ICBC sets internal policies/ procedures, which help them restrict what will be paid under Part VII
When a person is injured, regardless of fault for the accident, he/she is entitled to:
- Medical benefits;
- Rehabilitation benefits;
- Wage loss benefits; and/or
- Homemaker Disability Benefits
In the event of a death, Part VII death benefit coverage provides:
- Payment of funeral expenses, and
- Payment of loss of support benefits.
However, the benefits 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 handling adjuster at ICBC, you can go through the ICBC review procedure which starts with speaking to a manager or you can sue ICBC for coverage under your insurance contract. Alternatively, if you have a personal injury claim, you can look for payment of the expenses in that claim upon settlement or judgement.
Of note, ICBC is entitled to require a person to access and use other available benefit plans 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 work-related health plan, private insurance plan or access to government assistance, those plans must be used first before ICBC can be asked to pay.
Under Section 88(1) of the Regulations, ICBC is required to pay for all “reasonable” and “necessary” expenses for medication and therapy. This requirement gives the ICBC adjuster wide discretion on whether to pay for a medical expense as the adjuster decides what is reasonable and necessary. The question 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, rehabilitation or therapy expenses. For example, most adjusters currently will not pay for physiotherapy or massage unless these therapies are taken shortly after an accident, usually within 12 weeks, and even then, will only pay for a limited number of treatments, usually 12 visits. Such rules are not set out in the Regulations for accident claims before April 1, 2019 but now are part of the Regulations.
ICBC has set the following “prescribed rates” and limits on treatment for accidents that occurred on or after April 1, 2019:
|Type of Health Care Service||Fee Limit for Assessment Visit and Report||Fee Limit for Standard Treatment||Number of Pre-Authorized Treatments|
One benefit to the new program for accidents on or after April 1, 2019 is that you are now pre-approved for a certain number of treatments without the requirement to seek out approval from an ICBC adjuster. However, other than the pre-approved treatments provided within the first 12 weeks, ICBC can deny a lot more treatment under Part VII. 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 Part VII benefit plan now assumes that with minimal early treatment, you should be fine and well on your way to complete recovery. In practice, however, that is simply not how claimants recover from injuries.
Of note, there is often a disconnect between the actual rate charged by a treatment provider and the ICBC “prescribed rate” for treatment. The difference is called a “user fee”. For injury claims before April 1, 2019, adjusters sometimes paid the “user fees” upfront or forced the claimant to wait until settlement to recover the “user fees”. For accident claims on or after April 1, 2019, the “user fees” are no longer recoverable.
ICBC is also resistant to paying alternative medicine expenses such as herbal remedies, Chinese medicine, IMS (needling), etc. despite the fact these treatments often help an injured party and are recommended by the treating physician.
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 rehabilitation expenses than with the medical expenses. 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 usually apply to more serious injury claims and include attendant care at home, occupation therapy services, wheelchairs, modified vehicles, home renovations for disability reasons, and specialized 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 to minimize the pay-out.
Section 80 of the Regulations provides for payment of wage benefits if an accident and resulting injury prevents a person from working. These benefits are called Total Disability Benefits or “TTD benefits”. To qualify for TTD benefits, 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 leave benefits, a private benefit plan covering disability or a sick bank at work. Unfortunately, EI sick leave benefits are often not paid promptly. This creates a long waiting period for receipt of ICBC TTD benefits. It is a good idea to apply for EI sick leave 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 TTD benefits awaiting a response on EI coverage.
ICBC does not have to pay TTD benefits 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 benefits available through a private insurer or your place of work.
For accidents that occurred before April 1, 2019, the amount of TTD benefits is capped at a maximum of $300/week unless the claimant purchased optional Part VII coverage when placing his/her car insurance. The amount has been increased to a maximum of $740 per week on accidents that occur on or after April 1, 2019. The exact coverage is calculated at 75% of the injured person’s average weekly earnings in the 52 weeks before the accident. For a student or someone who has not worked full-time in the year before the accident, this formula can result either in not being entitled to TTD benefits or only being entitled to a modest amount of TTD benefits.
If the injured person has other wage disability coverage, TTD benefits can still be accessed, provided the total amount received is not greater than 75% of the average weekly earnings in the year before the accident. For example, if the private plan provided payment of 2/3 of the lost income, TTD benefits can be used to top up the total benefits received to 75%.
When an injured person attempts to return to work unsuccessfully, TTDs should continue. However, in practice, the ICBC adjuster uses that opportunity to cut a claimant off TTD benefits to encourage a permanent return to work.
“Total Disability” is a confusing term as claimants are entitled to the TTD benefits even if he/she is not completely disabled. That is, the injured person is still able to collect TTD benefits if he/she is still unable to do each part of his/her job. The Court has held that a person is entitled to TTD benefits if he/she “cannot perform any substantial requirement” of his/her ordinary job.
If an injured person cannot do his/her own job, the person is entitled to receive TTD benefits or a period up to 2 years after the accident. Beyond 2 years, they are entitled to continue TTD benefits only if the claimant cannot do any job that he/she would be suited for based on his/her age, education, and experience. TTD benefits 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 disability benefits are received, the amount of ongoing TTD benefits is reduced by the amount of CPP disability benefits being received. The reason being, 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, which limit increases to $300,000 for accidents on or after April 1, 2019. TTD benefits are coverages above the maximum limit.
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 for accidents before April 1, 2019 and $280/week on accident that occur on or after April 1, 2019.
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.
In practice, many ICBC adjusters resist paying for homemaker services except in serious injury situations as the perception is the adjuster is helping “build” the personal injury claim by acknowledging the claimant’s inability to care for the home.
In the event of a death resulting from an accident, Part VII provides for payment of certain death benefits.
Section 91 of the Regulations provides for the payment of funeral expenses up to a maximum of $2,500 on accidents before April 1, 2019 and $7,000 thereafter. You need only show receipts to ICBC exceeding these amounts and if so, the entire amount of the funeral expenses will be paid up to the maximum allowance.
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 amount of benefits is more if the person killed was the “head of household” as defined in Section 92 of the Regulations.
For illustration purposes, on accidents before April 1, 2019, 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.
For accidents that occurred on or after April 1, 2019, the death benefit maximum has increased to $30,000.
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 death claim, so they are just an advance on the death claim, unless the deceased was at-fault for the accident in which case the payment is the maximum available coverage.