GOVERNMENT OF BRITISH COLUMBIA IMPOSES CAPS ON ICBC CLAIMS

The BC Government amended the Insurance (Vehicle) Act and the Civil Resolution Tribunal Act. These amendments change the way ICBC claims are processed in this province.

These changes will only affect injury claims for motor vehicle collision which occur on or after April 1, 2019.

All injury claims for accidents occurring before April 1, 2019, remain under the previous system. Until April 1, 2019, all non-pecuniary damages for “pain and suffering” are assessed by a judge or jury on a case-by-case basis.

After April 1, 2019, the BC Government will impose a maximum cap of $5,500 on all claims for pain, suffering, loss of dignity and loss of enjoyment of life arising from “minor injuries” as a result of a motor vehicle collision that is the fault of the other driver.

A “minor injury” is defined as a physical and mental injury or symptom, no matter how long they last, 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) involving the neck, upper, shoulder, and mid and low back;
  5. chronic pain – or pain that is not likely to go away; and
  6. abrasions, contusions, lacerations, sprains or strains;

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 new rules) from a person’s physical appearance. It is not enough that a disfigurement detracts from a person’s appearance it must “significantly detract”.

It appears that most of the above criteria must be met before the injury will be removed from the “minor injury” category.

EFFECT OF THE CHANGES

If the claim is deemed a minor injury, then decisions will now be made at 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.

It is not the function of the Civil Resolution Tribunal to advocate for any party.

WHAT YOU SHOULD KNOW

An injured person has 12 weeks to seek treatment from a physician. Failure to see a physician or to follow a prescribed treatment protocol could result in that person who may have a serious impairment, being deemed a minor injury.

ICBC will have increased ability to request reports from all of your healthcare providers setting out, among other things, whether the condition is minor and to specify the treatment protocol that must be followed. Failure to follow the treatment protocol may cause what otherwise is a serious impairment, to be deemed a minor injury.

WHAT CAN HUTCHISON OSS-CECH MARLATT DO FOR YOU

We have extensive experience in various types of insurance systems including ICBC, Long-Term Disability, Extended Health Benefits, and WorkSafeBC. We know how to navigate these uncertain times.

Our aim is to help you understand your legal rights and obligations when consulting your healthcare provider and when considering a prescribed treatment protocol, so that you do not mistakenly jeopardize your right to proper compensation.

YOUR OUT OF POCKET EXPENSES

While the $5,500 cap has made most of the headlines, the BC Government has also imposed a cap on an injured person’s right to recover the full treatment costs.  An at-fault driver will not pay for the portion of the expense that ICBC has not and will not cover.  Any expense you incur that is beyond the limits set by ICBC for chiropractor, massage, physiotherapy, etc. will be paid by you.  This is a significant change.

Prior to April 1, 2019, a person injured in a motor vehicle was able to claim reasonable and necessary health care expenses resulting from a motor vehicle accident.  Your actual out of pocket expense was covered.

After April 1, 2019, the BC Government has limited the right of injured parties to be repaid for out of pocket expenses for treatment to only the amount set out in the regulations.

If a physiotherapist charges $100 per session and the regulation sets the allowable expense at $79 per session (the current limit for each session of treatment, not including an initial assessment) then the injured person has no ability to seek the remaining $21 from the negligent driver. This cost is being shifted entirely onto the injured and innocent party.

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

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 within 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.

If you have extended health coverage, it is unclear if your extended health provider will cover the additional cost of therapies resulting from the motor vehicle accident.

You should discuss these implications with your extended health benefit provider prior to incurring the expense.

SUMMARY

The law has changed in British Columbia. If you are involved in a motor vehicle collision after April 1, 2019, you should seek legal advice immediately. It is no longer enough to see your healthcare provider and consider your legal rights at a later date.  To ensure that you receive proper compensation, you must understand the new system.

Hutchison Oss-Cech Marlatt has vast experience managing various insurance systems. We know how to prove your claims. If you have been injured in a motor vehicle collision it is important to learn about your rights and obligations under the new law.

We will help.