Most of the cases we deal with settle. However there are occasionally cases where we cannot get ICBC to offer a settlement that we feel is fair for you, and in these situations we are prepared to go to trial on your behalf. This is a decision in one of our recent cases.

Courtney v. Hutchinson, 2012 BCSC 188

Counsel for the Plaintiff: Greg Phillips

This case is the result of a motor vehicle accident in which the plaintiff, Ronald Courtney, was rear-ended by the defendant’s vehicle, suffering soft tissue injuries to his neck and back and headaches. Prior to the accident, the plaintiff was an active, hard-working individual with a physically demanding job in the logging industry. The plaintiff had degenerative disc disease and osteoarthritis before the accident, which was asymptomatic. The judge determined that the accident, not the preexisting degenerative disease was the cause of the plaintiff’s ongoing neck and back pain. The judge awarded the amount that was argued by the plaintiff of $70,000 for pain and suffering and loss of enjoyment of life.  The total awarded for damages are summarized as follows:

a)     $70,000 for non-pecuniary damages;

b)     $3,000 for past wage loss;

c)      $30,000 for future wage loss;

d)     $2,000 for cost of future care; and

e)     $151.73 special damages agreed to by the parties.

Total Damages: $105,151.73

Soft tissue injuries are amongst the most common injuries in a motor vehicle collision. Concussions are not as frequently diagnosed but can occur in even relatively low velocity impacts.

One of the questions we receive from some of our clients with soft tissue injuries or concussions (or in some unfortunate cases, both) is “How long before I am recovered?”

The answer to that question is important to us. We work with your doctors and specialists to find out the answer to that question, but the frank reality is that often, the answer is “as long as it takes for you to recover.”

Nowhere has that been more evident than with the story of Sidney Crosby.

Even non-hockey fans have likely heard of Sidney Crosby and his ongoing and very public injuries woes. After pair of hits to the head on January 1st and 5th 2011, Crosby was diagnosed with a concussion.

The impacts, at the time, did not seem especially dramatic or especially forceful, but nevertheless, Crosby did not return for the remainder of the 2010-11 hockey season. He returned for 8 games in November and December 2011, but experienced a relapse in his symptoms and remains out of the lineup as of today.

While he is skating with the team, he reports that he is not feeling well enough to return to the game.  Crosby recently learned that his ongoing post-concussion syndrome has been compounded or exacerbated by a soft tissue injury to his neck.

In an article for ESPN, certified orthopedic clinical specialist Stephania Bell notes that “The final consensus from Crosby’s medical team and a third independent party, Philadelphia-based spinal surgeon Dr. Alexander Vaccaro, is that Crosby is dealing with a soft-tissue injury in his neck and he is continuing to progress with his rehabilitation efforts.”

Soft tissue injuries (STIs), as noted, are very common, but can be frustrating for clients, doctors and even lawyers. Indeed, Ms. Bell notes:

Crosby is likely receiving the best care possible, but it is clear that he is hearing the same answers from his doctors and treaters as many of our clients.

Crosby’s tale is a good reminder to us all that soft tissue injuries and concussions are highly variable in terms of recovery time and prognosis not just for elite athletes, but for all of us. Like Crosby, the road to recovery for a person injured in a motor vehicle collision, can sometimes be long and frustrating.

If you have been involved in a motor vehicle collision – whether you suspect you have a soft tissue injury, concussion or not – it is always a good idea to consult with a lawyer to ensure your rights are protected. Our ICBC consultations always free. Don’t hesitate to contact us to book your appointment.

Regardless of whether you are at fault for an accident, if you are injured in an accident, you may be entitled to receive certain benefits from ICBC. These “no-fault” benefits may be available to people who are injured or die in an accident “arising out of the use or operation” of a vehicle in Canada or the United States. This means that the accident must have resulted from the ordinary and well-known uses to which vehicles are put. As this definition is very broad in scope, if there is some relationship between your injuries and the use or operation of a vehicle, you may qualify for no-fault benefits.

No-fault benefits are available to people who the law considers “insured.” A person is an insured if they are the registered owner of a vehicle; a person who lives with the registered owner of a vehicle; a passenger in a vehicle; a cyclist hit by a vehicle, or; a pedestrian hit by a vehicle.

