Rose Keith,

(2nd half of) - SURVIVORS GUIDE TO ICBC: Understanding the basic procedures, rights and obligations when dealing with ICBC

Article by:  Rose Keith, BA JD Personal Injury Lawyer, Vancouver, BC

Table of Contents - Section II Page
What to do when you don’t agree with the adjuster’s assessment of fault 14
Insurance policy basics 15
No fault benefits 16
"tort" claim 18
What to expect when you are making a claim 20
Tips to help you survive and thrive your ICBC claim 22
This Guide is meant to provide general information and to serve as a starting point in your understanding of the consequences of being involved in a motor vehicle accident in British Columbia. It is not meant to serve as or replace the necessity for legal advice regarding your specific circumstances.

What to do when you don’t agree with the adjuster’s assessment of fault

“Responsibility” the state or fact of being responsible, answerable, or accountable for something within one’s power, control or management.” Dictionary.com

Generally an adjuster should advise you within 30 days of the accident of their decision regarding fault. The adjuster’s decision regarding fault is not final however. The courts ultimately have the final say with respect to who is at fault. You can however also appeal the adjuster’s assessment of fault internally at ICBC. The first step in the ICBC internal review process is for you to ask to speak to the adjuster’s manager who will then review the case and may make a change in the assessment of fault.

If you still don’t agree with the assessment you can proceed to a Claims Assessment Review.  This process is only available if you are not making an injury claim.  In a Claims Assessment Review an independent decision maker who is not a part of ICBC makes a decision about fault.  The decision will be based on a review of written submissions by you regarding fault, as well as the material and statements that have been gathered by ICBC.  The decision that is made under a Claims Assessment Review is binding on ICBC, but it is not binding on you so if you still disagree with the finding of fault you can still proceed to the court for a determination of fault.  You cannot apply for a Claims Assessment Review until the initial adjuster has made their decision and you have had the adjuster’s manager review the decision.  To start the Claims Assessment Review process you have to submit a written application and this must be received within 60 days of you receiving the letter about the fault assessment. You will have to submit a $50 fee for the Claims Assessment Review.  This fee will be reimbursed to you if the Claims Assessment Review decides fault in your favour.

If you do not agree with the Claims Assessment Review you can proceed to court to have a judge decide fault. This is also the only avenue available to you if you have an injury claim. Following a court decision, ICBC will change their fault decision to reflect that which was found by a court.

Insurance Policy Basics

Insurance is the equitable transfer of the risk of a loss, from one entity to another in exchange for payment. It is a form of risk management primarily used to hedge against the risk of a contingent, uncertain loss. Wikipedia

There are two types of insurance in the British Columbia auto insurance market. The first is the mandatory insurance which is also referred to as Basic Insurance. This must be purchased from ICBC. The second is Optional insurance which may be purchased from ICBC or one of the private insurance companies that offer this type of insurance. The available insurance provides protection for the individual insured against damages to property as well as claims arising from injury to third parties from motor vehicle accidents.

Basic insurance is the compulsory insurance that all vehicle registered in British Columbia must obtain. This insurance is predominantly for the at fault driver for damages claimed by other parties. The terms of that insurance are governed by the Insurance (Vehicle) Act and Regulations. That insurance includes the following:

Coverage for third party liability up to $200,000 Accident benefits (medical expense and rehabilitation up to $150,000 and some wage loss) Uninsured motorist protection Underinsured motorist protection. Optional insurance includes extended third party liability coverage over and above the $200,000 obtained in the Basic Coverage, comprehensive and collision coverage.

An injured individual in a motor vehicle accident will seek their compensation from ICBC. The injured individual may have insurance through ICBC but the damages that are being paid are charged to the policy of the person who is at fault for the accident. In a claim against ICBC it is the person who is at fault that ICBC is representing.

