Limits on Special Damage Recovery

ICBC has been advertising that the new legislation includes the coverage of all treatment expenses, this statement is untrue

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.