IMPORTANT CHANGES TO ICBC CLAIMS

As you may have heard, the BC government has introduced a number of important changes to motor vehicle accident claims. This article will summarize the most significant changes in the law, most of which came into effect on April 1, 2019.

The new laws are complicated and will likely continue to change, so it is important that you contact a lawyer as soon as possible if you are involved in a motor vehicle accident on or after April 1, 2019.

Minor Injury Laws

For motor vehicle accidents that occur on or after April 1, 2019, there is a $5,500 cap on damages for pain and suffering if you sustained a "minor injury". You will still be able to claim for income loss (past and future), costs of future care, and special damages (expenses you paid for as a result of the accident).

The $5,500 cap does not apply to motor vehicle accidents that occurred before April 1, 2019.

So, what is a minor injury? The new legislation defines a minor injury as any of the following:

  • Abrasion (cut or scrape)
  • Contusion (bruise, which could include bruising to internal organs)
  • Laceration (a deep cut or tear)
  • Sprain (an injury to ligaments, unless all of the fibres of a ligament are torn)
  • Strain (an injury to muscles, unless all of the fibres of a muscle are torn)
  • Pain syndrome (in other words, a chronic pain condition)
  • TMJ disorder (injury to the joint of your jaw)
  • Whiplash (unless it is classified as Grade 3 or 4)
  • Concussion
  • Psychological or psychiatric condition (which could include anxiety, depression, PTSD)

Injuries not in the above list are not considered "minor", such as fractures, dislocations, amputations, completely torn muscles or ligaments, nerve/spinal cord damage, etc. However, the government is able to update this list at any time, so more injuries may become "minor" in the future.

If you suffered one of the above injuries, it will not be minor if it results in a "permanent serious disfigurement" (significantly alters your appearance) or if it meets all of the following requirements:

  1. Lasts longer than 12 months (16 weeks for concussions or psychological/psychiatric conditions);
  2. Causes you to be unable to perform essential work/school tasks or activities of daily living;
  3. Primarily caused by motor vehicle accident;
  4. Ongoing since the motor vehicle accident; and
  5. Not expected to improve substantially (in other words, permanent).

Activities of daily living include preparing meals, managing finances, shopping for yourself, transportation, housework, personal hygiene and self-care, and managing medication.

Even if your injury lasts longer than 12 months, it will still be minor unless it affects your ability to work, go to school, or perform your daily activities. Because of this, it is very important that you speak to your doctor about your work/school duties and daily activities, and any difficulties you have.

Also, if you do not seek a diagnosis for your injuries or do not follow the treatment recommendations of your doctor or other therapists, then your injury will be deemed a minor injury. Therefore, it is very important that you see a doctor right away to seek a diagnosis and then follow your doctor's recommendations 100%. You must also follow the advice of any other health care practitioners you receive treatment from (including physiotherapists, occupational therapists, massage therapists, kinesiologists, chiropractors, acupuncturists, counsellors, and psychologists).

If your injuries affect your ability to go to work or school, you must ask your doctor and employer/school about possible accommodations that would help you go to work/school. If you do not attempt to use accommodations provided by your employer/school, then ICBC can say your injuries are minor (even if your ability to work/go to school is affected more than 12 months after the accident).

If ICBC says your injuries are "minor", then it is up to you to prove that they are not. If you want to dispute a minor injury decision, you must go through the Civil Resolution Tribunal (CRT), a new tribunal that is primarily on-line. Minor injury disputes will not be resolved by the courts.

We have attached a flowchart at the end of this article to assist in determining which injuries are minor and which are not.

Changes to Special Damages Claims

If you are involved in a motor vehicle accident on or after May 17, 2018, you must submit all of your medical expenses to your extended health insurance (if you have coverage). If you do not, ICBC will deduct any benefits you could have received from your settlement.

Further, insurers are no longer able to recover the benefits they paid to you from ICBC (known as subrogation). Because of this, your insurer may refuse to pay benefits if you were injured in a motor vehicle accident. Some insurers will still require you to sign a subrogation agreement, meaning they will attempt to make you re-pay benefits you received.

For motor vehicle accidents on or after April 1, 2019, you will not be able to claim user fees as special damages at the end of your case. Therefore, before you start treatment at a clinic, you should ask the clinic if you will be charged a user fee.

For accidents on or after April 1, 2019, you must submit any receipts for medical or rehabilitation expenses to ICBC within 60 days of the date the expense was incurred. It is very important to keep track of all of your receipts and submit them as soon as possible.

If you don't submit receipts within 60 days, you likely will not be able to claim them as special damages at the end of your case. Since you cannot claim user fees, these receipts will mostly be for medication, transportation costs, assistive aids (such as canes or grab bars), therapeutic/exercise equipment (such as massage devices, exercise balls, elastic bands), ambulance expenses, dental expenses, gym passes, etc.

Changes to Income Loss Claims

For motor vehicle accidents on or after May 17, 2018, if you miss any time from work, you must apply for EI benefits and/or disability benefits through your private insurance/employer (if available) as soon as possible. You must also apply for any other government benefits available (which could include CPP disability or Persons With Disabilities (PWD) benefits). ICBC can deduct all income loss benefits that you could have received from EI, your insurer/employer, or the government from your settlement.

You should contact a lawyer right away to determine what income loss benefits may be available to you.

Further, insurers/employers are no longer able to recover the benefits they paid to you from ICBC (known as subrogation). Because of this, your insurer may refuse to pay benefits if you were injured in a motor vehicle accident. Some insurers will still require you to sign a subrogation agreement, meaning they will attempt to make you re-pay benefits you received.

The Civil Resolution Tribunal

As mentioned earlier, all disputes regarding minor injury determinations must go through the CRT. In addition, the CRT will also handle disputes regarding no-fault benefits and liability/damages claims for claims that are worth $50,000 or less (for motor vehicle accidents on or after April 1, 2019).

The CRT is primarily on-line (see https://civilresolutionbc.ca/) but it may involve communication via email, telephone, or video, or in rare cases in-person hearings. There are a number of steps and deadlines that you must be aware of. Since this is such a new platform, you should speak to a lawyer to assist you with understanding the CRT process.

Summary

As you can see, the changes to ICBC claims are complex and affect multiple aspects of your claim. Therefore, if you are involved in a motor vehicle accident after April 1, 2019, we highly recommend that you speak to a lawyer as soon as possible to assist you with navigating the ever-changing ICBC landscape and so you can be aware of your rights.

You may call us at 604-284-5633 to arrange a free consultation.

Minor Injury Flowchart

Flowchart

Ryan Chew, J.D., Chouinard and Company