“Minor” Injury Caps – Bad Policy for Those Most Vulnerable
In a news release on February 6, 2018 the BC government announced an intention to usher in significant changes to ICBC. The most significant change proposed is the implementation of a “minor injury” cap. While the BC government has provided some information as to how these changes will look (if implemented), many of the details remain unknown. This article focusses on what we currently know and offers insights into how these changes will impact you.
What is a cap?
In short, a “cap” refers to a legally-imposed limit on the amount of compensation an individual can receive after being injured by a careless driver on our roads. Specifically, the minor injury cap takes aim at the damages for pain, suffering and loss of enjoyment of life. In other words, the government wants to control ICBC’s costs by limiting the amount of compensation available to a person injured in an accident through no fault of their own. It is unclear to us why the government is pursuing this route instead of making the bad drivers who cause these crashes to pay more.
The government has also announced an intention to increase first-party benefits (i.e. coverage for physiotherapy, massage therapy, medication, etc.). ALL drivers are entitled to first-party benefits, including the driver who causes an accident. By increasing first-party benefits and reducing compensation for “pain and suffering”, the government is creating an environment in which bad drivers will have their physical and financial health restored while innocent victims who are deemed to have suffered a “minor injury” will receive less.
How much is the cap?
When will the cap be implemented?
If enacted, the cap will apply to all claims arising on or after April 1, 2019.
How is this different from the current system?
Under the current system, a judge or jury determines the amount of compensation that an injured person is entitled to. Lawyers will assess their claims by referencing cases with similar injuries. In other words, lawyers will ask themselves, “What would a judge award in this case?” More often than not, a claim will settle based on this type of analysis rather than proceed to trial.
Interestingly, a cap is not a new idea. It is a legislative cap—one that is set by politicians and law makers as opposed to judges—that is different. In fact, British Columbians have been subject to a judge-made cap on pain and suffering damages since the late 1970s. The Supreme Court of Canada decided that $100,000 would be the cap for pain and suffering damages (indexed for inflation). In today’s dollars, the pain and suffering cap is approximately $375,000. Only injuries that are considered catastrophic receive that amount. Most pain and suffering claims are resolved for much less. Damages for other losses, like income loss or the cost of care are not limited to any preset amount, but are determined by the evidence of each case.
How is “minor injury” defined and who defines it?
To our knowledge, there is no medical definition for a “minor” injury. Science has not found a formula for determining whether or not an injury is “minor”. Accordingly, each time you year the term “minor injury”, you must understand that this term was created by legislators with the help of the insurance industry. As one would expect, the definition of “minor injury” varies greatly across the country. The exact definition that will be relied upon in BC has yet to be determined. However, the government has said that the definition will include “sprains, strains, mild whiplash, cuts and bruises, anxiety and stress”. It will not include “broken bones, brain injuries (concussions) or other more serious impairments”.
What happens if a “mild whiplash” develops into a lifelong problem? The government attempts to address this question by stating: “If, after 12 months, a customer continues to have serious impairment from the injury, or has a significant inability to care for themselves, it would no longer be considered minor…” In other words, there is an exception for injuries that look minor but end up being much worse than expected. What exactly is a “serious impairment”? Our research from other jurisdictions across Canada with similar definitions suggests that a “serious impairment” relates to one’s inability to work. So long as you are able to work, your injuries will be considered “minor”—even if that means you will be working in pain for the rest of your life and disengaging in all recreational activity.
As for who decides whether an injury is “minor”, the government is stating that this will be the responsibility of “medical professionals”. Unfortunately, the government has not explained who these medical professionals will be and whether or not they will be paid by ICBC or by some other source. The more closely the medical professionals are tied to ICBC the greater the risk that the decisions by these professionals will be seen as biased.
What if I don’t agree that my injuries are “minor”?
The government has suggested that your will remedies lie in a tribunal system, not the court system. That is, you will be required to attend the BC Civil Resolution Tribunal in order to challenge a finding that you have suffered a “minor” injury. In the past, the Tribunal has only dealt with strata fee disputes and minor small claims issues. Accordingly, significant questions remain as to whether or not the Tribunal will be able to handle the increased volume and complexity of personal injury claims.
Currently, litigants appearing at the Tribunal are not allowed to bring a lawyer. That is, a person wishing to challenge the “minor injury” label will have to do so before the Tribunal without a lawyer. As you can imagine, this would be particularly challenging for new Canadians or anyone who has a language barrier. The government has implied that the rules will be changed to allow lawyers to attend. Persons with minor claims can currently challenge ICBC’s settlement offers by proceeding to Provincial (small claims) Court. It is unclear how adding another layer of bureaucracy with an expanded Civil Resolution Tribunal will reduce costs or increase access to Justice.
What can I do about this?
The government is slowly moving towards a WCB-style process for adjudicating ICBC claims. If you share our concerns for the proposed changes, it is NOT too late to act. If you believe that ICBC should not have the power to decide that you or other British Columbians have only a “minor” injury which is worth practically nothing, please:
1. Take a moment to visit the ROAD BC website at https://www.roadbc.ca and sign the online petition – it only takes a moment. ROAD BC is a coalition of interested groups and individuals who are fighting ICBC’s effort to lobby the government to give it the power to decide that an injury is “minor”.
2. Send a letter to your MLA in the riding(s) where you live and work. If you don’t know who your MLA is, visit this site to look them up via your postal code. For MLA email and postal addresses visit this website. And if you need any help with the contents of the letter, let us know.
3. Visit the ROAD BC Facebook page by clicking the link on this link, and “like” the posts and videos you see. If you believe, as we do, that ICBC should not be given the power to decide that people such as you have a “minor” injury which is worth practically nothing, please “like” the Facebook page and share it. If you have time please watch the videos of British Columbians who share their experience in dealing with ICBC and share the videos with your friends.