BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Posts Tagged ‘ICBC Minor Injury Caps’

What Will ICBC’s “Minor” Injury Caps Look Like?

February 20th, 2018

As previously discussed, ICBC and the insurance lobby are on the cusp of persuading the BC Government to pass laws capping ‘minor’ injuries and reducing judicial remedies for those caught by the cap.

Assuming the insurance lobby get their way what will ‘minor’ injury caps look like?  The details are incomplete but this is what is known right now.

Who gets stuck with a cap?

If you are injured by the negligence of a distracted, impaired or otherwise careless driver you are having your judicial rights for non-pecuniary damages (pain and suffering) substituted with a government created artificial cap.  In a bizarre twist the Government is proposing to increase the benefits available to the careless driver if they are also injured at the cost of stripping some of the faultless party’s rights.

How much is the minor injury cap?

It is proposed that the cap will be set at $5,500.

How much of a reduction is this from my current legal rights?

A cap already exists across all of Canada (BC included) for non-pecuniary damages in negligence cases.  This cap was set by the Supreme Court of Canada in the late 1970’s at $100,000 and is indexed for inflation.  In today’s dollars non-pecuniary damages can be assessed up to, approximately, $370,000.

What is a “minor” injury?

I put the word “minor” in quotations because the definition will likely capture many claims most people would never consider to be minor.  It is not a medical term, rather, it is a phrase invented by the insurance industry.

The Government has been silent on the exact definition they will use however BC’s Attorney General has stated that the defininon will include “sprains, strains, mild whiplash, cuts, bruises and anxiety and stress“.  These all sound minor but the devil is in the details.  What if injuries become chronic problems?

ICBC hints that chronic injuries can get out of the cap however there’s a catch.  Not only will the injuries need to be chronic but also significantly disabling.  ICBC notes that “if the injury impacts your life for more than 12 months – for example, you’re still not able to go to work or school, have to modify your work hours or duties, or you’re unable to care for yourself – it will no longer be considered minor.”.

So, if ICBC gets their way “minor” will include injuries which can totally disable you for over 11 months.  They will also include permanent injuries so long as you can continue to “go to work or school“.

Who decides if my injury is “minor”?

The Government has been silent on this other than stating  “a medical professional” will decide if your injury is “minor“.  It is unclear exactly who this medical professional will be.

Is ICBC Foolproof in Designating Injuries as “minor”?

Of course not.  In ICBC’s own words they consider many injuries minor that are, in reality, complex and costly.

What if I want to challenge the designation?

The BC Government has noted that disputes over “the classification of an injury” will be funneled to the BC Civil Resolution Tribunal.

This means that if ICBC (or whatever ‘medical professional’ the government designates as the decision maker) says you have minor injuries you will not be able to have this challenged in court.  Instead you will be forced into a tribunal system.  The tribunal is not presently equipped to handle cases of medical complexity.  They currently only deal with strata fee disputes and very minor small claims.

As of now this Tribunal does not allow people to be represented by lawyers with s. 20 of the law creating the tribunal stating that the default position for hearings is that “the parties are to represent themselves“.

The Tribunal also does not have the ability to make binding judgements in Small Claims cases with s. 56.1 of the Civil Resolution Tribunal Act allowing a losing litigant to simply ‘object’ to the result.  The law states that “A party that is given notice of a final decision in relation to a tribunal small claim may make a notice of objection…..If a party makes a notice of objection under this section the final decision is not binding on any party“.

The above are just a few of the shortcomings the BC Government will have to overhaul if they stick to their plan to funnel ‘minor’ injury claims to the Tribunal.

When will the cap come into force?

The BC Government is proposing that people injured by negligent drivers on or after April 1, 2019 will be caught by the cap.

Can I do anything about this?

Yes.  It is not too late to take action and tell the government ‘no to caps’ if you think this is a bad idea.

Government Plans to Strip Rights for Insurance Company Profits; ICBC Targeting Psychological Injury

February 6th, 2018

Today the BC Government held a press conference where widespread changes targeting the rights of British Columbians to save ICBC money were announced.

In short the Government is creating an artificial cap on what they call ‘minor’ injuries.  As previously discussed even ICBC admits that the term minor injury catches injuries that are ‘complex and costly’.  The pain and suffering cap will be set at $5,500 and is set to kick in in April 2019.

The Government did not provide a full definition of what they call ‘minor’ but ICBC is already noting that in addition to soft tissue injuries that can disable you for up to a year the cap will also target psychological injuries with the insurer publishing a press release saying mental health issues such as ‘anxiety‘ will be caught by the cap.

