, this has been expressly defined in the Regulations to capture the following activities one must be substantially impaired in or incapacitated from performing:

  1. Preparing own meals;
  2. Managing personal finances;
  3. Shopping for personal needs;
  4. Using public or personal transportation;
  5. Performing housework to maintain a place of residence in acceptable sanitary condition;
  6. Performing personal hygiene and self-care; and
  7. Managing personal medication.

Further, to be a “serious impairment”, the impairment must be:

  1. Primarily caused by the accident, and
  2. Ongoing since the

Finally, to satisfy the definition, the resulting impairment must not be “expected to improve substantially.”

To summarize, “serious impairment” requires the following for 12 months after the accident:

  1. A substantial inability to perform the essential tasks of work/school or the activities of daily living;
  2. That the accident was the primary cause of the impairment;
  3. That the impairment is ongoing; and
  4. That there is no expectation of substantial improvement.

4. Failure to Mitigate

Even if the injury satisfies the above requirements and should fall outside the “minor injury” definition, ICBC can still say the injury is minor if you cannot prove you followed the prescribed treatment protocol. This scheme creates a reverse onus situation, because previously ICBC had to prove that you failed to mitigate the damages by not following recommended treatment. Thus, a claimant is required to follow all recommended treatment or face the prospect of a denial from ICBC.

5. Burden of Proof

The burden of proving that the injury is not a ‘minor injury’ is on the claimant. This burden of proof test means the injury is presumed to be minor unless proven otherwise. ICBC can simply label the injury as “minor” and adjust the file accordingly leaving the claimant to take positive steps to reverse the decision.

Since an intended purpose of the no-fault scheme is to move claimants away from legal representation, the expectation is ICBC will be able to keep many files inside the cap that should otherwise be excluded as it is doubtful many self represented claimants will have the knowledge, experience and financial ability to dispute a “minor injury” classification. Lawyers are unlikely to accept cases where the chances of the injuries falling outside the “minor injury” definition are low and there is little or no wage loss to recover.

6. Summary

In summary, the “minor injury” definition will capture almost all injury claims that occur on or after April 1, 2019. Unless the injury is clearly outside the definition, such as a broken leg, or spinal cord injury, the claim will likely be automatically classified as a “minor injury” by ICBC, with you bearing the burden of proving otherwise.

With any major shift in legislation limiting an injured victim’s right to compensation, you can expect a lot of legal wrangling over some of the new legal terminology set out in the Legislation. Some new legal terms that will have to be litigated include:

  1. What is “significantly detracts from the claimant’s physical appearance” mean in the context of proving a “permanent serious disfigurement” (a small scar or an unsightly deformity?);
  2. What is “substantial” when it comes to a substantial inability to work or study;
  3. Which tasks are “essential” tasks for work or school in addressing substantial inability to work or study;
  4. What is “reasonable efforts to accommodate” and “reasonable efforts to use those accommodations” in the context of your inability to return to work or school;
  5. Do you have to be limited from all “activities of daily living” or just some of the tasks to meet the “serious impairment” definition;
  6. If there are several causes of an injury, such as pre-existing health issues or an intervening event, what makes the accident the “primary” cause that is required to prove “serious impairment” and/or “incapacity”;
  7. Does “ongoing” impairment, as required to show “serious impairment” and/or “incapacity” mean 24/7 pain or something less; and
  8. Where is the line between someimprovement and substantial improvement in determine a “serious impairment”;

The one thing that is certain with the new legislation is there is now a real incentive for claimants to be off work or school for an extended period to escape the “minor injury” classification. The legislation has incentivised the “disability role”.

WHAT COMPENSATION CAN I RECEIVE IF I HAVE A MINOR INJURY

The new legislation caps non-pecuniary (pain and suffering) losses for all “minor injuries” at $5,500 adjusted for inflation.

If a person suffers more than one injury because of an accident, each injury must be diagnosed separately as to whether the injury is a “minor injury”. If all the injuries are deemed “minor” you don’t get $5,500 maximum per injury for pain and suffering but rather, all the combined injuries are worth a maximum of $5,500 for pain and suffering. In other words, you could literally have a full body injury that is all soft tissue in nature, but it is still deemed a “minor injury” short of proving a “serious impairment”.

