Have you been in an accident that happened after April 1, 2019? Has ICBC is made you an offer to settle for $5500 and told you that is the limit under the new rules? While that may be true if you recovered from your injuries in a short period of time, that is not the whole story.
Accidents that occurred after April 1, 2019, are subject to the $5,500 ‘minor injury’ cap for pain and suffering (inconvenience, emotional stress). ICBC’s definition of ‘minor injury’ is sprains, strains, general aches and pains, cuts, bruises, road rash, minor whiplash, and short term mental health conditions – these make sense as ‘minor.’ However, ICBC also classifies ‘minor’ as persistent pain, temporomandibular joint disorder, and mild concussions, and therefore these more serious injuries are also subject to the cap.
It is crucial for people who have been injured in an accident to hold off on settlement under the caps until they have recovered. A person has two years following the accident to settle out of court, so there is no hurry.
The ‘minor injury’ designation assumes you will recover within 12 months, and if you do fully recover in that time, the ‘minor’ pain and suffering payment is somewhat fair. However, in some cases, the injury persists past 12 months, or it detrimentally affects your employment or education, or you can’t care for yourself – this will very likely fall outside of the ‘minor injury’ cap.
As well, if your concussion or mental health condition (anxiety or depression) lasts longer than 16 weeks (3 months) – this injury will also very likely fall outside the ‘minor injury’ cap.
If you have taken the settlement under the caps, it will be too late to go back for the appropriate compensation amount. This is why it is important to hold off on settlement until you have completely recovered – to be sure that the compensation you receive is fair and reflects your losses.
If you have not taken a settlement and your injuries persist, you can ask your adjuster to agree your injuries do not fall under the ‘minor injury’ cap. If they won’t agree, you can have the matter moved to their manager or examiner. If they won’t agree, you must now file your dispute with the new Civil Resolutions Tribunal (CRT) – an online Tribunal that has authority to decide if your injuries are ‘minor’ and award you compensation for other losses up to $50,000. The CRT has an online program to give you some guidance and advice.
Lawyers always provide free consultations to give some initial advice to navigate this new ICBC and tribunal system and assist you if you require. In circumstances where the injured victim is not getting better in the 12 months or has a lasting concussion or psychological injury, they will likely fall outside the ‘minor injury’ cap but will need help proving that. Also, there is more to compensation than pain and suffering.
People lose a lot when they are injured in an accident through no fault of their own. There is often wage loss, lost opportunity to work or further their education, recover their out of pocket expenses and recover their mileage from attending treatments or medical appointments. ICBC adjusters do not often canvass all the losses or volunteer the list of what an injury victim is entitled to.
A lawyer can help you determine your losses, what you are entitled to, and how to gather the evidence to prove those losses. As well, a lawyer can also represent you in the CRT to apply for a determination to remove you from the ‘minor injuries’ cap and then take the case on to negotiation with ICBC or the regular BC Supreme Court for determination of what you should be fairly compensated for.
When in doubt, get some legal advice!