Why You Should Read this Blog

By preparing the course at icbctips.ca and writing this blog, I hope to accomplish the following:

  1. To provide a resource where the majority of people making a claim against ICBC can get information and strategies from an impartial source, instead of ICBC.
  2. To educate people on the usefulness of seeing a lawyer well in advance of settling a claim with ICBC.   I personally do not take on as clients most the people who see me, but rather give them summary advice about how to settle their claim.  Most lawyers I know who do ICBC work say the same thing.
  3. Educate claimants with lawyers as to the issues that arise in a personal injury claim such that they better understand the work their lawyer is doing for them.
  4. To get compensated by providing this information by having people pay for the course and information available at icbctips.ca.

I came up with this BLOG and the associated course at icbctips.ca to assist the vast majority of claimants against ICBC who chose to resolve their case without lawyers.

Let me tell you why I decided to assist people in settling their own claims against ICBC.

I checked out  ICBC’s website at ICBC.com.  I looked at their annual report for 2008, as that was the most current information available.  ICBC’s 2008 annual report indicates that in 2008, ICBC paid out about 2.6 billion dollars ($2,646,191,000) to claimants or third parties on behalf of claimants.   I expect these third parties to be lawyers, body shops, medical practitioners and the like.

Their annual report indicates that for 2008 there were nearly one million (964,000) claims.  This works out to a cost per claim of about $2,600. Since that time, the number of claims have dropped though most claims as still resolved without lawyers.

The annual report indicates that about sixty percent of the claims involve bodily injury.  So we can estimate the number of people making claims for bodily injury against ICBC as being around 600,000.  The figures for 2007 look about the same.

When ICBC was accused of influencing juries in 2009, In their public relations campaign to downplay the seriousness of this, they indicated that lawyers were representing about 23,000 claimants or less than 4% of people making bodily injury claims against ICBC.

So what does all this mean?

Well, firstly the amount paid out per claim looks low at $2,600.  It is apparent that most the claims must be much lower as it’s very likely that most the money is going to the 23,000 claimants represented by lawyers.  Most lawyers who do ICBC personal injury claims don’t take any claims if the value of the claim is less than $20,000.

Secondly, it appears that the people influencing and educating claimants are not lawyers, but rather adjusters working for ICBC.   In another blog, I will talk about why I think ICBC adjusters are in a conflict of interest with the claimants.   In their collective agreement, they’re entitled to a share of the profits ICBC makes. (see page 175 of the collective agreement at http://www.cceabc.com/docs/collective_agreements/ICBC_COPE_local378.pdf.)  So the more that is paid to you, the less money that will be available for bonuses.   There is an issue as to whether or not adjusters are there to help the claimant as opposed to the person who caused the accident, or to protect ICBC itself.   One of my blogs explains why  ICBC is not there to act in your interest.

Thirdly, with the amount per claim being so low, it appears that people are likely not receiving all that they are entitled to.  When looking at ICBC’s policy manuals and from hearing what adjusters tell individual claimants, they often refuse to pay for all the losses suffered.  ICBC sets their rates based on how much money they think they have to pay out on future cases.  They are definitely making high estimates, given how much of their profits they’ve paid back to the provincial government.

ICBC adjusters regularly discourage claimants from going to lawyers, yet they do not tell claimants all that they’re entitled to.  This is discussed in the blog linked here.

In many instances, people have come to me and been offered to settle their claim for $2,000 or $3,000.  By suggesting they give the adjuster further information on some items, and simply ask for other items, the amount they received jumped hundreds or thousands of dollars.  Information has value.

If you are looking for other information on the web, you should looke at the article I wrote on resources available on the web.

Can you say your sorry at an Accident?

When someone is in an accident where another person is injured or killed, they often want to give words of reassurance and caring. By saying your sorry, can you be admitting you caused the accident? The answer is unclear.

Section 73 of the Insurance (Vehicle) Act regulations reads as follows:

73 (1) An insured shall …(d) except at his own cost, assume no liability and settle no claim.
From this section, it appears that if the apology can be seen as an admission of liability, you could void your policy with ICBC.