When you are at fault for a motor vehicle accident in British Columbia, ICBC will appoint counsel to represent you and will defend and negotiate the claim that arises as a result of your negligent actions. The insurance policy that you have will cover damages up to the limits of the insurance in addition to covering the costs of defending the claim. If the claim exceeds the policy limits, you will be responsible personally for the excess amounts.  It is always advisable to obtain third party liability insurance over the $200,000 limit provided under the Basic Autoplan Coverage.

No Fault Benefits

“No fault insurance really means that if you are injured or your car is damaged in an accident, you deal with your own insurance company, regardless of who is at fault.  You don’t have to go after the at fault driver for vehicle damage reports and for the health care and income replacement benefits to which you are entitled” [quote fr. Insurance Bureau of Canada]

No Fault benefits are payable under Part 7 of the Insurance (Vehicle) Regulation (the “Regulation”). There are three types of Part 7 benefits available:

  1. Total disability benefits for income earnings and benefits for homemakers who are “substantially and continuously” disabled;

  2. Medical and Rehabilitation expenses; and

  3. Death benefits.

If an insured is entitled to benefits under the Worker’s Compensation Act or the Employment Insurance Act, or under any private plan, the amount of benefits received or receivable will be deducted from any benefits payable under Part 7 by ICBC.

 1.A.  Total Disability Benefits

To be entitled to disability benefits for income earners, the insured must either be employed at the time of the motor vehicle accident or for any six months of the twelve months preceding the motor vehicle accident. The amount payable is the lesser of $300 per week or 75% of the insured’s average gross weekly earnings in the 12 months preceding the accident. The benefit is payable for the duration of the period of total disability or for 2 years, whichever is shorter. If the insured remains disabled after the expiry of the 2 years, then disability benefits continue to be payable throughout the period of disability. The amounts payable will be reduced by any amounts received under the Canada Pension Plan, old age pension plan or other forms of benefits. If the insured does return to work but due to the injuries suffered in the motor vehicle accident is incapable of earning as much as he was entitled to as a total disability benefit, the insured will be entitled to recover the difference under Part 7.

Payment of disability benefits can be terminated on the advice of ICBC’s medical advisor or if the insured refuses to undergo treatment or training, where such treatment or training is in the opinion of ICBC’s medical advisor likely to in whole or in part relieve the disability or assist with the insured’s rehabilitation. Homemakers who are substantially and continuously disabled following a motor vehicle accident are entitled to recover reasonable expenses up to a maximum of $145 per week to hire a person to perform household tasks on the insured’s behalf.  The benefits are not payable to cover expenses paid to family members.

 1.B.  Medical and Rehabilitation Benefits

Medical and rehabilitation benefits are either mandatory or permissive. The total amount claimable with respect to medical and rehabilitation benefits is $150,000.

Mandatory benefits include all reasonable expenses incurred as a result of the injury for necessary medical, surgical, dental, hospital, ambulance, professional nursing services, physiotherapy, chiropractic treatment, occupational therapy, speech therapy and prosthesis. Liability to pay for physiotherapy treatments is limited to 12 sessions unless a medical practitioner certifies in writing that further treatment is necessary. There is no coverage for amounts that would be payable under another available plan of insurance and the maximum that is payable with respect to any treatment is that which would be payable under the tariff by the Medical Services Commission.

Permissive benefits are payable where in the opinion of ICBC’s medical advisors the provision of the benefit is likely to promote the rehabilitation of the insured. Examples of permissive benefits include funds to purchase a vehicle equipped as necessary, funds to alter a residence, reimbursement of costs associated with attendant care, reimbursement for wheelchairs, medical prescribed beds and funds to undergo vocational training.

 1.C.  Death Benefits

Death benefits available under Part 7 include funeral expenses up to a maximum of $2,500, lump sum payments and certain supplemental survival benefits. Lump sum payments are made based on a tariff to a maximum of $5,000. Supplemental survivor benefits are payable where the insured is survived by a spouse or by more than one dependent in which case an additional lump sum payment of $1,000 is payable to each survivor. Additional weekly benefits are payable for two years at $145 per week to the first survivor and $35 per week for each additional survivor, for a period of two years.

