New ICBC Caps – Info for Healthcare Providers

GOVERNMENT OF BRITISH COLUMBIA IMPOSES CAPS ON ICBC CLAIMS

The BC Government has amended the Insurance (Vehicle) Act. These amendments change the way injury claims from motor vehicle accidents are made in this province.

Under the new Insurance (Vehicle) Act your patients are having to navigate significant changes in the law pertaining to prescribed treatment within new time frames. As a free service, our office would be pleased to answer any questions you may have about the new legislation as it relates to Health Care Providers.

WHO IS IMPACTED?

These changes only impact injury claims for motor vehicle accidents, which occur on or after April 1, 2019. All injury claims for accidents occurring before April 1, 2019, remain under the previous system.

After April 1, 2019, the BC Government will impose a maximum cap of $5,500 on all non-pecuniary damage claims arising from motor vehicle accident where it is deemed that the injured party suffered a “minor injury“.

“Non-pecuniary damages” are non-taxable compensation for pain, suffering, the loss of dignity, and the loss of enjoyment of life to a person injured by the fault of another person.

A “minor injury” is defined as a physical and mental injury or symptoms, whether or not chronic, that is

  1. a psychological or psychiatric condition that does not result in an “incapacity”;
  2. a concussion or brain injury that does not result in an “incapacity”;
  3. a TMJ or temporomandibular joint disorder;
  4. whiplash associated injuries (“WAD” injuries), including neck, back and/or shoulders;
  5. chronic pain, i.e. pain lasting more than 3 months;

that does not result in a “serious impairment” or a “permanent serious disfigurement”.

A “serious impairment” is a physical or mental impairment that is not resolved within 12 months from the date of the accident and

  1. the impairment results in a substantial inability of the injury person to perform
    1. the essential tasks of their regular employment, occupation or profession despite reasonable efforts to accommodate;
    2. the essential tasks of their training or education program despite reasonable efforts to accommodate; or,
    3. their activities of daily living;
  2. the impairment is primarily caused by the accident and is ongoing since the accident;
  3. the impairment is not expected to improve substantially.

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

  1. the essential tasks of their regular employment, occupation or profession despite reasonable efforts to accommodate;
  2. the essential tasks of their training or education program despite reasonable efforts to accommodate; or,
  3. their activities of daily living.

A “permanent serious disfigurement” is a permanent disfigurement that significantly detracts (as set out in the prescribed criteria) from a person’s physical appearance. It is not enough that a disfigurement detracts from a person’s appearance it must “significantly detract”.

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IMPACT OF CHANGE?

Decisions will now be made by the Civil Resolution Tribunal. The Civil Resolution Tribunal is an online tribunal originally designed to address small claims disputes under $5,000 and strata property claims through a digital dispute resolution process. Often there is no in-person hearing and decisions are made by a government employee by email or telephone. Under this system, there is little opportunity for an injured person to fully challenge the evidence presented by ICBC.

For these reasons all healthcare providers’ clinical notes and records have taken on a whole new importance and function. A self-represented injured person is now required to understand their healthcare providers’ clinical notes and records in order to prove the extent of their injuries to the Civil Resolution Tribunal.

It is not the function of the Civil Resolution Tribunal to advocate for any party. However, as ICBC will likely be represented by experienced claims adjusters or legal counsel, the self-represented person has only your clinical notes and records to rely upon.

Further, the Civil Resolution Tribunal cannot reimburse an injured party for an independent medical report in excess of $2,000. An injured party may only acquire one of those reports. The remainder of the evidence must be clinical notes and records.

NEW PATIENT CARE OBLIGATIONS

A “health care practitioner” means a medical practitioner, a nurse practitioner, those prescribed in the health professions act (e.g. all dental providers, massage therapy, naturopaths, nursing, occupational therapy, opticians, physical therapy, psychology, traditional Chinese medicine and acupuncture, audiology and speech-language pathology, chiropractic, optometry, pharmacy, dentistry), and any other practitioner listed in the forthcoming regulations.

An injured person has 12 weeks to seek treatment from a healthcare provider. A failure to see a physician or to follow a prescribed treatment protocol could result in a person with an otherwise serious injury to be deemed to have a minor injury.

