ICBC Information Guide: Rehab and Regulations

Introduction to ICBC
What to expect when dealing with ICBC
How ICBC should assist you
What if the collision was someone else's fault?
Your health following the collision
How lawyers help
Lawyer obligations under ICBC defence retainers
Settlement of ICBC claims
Personal Injury Claims

Introduction to ICBC

Who is ICBC?
In British Columbia, the Insurance Corporation of British Columbia, ICBC, is the primary insurance company for motor vehicles. ICBC is a provincial Crown corporation from which all drivers in British Columbia obtain basic insurance coverage. ICBC is created and is governed by statues and regulations.

What type of insurance coverage can ICBC provide?
The basic insurance, known as "Autoplan" insurance is the minimum amount that a B.C. vehicle must carry to legally operate. This coverage includes a minimum protection from third party legal liability ($200,000), uninsured or underinsured motorist protection ($1 million dollars) and rehabilitation accident benefits. Prudent drivers and companies will purchase much more insurance, and they can do so from ICBC or from other insurance companies like ING or Canadian Direct, Canadian Northern Shield insurance or other insurers. All BC vehicles must purchase basic insurance from ICBC.

We would strongly recommend that you purchase additional UMP (underinsured motorist protection) and significant additional third party legal liability insurance, it is essential protection in case of a motor vehicle collision.

What is my relationship with ICBC?
If you have BC insured vehicle, then ICBC is "your insurance company". Although it is 'your insurance company', the relationship that you have with ICBC is probably different than you would expect, especially if you've been in a collision with another driver insured by ICBC. ICBC represents the interests of all insured individuals involved in motor vehicle collisions. In other words, ICBC must decide if you or the other people involved are entitled to coverage and then they represent each insured. They are to try to represent both parties, but as well, they take care of the company's interests, meaning they must "make ICBC earn profits." As a result, ICBC employees may not be working with your best interest in mind, but rather with the insurance company's financial interests in mind.

What to expect when dealing with ICBC

How do I talk with ICBC after my accident?
You or your representative will have to deal with ICBC (either personally, or through your lawyer) after a collision or injury. In insurance speak, you must "perfect your claim" and begin the process that will entitle you to compensation.

You should consider retaining a lawyer before talking to the insurance company about your injury or the accident (How a lawyer helps when dealing with ICBC). You may not understand the significance of the questions being asked, which could potentially devalue your claim. What you say to the ICBC adjuster can and will be used against you or could even disqualify you from coverage (What is a claims adjuster?). Insurance adjusters (both in-house and 'Independent' adjusters) work for ICBC. There role is to minimize ICBC's payments, of course they are employed by ICBC. If you feel pressured or concerned, you should immediately seek help from a lawyer who is experienced in dealing with ICBC. In any case involving serious injuries to you or a family member, it is very important to speak to a lawyer before contacting ICBC.

What do ICBC's Regulations require me to do?
ICBC's requirement Regulations require a person who is Involved In an MVA to:

As well, if you commence a lawsuit, it must be filed within the time required by the Limitation Act, (see section MAKING A PERSONAL INJURY LAWSUIT AGAINST ICBC). The time limit is usually 2 years from the collision, but do not rely on this as legal advice, please contact a lawyer for legal advice.

The specifics are spelled out in the Regulations to the Insurance (Vehicle) Act, but are well understood by lawyers who regularly practice in this specific area of law.

How do I give my statement?
One of your obligations to ICBC is to provide a statement, which includes your name, information about the accident, and a some explanation of your injuries. There is no obligation to provide extensive details in this statement. Your lawyer will advise you that, especially at the beginning, the less said, the better. It's only advantageous to disclose information if it helps you advance your claim as opposed to giving ICBC ways of minimizing your claim. If you attend a meeting with an ICBC adjuster, they may compile a statement (in their own words) that reflects your discussion of the accident and injuries. You do not have to sign this statement. Instead, you can write one with the help of a lawyer who can inform you of what information is necessary to include. At the very least, take the statement home to re-read carefully before signing. (Accuracy of your statement).