Once a person has been found to be an insured, there are several types of no-fault benefits that may be available to them. Perhaps the most important type is medical and rehabilitation benefits. ICBC will pay the reasonable cost of all medical and rehabilitation services that a doctor considers necessary to help you recover. These can include a wide variety of treatments such as dental work, chiropractic sessions or physiotherapy. In addition, ICBC may pay or reimburse you for a variety of goods or services if it believes they are likely to promote your rehabilitation.

You may also qualify to receive no-fault employment benefits if you are totally disabled from any employment or occupation for which you are reasonably suited. This is a high standard to meet and will almost always require supporting medical evidence. Even if you are proven to be totally disabled from working, if you are receiving disability benefits through WorkSafeBC or employment insurance meeting or exceeding what would be provided by ICBC, you will not be entitled to no-fault employment benefits. In any event, these benefits are generally less than what you would earn if working and are paid on a weekly basis.

Homemaker benefits are also available in certain circumstances. The law defines a “homemaker” as a person who does the majority of housekeeping in a household. Where an injury substantially and continuously prevents a homemaker from doing most household chores, ICBC will pay the reasonable cost of hiring someone to do these tasks. Once again, medical evidence will be required to support a claim for homemaker benefits.

Death benefits may also be available where a person dies as a result of an accident. ICBC will reimburse the family of the deceased a prescribed amount for funeral and burial expenses. ICBC may also pay death benefits to the spouse, dependent children or dependent parents of the deceased. If the deceased is a child, benefits are payable to their parents.

If you are receiving no-fault benefits, ICBC can require you to undergo medical treatment or participate in a re-training program if both ICBC’s advisor and your doctor believe that it will relieve your disability or assist in your rehabilitation. However, if you fail to go to this treatment or program, ICBC can terminate your benefits by giving you 60 days notice. Unfortunately, there is very narrow recourse for having these benefits reinstated.

In order to apply for no-fault benefits, you must promptly give ICBC notice of the accident. Within 30 days after the accident, you must give ICBC written details about the accident, how it occurred and how it has affected you. If ICBC refuses to pay no-fault benefits that you believe you are owed, you have until 2 years after the accident or from the date you last received a no-fault benefit payment from ICBC to bring a legal claim.

It is important that you apply for no-fault benefits, particularly if you did not cause the accident and have commenced a personal injury claim against the person responsible. This is because the value of any no-fault benefits that you were entitled to, whether you received them or not, will be deducted from any award or settlement of damages in your personal injury claim. This can amount to tens of thousands of dollars that you may lose. Because of this harsh reality, it is essential that you apply for no-fault benefits.

As you can see, there are many facts that must be in place and many steps that must be taken before you qualify to receive the types of no-fault benefits described above. There is never a guarantee that you will qualify for these benefits and your entitlement will always depend on the facts of your individual case. As the process of applying for, receiving and maintaining no-fault benefits can be complicated and overwhelming, it can be helpful to consult a lawyer. Our personal injury lawyers and staff have extensive knowledge and experience in the area of no-fault benefits and will act on your behalf in making a claim as part of your personal injury claim, meaning at no additional charge.

If you were involved in a relatively minor car accident, ICBC may deny your claim for damages on the basis that it was a low velocity impact, or LVI. These types of collisions often occur at slower speeds and generally result in less serious damage to your vehicle. When these types of accidents happen, ICBC often takes the position that because the collision was so minor, it could not possibly have caused you any injuries to support a claim for damages. As ICBC puts it,

“the information currently available to ICBC, including the minimal nature of the impact forces involved in the collision, as well as your physical condition at the time of the accident, has led us to believe that the accident did not result in any compensable injury.”

This has become known as “no crash, no cash” and it is the basis for ICBC’s LVI Program. This policy is not based on any scientific evidence, but is purely a business scheme designed to reduce the amount of money ICBC pays out for bodily injury claims. The more claims it denies and the less money it pays out, the more ICBC profits.