The “tort” Claim

“Tort” - Law, a civil wrong arising from an act or failure to act, independently of any contract, for which an action for personal injury or property damages may be brought. Collins English Dictionary

When you are injured in a motor vehicle accident that is due to the fault of another, either in part or in whole, you are entitled to monetary damages. The purpose of the damages is to put you in the position that you would have been in if you had not been the victim of the other party’s negligence. You are entitled to compensation that will compensate you for the damage that but for the motor vehicle accident would not have occurred. An assessment of damages requires an understanding of your position prior to the accident and how that position has been changed due to the accident. Damages are assessed in a number of different categories. [nb emphasis added]  Those categories are as follows:

1. Non Pecuniary damages
Non pecuniary or non-quantifiable damages are meant to compensate you for the pain, suffering and loss of enjoyment of life that you endure, both in the past and in the future, as a result of the injuries that you suffered in the motor vehicle accident. The British Columbia Court of Appeal in a case called Stapley v. Hejslet, 2006 BCCA 34, identified the following as factors to consider when assessing non-pecuniary damages:
 a. Age of the plaintiff;
 b. Nature of the injury;
 c. Severity and duration of pain;
 d. Disability;
 e. Emotional suffering;
 f. Loss or impairment of life;
 g. Impairment of family, marital & social relationships;
 h. Impairment of physical and mental abilities;
 i. Loss of lifestyle; and
 j. The plaintiff’s stoicism (as a factor that should not, generally speaking, penalize the plaintiff).

Our Courts have also recognized the importance of employment on the emotional wellbeing of an individual and the inability to work may be taken into consideration not only in terms of wage loss but also as an aspect of non-pecuniary damages.

2.  Wage loss
An award for wage loss is made to compensate you for earnings that but for the motor vehicle accident you would have had. This involves an assessment of earnings that you would have had if you had not been injured in the accident versus what you have earned since the motor vehicle accident. This also involves an assessment of causation for the loss of earnings. The difference in earnings must have been caused or related to the injuries suffered in the accident and must have been unavoidable.

3.  Loss of earning capacity
If an injury is permanent or if there are ongoing implications from an injury subsequent to settlement or trial, an assessment of whether the ongoing symptoms have the substantial possibility of impacting future earnings will be made. If there is a substantial possibility of a loss of earnings in the future occurring due to the motor vehicle accident related injuries, an assessment of the value of this loss will be made. The assessment will take into consideration the risk of this occurring plus the potential quantum of loss that may result.

4.  Special damages
Special damages are the out of pocket expenses that you have incurred due to the motor vehicle accident injuries. Typically special damages will include the cost of care such as physiotherapy, massage therapy, acupuncture, chiropractic treatment, kinesiology, occupational therapy, medications and personal trainers. Special damages may also include such things as mileage and parking to enable you to access care, household assistance, revisions to your home or work place and modalities to enable you to adapt to your injuries.

5.  Future care
An award for future care involves an assessment of your need for ongoing care in the future and the costs attributable to that care, including any necessary tax gross up and consideration of inflation.

When assessing the value of a claim or the amount that a claim should be settled for, we take into consideration what a court would likely award if the case were to proceed to trial. This is often much different than the way that ICBC assesses a claim, particularly when the injured person does not have a lawyer. You must either have settled your tort claim with ICBC within two years of the motor vehicle accident or have started a court action for damages. Starting a court action preserves your right to compensation. Starting a court action does not mean that a trial will be necessary for you to obtain fair compensation for your injuries; in fact more than 97% of claims are resolved without a trial.