What accident benefits will I receive?
If you have been injured in a motor vehicle accident in British Columbia, whether or not you are responsible for the accident, you are entitled to "Accident Benefits", often referred to as "Part 7 Benefits" or "No Fault Benefits". They are referred to as no fault benefits because they are provided to any insured person who is involved in a motor vehicle collision, regardless of who is at fault. These benefits may include wage loss benefits or rehabilitation services (see What are Accident Benefits?). In order to receive the accident benefits offered under this policy you must file an Accident Benefit Claim Form (Cl-22) with ICBC, generally within 90 days of your accident. When filling out this form you are asked a number of questions including the type of injuries suffered. Make sure the form is completed properly, because if you miss an injury ICBC may use this oversight, at a later date, to suggest that you have fabricated a new injury. If you retain counsel, a lawyer will assist you with the accurate and timely completion of this form.

Who decides fault?
When you report a motor vehicle accident to ICBC you will be assigned an insurance adjuster or claims adjuster (see What is a claims adjuster?). The adjuster will decide who is at fault for the motor vehicle accident. This decision is based upon the statements that you and others give to ICBC. The adjuster uses the information obtained, but is not a judge. Adjusters most often have no formal legal training. While some evaluations are very easy to make, many involve complexities or subtleties which require the application of legal principles. If you disagree with the adjuster, remember that the adjuster's decisions has no effect on the view a court might take. In fact, when a matter goes to court, the adjuster who made the decision in the first instance has no part of the evidence or court decision. Your lawyer can and will likely take a different view based on their extensive legal training.

How is my claim assessed?
In order to have your claim properly assessed, you must collect information regarding your injuries and their circumstances. This often requires interviewing witnesses, gathering information from police and medical personnel, employers, family, friends and consulting experts in different fields of study. There are also experts who assist lawyers in reconstruction and help ascertain who is at fault for a specific motor vehicle collision. In serious cases, medical experts are retained to oversee rehabilitation and report on the medical sequelae of the injury. Even in simple cases a medical-legal report from the family physician is probably necessary. That report may have to be supported by reports from experts in other medical and other health care disciplines.

Complicated accident claims may require assessment by:

There are many details when it comes to assessing and valuing a claim, and it's important to ensure that all the appropriate information regarding your claim is collected in a timely manner. Delay in gathering evidence is the enemy of the injured party. This may be the key reason to hire an experienced personal injury lawyer.

Who is the ICBC adjuster?
An insurance claims adjuster, or an adjuster, is the person assigned by ICBC to handle your 'file' once you report a car accident to ICBC. They are not lawyers or judges, but rather are employees of ICBC whose ultimate goal is to try to keep ICBC's payouts as low as possible. The adjuster reviews the accident circumstances, your injuries, and the damage to your vehicle. Through their review of your accident and injuries, the adjuster assigns fault for the accident and approves the payment of medical expenses and benefits, possibly leading to the settlement of your claim with ICBC. Whether assigned to you or not, the ICBC claims adjuster works for ICBC and is ICBC's representative in the settlement process.

Claims adjusters can be direct or 'in-house' employees of ICBC who work in their claims centre. They have different titles, ie: 'bodily injury adjuster,' or 'examiner' depending upon their training and experience. They can also be contract adjusters who call themselves 'independent adjusters,' even if their only contract is with ICBC.

It is not the adjuster's job to educate you on your rights. The adjuster is employed by ICBC, not you, and their obligation is process the claim expeditiously for ICBC. For this reason, when pursuing a claim with ICBC it is extremely important that you learn all the necessary information, early on, regarding your rights and obligations. Achieving maximum rehabilitation and fair compensation is your responsibility, not ICBC's. Your lawyer is can either educate you regarding your rights and advocate for the provision of full benefits and entitlements pursuant to the applicable statutes and regulations. They can make sure that you receive maximum compensation and alleviate some of the stress that comes from dealing with ICBC (How a lawyer helps when dealing with ICBC and What does a lawyer do?).

What are the adjuster's objectives?
The primary objective of an ICBC claims adjuster is to determine who is responsible for the accident, one of the drivers, or both to varying degrees. In addition, the adjuster assesses the vehicle claim and possibly the claim for injuries. This is done by collecting information about the accident and the extent of the injuries and by assessing how they affect the injured person's ability to work or do other things like perform household tasks. Claims adjusters are trained to minimize payouts to claimants. Therefore, you must be wary of communicating with the adjuster, as they may be building a defense case against you, while you are under the impression that they are working for your benefit (see What does an ICBC claims adjuster ask about?). Expect that the claims adjuster will keep notes of all conversations with you or anyone else. These notes will document ICBC's side of the story. They are not always accurate but they are relied upon by ICBC.

