Injured in a car accident? Can’t work? What are you options for payments from ICBC and other sources.

ICBC may have an obligation to pay you for lost wages if you are injured in a motor vehicle accident. There, however, are a few catches:

1) Firstly ICBC is a secondary insurer. What this means is that if you have another source of income, such as extended health or employment insurance coverage, you have to exhaust those sources first before ICBC will provide you with any payments.  ICBC will top up your benefits to the regulated level, which is currently a maximum of $300.

2) You need to have been employed for 6 of the last 12 months to qualify for income benefits.

3) You need the proper medical evidence to prove your disability. This is where contacting a personal injury lawyer can be helpful. This is a crucial step in the process and once ICBC has made up their mind about an issue it can be difficult to get them to change it.

Once ICBC has granted you benefits, it does not end there. ICBC has the discretion to stop paying benefits if they decide you are not cooperating with the medical treatment they have recommended to you.  ICBC also has the right to have you appear before their own experts for the purpose of an inspection.

You may earn up to $75 on top of the $300 paid by ICBC before ICBC will begin to make deductions. $375 per week is not a lot of money to live on, particularly in cities like Vancouver or Kelowna with relatively high costs of living. I recommend that when you are injured in a motor vehicle accident you speak to a personal injury lawyer to discuss the optimal way to increase cash flow when you are disabled from work.

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Does ICBC have to pay for my treatment?

Many people do not realize they are entitled to benefits from ICBC regardless of whether they are at fault for an accident or not. When you have been injured in a motor vehicle accident, Part 7 of the Insurance (Vehicle) Regulations creates an obligation for ICBC to fund treatments including all necessary: medical, surgical, dental, hospital, ambulance or professional nursing services, or physical therapy, chiropractic treatment, occupational therapy or speech therapy or for prosthesis or orthosis. It is important to remember that ICBC has an obligation to pay these expenses, under various circumstances, to those injured in motor vehicle accidents. These payments are not discretionary and should not be used as bargaining chips.

Unfortunately ICBC does not need to pay for the entirety of these treatments. They are only obligated to pay for amounts set out in the Medicare Protection Act. The excess not covered by ICBC is often referred to as a “user fee”.

The injured party is initially responsible for payment of the user fee. However, if you have been injured by another party, and the court deems these expenses reasonable and necessary, the other party will ultimately be liable for these expenses. Other options for payment of user fees may include having extended health care pay for these expenses.  Many extended health care plans will cover treatment payments.  However, be aware that they may take a subrogated interest in these payments or simply treat them as a loan. The end effect is that the injured party then has an obligation to repay the extended health care provider.

An additional pitfall exists in that a lawsuit for medical benefits owing under Part 7 must be started against ICBC separately from the lawsuit against the driver of the vehicle who injured you. If a lawsuit is not started any amounts owed to you under Part 7 by ICBC can be deducted from a liability settlement against another driver.

Management of who pays what and what is owed gets very complicated quickly. As such, it may be best to hire a lawyer to recover benefits. When my clients come to me with a personal injury issues, I will also take care of issues related to securing benefits from ICBC.

 

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Do I need to hire a lawyer for an ICBC case?

Do I need a lawyer?

When dealing with ICBC, the answer is probably.

An experienced personal injury lawyer will not only have experience with the litigation process and the many pitfalls that can occur, but they will have experience dealing with ICBC.

The downside to hiring a lawyer is that you will have to pay them. The majority of personal injury claims arising from a motor vehicle accident are done by contingency. What this means is that the lawyer does not get paid until a settlement is reached. The lawyer then gets a percentage of that settlement. Lawyers in British Columbia can charge a maximum of 1/3 for personal for personal injury claims. However, typically, lawyers will charge less than that.

Price alone should not dictate which lawyer you choose. Typically, a good lawyer will be able to get you a better settlement. For example, a lawyer charging 30% who is able to negotiate a settlement of $50,000 will leave you with higher compesnsation than a lawyer charging 25% who is only able to negotiate a settlement of $40,000.

A major advantage to the injured party of the contingency agreement scenario is that the lawyer will typically fund the “disbursements”. Disbursements are the expenses of running the litigation. These can be quite high, as it may be necessary to hire multiple expert witnesses. In order for a plaintiff to build their case, they will need to provide ICBC with expert reports, which may, in turn, cause ICBC to increase their payout as they see increased risk if your matter was to proceed to trial. More expensive experts such as engineers or neuropsychologists can charge $10,000 or more for a single report. A more complex case will require 10 or more experts to be hired.

Additionally, the act of hiring a lawyer alone may change the way ICBC views your case. ICBC – and litigants in general – may view an injured party who does not hire a lawyer as less willing to pursue their lawsuit. When a party is viewed this way, it creates less incentive for ICBC to offer a higher settlement.

There are some situations where it may not be necessary to hire a lawyer. These would be injury cases involving relatively minor motor vehicle accidents and injuries – injuries that produce no wage loss and are very temporary. In such cases, a fair settlement might only be in the range of $3,000 to $5,000, and the advantages of hiring a lawyer vs. the cost become decreased. Even then, it never hurts to speak with a lawyer. The majority of personal injury lawyers (including myself) will provide free initial consultations.

However, it may be worth it to hire a lawyer for the mere fact that once you do hire a lawyer to represent you for a personal injury claim arising from a motor vehicle accident, the other party and their representation – usually ICBC – will no longer be able to contact you directly. All communication will have to go through your lawyer.

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The Bertuzzi / Moore personal injury lawsuit settled


http://www.sportsnet.ca/hockey/nhl/source-settlement-reached-in-bertuzzi-moore-case/

 

The Bertuzzi / Moore case is one of the most notorious personal injury cases in British Columbia (although the lawsuit was actually filed in Ontario). Today, a settlement was reached in this case. Due to a non-disclosure clause, the details of this settlement have not been made public.

