ICBC’s Definition Of Minor Injuries Will Cause Major HeadachesNov 26 2018
Update: the new legislation is in effect, you can read more about it here.
Earlier this year, in its misguided attempt to clean up its financial woes, ICBC introduced legislation that will cap personal injury payouts for those involved in motor vehicle accidents. The legislation will also restrict the options for those wishing to seek additional compensation. Under the new legislation, which comes into effect in April 2019, there will be a $5,500 cap on pain and suffering for those involved in motor vehicle accidents.
The bigger focus – and cause for greater concern – however is with the pending regulations that would define pain and suffering as well as outline what would constitute a minor injury. ICBC recently released specifics regarding those regulations.
- Pain and suffering is defined as those conditions that include concussions, mental health problems and/or minor injuries.
- Minor injuries include strains, sprains, aches, cuts, bruises and minor whiplash (including forms of TMJ* and WAD**).
Why You Should Be Worried
Being involved in a motor vehicle accident can cause life-altering injuries. Some injuries may show up immediately, but others may not become apparent until much later. For example, what initially may seem like a sore neck can turn into a debilitating condition over the course of time. Depression can take months to present. Brain damage and the extent to which it will affect someone cannot be easily determined in a short period of time. Unfortunately, these new regulations will limit the time period – four months – in which injuries can be assessed and diagnosed.
Major Injuries & Burden of Proof
If a concussion or mental health problem persists after four months, it could be considered a major injury. But whiplash, sprains and strains will not be considered as major injuries until after twelve months has passed. Sounds straightforward, right?
The problem is that the onus will be on you – the accident victim – to prove that your head injury, mental health issue or “minor injury” has become a life-altering condition. To help put this in perspective, imagine that you have been involved in an accident and are dealing with serious health and medical issues. This would be one more burden you would need to bear if you wanted to pursue additional compensation.
Another concern is determining an acceptable and applicable definition of incapacity. Incapacity is usually defined as being unable to work, go to school or carry out normal activities of daily living – looking after yourself, cooking your meals, managing finances, shopping, cleaning, etc. With the narrow lens that these new regulations will apply when determining incapacity, it will prove to be both difficult and challenging to escape a minor injury claim.
Challenging A Minor Injury Ruling
Any disputes over pain and suffering injury claims will not be pursuable through the courts. Instead you will be required to go through a civil resolution tribunal process – a process typically reserved for resolving strata disputes. It is an online dispute system that has only been in place for a few years and there is concern that the system has not been sufficiently tested to determine its effectiveness as a model for resolving complicated personal injury claims. In direct contrast to a court-based system that relies on evidence to make decisions, the civil resolution tribunal also does not allow for independent rulings by a judge.
To find out more about how the new ICBC legislation and regulations will affect you and what alternate options you may have to pursue compensation, call RDM Lawyers today.
*TMJ – Temporomandibular Joint
**WAD – Whiplash-Associated Disorder