Do I have to meet with the adjuster?
After reporting your accident claim, you may be asked to meet with an ICBC claim's adjuster. Contrary to what ICBC may lead you to believe, you do not have to attend any meetings with ICBC, even if you have an injury claim. If you decide that you do want to attend that initial meeting with the ICBC adjuster, be cautious. Adjusters are not your 'enemy' but have a different agenda than you. Keep in mind that the adjuster is probably helping to build the defense case (against you) while also leaving the impression that this interview is for your benefit. If you have an injury claim, the adjuster will undoubtedly press for as much information as possible. It is not wise to say too much about your injury, especially initially. If you do not like the line of questions you don't have to answer them. In addition, if you retain counsel, they will communicate with ICBC and the adjuster for you (see What does an ICBC adjuster ask about? )

If there is an issue over who is at fault for the accident, you have no legal requirement to go in to see an adjuster. Rather, you can provide your statement and the necessary forms in writing to the adjuster, which can be used by the adjuster to assess liability. We recommend co-operation, but with considerable caution (see Filing a Statutory Statement).

What types of questions will I be asked?
Throughout the process of investigating, handling, and resolving your ICBC claim, the adjuster will ask you for details about the accident (if you are not represented by a lawyer. If you are, your lawyer will ask ICBC to provide the benefits you are entitled to). The adjuster is trying to determine what happened, how it happened and how it has affected you. You will be asked about the nature and extent of your injuries, how they affect your ability to deal with specific areas of your life, i.e. work, recreation and household tasks. (see How a lawyer helps when dealing with ICBC and What does a lawyer do?). ICBC adjusters are trained to compile your answers into statements, which can later be used against you. The statement is a key piece of evidence that is used as part of ICBC's defense. The ICBC adjuster will likely try to get you to sign a statement at the initial meeting. Don't sign it. Instead, take it home, review it and perhaps consult with a lawyer. It is important to remember that this document is your statement, not the adjuster's statement. (see Filing a Statutory Statement, After the adjuster prepares the statement, should I sign it immediately? and Accuracy of your statement). Do not sign an inaccurate statement, as you will only be penalized later.

How do I make my required statement to ICBC?
In most cases it is best to tell the adjuster that you will take the statement home to review it and sign it after you determine that it is entirely accurate. You are allowed to change the statement in any way to make it accurate. You must initial any changes you make before signing it. Again, you should not sign a statement that has errors because you will only be penalized later (see Accuracy of your statement). If you have a feeling of suspicion or concern, trust your instincts and consult with a lawyer.

As an example, consider this extract of a signed statement, taken by an ICBC adjuster of one of our clients before they retained counsel. This is a very small part of a statement taken from a six year old boy who was hit by a car driving at about 50 km/h, knocked unconscious and then taken ambulance to hospital. The boy was six years old at the time he signed this statement was written up, shortly after the collision, by the adjuster and then signed by the six year old boy:

"My left is broken, in two places, a cracked pelvis. I can't touch the ground at all. I was knocked unconscious at the scene. Right after the accident I had some blurred vision but not since. No problems with amnesia. No problems with memory or personality change. The biggest problem I've had in school is my reading." (produced with the permission of his mother, only this extract, no identifying information)

How accurate must my statement be?
Your statement is a very important part of your case. Any factual errors, exaggerations or omissions may adversely affect your ICBC claim. Before you sign your statement, read it over carefully and ensure that it is accurate. A deliberately false statement may cause you to lose your entire ICBC claim and be subject to prosecution. If you are not fluent in English, take the statement to be translated and reviewed prior to your signing.

Do I have to agree to an interview with an adjuster while still in hospital? You should talk to ICBC on your own terms. If you are not ready to meet the adjuster you may cancel the appointment and reschedule it for when you are ready. If you have legal counsel they will provide the necessary information to ICBC. You may have to submit information to ICBC, such as your claim and statement, but you should seek legal help immediately, and especially when you feel pressured (see How a lawyer helps when dealing with ICBC).