By way of background, Steve Moore, a former player for the Colorado Avalanche of the National Hockey League (NHL), was injured when he was struck from behind by Todd Bertuzzi during the third period of a game against the Vancouver Canucks on March 8, 2004. Moore suffered various injuries including a concussion, three fractured vertebrae, and facial lacerations.

http://en.wikipedia.org/wiki/Todd_Bertuzzi%E2%80%93Steve_Moore_incident

Supposedly, Moore was asking for an award of $68,000,000.00.   Moore would have faced several challenges in his lawsuit had his case gone to court. Firstly, he would have been required to prove what his potential wages might have been. There would have been considerable debate about this, as Moore’s potential was most likely that of a “journeyman” at the professional hockey level. At the time of this incident Moore was already in his mid-20s and had amassed only 12 points in 69 NHL games.

Next, there would have been some debate as to who caused the injury to Moore and whether Moore assumed a risk inherent in the game of hockey. Following Bertuzzi’s blow to Moore he was caught underneath a scrum of several players. It is possible the injury to Moore occurred during the ensuing scrum and not from the blow by Bertuzzi. Hockey is also a full contact sport, which condones fighting.

In my opinion, Bertuzzi was unlikely to succeed with either of these arguments. The video footage of the incident in question shows what seems to be an unconscious Moore striking the ice with his head after being struck from behind by Bertuzzi. While hockey condones fighting – although perhaps not for much longer – a fight consists of two players squaring off and voluntarily consenting to a fight. Bertuzzi clearly “sucker-punched” Moore.

The challenges faced by Moore would have been those faced by most plaintiffs and their lawyers during more typical personal injury cases such as those arising from motor vehicles and ICBC issues. We always need to remember that the burden of proof is on the party making the argument. While Moore was likely to succeed against Bertuzzi, had this case gone to court, his award was very much up in the air. It is likely this case settled for far less than the $68,000,000.00 that Moore was seeking.

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Soft-Tissue Injuries and Motor Vehicle Accidents

Many injuries people suffer in motor vehicle accidents are not easily diagnosed or explained. Unlike injuries like a broken bone that can be easily identified, injuries involving the soft-tissues of the body are much harder to diagnose. The lack of objective evidence these injuries leave behind increases the importance of the credibility of the injured party in both negotiations with ICBC and, in the event of a trial, before a judge.

In situations where the injuries are entirely of a soft tissue nature, the judge will often rely entirely on the credibility of the injured party to determine the amount of an award. ICBC, similarly, will place a large emphasis on the credibility of the injured party when discussing potential settlement.

Soft-tissue injuries – which can be just as disabling and painful as broken bones – if not properly presented, can lead to various legal issues, including unfair compensation for an injured party. This emphasizes why it is important for people injured in motor vehicle accidents to seek proper legal advice from a lawyer with experience in dealing with ICBC and personal injury cases.

The following article, from the BC Fibromyalgia society, provides some very basic information on fibromyalgia, a disease which commonly affects the victims of motor vehicle accidents. Fibromyalgia can be a disabling disease, which leads to a variety of physical and emotional symptoms.

http://www.mefm.bc.ca/bcfm/pages/whatisfm.html

ICBC releases statistics on worst crash locations in Metro Vancouver

Generally it is best to avoid injury, lawyers, and lawsuits all together. ICBC has released statistics on what areas of metro Vancouver (the Lower mainland) have the most car accidents.

These statistics show that it is not only the driver that can be responsible for a car accident, but certain areas of the city, due to features of the road, will lead to more accidents.

http://globalnews.ca/news/1410506/icbc-releases-statistics-on-worst-crash-locations-in-metro-vancouver/

Global News

ICBC has released statistics on some of the worst crash locations in Metro Vancouver.

Last year, there were 350 accidents alone at Willingdon and Highway #1 in Burnaby.

The ramps allowing traffic to merge between Knight Street and Southeast Marine Drive in Vancouver were also tricky for drivers to navigate in 2013, with well over 200 crashes there.

ICBC says knowing in advance that certain spots are crash-prone may help drivers pay close attention to what’s happening around them.

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ICBC accidents and partial disabilities.

Today the Supreme Court of British Columbia provided reasons for an award in excess of $1,000.000.00 for compensation for injuries sustained in a motor vehicle accident.

 

http://www.courts.gov.bc.ca/jdb-txt/SC/14/15/2014BCSC1528.htm

 

The bulk of this award was for “Loss of Earning Capacity”, which is the loss of the ability to earn income in the future. In this particular case a large award was given despite the fact the plaintiff maintained the ability to work. Her award was based on the effect an ongoing partial disability would have on her ability to earn promotions and work beyond typical retirement ages. The courts decided that although this plaintiff was able to continue working, she would be less able to compete for promotions and more likely to retire early.

 

In other words, you do not have to be off work to receive an award for potential loss of earnings. However, the burden of proving such a loss remains on the plaintiff. The burden here is relatively large. In this particular case, the plaintiff had a manager testify that he felt that the plaintiff was less competitive for promotion. The plaintiff also had a slew of experts and witnesses provide their opinions and observations, including: accountants, doctors, physiotherapists, and neuropsychologists.

 

This plaintiff – with the help of her lawyer – was able to receive fair compensation for her losses. This process was undoubtedly complex and costly. Retaining a neuropsychologist as an expert can cost in excess of $10,000. This trial involved many other experts. Covering the costs of litigation, via a contingency contract, is one of several ways a lawyer can help a plaintiff receive a fair settlement for their injuries. Most ICBC cases can typically be settled before going to trial. However, in some situations trial is necessary to ensure a proper award.