If one or more injuries is minor and one or more is not, the total non-pecuniary damages for all the injuries is the sum of:

  1. Up to the maximum “minor injury” cap of $5,500 for all minor injuries combined; plus
  2. The amount of damages for the non-minor injury or

Therefore, when you have multiple injuries with one of the injuries being outside of the “minor injury” category you get more compensation under the new legislation as you get up to $5,500 added to what you would normally receive for pain and suffering.

Ongoing claims for other heads of damage such as past wage loss, ‘in-trust’ claims, out-of-pocket expenses (special damages), loss of earning capacity, loss of housekeeping services and cost of future care remain in place under the legislation. However, the legislation does negatively affect the amount you can claim. These restrictions are discussed later in this Chapter.

ACTIONS THAT PLACE YOUR CLAIM INTO THE MINOR INJURY CATEGORY

Bill 20 changes well established legal principals by forcing the claimant to take active steps to avoid the injury from getting worse. In other words, there is now a reverse onus on mitigation issues.

The legislation provides that an injury which “results in a serious impairment or a permanent serious disfigurement of the claimant” or develops into an injury not caught by the minor injury definition will be deemed to be a “minor injury” if that injury “at the time of the accident or when it first manifested, was an injury within the definition of ‘minor injury’” and the injured claimant “without reasonable excuse, fails to seek a diagnosis or comply with treatment in accordance with a diagnostic and treatment protocol prescribed for the injury”.

In other words, if in the early stages after the accident your injury could have been labeled a “minor injury”, even if your injury gets worse, it will still be classified as a “minor injury” if you unreasonably failed to seek a diagnosis or comply with a treatment regime. ICBC can ignore the fact that you have a serious impairment, permanent serious disfigurement or an injury not caught by the “minor injury” definition simply by saying you did not do enough to assist in your recovery.

The legislation basically throws the responsibility onto the claimant to seek out full medical assessments and attend all treatment regimes recommended by a physician. In practice, however, that is not practical for many average British Columbians, due to such barriers as lack of family physicians in the Province, wait times on assessments/ treatment and lack of funding for transportation and treatment.

If the claimant can establish the result would have been the same even had he/she sought a diagnosis and complied with the appropriate treatment, the burden is met to avoid a “minor injury” classification. However, ICBC can simply deny the claim and force the claimant to overturn the decision in the Civil Resolution Tribunal, a daunting task for a self-represented claimant.

In summary, the claimant must prove his/her injury should remain classified as a non-minor injury by proving that he/she sought out a diagnosis early on after the accident and fully participated in proper treatment.

LIMITS ON SPECIAL DAMAGE RECOVERY

ICBC has been advertising that with the new legislation, all treatment expenses are fully covered by ICBC. The statement is going to be untrue unless the treatment centres all “buy-in” to ICBC’s low rates and claimants don’t require more treatment than the ICBC stated maximums.

Section 82.2 has been added to the Insurance (Vehicle) Act by Bill 20 and provides that an injured claimant cannot recover an amount paid to a health care practitioner that exceeds the amount set by regulation any “health care loss”. This section applies to losses resulting from an accident occurring on or after April 1, 2019.

“Health care loss” is defined as “a cost or expense incurred or to be incurred for health care provided by a health care practitioner”. Therefore, the section affects both out-of-pocket (special damages) and cost of future care claims as it relates to health care services provided by health care professionals. Other out-of-pocket expenses, like medication or homecare services, are not impacted by the new legislation.

The winner in the process is the bad driver that is at fault for the accident as he/she will see increased coverages for treatment expenses. The loser is the injured victim that is out of pocket for “user fees”, which are the difference in the actual rate charged by the treatment center vs. the “prescribed rate” of ICBC.