Our BC government did not want to stop someone from apologizing because they might then be liable, and have to pay any losses themselves, so they brought in the Apology Act. An apology is defined as: ” an expression of sympathy or regret, a statement that one is sorry or any other words or actions indicating contrition or commiseration, whether or not the words or actions admit or imply an admission of fault in connection with the matter to which the words or actions relate

If you apologize, this Act specifically states that the apology is not an admission of liability, and overrides an insurance exclusion such as the section set out above.

But what if a court believes someone said: “Oh my God, I’m so sorry, I didn’t see the red light!” as happened in the case of Koshman v. Brodis?

In that case the judge found that there was conflicting evidence and that the statement was one of the deciding factors in finding the person who made the statement responsible for the collision. In that particular case the Apology Act was not brought up so probably was not considered by the judge.

If you want to apologize, be careful. It’s likely best to speak to a lawyer first.

Sources of Money While Unable to Work

First Steps

It’s frustrating when you can’t work. There’s the stress of no income coming in, things not getting done at work and your job being at risk. What to do?

First you need to speak to your practitioner – doctor, chiropractor, physiotherapist, massage therapist or other treaters – as to whether or not you should be working.

It may be obvious to you that you can’t work, but most people who have suffered an injury may feel the pain, but they often don’t show it- You may look fine. For this reason it’s best to have some validation to provide to your employer and your insurer.

You should get a note from your practitioner. The note should include a few things.  The note should expressly state that you cannot work.  The practitioner should be specific as to what you cannot do. i.e., “I understand Mr. Doe is a lawyer and he is injured such that he cannot work at this time”.

The note should have a date your practitioner will review your condition to see if you can work again and the likely return date. Most employers and ICBC want a date you can return to work. The problem is no one knows for certain when you will be better. As such it is best not to get a commitment from a practitioner of the date you can return to work. If you are still not able to fully function, then you may feel pressed to return even though you are not ready to do so. This can harm you in many ways.

There could be an estimation of how long you will be off work.  · I.e. “with injuries like the type Mr. Doe sustained, it is usual for someone to recover in eight weeks. As such, I will be reviewing Mr. Doe’s function on [date seven weeks away] to assess his recovery and ensure he is capable of returning to work.

The note should state the likely cause of you not being able to work.  · This is more for the insurer than your employer. The cause of your injury and inability to function properly has to be confirmed for the insurer for both the assessment of your claim, and the payment of some benefits.  If the reason you cannot work is not related to the collision, then you are may not be entitled to benefits.

If the collision is the only cause of the injury, it is useful for the practitioner to say “it appears the only cause of the injury preventing Mr. Doe from working is the MVA that occurred on [date].

Employment Insurance Benefits

I always recommend people apply for sick benefits under Employment Insurance (EI). If you do not qualify, it is best to get written confirmation, even if it means applying and getting turned down. The reason for this is it gives proof to your insurer that you do not qualify for benefits.

You are not applying for regular EI benefits, but sick benefits.  DO NOT APPLY FOR REGULAR EI BENEFITS UNLESS YOU ARE CAPABLE OF WORKING. If you apply for regular benefits, you need to claim that you are capable of working. If you’re not you would be lying. Not only is this a fraud on ICBC, but also it could impact your credibility when making your claim.

From ICBC

Under the insurance policy of the vehicle you were in when driving, or the vehicle that caused the injury, you are likely entitled to payment of benefit.

These benefits are set out in under Part 7 of the Insurance (Vehicle) Regulation

The two main requirements for receiving these benefits are:

  • You must have been employed for 26 weeks of 52 weeks prior to the collision, and
  • You are totally disable because of the collision

Before you can collect such benefits, you must use up all other benefits available such as sick benefits from EI, WorkSafe or WCB benefits, benefits from any disability insurance policies, and it may include banked sick time from your employer.

Disability Plans – Through Work or Private

If you have a disability plan through work you should review it to see if you can make a claim. There are usually two different types of benefits: Short Term Benefits (sometimes called Weekly Indemnity Benefits) and Long Term Benefits (LTDs)

Short term benefits often start right away. Sometimes you are required to use up sick time and EI benefits.

Just because you can’t work, doesn’t mean you get money from these benefits. It is a contract of insurance that sets out when you get paid. Sometimes the wording is really clear, other times it can be very confusing.

Long Term Benefits usually start in three to six months and last for Two Years in the occupation you were working in just prior to the injury, then after that, for any occupation you are reasonably suited due to education, training and experience.

