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How ICBC Assesses Whiplash “Pain and Suffering”

Car Accident Law Firms

Crash! Somebody hits you from behind. Your head jerks back and you get a whiplash.
You develop pain – strong pain – and hard-to-pin-down soft tissue injuries in your neck and back which bother you for a long time after. Among other things, you’re entitled to be compensated for your “pain, suffering and loss of life enjoyment.” So you submit a claim to ICBC and the adjuster offers you $6,500 for your pain and suffering. She says, “It’s the most you’ll get for this.”

True? Not necessarily.

You may be entitled to a lot more. It all depends on the circumstances of your particular situation. But you’ll need to see a lawyer experienced in handling personal injury claims to find out.

Like many insurance companies, ICBC has adopted guidelines grouping soft-tissue whiplash injuries by severity and symptoms. These may be classified as mild, mild/moderate and moderate. ICBC uses these guidelines (sometimes called “meat charts”) to establish ranges of compensation for pain and suffering it will typically pay to settle “whiplash associated disorders.”

These guidelines are partly based on a grading system developed by a Quebec task force in 1995. Under that grading system, Grade 1 whiplash disorders are described as involving neck complaints, including pain, stiffness and tenderness. Grade 2 disorders involve, in addition, musculoskeletal signs. Grades 3 and 4 involve neurological and more severe cases.

For example, some Grade 2 whiplash disorders are classified as “moderate injuries” under ICBC’s settlement guidelines. The guidelines set a $15,000 maximum limit on payments to compensate you for your “pain and suffering” for this degree of soft-tissue injury (where you’re disabled for less than a year and mostly recovered within two years).

The courts, however, aren’t bound by ICBC’s guidelines. They recognize that no two cases are the same. In fact, the courts have stressed that there is no rigid formula that can or should be used for calculating “non-pecuniary damages” (commonly called damages or compensation for pain and suffering). Courts also understand that MRI or CAT-scan imaging can’t always show any physical damage in whiplash cases.

The appropriate compensation must be assessed in each individual case, taking into account several factors, including the nature, severity and duration of your injury and pain; your age; whether you can do the same things as before (without pain); the negative impact on your family, marriage and social relationships; and any loss of your previous lifestyle – in short, various factors that result in your loss of enjoyment of life when compared to before the accident.

In some recent B.C. court cases, victims of car crashes with Grade 2 whiplash disorders have obtained judgments of between $40,000 and even $70,000 for “pain and suffering,” where the injuries lingered or had become chronic. (ICBC argued for much less.)

Of course, not every person who suffers a whiplash is entitled to significant amounts, and the courts are on the alert for exaggerated claims. But clearly you shouldn’t just rely on what ICBC tells you your claim is worth. It’s best to see a lawyer familiar with recent court decisions and trends. You’ll want to know what compensation is considered fair for your “pain and suffering” for your whiplash injury. Your lawyer can also advise you on other payments you may be entitled to as compensation for other losses you may have suffered due to the accident.

Janice Mucalov, LL.B. for Gertsoyg & Company. This column provides information only and must not be relied on for legal advice.

Please call Gertsoyg & Company at (604) 602-3066 for a free legal consultation concerning your particular case.

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