Have you been injured in an accident on or after April 1, 2019 only to be told by the ICBC Claims Adjuster that the maximum settlement is $5,500.00 for pain and suffering (or $5,627.00 after April 1, 2020)?
I have answered many calls over the last year and a half from injured people in BC involved in various accidents such as car accidents, pedestrian accidents, motorcycle accidents, bicycle accidents, and bus accidents, wondering what their rights were with the new Minor Injury Regulation and how they could fight this unfair limit on their pain and suffering. Quiet a few of those who called were being offered a small portion of the limit available.
This blog post explains the Minor Injury Regulation in BC.
How did the Minor Injury Regulation come about in BC?
In the 2017/2018 fiscal year, ICBC reported over $1 billion in losses. Attorney General, David Eby, blamed these losses on “reckless decisions” and “mismanagement” by the previous Liberal government, increase in injury claims, litigation costs, and of course personal injury lawyers. Basically, everything under the sun besides ICBC itself. Recent fiscal financial statements included payments made to personal injury law firms in BC by ICBC for injury settlements, void of any context to the public. Regardless, in 2018, the BC NDP government touted new rules and regulations as a way to extinguish the flames on ICBC’s financial crisis and dubbed it a “dumpster fire.” These new rules came into effect on April 1, 2019 and apply to any accident that occurs in BC from April 1, 2019 forward. Any accident that occurs in BC on or after May 1, 2021, is subject to ICBC’s new no fault scheme called Enhanced Care Coverage which eliminates any rights of injured people to fight ICBC for a fair settlement (but that is a whole different blog post for another day).
What do the Minor Injury Caps mean for you?
If you sustain an injury that falls into the definition of what a “minor injury” is as defined in the Regulation, then your pain and suffering damages are limited to $5,500.00 for accidents that happen after April 1, 2019 or $5,627.00 for accidents occurring after April 1, 2020. It is important to note that only pain and suffering is subject to this limit. Above and beyond this is recovery for loss of wages and expenses, depreciation of your vehicle, and more.
What injuries are covered under the new Regulation as “minor injuries”?
The majority of common injuries sustained in accidents fall into being defined as a “minor injury”.
The Insurance (Vehicle) Act defines a “minor injury” as:
(i) an abrasion, a contusion, a laceration, a sprain or a strain;
(ii) a pain syndrome;
(iii) a psychological or psychiatric condition;
(iv) a prescribed injury or an injury in a prescribed type or class of injury;
The Minor Injury Regulation further defines “prescribed injury” as including:
(a) a concussion that does not result in an incapacity;
(b) a TMJ (Temporomandibular Joint) disorder;
(c) a WAD (Whiplash Associated Disorder) injury.
What is not a “minor injury”?
- An injury that is not defined as a minor injury (above);
- A concussion or mental health condition that results in incapacity for beyond 16 weeks (4 months); or
- The injury results in “serious impairment” or “serious permanent disfigurement”.
Serious permanent disfigurement means a permanent disfigurement that significantly detracts from the claimant’s physical appearance.
Serious impairment is defined as injuries that are not resolved in twelve months and:
(a) the impairment results in a substantial inability of the claimant to perform
(i) the essential tasks of the claimant’s regular employment, occupation or profession, despite reasonable efforts to accommodate the claimant’s impairment and the claimant’s reasonable efforts to use the accommodation to allow the claimant to continue the claimant’s employment, occupation or profession,
(ii) the essential tasks of the claimant’s training or education in a program or course that the claimant was enrolled in or had been accepted for enrolment in at the time of the accident, despite reasonable efforts to accommodate the claimant’s impairment and the claimant’s reasonable efforts to use the accommodation to allow the claimant to continue the claimant’s training or education, or
(iii) the claimant’s activities of daily living;
(b) the impairment is primarily caused by the accident and is ongoing since the accident;
(c) the impairment is not expected to improve substantially.
“activities of daily living” means the following activities:
(a) preparing own meals;
(b) managing personal finances;
(c) shopping for personal needs;
(d) using public or personal transportation;
(e) performing housework to maintain a place of residence in acceptable sanitary condition;
(f) performing personal hygiene and self-care;
(g) managing personal medication;
What if you disagree that your injury is “minor”?
If ICBC determines your injury is minor and you disagree, the Civil Resolution Tribunal (CRT) has exclusive jurisdiction to make these determinations (whether your injury fits the definition of being a “minor injury”). The CRT can also make a determination of the value of your claim, entitlement to accident benefits, and decide fault for an accident. You will likely need expert evidence to present to the CRT. You must commence your dispute before the limitation date applicable to personal injury claims. The CRT has jurisdiction to hear claims valued at $50,000.00 or less. The CRT’s jurisdiction involving ICBC claims has now been partially struck down by the BC Supreme Court.
What should you know about the new limit on pain and suffering?
First, these new rules do not apply to other personal injury claims (for example, slip and falls). It only applies to car accidents occurring in BC (I was recently retained by a person that was injured in Washington State as a passenger being driven by an at-fault driver in a vehicle insured by ICBC – it does not apply in a circumstance such as this).
It does not apply to accidents that occurred before April 1, 2019. I can’t tell you how many frantic calls I received from existing clients wanting to “settle” their claims before the new rules came into effect.
It also only applies to accidents caused by vehicles. Specifically the Act defines accident as “an accident occurring in British Columbia that is caused by a vehicle or the use or operation of a vehicle as a result of which a person suffers bodily injury”. So for example, if you get into an accident and it was caused by poor maintenance of a roadway or some other cause not related to operation of a vehicle, your injuries are not subject to a cap for pain and suffering.
Second, you must still prove you are not liable for the accident (or not completely liable). Your entitlement will be reduced by the percentage of your fault for the collision. If you are completely at fault, there is no entitlement for compensation although you are still eligible for ICBC’s no fault benefits (medical expenses, wage loss benefits, etc.).
Third, this limit is per accident. I have some clients over the years that have unfortunately been in multiple accidents by the time we get to resolving their ICBC Claim.
What should you do if you are involved in an accident in BC on or after April 1, 2019?
- If at the outset it appears you have a “minor injury”, wait and see how you do.
- Be aware that you must settle or file a dispute before the limitation date for personal injury claims.
- Have your injuries and your difficulties documented by a doctor on a regular basis.
- Follow treatment recommendations made by your doctor.
- Ensure ICBC is covering you for treatment costs (most treatment places can direct bill ICBC).
- You have sixty days to submit receipts for reimbursement from the date of purchase to ICBC (applies only to people injured in accidents on or after April 1, 2019).
- There is probably no need to hire a lawyer in the early stages of your injury. I have usually given people who call me some free advice if it appears the injury is “minor” at the outset and let them know there is no point in a lawyer taking a percentage from an already small limit for pain and suffering and if you aren’t suffering a wage loss and ICBC is covering your treatment costs, the only settlement you really have left is for pain and suffering. I have usually asked these callers to give me a call in a month or two and we can assess their injury at that time and to even run their claim by me before they consider settling with ICBC. Of course there are always circumstances which may merit you retaining a lawyer regardless including not wanting to deal with ICBC or if they appear to be making an unfair offer to you.
- If you do decide to settle your claim on your own, ensure ICBC keeps your benefits open.
**Please note that this information is intended for informational purposes only. there are always other considerations and interpretations of the law. This does not constitute legal advice or create a solicitor-client relationship. For more information or assistance with an ICBC Claim, contact our office to speak with a lawyer directly. We offer free consultations for personal injury claims.