Will I have to sign "Authorizations"?
In addition to trying to get you to sign a statement at the initial meeting with your adjuster, ICBC may try to get you to sign authorizations for records, even blank authorizations. These allow ICBC to access all of your personal information; whether it is medical documents, wage loss documents, or school records. It is strongly recommended that you do not sign authorizations, particularly if you do not know specifically what is being sought. If you sign a blank authorization, ICBC can obtain records dating back many years before the accident that may not relate to collision. The documents they obtain do not even have to be shared with you. The adjuster will have a chance to view a lot of personal information about you that is completely unrelated to any injury claim but may in some way be useful to ICBC's defense against your claim. Instead, if you are unrepresented, simply tell the adjuster that if a specific document is needed they can send an authorization at that time and you will consider each request individually. As such, if ICBC wants to get records from the hospital you attended after the accident, they can get you to sign an authorization directed only to that hospital for the records related to the specific period after the accident and nothing more.

It's a good idea to make sure you will be provided with a copy of the records too. If you don't make this request and have the adjusters agreement, it is not likely that you will be provided with copies of the records.

Does ICBC use video surveillance?
ICBC can and will use video surveillance to see whether or not you are lying about your injuries. Even though they are your insurance company, ICBC regularly hires companies to watch and tape their insureds. If you get the feeling that you are being watched, you may very well be. ICBC uses video surveillance to try to gather evidence to defend against claims for damages. An ICBC investigator may sit outside your home and take photographs or video footage of your everyday activities. When hired, the surveillance team may have a number of investigators who follow you for days as you go about your life. In many cases the footage they use will not show you resting or in pain, but rather doing activities that suggest otherwise. For example, if you try gardening, but give up in pain, they will have video of you trying, but not of you staying in bed for days afterwards.

If you see a suspicious vehicle you think may have an ICBC investigator inside, do not approach it. Phone the police and investigate to determine if the vehicle or persons are involved in criminal activity.

The law does not prohibit ICBC from conducting surveillance on their injured insured's with the purpose of gathering evidence to use against them, as long as it does not unjustly invade their privacy.

How ICBC should assist you

What are ICBC's obligations to me?
If you are injured in a motor vehicle accident in British Columbia, you are probably entitled to reimbursement from ICBC for certain expenses, whether or not you were responsible for the motor vehicle accident (if you meet the definition of an "insured"). These benefits are called "Accident Benefits," also known as "Part 7 Benefits" or "No Fault Benefits." They are administered under Part VII of the Regulations to the Insurance Motor Vehicle Act. To see the specific regulation click here: http://www.qp.gov.bc.ca/statreg/reg/I/InsurMV/InsurMV447_83/447_83-07.htm - part7

While this article is meant to be helpful, they can only provide a brief description and can not be legal advice or legal interpretation of these rules. In order to determine your eligibility, we strongly recommend that you consult a lawyer who can assist you in this process in order to determine if you are an "insured" and to ensure that you receive the benefits you are entitled to and ensure that you receive full and fair compensation.

What benefits am I entitled to?
If you are an "insured" in British Columbia (contact a lawyer to discern if you meet this broad definition) and have been injured in a motor vehicle accident you are likely eligible to make a claim for certain losses. In this situation, ICBC, under the Accident Benefits policy, acts as your insurer or provider of benefits, including rehabilitation. They administer the Accident Benefits in accordance with Part VII of the Regulations in the Insurance (Vehicle) Act (see Who is entitled to Accident Benefits).

For example, if you are a resident of British Columbia with a valid driver's license and were seriously injured as a result of a motor vehicle accident in another province or state in North America, you would probably be entitled to some no fault benefits, including for your lost earnings.

Who Is Entitled To Accident Benefits?
Generally, anyone injured or killed in a motor vehicle accident in British Columbia, or a B.C. resident injured or killed in a motor vehicle accident in North America is entitled to "Part 7" accident benefits. These benefits are provided by ICBC or by another insurer for a motorist involved in the accident. In more technical terms, your must be an "insured" to receive benefits. You may need legal advice to discern if you meet this broad but specifically defined term. The Regulations in the Insurance (Vehicle) Act describe that only those who meet the definition of an "insured" are entitled to coverage (How a lawyer helps and What will ICBC pay for as Accident benefits?).