What to Expect when you are making a tort claim

Claims adjusting is the process of determining coverage, legal liability and settling a claim. The claim function exists to fulfill the insurer’s promises to its policyholders.  Claim adjusting is integral to establishing an insurer’s relationship to its policyholders. The reputation of the insurer in settling claims directly impacts the marketing and retention of policy holders insurance. Claims Procedures and the Claim Adjustment Process

The time period following injury in a motor vehicle accident can be extremely stressful. Hopefully an individual only goes through this once in a lifetime at most and as a result the entire experience will be unfamiliar with a steep learning curve. Understanding the steps and process involved can help ease some of the anxiety associated with putting forward a claim. Generally in all but the most straightforward of cases, legal counsel should be retained to assist you in putting forward your tort claim. The unique situation in British Columbia with mandatory Basic Auto Insurance means that ICBC is not motivated in the way that any other insurer is. As the quote above indicates, ICBC does not have to worry about ensuring that it is settling claims fairly and quickly to ensure that it retains policy holders. Motorists in British Columbia have no choice; they must buy their Basic Autoplan Insurance from ICBC. As well, when you make a tort claim that claim is being paid from the policy of the at fault motorist. The ICBC adjuster that you are dealing with is there to protect the interests of that motorist, not you. Without legal counsel you have no one advocating on your behalf.

Once legal counsel is retained ICBC deals only with legal counsel.  They will no longer communicate directly with you. As your legal counsel our role is to prepare the case for quantification. We gather all the evidence possible to support all aspects of your claim. We hire independent medical experts to assess you where necessary with the focus being on garnering evidence to support our claims regarding the nature and extent of injury that you suffered and the consequent losses. This is entirely different from the focus of ICBC’s involvement, which involves primarily testing the veracity of your complaints and the claims that you make.

Your personal injury case must be resolved within two years of the date of injury, or legal action must be started. Legal action is started by filing a Notice of Civil Claim with the Court. As your legal counsel we take care of this for you, ensuring that your right to compensation is preserved. As well, although statistically 97% of personal injury cases resolve without the necessity of a trial, we schedule a trial date in your case to ensure that if necessary you have access to the courts to achieve a fair and equitable resolution to your case.

In general, the following are the steps that you can anticipate your case going through once you retain us as your legal counsel:

1.  General investigation stage during which we discuss in detail with you the circumstances of your accident, the injuries that you sustained and how they impacted you. We will identify all potential sources of witnesses, treating practitioners, documentary evidence and primary sources of medical opinions. All investigations regarding the circumstances of the accident including taking statements from witnesses and personally observing the scene of the accident if necessary occurs at this stage. We also obtain from ICBC all copies of any documents that they have gathered;

2.  Document collection - during this phase we obtain copies of all clinical records from all of your treating practitioners. These records are then summarized into a concise chronology and any issues or problems in the documentary evidence are identified and communicated to you. We also collect all documents necessary to establish the loss of earnings relating to the accident and the special damages incurred;

3.  Commencement of litigation and scheduling of trial and discovery dates. This is done to preserve your rights and also to ensure that you have timely access to the courts if this eventuality is necessary;

4.  Garnering of opinion evidence regarding the nature and extent of injury, the prognosis for resolution, impact on your ability to earn an income and the future care requirements;

5.  Recommendations are made to you with respect to quantum of the case and your instructions are obtained to commence settlement discussions with ICBC. You are involved at each stage of the negotiation process. Our job is to provide you with advice regarding a likely outcome at trial. Your role is to provide us with your instructions on how you would like to proceed. Most cases are resolved by following the above steps. If resolution is not possible access to the courts through a trial is facilitated. The trial process can be intimidating for clients and our office takes steps to ensure that you are fully prepared and familiar with what to expect in advance of the trial to ease the anxiety associated with this.