ICBC has set the following “prescribed rates” and limits on treatment:

Type of Health Care Service Fee Limit for Assessment Visit and Report Fee Limit for Standard Treatment Number of Pre-Authorized Treatments
Acupuncture $105 $88 12
Chiropractic $199 $53 25
Counselling $210 $120 12
Kinesiology $135 $78 12
Massage therapy $107 $80 12
Physiotherapy $250 $79 25
Psychology $340 $195 12

A Google search of service rates by health care practitioners shows that many treatment centres across the Province charge more than ICBC’s “prescribed rates”, so the claimant will be the one paying the difference between the actual rate and the “prescribed rate”. The reason being, unlike before the new legislation, you cannot recover the extra fee (“user fee”) in the tort claim, so it is well advised to seek out a care facility that has agreed to charge based on the ICBC “prescribed rates”. Otherwise, you are stuck paying the “user fees” because of the injuries suffered at the hand of the bad driver.

One benefit to the new program is you are now pre-approved for a certain number of treatments without the hassle of begging the ICBC adjuster for coverages. Pleading for coverage is common in the industry as there are plenty of ICBC adjusters that are slow responders to requests or chronic rejectors of requests.

On the other hand, under the No-fault scheme, other than the pre-approved treatments provided within the first 12 weeks, ICBC can deny a lot more treatment. The reason being, if you require more treatment than the maximum pre-approved allowance or require treatment more than 12 weeks after the accident, the treatment is deemed “not a necessary health care service” unless ICBC’s medical advisor or the claimant’s physician “certifies to ICBC in writing that, in the opinion of the medical advisor or physician, the treatment is necessary for the insured.” In other words, the No-fault scheme assumes that with minimal early treatment, you should be fine and on your way to complete recovery. In practice, however, that is simply not how claimants recover from injuries.

In summary, treatment expense recovery for accidents that occur on or after April 1, 2019 is now significantly reduced. There are still some claims to be made but the “user fees”, which form the largest part of a special damage claim, are no longer recoverable. Even then, the number of treatments available is significantly reduced short of a written medical opinion supporting extra treatment.

ICBC’S ALLOWABLE DEDUCTIONS FROM THE TORT CLAIM

Section 83 and 84 of the Insurance (Vehicle) Act were amended by Bill 20. These amendments apply to accidents on or after May 17, 2018 and allow a wide range of other potential coverages to be deductible from a tort claim by making ICBC a “secondary” payee. That is, all other available funding sources are considered first loss payees so that ICBC only pays if there is no other funding source.

The types of plans that ICBC becomes a secondary payee to include private insurance plans, Employment Insurance payments, government benefit plans and work-related benefit plans. For plans through your employment, the payments are factored into ICBC’s obligations to pay regardless of whether the administrator of the work plan frames the payment as a loan or advance on the plan.

Even more troubling is the fact that damages that ICBC would normally pay out are now deductible from the tort claim if the benefits were “paid or payable”. This means you cannot elect to go with ICBC and ignore your other benefit plans as ICBC can still deduct the payments you were entitled to receive from that plan even though you never received the actual payments. This means you need to take all steps possible to access all funding sources available to you.

If that isn’t enough, ICBC now can deduct potential Part VII benefits from any future care awards. In the past, deduction from future care due to the prospect of Part VII future coverage rarely occurred because we all know that ICBC may well cut a person off benefits for no reason at all. Now, however, the Court may not consider the likelihood that the benefits will be paid in the future by ICBC.

The one silver lining is that MSP payments and Workers Compensation Act payments are excluded so ICBC cannot deduct those payments from the tort claim.

The amendments also eliminate the subrogation rights of extended health benefits providers from claiming any repayment from the at-fault party following an accident. Subrogation is the right of a private insurer to recover payments made to the claimant under the policy of insurance in the situation where the payments are the result of an at-fault third party. This right, before the introduction of the No-fault scheme, existed because of years of case law and because the private insurance policies often contains contractual provisions that require the claimant to pursue a subrogation claim on behalf of the private insurer against ICBC.

