Since the news was announced by the provincial government that major changes are coming with respect to ICBC payouts for injury claims, most notably a cap of $5,500.00 for pain and suffering on minor injury claims, I have had many calls from clients wondering how their current claims will be affected.
The new changes are set to take effect in the form of legislation on April 1, 2019. Any motor vehicle accident occurring prior to that time will not be affected by the new cap.
It is interesting to note that, even under the new system, if you elect to pay an additional $1,300.00 per year in insurance premiums on top of your regular premiums, then you would be entitled to a cap of $75,000.00 for pain and suffering, even if your injuries are “minor” in nature.
It is worthy to note that the new cap will not affect awards for income loss or costs of medical treatment.
What is a “minor” injury ?
However, it remains to be seen as to what constitutes a “minor” injury. It is expected to include strains, sprains, soreness, bruising, as well as anxiety and stress arising from an accident. It is expected that ICBC itself will develop the definition of “minor”, and that a medical professional, not ICBC, will determine whether the nature of an injury is classified as “minor”. Who this “medical professional” will be, however, remains to be seen.
A driving force behind the new legislation is the government’s desire to have claimants not seek legal representation, which in turn requires ICBC to appoint counsel as well to defend claims. 24% of ICBC’S alleged financial woes are accounted for by legal costs.
More serious injuries, such as concussions, fractures, ligament tears, nerve damage, and other forms of objective injuries will not fall within the purview of the cap.
If there is a dispute as to the classification of an injury as “minor”, a claimant will be required to submit their dispute to the B.C. Civil Resolution Tribunal. Pursuant to section 20 of the Civil Resolution Tribunal act, however, the general rule is that claimants are to represent themselves. This is further proof of the government making every effort possible to see that claimants do not get lawyers to represent them.
Other notable changes include :
An increase from $150,000.00 to $300,000.00 for accident benefits in the form of medical care and recovery costs; this is a hardly a concession, as it is quite rare that any claimant would even require up to the original amount of $150,000.00.
An increase from $300.00 weekly to $740.00 for weekly for interim income loss compensation. Although it may be more helpful to claimants on an interim basis, this will not make any difference to the amount of money ultimately paid out to a claimant for the balance of income loss at settlement time.
An increase to the amounts covered for treatment costs, so that claimants don’t have to pay as much of their own money for “user fees” along the way. “User fees” are reimbursed at settlement time anyways, so this can hardly be seen as a major improvement for claimants, who in many cases already have assistance with “user fees” on an interim basis prior to settlement time.
An increase in homemaker benefits from $145.00 per week to $280.00 per week. ICBC does not always accommodate such requests in any event, and often insists on occupational therapists visiting your home and asking a wide variety of questions, which many claimants find invasive.
Once the new law is passed on April 1, 2019, rest assured that there will be a court challenge brought by the Trial Lawyers Association of British Columbia. There is some legal precedent with respect to challenging legislation that seeks to strip motor vehicle accident victims of their rights. When the Alberta government passed similar legislation, it was challenged in court, where the legislation was deemed unconstitutional by Justice Wittmann, who commented that the legislation “sacrifices the dignity of Minor Injury victims at the altar of reducing insurance premiums“. However, the Alberta Court of Appeal reversed the decision, and leave to appeal to the Supreme Court of Canada was denied.
Although the current government will be implementing the new changes, it will ultimately be left to the Courts to decide whether a cap on pain and suffering for “minor” injuries will remain in this province.