The new law places the following obligations on all health care practitioners:

  • Use evidence-informed practice to establish a diagnosis of an injury and provide treatment or make a referral for treatment;
  • Establish a diagnosis for abrasions, concussions, contusions, lacerations, pain syndromes, sprains, strains, TMJ disorders and whiplash associated disorders;
  • Establish a diagnosis for all psychological or psychiatric conditions by using the most recent published edition of the Diagnostic and Statistical Manual of Mental Disorders;
  • Educate the patient regarding the following:
    • if applicable the desirability of an early return to the pre-injury activities and employment or education;
    • an estimate of the probable length of time symptoms will last;
    • usual course of recovery;
    • probable factors that are responsible for symptoms the patient may be experiencing;
    • appropriate self-management and pain management strategies; and,
    • when treating a pain syndrome or psychological condition the health care practitioner must identify comorbid conditions if applicable.

While you may already do this in your practice, each of the above items must be documented in your clinical notes and records.

The new law provides that a patient, who without reasonable excuse, fails to seek a diagnosis or comply with any prescribed treatments may lose entitlement to compensation.

As previously noted, your patients will be relying on you to follow the protocols and prescribe treatment in accordance with the new time frames, and we can help you navigate this new reality to ensure minimal impact on your practice.

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ROLE OF ICBC, HEALTH CARE PRACTITIONERS, AND REGISTERED CARE ADVISORS

Previously, ICBC had the ability to obtain medical reports (otherwise known as a CL19 Report) as part of the Part 7 no-fault benefits scheme.

The new law provides a more general but expanded list of healthcare practitioners from whom ICBC can request reports. Under this new law, a healthcare practitioner must provide a report that includes the following information to the extent known by the health care practitioner:

  1. the nature and extent of the injured person’s injuries;
  2. the injured person’s diagnosis;
  3. the injured person’s condition at the time health care was provided
  4. the treatment provided or recommended by a health care practitioner;
  5. the injured person’s prognosis.

These reports must be in the form established by the corporation and may vary depending on the type of health care practitioner. This report may appear very similar to current reports.

The new law also incorporates a new term – “registered care advisor”. A registered care advisor is defined as a person who:

  • is not the treating physician who is making the referral or a physician performing treatment recommended;
  • is registered in good standing and in a full class of registration with the College of Physicians and Surgeons;
  • has practiced medicine (excluding research, teaching and administrative work) within the scope of the physician’s certified training and experience for at least 24 weeks in the last 3 years;
  • has annually declared to the College of Physicians and Surgeons that they are knowledgeable in evidence-informed practice with specific competencies in the assessment and treatment of musculoskeletal injuries, acute and chronic pain or mental health issues and other psychosocial issues; and,
  • is presently on the established register for registered care advisors maintained by the Attorney General.

The definition of a registered care advisor does not include:

  • chiropractors,
  • physiotherapists,
  • psychologists,
  • occupational therapists,
  • neuropsychologists,
  • clinical counsellors, or
  • kinesiologists.

The new law requires a treating physician to consider referring his or her patient to a registered care advisor for an assessment no later than 90 days after the accident date. The referral is not mandatory.

There will be a registry of registered care advisors from which you can choose and you will receive a written report from the registered care advisor.

The fee reports are as follows:

Health Care Service Provided by a Physician Fee Limit for Health Care Service Provided by a Physician
Standard assessment and report $120
Extended assessment and report $325
Re-assessment and report $210
Initial registered care advisor assessment and report $380
Follow-up registered care advisor assessment $120

The new regulations have set the following limits for health care expenses for injured persons:

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

There are pre-authorized treatments for those injured in motor vehicle collisions. This means a person does not require approval for reimbursement of any of the above treatment if it is sought 12 weeks after the date of the motor vehicle accident. Treatment following the pre-authorized limit or treatment that starts 12 weeks after the date of the motor vehicle accident date may not be paid for unless authorized by ICBC or a treating physician.

EXPENSES HIGHER THAN ICBC’s FIXED RATES ARE NOT RECOVERABLE BY THE INJURED PERSON

While the non-pecuniary damages cap has made most of the headlines, the BC Government has also imposed a cap on an injured person’s right to be repaid treatment costs.

Previously a person injured in a motor vehicle accident was able to claim reimbursement for reasonable health care costs associated with being injured in a motor vehicle accident.

After April 1, 2019, the BC Government has limited the right of injured parties to claim a expenses beyond the limits set.

For example, under the new law if a physiotherapist charged $100 per session and the regulation is set to $79 per session (the current limit) then the injured person has no ability to seek the remaining $21 from the at-fault driver.

It is unclear if extended health providers will cover the difference between the actual cost of the therapy and the prescribed limits.

SUMMARY

The law has changed in British Columbia. Hutchison Oss-Cech Marlatt has vast experience managing various insurance systems, including ICBC, Long-Term Disability, and WorkSafeBC. We are pleased to answer any questions.

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