Since the legislation was introduced, the private insurers have not “rolled over” but have been trying to find a “loophole” so they can continue receiving reimbursement either from ICBC or from the claimant. The original attempt to find a “loophole” was by having the claimants sign loan or advance payment agreements, but the Regulations passed in November 2018 closed that door and made loans and advance payments deductible from the tort claim. The next attempt is to write into the contract of insurance that no benefits will not be payable should the payments arise from injuries caused by an at-fault third party. The outcome of this change is that the claimant no longer is entitled to insurance benefits despite paying insurance premiums to maintain the plan.

There are some insurance companies that are going as far as to have claimants sign subrogation agreements, loan agreements or advance payment agreements so that if ICBC does not reimburse the claimant for the medical and/or wage loss benefits, the claimant still needs to pay back the full amount of the benefits. This means the claimant must dip into other heads of damages such as pain and suffering. If the claim has been capped at $5,500 for pain and suffering damages because it is a “minor injury”, and the insurance payments are significant, the claimant will receive very little in terms of compensation for his/her injuries and in some scenarios, will have to pay out-of-pocket.

To further illustrate the unfairness of the legislation to the injured victim, consider these scenarios. The first scenario is a claimant electing to use the insurance plan may have to repay the full amount of the benefits to the insurance company even though he/she did not recover the amount from ICBC. The second scenario is that the claimant decides not to use the insurance plan but ICBC takes the view the benefits that were “payable” are still deductible, so the claimant gets a reduced settlement despite never receiving money from the insurance company. Either way, it is the claimant that suffers economically and puts the claimant into a worse position than another claimant who has no private insurance plan to access.

ICBC may also look to deduct private insurance payment from a future care award as it is certainly open to ICBC to claim a deduction for private benefits payable in the future. One would expect the Court to give little weight to this ICBC argument as there are no guarantees the insurance coverages would continue uninterrupted.

In summary, the new legislation has given ICBC new powers to deduct other source payments from the tort claim, whether paid or not. The loser in the process is the injured victim because many insurance companies are still looking for reimbursement of their benefits paid regardless of whether the claimant can recover the payments from ICBC.

EXPANSION OF HEALTH CARE WORKERS THAT CAN WRITE HEALTH CARE REPORTS

Before the new legislation, Section 28 of the Insurance (Vehicle) Act allowed ICBC to obtain medical reports, commonly called a CL-19, for use in considering Part VII benefits. The reports were almost always written by family physicians.

Bill 20 introduced Section 28.1, which applies to accidents occurring on or after April 1, 2019. The new provisions expand the list of practitioners who will now be required to provide ICBC with reports. This is good news as non-family physicians tend to find more “objective” injuries that could potentially fall outside the “minor injury” category. For example, chiropractors tend to find more disc injuries than a family practitioner.

Through the new legislation, the list of practitioners who are required to provide reports to ICBC are referred to as “health care practitioners”. The list of “health care practitioners” includes psychologists, occupational therapists, nurse practitioner, dieticians, acupuncturists, massage therapists, traditional Chinese medicine practitioners, etc.

To emphasize the wide-reaching nature of health care practitioner”, the legislation defines the health care practitioner” as a medical practitioner, a nurse practitioner, a person who is entitled to practice a health profession under the Health Professions Act or “a person in a prescribed class of persons who provides health care”.  The definition of health care” was similarly added by Bill 20 and is defined as “anything that is done for a therapeutic, preventative, palliative, diagnostic, cosmetic or other health-related purpose”.

It is expected that these practitioners will be more “hands on” and provide opinions on injuries outside the cap. Family physicians have traditionally been more conservative in their views.

The fees for the health care reports are not great and may discourage participation in the program:

Health Care Service Fee Limit for Assessment and Report
Acupuncture $105
Chiropractic $199
Counselling $210
Kinesiology $135
Massage therapy $107
Physiotherapy $250
Psychology $340
Physicians $120 (standard)

$325 (extended)

$210 (re-assessment)

In summary, the legislation is greatly expanding the class of health care professionals that can provide opinions on a claimant’s injury. This is likely good news as more claims will fall outside the “minor injury” definition when non-tradition practitioners start to provide opinions as opposed to just family physicians.