The Government stated that “a medical professional” will decide if your injury is “minor“.  It is unclear exactly who this medical professional will be.  If you wish to dispute this designation the government is limiting your rights here as well.  The press release notes that certain ICBC claims will be forced to be adjudicated, not by the courts, but by the BC Civil Resolution Tribunal.  Disputes over “the classification of an injury” will be funneled this way.

As of now this Tribunal does not allow people to be represented by lawyers with s. 20 of the law creating the tribunal stating that the default position for hearings is that “the parties are to represent themselves“.

Lastly, if you wish to not have your rights stripped by caps the Government is asking that the victim of bad drivers, not the bad drivers themselves, pay more stating that “Drivers will have an option to purchase additional coverage for a higher limit in pain and suffering compensation. The limit will be set at $75,000 and will cost approximately $1,300 a year, on top of the cost of their basic and other optional insurance. Charging for this optional coverage means the customers who stand to benefit from increased coverage will pay for it, rather than every B.C. driver.

You read that right – if you don’t want your rights stripped you need to pay $1,300 more per year, not the distracted and impaired drivers on our roads!

As Yogi Berra said, It Ain’t Over Till It’s Over!  If the above strikes you as unfair please  contact your MLA and tell the government plainly and clearly ‘no to caps’.

ICBC Admits Lobbied “Minor” Injury Caps Will Impact “Complex and Costly” Claims

January 28th, 2018

As discussed last month, after years of record profits ICBC is experiencing a bout of financial hardship.  In turn the government is considering stripping your rights if you are injured by a distracted or impaired driver.  Stripping judicial rights to save bad drivers and ICBC money.  A poor trade-off.

Today ICBC published a press release noting they “are working hard alongside government to take the steps necessary to bring about long-term solutions which will put ICBC back on a stable financial footing, one that will create a sustainable auto insurance system for B.C.”

The “work” is persuading government to pass a law placing a cap on what they call ‘minor’ injury claims.

ICBC’s own press release, however, advanced the best argument why caps are a defective idea that target seriously injured victims.

In ICBC’s own words

older claims – some dating as far back as 2010 – which were initially presented as minor injury claims have since emerged as more complex and costly, large loss claims. Over the past 12 months, we have experienced an unprecedented 80 per cent growth in large loss claims which have an average cost of $450,000 per claim.

I could not make the argument better myself.   You can be injured by a bad driver and suffer “complex and costly” injury that initially presents as minor.  ICBC knows a “caps” law will catch claims worth hundreds of thousands dollars and instead result in victims receiving pennies on the dollar for long term pain and disability.  They want victims to shoulder the shortfall so bad drivers and the insurance industry can benefit.

If this seems unfair to you contact your MLA and tell the government plainly and clearly ‘no to caps’.

Tell the BC Government “No!” To Stripping Rights Of Those Injured By Impaired and Distracted Drivers

December 12th, 2017

The Government is flirting with the idea of stripping your rights if you are injured by a distracted or impaired driver.

If you think this is a bad idea tell the government no.

If you want your voice to be heard here are some quick steps you can take to stand up for your rights.

  • Follow ROADBC, a coalition of British Columbians committed to protecting the rights of anyone injured on our roads
  • Contact your MLA.  Tell them “No to caps” and to keep British Columbians rights intact when injured by careless drivers
  • Join ROADBC’s Facebook Page and share this page with those that share your views

Here’s some background on the current situation.

ICBC is under financial pressure.  That has not always been the case.  In recent years the public insurer was so profitable that the past government scooped nearly $1.3 billion from the crown corporation.

Instead of putting this money back into ICBC or taking less drastic solutions the Government has publicly mulled stripping victim rights to save the insurer money.  When the government strips you of your rights it rarely gives them back.

This is done with talk of “caps”.  In short this means restricting the rights of those injured by careless drivers.  Caps are not new and are the creation of the insurance lobby as product to increase profits.  Caps exist in many jurisdictions across Canada and the US and are proven not to be effective in stabilizing insurance rates.  Insurers, even after successfully persuading governments to limit victim rights, look for ever increasing premiums.

The root cause of ICBC’s financial issues are collisions caused by distracted drivers.  Instead of targeting victims of crashes the focus is better placed on bad drivers.

  • Efforts to make our roads safer by reducing speeding, distracted and impaired driving
  • Higher risk drivers should fairly pay higher premiums reflective of the risk they cause.
  • Embracing safe driving technologies projected to cut down collision rates
  • Returning the $1.3 Billion of past profits taken from ICBC

If you want to say no to the Government stripping your rights to benefit bad drivers contact your MLA and tell them no to caps.