However, just as some people can walk away unscathed from horrific car crashes, others can sustain very real injuries from these so-called low velocity impacts. There is no medical correlation between the seriousness of a collision and the seriousness of the harm a person suffers. The most common injuries associated with these types of accidents are whiplash and soft-tissue injuries, which can severely impact a person’s daily functioning and quality of life.

Fortunately, ICBC’s policy to deny these types of claims is not the law. Courts in BC have repeatedly found that significant injuries can result from the most minor of car accidents such that the person is owed money from ICBC. Therefore, regardless of the nature of the collision, if you are injured in a car accident, you are entitled to appropriate compensation.

Many people injured in collisions are under the misconception that an ICBC adjuster is acting in their best interest, and that legal representation is not necessary. In reality, adjusters are operating under strict instructions and constraints, informed by the company’s cost-minimizing policies and profit motive. Instructions to minimize bodily injury claim payouts cannot be in the best interest of the injured party, which is why legal representation is important. By obtaining a lawyer, an injured party can ensure that they have someone acting on their behalf to achieve a fair settlement.

A claim for personal injury is called a tort or civil claim, and is treated in an entirely different manner than a claim for vehicle damage. ICBC will be representing the party responsible for causing the injury, which is in direct conflict with the claim of the injured party. ICBC states that bodily injury claims are the biggest cost pressure on its business, and have the most significant impact on profit and rate increases. Adjusters are acting for ICBC, not for the injured party, and are acting under strict policies to pay out minimal amounts in order to minimize costs and maximize profits. ICBC’s claim that, “no matter what’s happened, we’re here to help you” is not true in cases of bodily injury claims. The portion of ICBC’s website setting out the steps of an injury claim makes no reference to situations in which a claimant obtains legal representation, nor does it advise that this is in a claimant’s best interest. Obtaining legal representation will provide a claimant with the reassurance that they have an advocate acting on their behalf, prioritizing their needs over profit.

Profit motive was not a significant factor when ICBC was first established in 1973. A Crown corporation, owned by the Province of British Columbia, ICBC’s initial approach to civil claims was to adjust and pay out claims fairly. ICBC is now the Province’s sole provider of universal insurance coverage, holding a monopoly over Basic coverage. Since its establishment, it has also evolved into a profitable company and a competitive provider in the Optional insurance coverage market. With this evolution came a change in priorities and new goals of minimizing costs and maximizing profits, which has had a significant impact on ICBC’s dealings with injured parties in need of compensation. Adjusters are instructed to minimize bodily injury claim payouts in order to keep costs down and maximize profits.

As customers paying premiums, insured motorists have the reasonable expectation that they will be compensated in situations of vehicle damage and bodily injury. ICBC reinforces these expectations by advertising their commitment to treating customers fairly and to helping injured parties on their road to recovery. In doing so, they fail to highlight the conflict between their role as insurance providers and the profit motive that drives their business. The transfer of upwards of $777 million dollars in excess capital held by ICBC to the Province is a clear example of the profit motive driving their operations. Instead of returning this excess capital to British Columbia drivers, it is being transferred into the Province’s general revenue stream.

The surplus is a result of the requirement that ICBC build capital and maintain reserves for the purpose of risk protection and financial stability. When it was determined that the reserve capital from Optional insurance was in excess of what was necessary, the Provincial government implemented changes to ICBC’s legislation, and a series of transfers over three years were introduced in the March 2010 Budged and Fiscal Plan. ICBC has stated that using the funds to lower premiums is unrealistic because the surplus is not guaranteed revenue, and that lowering Optional insurance rates would undercut private insurers and impair the competitiveness of the optional insurance marketplace. They maintain that the transfer will not result in a rate increase, and that bodily injury claim costs are the driving force behind rate increases.

ICBC fails to acknowledge that there are other ways to return the surplus to British Columbians. The excess capital could be used as a reserve for bodily injury claim payouts, alleviating the cost pressure the claims create and the need for policies that instruct adjusters to minimize claim payouts. This would give the adjusters the power to assess a fair level of compensation, focussing on the needs of the injured party as opposed to maximizing the company’s profit. Under ICBC’s existing policies, profit is still prioritized, and it is in an injured party’s best interest to obtain legal representation to ensure that they will receive fair compensation.