The Civil Resolution Tribunal

INTRODUCTION

In February 2018, the government introduced Bill 22, the Civil Resolution Tribunal Amendment Act (the “CRT Act”). The Regulations to the CRT Act were introduced in November 2018. The stated intention is to move many of the ICBC claim disputes for accidents on or after April 1, 2019 into the jurisdiction of the Civil Resolution Tribunal (“CRT”). The CRT is now the avenue to dispute ICBC’s ruling on benefits owing and to dispute the classification of your claim as being a “minor injury”. Further, on damages and liability claims with a monetary value up to $50,000, the CRT has exclusive jurisdiction. The Supreme Court of British Columbia still has jurisdiction on claims worth more than $50,000.

As this is a new process, it is difficult to predict the outcome. One can anticipate the learning curve of lawyers, claimants, ICBC adjusters and CRT adjudicators will be steep. Also, there is a guaranteed to be a legal challenge on whether the program follows the Charter of Rights and Freedom as the CRT program creates two classes of people depending on injury or illness contrary to Section 15 of the Charter. Further, the CRT program removes power from the Courts contrary to Section 96 the Canadian Constitution.

This section of What ICBC Doesn’t Want you to Know attempts to demystify the CRT.

WHAT IS THE CIVIL RESOLUTION TRIBUNAL?

Section 17 (1) of the CRT Act provides for two phases in the CRT hearing. The first is the case management phase. The second is the tribunal hearing.

In the case management phase, the CRT hopes to reach a resolution by agreement by facilitating the process through a case manager. If the case management phase does not result in a resolution, the case manager will provide directions to the parties regarding the tribunal hearing such as timelines for disclosure, limits on evidence, etc.

In the tribunal hearing phase, the dispute is heard by an adjudicator and then a final decision is rendered.

The CRT is intended to be a layperson’s tribunal as the formality of a court case is discouraged at the CRT. Indeed, the CRT Act states that the “proceeding is to be conducted with as little formality and technicality and with as much speed as permitted by the requirements of this Act, the rules and a proper consideration of the issues in the dispute.”

In-person hearings, while discretionary, may be reserved for “extraordinary circumstances”. The hearing may be conducted in writing, by telephone, videoconferencing or email, or through other electronic means, or a combination of the above. Not all means of communication necessarily take place at the same time.

The tribunal may impose restrictions on a person’s participation in or attendance at the hearing and may exclude a person from the hearing until the tribunal orders otherwise.

A claimant and/or ICBC are permitted to have legal representation throughout the CRT process. It is likely, however, that many claimants will be on his/her own as the size of the claim will not make it difficult to retain a lawyer.

It remains to be seen how the CRT hearings will be conducted but currently, the CRT tends to make its rulings based on written submission of evidence and written argument.

HOW DO I START A CRT DISPUTE?

The CRT process is started by filing an “Initiating Notice”. The injured victim will be the party initiating the CRT process if he/she wishes to dispute the classification of the injury as “minor” or the scope of the benefits payable because the claimant has the burden of proof in those situations. ICBC or its counsel are more likely to file an Initiating Notice is situations where it is advantageous to restrict the case to $50,000 or less, least the financial impact from injuries continue to build over time.

Once an Initiating Notice is filed with the CRT, the initiating party must serve the Initiating Notice on the opposing party in accordance with the CRT Rules.

In the unlikely scenario where ICBC or the claimant do not respond, the CRT may do one of the following:

  1. Determine if the CRT has jurisdiction pursuant to the CRT Act;
  2. Refuse to resolve the claim pursuant to the CRT Act; or
  3. Proceed to the case management

In summary, ICBC will use the CRT process to try to limit the claim to $50,000 or less. The claimant is forced into filing with the CRT if he/she wants certain benefits that are being denied by ICBC or wants to challenge the “minor injury” categorization.

JURISDICTION OF THE CRT

Starting for accidents on or after April 1, 2019, the most notable change through Bill 22 is that it adds Part 10 (Tribunal Jurisdiction) to the CRT Act and under Division 7, has added Accident Claims.