Insurance claims are a complex area and further consultation may be necessary if your coverage is denied.

If you are denied coverage and think you might be entitled to coverage, you should demand a copy of the policy or benefit booklet.

Disability Plans – Government

Benefits are often available through the Canada Pension Plan and provincial social assistance programs.

WorkSafe

If your injury is work related, you may need to make a WCB claim. This can be a complex area and you may have a choice of going through WCB or claiming through a motor vehicle insurer such as ICBC. Prior to making a decision as to which way to go you should seek the advice of a lawyer.

Injury Loans

This should be a last resort. If you are looking for an injury loan, you should check the terms very carefully. Very often the interest is over 55% per year.

If you borrow one thousand dollars and your case settles two years later for $4,000, you will have to pay the lender the $1,000 lent, plus at least an additional $2,400 as there is interest on the interest. As such if you get $4,000 in settlement, after paying the loan, you could end up with less than $1,600.

Without Prejudice – What is the effect of this term?

In negotiations letters and other documents are often exchanged marked “without prejudice.  What does the term “without prejudice” mean, and what is the term’s effect in legal matters in British Columbia. This blog considers this.

The law is evolving and changing, and the exact application of this term or any other legal concept should be reviewed by a lawyer before it is applied to a particular circumstance.

A review of the definition of the term can be found this legal dictionary. In British Columbia, the term was reviewed in the case of Coombs v. LeBlond Estate.

In BC, as in most jurisdictions, the purpose of without prejudice communications, whether they be by discussions, in writing or in some other form, is to allow open discussion of settlement negotiations. If the matter proceeds to a hearing or adjudication, one or both parties don’t want the someone to say “I told the other side this is what they should agree to and they turned it down”.

Very often, discussions or letters marked “without prejudice” do not contain a settlement proposal.   Even if such a communication is marked “without prejudice”, it still may be admissible in court or another forum against the party who wrote it, or had their lawyer or representative write it.

Sometimes discussions or letters not marked “without prejudice” may be seen as seen as privileged and not usable if it contains terms of settlement.

After reviewing the relevant cases, the judge In the Coombs case, at paragraph 23, finds that in order for a communication to be without prejudice, such that it cannot be used in court or against the parties, the communication must have the following two conditions:

1 – a dispute or negotiation between two or more parties; and,
2 – terms of settlement offered.

With respect to the first term, some dispute must exist. There does not need to be court proceedings, but there should be grounds to commence a court proceeding.

With respect to the second term, there must be some terms of settlement offered. The other content of the communication can be the basis of the terms, or an explanation as to who the facts are seen or perceived.

If terms of settlement are missing from the communication, then it might be possible to use the communication against or for one of the parties.

Don’t Take It Personally When Dealing with an Insurer

Adjusters tend to be suspicious of claims; or they appear to be.  Though I do not believe the incidents of fraud as as high as insurance companies would have us believe, some adjusters have later found they have been misled by people making claims.

When dealing with ICBC, or another insurance company, keep in mind that they work for an insurance company; not you. Their first duty is to the insurance company. Their second duty is to the person who caused the accident – to pay out as little as possible on their behalf. They have no duty to you.

To add to this, most adjusters have had an experience where they paid out on a claim, but later find out something, that if they knew prior to paying out, would not of paid out as much, or at all.

What the adjuster is looking for is consistency. Are the medical records from the doctor and other practitioners, the witness statements – friends and employers, the car damage, and the statements given by the claimant all consistent? Do they make sense; are they supported by receipts and other documents?

The degree to which an adjuster checks and confirms facts varies. It is at their discretion and turns on the consistency of the information, and the way you come across. Some people appear straight forward and consistent. Others, through no fault of their own, appear “sketchy” or just don’t come across as accurate or truthful.

If the adjuster finds one inaccuracy, they will assume there are more. Examples are inaccuracies about working or income – working under the table (there will be another blog devoted to this, about treatment or doing exercises, about things you did or didn’t do.)

The most common inaccuracy is, “I can’t”. When people are in pain, they avoid pain by not doing things that make the pain worse. Often it’s not that they couldn’t do it, it’s just that it causes pain and they will pay for days. That’s not, “I can’t” but “if I do, I’ll pay for it later.”