Rose Keith, ICBC Car Accident Injury Disputes Lawyer l in downtown Vancouver BC
Click to author of this article www.rosekeith.bc.ca

Tips to Help you thrive and survive your ICBC claim

I’m a survivor

I’m not gon’ give up

I’m not gon’ stop

I’m gon’ work harder

I’m a survivor

I’m gonna make it

I will survive

Keep on survivin’

Lyrics to Survivor, Destiny’s Child

Being involved in an ICBC claim is almost without exception difficult for people. You are being thrust into an unfamiliar, adversarial situation where your every action is being judged. All of this at a time when you are attempting to recover from injury and loss. There are certain steps that you can take that will help you weather the storm that is an ICBC claim, and help your legal counsel achieve the best possible result for you. The following are some actions that you can take to help assure the best possible resolution:

  1. At the scene of the accident take photos of the resting position of the vehicles and any debris on the road;

  2. Get the names and contact information of any witnesses to the circumstances of the accident;

  3. Obtain regular medical follow up and follow the advice that is given for treatment. Regular contact with a physician will ensure that you are receiving the best possible medical care and will also help to document your recovery;

  4. Keep track of all incurred expenses and receipts for expenses incurred due to the injuries;

  5. Follow your doctor’s advice regarding returning to work or remaining off work;

  6. Access all possible sources of funding for treatment expenses including extended benefits plans;

  7. Take care of yourself. Do what is necessary to recover;

  8. Communicate openly and honestly with your legal counsel. This is the only way that your legal counsel can fully portray the impact of the motor vehicle accident upon you;

  9. Make sure that you understand fully all aspects of the claim that is being presented on your behalf and the likely outcome at trial if the case were to be pursued through to trial. Your case is worth what a judge or jury would award you at trial. To be able to make knowledgeable decisions in the negotiation process you must have a full understanding of what the potential outcome at trial would be.

It is a difficult experience pursuing an ICBC claim.  The alternative though is to suffer the many losses that are experienced following injury in a motor vehicle accident without compensation.  You do not have to pursue the claim on your own. Experienced compassionate legal assistance can help you not just survive but thrive while pursuing your ICBC case. 

Rose Keith, ICBC Car Accident Injury Disputes Lawyer l in downtown Vancouver BC
Click to author of this article www.rosekeith.bc.ca
Table of Contents - Sections I and II Page
History of ICBC  3
Structure of ICBC  4
Primer on the Legislation Governing ICBC  7
Steps you must take when involved in a motor vehicle accident in British Columbia 10
What to do when you don’t agree with the adjuster’s assessment of fault 14
Insurance policy basics 15
No fault benefits 16
"tort" claim 18
What to expect when you are making a claim 20
Tips to help you survive and thrive your ICBC claim 22
This Guide is meant to provide general information and to serve as a starting point in your understanding of the consequences of being involved in a motor vehicle accident in British Columbia. It is not meant to serve as or replace the necessity for legal advice regarding your specific circumstances.

Getting legal advice from experienced lawyer

For information on motor vehicle (e.g. cars, motorbikes) accidents and personal injuries, contact the author of the above article Rose Keith, who is an experienced personal injury lawyer and ICBC claims disputes lawyer, with particular experience in working with clients who have suffered traumatic brain and neuromuscular-skeletal injuries, e.g. spinal injuries resulting in paraplegia, quadriplegia etc.  In 2008 she was the President of the Trial Lawyers Association of BC.  Her web site is at www.rosekeith.bc.ca

Rose Keith, ICBC Car Accident Injury Disputes Lawyer  in downtown Vancouver BC

Rose Keith, JD RoseKeith.bc.ca
1486 West Hastings St.,
Vancouver, BC,  V6G 3J6
Phone:  604-800-4319
Toll Free:  888.893.6134

see Rose Keith web site re ICBC claims

see Rose's article on cyclist helmets and use to protect from head injuries, at BCpersonalinjury.org...Cyclist-Helmets
see article Motorbike Insurance in B.C. The Importance of Being Properly Insured: What is "Enough Coverage"? at MotorBikeInsuranceICBC.html

Legal disclaimer:  The information provided on BCpersonalinjury.org is not intended to be legal advice, but merely conveys general information related to legal issues commonly encountered. 

Article © copyright 2013 Rose Keith RoseKeith.bc.ca published with permission by www.bcpersonalinjury.org Vancouver BC Canada

This page last updated: 2013-09-17
© 2013 Rose Keith - published in www.bcpersonalinjury.org

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