The CRT now has jurisdiction over accident claims concerning:

  1. Benefits paid or payable;
  2. Minor injury determinations; and
  3. Liability and damage determinations if the claim is under $50,000.

Of the above list, the CRT has “exclusive jurisdiction” for benefits paid or payable and for minor injury determinations. The CRT is considered to have “specialized expertise” for liability and damages if the claim is likely under $50,000.

It is presumed the claim will fall within the $50,000 monetary limit “unless a party establishes on the basis of satisfactory evidence that there is a substantial likelihood that the damages will exceed the tribunal limit amount”. In other words, the claimant bears the burden of showing that the claim is more than $50,000 so cases are deemed to be within the CRT jurisdiction unless proven otherwise.

If the claimant can prove the case is likely more than $50,000, a request can be made to continue the case in the Supreme Court. However, a note of caution. If the case does proceed to the Supreme Court on liability and damages and the settlement or award is less than the CRT’s monetary limit, then costs and disbursements are limited to an amount that would have been allowed in the CRT proceeding (maximum of $5,000)

Interestingly, even if the case appears to be more than $50,000, the CRT case manager, during the case management phase, may, if requested by all parties, provide to the parties a non-binding evaluation of the likely amount of damages. This amount may not be disclosed to the Court or the Tribunal.

Note that the CRT does not have jurisdiction in relation to claims under the Family Compensation Act in respect of a death or claims under the Arbitration Act such as under insured motorist (UMP) claims.

EVIDENCE AT THE CRT HEARING

As the CRT is geared towards the layperson, the CRT is not bound by the rules of evidence so one can expect a lot of questionable evidence to make its way into the hearing for consideration by the adjudicator. Indeed, the adjudicator may receive or accept any information he/she considers relevant, necessary and appropriate whether admissible in Court. Further, the adjudicator may ask questions of the parties and witnesses so in other words, can take an active role in the introduction of evidence as opposed to listening to the parties and ruling on what evidence the parties lead. Still yet, the adjudicator can play detective as he/she may “inform itself in any other way it considers appropriate”.

Anyone familiar with Court system and the rules of evidence will realize the CRT is the “Wild West” when it comes to evidence. Basically, all evidence is potentially admissible and courtroom procedure is out the window. Such tribunals have often been coined a “Kangaroo Court”.

The CRT Rules clearly anticipate that evidence will primarily be admitted electronically. CRT Rule 17 states that parties must only submit original documents and physical evidence when they are directed or ordered to do so.

Like in Court, if you need a witness to attend the hearing there are avenues to compel attendance. A party may prepare and serve a summons to require a person to provide relevant evidence. The CRT has authority to cancel any summons in accordance with the CRT Rules. The CRT Rules are silent on when they may cancel the summons other than the general discretion to control its own process. CRT Rule 112 permits the CRT to issue summons to a person to provide expert evidence.

In summary, the evidence that can be admitted to the CRT is wide open as the rules of evidence do not apply. The hearings in the future will, no doubt, be filled with collateral and/or hearsay evidence that generally would not make its way into the Supreme Court but decides a CRT hearing.

EXPERT EVIDENCE FOR A CRT HEARING

Regarding expert evidence, CRT Rules 113 to 118 apply. The CRT can direct a party to obtain expert evidence or direct that all parties work together to obtain a joint expert. The CRT can also decide who pays for the expert opinion evidence.

A party relying on an expert opinion must produce the expert opinion to the opposing party by the timeline set out in the Tribunal Decision Plan. The disclosure must also include “the expert’s invoice and any correspondence with that expert relating to the requested opinion.”

The case manager may direct the type and quantity of expert opinion evidence before the hearing by:

  1. Limiting the number of experts, a party may call; or
  2. Limiting the giving of expert evidence in respect of one or more issues in a claim to an expert appointed by the CRT.

In other words, unlike the Court system, the CRT has been given power to control the opinion evidence that can be led at the hearing. In other words, the power to decide his/her case has been taken form the parties.

The CRT also has power to grant an independent medical assessment (“IME”). If requested by a party or on its own motion, the CRT may appoint an expert to conduct an IME and provide a report covering diagnosis, condition at the time of the IME and prognosis.

