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“MINOR INJURY” CAPS UNDER THE NEW ICBC SYSTEM

Bill 20 – 2018, the Insurance (Vehicle) Amendment Act, recently passed in the Provincial Parliament, brings radical changes to the current Personal Injury system.

The new system brings changes to access to health care and a victim’s right to fair compensation for injuries sustained in an accident. Although your injuries may not be minor, they may be classified as such, not only limiting your access to fair compensation, but also to reimbursement for medical fees if they exceed the amounts set out in the Regulations. These new changes will be implemented on April 1, 2019, therefore, any accident that takes place before that date will be under the old system.

Health Care Costs:

Although changes to the Act promised greater access to health care and various other benefits, the new amendments give the Lieutenant Governor (the ‘LG’) a lot of power to regulate how the Act will be applied. The Regulations are where many of the changes will be noticed.

The Regulations will limit how much ICBC will pay for specific health care costs towards treatment and needs. These costs will be set out in a Schedule to the Regulations, which can be altered later without further debate in Parliament.

A major problem with such a schedule for costs is found in a new section added to the Act, which limits a victim’s right to recover health care expenses that exceed what the Regulations allow. These sections and Regulations are not specific to minor injuries and encompass all injuries sustained in a motor vehicle accident. Therefore, although you were promised greater access to health care, the reality of it may not be as expected.

Minor Injuries Defined:

The amendments and changes bring a whole new world to the old personal injury system. Under the current system, the rights of victims of accidents are left to the courts to decide what fair compensation is for the injuries they suffer. The new system will completely change the old by defining injuries and classifying them as either “minor injuries” or not. This classification will have a major impact on a victim’s right to fair compensation for their pain and suffering.

Like the majority of the new additions to the Act, the power will be in the regulations. The new system has a very wide definition of what a minor injury is and leaves wide discretion to the Regulation writers to add to the definition of a minor injury, which allows them to add more types of injuries in the future.

As of now the definition includes any injury, whether chronic or not that includes an abrasion, contusion, laceration, sprain, strain, a pain syndrome, a psychological or psychiatric condition, or a prescribed injury or type of injury, which will be set out in the regulations. Such a wide definition is sure to encompass most of the common injuries sustained in motor vehicle accidents.

The amendments do make room to classify an injury as not minor if it results in a “permanent serious disfigurement” or a “serious impairment”. A “permanent serious disfigurement” is defined as a disfigurement that significantly takes away from the claimant’s physical appearance. A “serious impairment” relates to injuries that are not resolved within 1 year from the date of the accident or another prescribed period, which may be set by the Regulations. The “serious impairment” must also meet prescribed criteria, which will also be set in the Regulations.

If it has been determined that a claimant failed to seek diagnosis of their injuries and do not comply with treatment prescribed, whether or not their injuries results in a “permanent serious disfigurement” or a “serious impairment”, they can be classified as minor.

Non-Minor Injuries:

Differentiating injuries from motor vehicle accidents may be difficult under the new system; however, there are many conditions and injuries that will not be classified as “minor”. In essence, any injury that is not listed under the definition of a “minor injury” in the Act or Regulations is not a “minor injury”.

Therefore, injuries such as fractures, joint injuries, disc injuries, head injuries or any other injuries that do not resolve within one year from the date of the injury will not be covered under the definition of a “minor injury”.

For example, if a victim of a car accident has limitations on activities, such as work or housekeeping, and continues to miss time off work on occasion one year after injury or require the services of a housekeeper one year after the date of the accident, this may fall under the definition of a “serious impairment”. If an injury is classified as a “serious impairment”, it would no longer fit the definition of a “minor injury” and would not be restricted by the “minor injury” cap.

Injury Caps:

The injury caps relate to a victims access to compensation for pain and suffering resulting from a motor vehicle accident. The current Act does not have any restrictions on the amount of compensation that a victim may receive for their injuries. Currently, the courts make such a determination after hearing the specific circumstances of each victim to tailor the appropriate decision to their condition.

The new system not only takes away a victim’s access to the courts in many of these situations, they further limit access to compensation when injuries are not only minor but also include victims who suffer from both a minor injury and an injury that is not minor. This power is again given in the Regulations, which will allow the limits to be changed in the future without debate or regular Parliamentary procedures.

Current headlines have set the limits on “minor injuries” at $5,500 for pain and suffering. With the power given in the Regulations, this amount is not guaranteed to last.

Overall, the new amendments will have a major impact on victims of motor vehicle accidents. Although it has been promised that doctors and not ICBC will determine which injuries are “minor”, the actuality of it may not be so. If there is a dispute over the classification of an injury, it will be left to the B.C.’s Civil Resolution Tribunal, which currently deals with strata disputes.

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.