Another common inaccuracy is saying “never” or “always.” ie I never had a headache before this accident. Even if true, that seems unlikely. If there is any evidence of just one headache, even ten years ago, you just lied.

The adjuster could come across as cold, disbelieving or even condescending. The best way to deal with this is to have as much supporting documentation as possible. Keep a diary setting out what you went through, what you missed and a list of your appointments. Obtain and keep receipts.

Though a claim against an insurer is very personal and about you, try to not take it personally.

Single Car Collisions

My last blog spoke about animals on the road. In this blog, I look at No Fault Collisions in a more general way. The message is similar.

These are situations where an animal or ice and snow cause the collision. It may also occur where someone driving suffers an unexpected medical event such as an epileptic seizure or heart attack.

Very often the situation I get is someone comes in who was a passenger in a single car collision. They went to ICBC. ICBC asked how the accident happened. They say it was no one’s fault, just bad road conditions. Often they don’t want to say anything that would get the driver “in trouble”.

The reason there is insurance is to cover the driver if the driver did something wrong.

Very often someone goes off the road with no one at fault – there was nothing they could do. If there is no fault, then there is no claim. ICBC adjusters sometimes call this as a no-fault accident.

There is also a legal doctrine known as Inevitable Accident. This is claimed where a collision is by an external force – like an animal unexpectedly jumping out on the road in front of the vehicle with no opportunity to avoid the collision or if the driver is affected by something internal such as a medical condition.

So, if you have been injured in a single car collision and someone else was driving, it is important that you consider whether or not the driver did something that contributed to the collision. To put it another way, was there something the driver could have done to avoid the collision such as drive slower, breaking sooner or paying better attention to his driving. The standard of care necessary is not driving under the speed limit, but rather driving at the speed appropriate for the road conditions.

If you’re in a single car collision, or one that may have been caused by someone with a medical condition, it may be worthwhile to consult with a lawyer prior to making ICBC or an insurance company. You want to make sure any statement you give is clear and accurate and cannot be wrongly interpreted against you.

Collisions with Animals

Imagine driving at night and a deer jumps out of nowhere. The creature comes through the windshield and causes injury.

You are the passenger and say to the police or to an adjuster that there’s nothing the driver could have done – it’s no one’s fault. The adjuster at ICBC says you don’t have a claim. She sarcastically says,

“Who can you sue, the deer?”

You will be told if it’s one hundred percent the fault of the animal, you don’t have a claim. My suggestion is to consult with a lawyer experienced in ICBC cases before making any statements or claims to ICBC or any other party.

Numerous clients have described and told me they experienced the scenario set out above. Is it true that you don’t have a case? It may be but…

When I come across someone in this scenario, I want to know a lot more details. I want to know how the collision happened second by second. I want to know all the details leading up to the collision. Did the passenger see the animal sooner than the driver? Was the driver going too fast? Was the driver not paying attention?

What I am looking for is someone besides my client (usually the driver) who is even partially at fault. Was the driver blinded by an oncoming vehicle with high beams on? Even if a person is one percent at fault, this person is fully liable and ICBC or their insurance company has to pay out damages on their behalf.

Another concern is what statements have been made to ICBC. Very often, the injured passenger has given a statement where they say something to the effect that the driver was not at fault. Sometimes that’s said as the conduct was very minor or the injured party doesn’t want to say bad things about the driver and they don’t know this statement will be used to deny the claim.

If you’re the driver, chances are you don’t have a claim as it’s the fault of the deer and maybe yourself. A passenger may have a claim. This is a situation where you want to speak to a lawyer prior to giving a statement. If you have given a statement, the lawyer will need to see the exact wording prior to giving an opinion.

What if a Friend or Family Member caused the Collision?

What if a family member or a friend caused a collision where I was injured and I don’t want to claim against them.

The first thing to keep in mind is it isn’t personal. Insurance is there to cover losses caused by people’s mistakes. As long as there is valid insurance coverage, a claim can be made and the insurance company can pay.

The claim may change what the at-fault person pays for insurance. Unless the person breached the policy by doing something wrong such as driving while impaired, he won’t have to pay anything.