Other than an IME report resulting from the above appointment, a party may introduce expert evidence from one other expert.

The CRT may allow a party to introduce evidence “from up to 2 additional experts if the tribunal considers that the introduction of additional evidence is reasonably necessary and proportionate to the accident claim”. In other words, the claimant is limited to only one expert but can seek leave of the CRT to have up to two more experts if the need arises.

LIMITS ON COST RECOVERY AT THE CRT

There is no question that the limits on cost recovery will disadvantage the claimant in being able to fully present his/her case to the CRT.

$2,000 is the maximum allowable limit for “expenses and charges associated with” an IME, excluding reasonable travel and out of pocket expenses associated with the IME. The problem with the limit on the cost of the report is that IME reports always cost a lot more than $2,000. The question becomes whether experts will cut their fee to accommodate the CRT limit.

The same $2,000 maximum allowable amount applies to non-IME expert reports as well. With many family physicians, that limit does not present a problem for the claimant but with specialist reports, the claimant will be hard pressed to have the expense capped at $2,000.

$5,000 is the maximum total limit for “all recoverable fees, expenses and charges” relating to the CRT proceeding, exclusive of the IME associated fees and expenses. This includes tribunal fees, expert fees (separate from an IME through the CRT), and legal fees. On that limit, many claimants will not be able to produce all the evidence needed to win the case. For example, the claimant is over the $5,000 limit quite easily if he/she orders a family physician report, a specialist report and a wage loss report.

Unless the CRT orders otherwise, the expenses and charges associated with an IME are payable by the requesting party. The IME fees are shared between the parties if the expert is appointed by the CRT. The amounts payable are recoverable by the successful party.

The above limits make it difficult for the claimant to present a complete case before the CRT. A claimant will likely be forced into a hearing with partial evidence and far less opinion evidence that what one usually leads in Court.

THE INTERPLAY OF THE SUPREME COURT AND THE CRT

Bill 22 provides that if the CRT has jurisdiction over a claim it cannot be brought or continued in Court unless the CRT decides not to issue an Initiating Notice, refuses to resolve the claim as falling outside its authority, or otherwise refuses to resolve the claim.

Despite the CRT having jurisdiction to resolve the claim, a liability and damages determination up to $50,000 may proceed in Supreme Court if all parties consent. Therefore, the parties can consent to Supreme Court as the proper forum for the quantification of damages and/or the determination of liability. If the CRT process becomes backlogged or cumbersome, which is very likely, expect to see ICBC consenting to a Supreme Court action.

If the claimant can prove the case is likely more than $50,000, a request can be made to continue the case in the Supreme Court. However, if the case does proceed to the Supreme Court on liability and damages and the settlement or award is less than the CRT’s monetary, expect a penalty as limits the amount that would have been allowed in the CRT proceeding.

If a claim is brought in Court that is within the exclusive jurisdiction of the CRT (i.e. benefits or minor injury determinations), the Court must dismiss the proceeding.

If a claim is brought in court that is within the jurisdiction of the CRT and is a claim in respect of which the CRT is considered to have “specialized expertise” (i.e. liability and quantum up to $50,000), the court must dismiss the proceeding unless it is not in the interests of justice and fairness for the tribunal to adjudicate the claim.

The Court may order the CRT not adjudicate a claim if the CRT does not have jurisdiction or it is not in the interests of justice and fairness for the CRT to decide the claim. However, this does not apply when the CRT has exclusive jurisdiction over the claim (i.e. for benefits and “minor injury” determinations).

AUTHORITY TO REFUSE TO RESOLVE A CLAIM OR DISPUTE

The CRT may refuse to resolve a claim if it considers the claim would more appropriately be resolved by another legally binding process or has already been resolved through a legally binding process.

The CRT may also refuse if it decides “the request for resolution does not disclose a reasonable claim or is an abuse of process”, the “issues in the claim or the dispute are too complex for the dispute resolution process of the tribunal or otherwise impractical for the tribunal to case manage or resolve”, involves a constitutional question or application of the Human Rights Code or the CRT is otherwise satisfied the claim is beyond its jurisdiction.

