Effective April 1, 2019, ICBC will be placing a $5,500 cap on all minor pain and suffering claims. Addressing the upcoming changes to minor pain and suffering claims, Craig McTavish shares his insight.
What does the new $5,500 cap for ICBC minor pain and suffering claims mean for victims who have been in an accident at no fault of their own?
The cap will apply to new accidents occurring on or after April 1, 2019. The definition of minor is quite broad, it includes physical and mental injuries such as strains or sprains, pain syndromes, and psychological or psychiatric conditions, and concussions that do not result in serious impairment or permanent disfigurement, or incapacity. To meet this definition one has to be disabled from working for 4 months, or substantially unable to perform household tasks, and/or incapable of performing the activities of daily living for at least 4 months. One can also meet the criteria (and avoid the cap) if the physical or mental injury is not resolved within 12 months. However to meet the not resolved criteria means there must be substantial impairment in the ability to work, or perform activities of daily living primarily caused by the accident, continuously since the accident over the 12 month period.
In my experience even injuries that most people would not consider minor, will be classified as minor. For example 3 months off work, or a permanent whiplash injury that does not stop you from working.
Can victims with a minor pain and suffering claim pursue additional compensation/care for their injuries?
People will still be able to pursue claims for other types of damages in addition to their non-pecuniary damages such as lost wages, loss of housekeeping capacity, and future care. However, other legislative changes in place or that will come into force at the same time as the CAP legislation will make such claims harder to prove and may reduce the recovery for such claims. For example the Attorney General recently passed a law that limits the number of experts that each party can call to prove their damages, which could impact the ability to prove future loss of income or care.
Who will be responsible for determining whether the injuries of a victim qualify them to file a minor, or a major pain and suffering claim?
After April 1, 2019 such determinations will be made by the Civil Resolution Tribunal, (CRT). As it stands, the CRT will not be bound by the rules of evidence. There will be limits on the amount that can be spent on experts and in general to prove one’s case is not a minor injury. There will be no right to an in person hearing. Submissions will likely be made in writing. The onus will be on the injured person to prove their injury is not minor if they want to avoid the cap.
Can a victim dispute the findings of their injuries if they are determined to be minor? How can this be achieved?
The injured party will have a right to a judicial review of the decision by the CRT. As the CRT will be considered pursuant to the legislation to be an expert tribunal for the purposes of determining whether an injury is minor the court will only overturn their decision if it is patently unreasonable, meaning clearly irrational or evidently not in accordance with reason. It will be extremely difficult to overturn a determination by the CRT.
What related changes are going to occur due to the implementation of the $5,500 cap on ICBC minor pain and suffering claims?
In addition to the changes previously discussed, ICBC is also increasing payments of the amounts payable for no fault accident benefits. So whether you are at fault in an accident or not, you can get more treatment covered while also putting limits on the maximum number of treatments one can receive for various types of treatments. Furthermore, limits on the maximum ICBC has to pay for such treatment (regardless of what the treators actually charge the injured person), will be put into practice. ICBC is also being granted expanded powers to investigate the medical treatment injured people are receiving and to direct that care. Failure to comply with what ICBC thinks you should be doing to recover could result in rejection of claims and reductions in compensation.
The cap is expected to save ICBC $1 billion a year. Accidents and claims that occur before then will remain under the current system, without a cap. Contact Craig McTavish today to discuss how an experienced lawyer can help you fight for the care and compensation you deserve.