Good advice.

Good advice.

Changes at ICBC – B.C.’s New ‘Cap’ System

DBM Law Blog

Even though your case won’t be affected, I want you to know about the changes to ICBC coverages effective April 1st 2019.

1. The maximum compensation allowed for a pain and suffering award will be reduced from $370,000 to $5500, unless an innocent accident victim can prove the injury is “major or catastrophic”.

A “minor” injury will be capped at $5500 for pain and suffering if a “medical professional

 

independent from ICBC” assesses the injury as a sprain, strain, general aches and pains, cuts, bruises, road rash, “minor” whiplash, pain in the jaw joint, “mild” concussions and “short term” mental health conditions (such as depression).

All of the other provinces in Canada have a form of this type of “cap” or “no fault” system. The puzzle is always trying to find the border between a “minor” and a “major” injury. In BC, a “mild” concussion will become a major concussion if “there is a significant impact beyond 4 months”. An “independent” medical profession will decide what a significant impact is. The same 4 month threshold applies to depression or other mental health injuries.

For all other injuries, if your life is “impacted” for more than 12 months, you have a major injury and a $370,000 limit for pain and suffering damages. ICBC’s website gives examples of impacts such as 12 months of work loss or work modifications, or if you can’t look after yourself for that period of time.

In order to find out if you have a “major” injury, the new rules will allow you to apply to the “Civil Resolution Tribunal” (“CRT”). The CRT is staffed by lawyers appointed by the government. You will be able to submit a medical report and set up a scheduled telephone hearing with the CRT, and a lawyer will question you over the phone about your injury. If you are unsatisfied with the CRT’s decision, you can appeal to a judge.

Accident victims found to have “minor” injuries can still claim for wage loss and out of pocket treatment expenses.

2. Coverage for treatment costs and wage replacement benefits will increase substantially. This type of coverage is often called “no fault benefits” because you are covered even if the accident is your fault. These changes are retroactive, so they do benefit your case.

Therapy such as chiropractic, physiotherapy and massage therapy should no longer cost you anything (although ICBC says only that “you shouldn’t be out of pocket”).

New naturopathic treatments will be covered up to a total of $1000.

Wage replacement benefits will increase from $300 to $740 per week.

Housekeeping benefits, such as help with cleaning, shopping and cooking (if prescribed by a doctor) will increase from $145 to $280 per week.

Funeral benefits increase from $2500 to $7500; and death benefits from $20,080 to $30,000.

Overall, the policy limit for all kinds of treatment (and excluding your right to wage replacement benefits) will increase from $150,000 to $300,000.

Any dispute about coverage or payment will be decided by the CRT.

All of the changes to pain and suffering claims and treatment and benefit entitlements will need to be clarified by court decisions, particularly regarding the minor vs major injury definition. Tellingly, ICBC’s changes are more strict, and cut out more claims than “caps” systems in other provinces such as Alberta, Ontario and the Maritimes, where insurers are private companies. This is intended to help ICBC restrict the vast majority of pain and suffering claims to the minor category, and judges will have little discretion to overturn CRT decisions. The harsh application of the $5500 cap to injuries which may involve lifetime symptoms may capture as many as 96% of all injuries and, ICBC hopes, save $1 billion a year.

Such hopes have not been realized in other provinces with “caps”. Increased “no fault benefits” claims skyrocketed in Ontario after caps were introduced in 1989. Ontario drivers paid more for auto insurance, on average, than in any other province until 2018. BC drivers should expect that, if these ICBC changes don’t produce immediate decreases in premiums, the government will use its legislative power to reduce benefits further.

Call me if you have any questions.

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