Also, if the person doesn’t have enough insurance, he will have to pay for any amount over the insurance they have. For example, if a person has third party liability insurance of $200,000 (the minimum in BC), and a court awards $300,000 because of the injuries suffered, the insurance company will pay out $200,000 and the person who caused the collision will have to pay the additional $100,000.

I always suggest people carry at least three million dollars worth of third party liability insurance as there are many claims that go over a million dollars.

Am I Covered by my Auto Insurance if I’m at Fault?

One of the first questions to be determined after a collision is who is at fault? I don’t like to call collisions “accidents”. When people say “it was an accident,” the connotation is no one was at fault. Now to be at fault doesn’t mean someone set out to cause the collision.

It really means that someone did something or omitted to do something they should have done that caused the collision.
If no one is at fault, or the person at fault was the person injured, then the compensation is very limited. It’s limited to what is available as no fault benefits. No Fault benefits will be the topic of another article.

Now if someone is at fault for a collision, it doesn’t mean that they did something criminal or illegal. It could be momentary inattention or a poor judgment call. Insurance will pay the other person if we make a mistake. Now if the conduct is criminal, such as driving while impaired, racing or seeing how fast your vehicle could go, then ICBC will pay out, then sue the person at fault for reimbursement.

If the collision isn’t your fault, then it’s the insurance company of the person who caused the collision that you deal with. It’s usually ICBC, but if the collision was caused by someone outside of BC, it could be another insurance company. The insurance company will try to settle the case, but they are doing so because their duties and responsibilities are to the person who cased the collision.

It is possible for liability or fault to be divided amongst different people. The owner of a vehicle is liable for the actions of anyone they let drive the vehicle. The owner is also covered by the insurance through ICBC.

If two different drivers contributed to the collision, both of them can be found liable.

If the injured person was partially at fault (for example, if the injuries are worse because the insured person didn’t wear their seat belt, was struck by a vehicle while jay walking, or was one of the drivers who caused the collision) then they are still entitled to compensation, but the compensation will be reduced by the percentage that the injured person is at fault.

So ICBC will cover pay all the costs of a collision you cause. If you don’t have valid insurance, or you breached the policy by committing a criminal act or doing something else improper, ICBC will still pay out, but then sue you for the money they paid out back.

Is ICBC Really Acting in Your Best Interests?

When you have a claim, ICBC is involved in many ways.   When a case goes to trial, insurance is not supposed to be a consideration.   This is a fiction.  Not only is vehicle insurance in this province compulsory, but also the minimum coverage must be with ICBC.

Other insurers can provide optional coverage, but I suspect that ICBC subsidizes compulsory coverage with the mandatory insurance to give them an unfair advantage in the marketplace.

In making a claim, there are some benefits we all get from ICBC no matter who’s at fault.  They cover the ambulance ride, medications, medical supplies, a portion of your wage loss in some instances, and homemaking services.  They also reimburse the Medical Services Plan for what was paid on your behalf.  They have to pay the non-user fee portion of other treatments such as physiotherapy.

If someone else caused the collision, as that person’s insurer, ICBC stands in their shoes and pay out claims to people who have a claim against the person at fault.

So what’s ICBC’s duty to you as the person injured due to the negligence of someone else?  NONE.

The adjuster represents ICBC when acting as your insurer, and the adjuster acts for the person who caused the claim.  The adjuster has a fiduciary obligation to act in the best interests of ICBC, and of the person who caused the collision.  They have no duty to act in your interest.

It gets worse.  This was highlighted when I was reminded by a police officer that when going through Yahk on Highway 3, the speed limit is 60kmh.  To assist my memory, He compelled me to pay $138.00.  When I looked on the traffic ticket to see who to make the cheque out to, it was ICBC.

So they collect fines, pay overtime for roadside checks, assist financially in constructing highways, and control the issuance of licenses.

They have their own police force to investigate claims they suspect are fraudulent, though I note that there are very very few charges laid.  Unless they hired officers who are incompetent, it must be because the incidences of fraud are not very great.

When dealing with ICBC, keep in mind whose side they’re on, especially when asking them for information or receiving their views and opinions.

They are not there to assist you in knowing your rights.   Adjusters are not to “work” the file, and assist you in knowing all you’re entitled to.  They have a duty to act in the best interests of the person who caused the collision, and in the best interests of their employer, ICBC