In the early stages after the accident your injury could have been labeled a “minor injury”, even if your injury gets worse
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.