APPEALS FROM THE CRT RULING

Bill 22 introduced Part 5.1 (Judicial Review of Tribunal Decisions) which is the legislation setting out the process of appealing a CRT final ruling. That provision makes s. 57 of the Administrative Tribunals Actapplicable to appeals.

An application for judicial review of a final CRT decision must be started within 60 days of the decision unless the Court orders otherwise.

Bill 22 adds a new section dealing with “standard of review” for CRT decisions which makes it very difficult to appeal any CRT decision. Basically, the CRT decisions regarding benefits, “minor injury” determinations or damages up to $50,000 (not liability) can only be successfully appealed unless the decision is “patently unreasonable”. This test applies on findings of fact or law or on an exercise of discretion on the part of the CRT.

How has “patently unreasonable” been described in the case law? The Supreme Court of Canada, in Law Society of New Brunswick v. Ryan, set out the test as:

  1. Clearly irrational;
  2. Evidently not in accordance with reason”; and/or
  3. So, flawed that no amount of curial deference can justify letting it

Applying to discretionary decisions, the Administrative Tribunals Act expressly provides that a decision is “patently unreasonable” if it:

  1. Is exercised arbitrarily or in bad faith;
  2. Is exercised for an improper purpose;
  3. Is based entirely or predominantly on irrelevant factors; or
  4. Fails to take statutory requirements into account.

In the rare situation where the issue on appeal is not concerning a finding of fact or law, an exercise of discretion, or a concern about natural justice and procedural fairness, the standard on review is “correctness”.

Simply put, it will be rare to find a final decision of the CRT that is appealable. Hence, expect some “eye opening decisions” to come out the of the CRT that become the law in ICBC claims.

Part 7/ VII Benefits

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

The following articles help you understand Part VII benefits.

WHAT ARE NO-FAULT / PART VII BENEFITS

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

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

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

WHO IS ENTITLED TO PART VII BENEFITS

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

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

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

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

HOW TO APPLY FOR PART VII BENEFITS

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

 

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

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

What ICBC generally asks for is:

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

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

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

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

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

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

TYPES OF PART VII BENEFITS

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

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

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

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

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

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

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

  1. Medical Benefits:

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

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

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

  1. Rehabilitation Benefits:

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

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

  1. Wage Benefits:

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

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

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

Unless the claimant purchased additional optional coverage, TTDs are calculated at 75% of the claimant’s average weekly earnings in the 52 weeks prior to the accident, up to a maximum of $300/week. Of note, this maximum figure has been in place for well over a decade and has not been adjusted for inflation so it is obviously inadequate for most claimants.

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

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

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

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

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

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

  1. Homemaker Disability Benefits:

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

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

  1. Death Benefits:

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

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

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

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

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

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

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

THE INTERPLAY OF PART VII AND WCB COVERAGE

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

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

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

FURTHER QUESTIONS FOR PART VII BENEFITS

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

DOES ICBC GET CREDIT FOR PART VII BENEFITS PAID?

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

IF ICBC REFUSED TO PAY PART 7 BENEFITS, WHAT CAN I DO?

ICBC can be sued for the payment of Part VII benefits under contract, but the lawsuit must be started within 2 years of the date of the accident or within 2 years of the date of the last Part VII payment, whichever is later. If the only issue is whether a medical or rehab expense is “reasonable”, this question must be decided by arbitration.

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

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

WHO AT ICBC HANDLES MY PART VII CLAIM?

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

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

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

CAN ICBC INSIST THAT I SEE A DOCTOR OF THEIR CHOICE?

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

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

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

CAN THE ICBC ADJUSTER INSIST THAT I TAKE CERTAIN TREATMENT?

Provided that your own doctor thinks the treatment is likely to help you and ICBC offers to pay for the treatment, Section 90 of the Regulations allows ICBC to insist that you undergo this treatment and allows ICBC to cut off benefits if you refuse to undergo this treatment.

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

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