ICBC Medical Assessments - Will I also be assessed by ICBC's doctors?
If you make a claim for Accident Benefits, ICBC has the right to use one of their doctors to assess your injuries. Under Section 99 of the Regulations of the Insurance (Vehicle) Act, ICBC is allowed to send a claimant seeking Accident or Part VII benefits to a doctor of their choice.

Section 99 states:

"(1) An insured who makes a claim under this Part shall allow a medical practitioner, dentist, physiotherapist or chiropractor selected by the corporation, at the expense of the corporation, to examine the insured as often as it requires.

(2) The corporation is not liable to an insured who, to the prejudice of the corporation, fails to comply with this section."

ICBC selects its own doctors to assess its injured claimants. As a result, if your claim is more than a straightforward personal injury matter, ICBC will likely require you to see one of its doctors. ICBC generally uses conservative doctors who tend to provide reports that likely suit ICBC's purposes. The most common type of doctor used by ICBC for physical injuries is an orthopedic surgeon. This is because many orthopedic surgeons tend to focus on the need for clear objective signs of injuries. If the doctor does not find objective signs, then he or she will predict full recovery, often within specified norms or usual time periods. Hence, this type of doctor is likely to provide an optimistic outlook. This could limit your entitlement to Part VII Accident benefits, as ICBC uses the medical opinion of its doctors to argue that your damages are less than what you claim.

Unlike your own doctor or any other physician you might see, you do not have a therapeutic relationship with a doctor who assesses you for ICBC. They will likely never report to you about their findings. The report is the property of ICBC and is not for your therapeutic benefit.

What Are "No Fault Benefits"?
"No Fault Benefits" are another term for "Accident Benefits" or "Part 7 Benefits," and are a part of ICBC's basic insurance coverage. Every driver and usually every member the driver's household are "insured" persons. With the purchase of ICBC insurance, you are essentially purchasing coverage for medical care, some rehabilitation, death benefits, and wage loss benefits for the vehicle owner and family members. These benefits are given to those injured in a motor vehicle accident, regardless of who is at fault for the collision.

What kinds of 'no fault' accident benefits are there?
According the Accident Benefits regulations, there are both 'mandatory' and 'discretionary' benefits. The Regulations, or a lawyer, can help discern what you or the injured person are entitled to, but generally it includes:

While even 'at fault' individuals receive 'no fault' benefits, those injured by the fault of someone else are likely entitled to significantly more compensation.

ICBC will only pay what it deems "reasonable" expenses, such as medically recommended treatments. You should therefore speak to your doctor about your needs and ask that any recommendations be recorded, since your medical records may be requested by ICBC. Prescription expenses are often paid by ICBC if the medication prescribed is for the treatment of your accident-related injuries. However, it is important to remember that ICBC may not fund 'discretionary' or other recommended services, even if it is in your best interest. Expenses that have not been reimbursed by ICBC under the "Part 7 Benefits" category can and should be included in your overall personal injury claim (see section MAKING A PERSONAL INJURY LAWSUIT AGAINST ICBC).

ICBC may have policies about how many or how much of a specific benefit you are entitled to, i.e. 8 or 12 physiotherapy visits. An ICBC policy is not a judge-made rule and may not bear on your specific needs. A lawyer may be able to assist if you are met with a specific ICBC policy that is not applicable to your injury.

Are there any additional 'discretionary' benefits?
Your insurance policy with ICBC states that ICBC shall "pay as benefits all reasonable expenses incurred by the insured as a result of the injury for necessary medical, surgical, dental, hospital, ambulance or professional nursing services, or for necessary physical therapy, chiropractic treatment, occupational therapy or speech therapy or for prosthesis or orthosis." ICBC can also pay some discretionary rehabilitive benefits.

Discretionary benefits, however, are often subject to ICBC-made policies, for example:

If you have an extended healthcare policy that will cover such treatments, ICBC does not have to pay until you have exhausted your coverage under this policy. If not funded by ICBC, your lawyer will help you seek recovery of these costs.

Am I entitled to wage replacement benefits?
In general, in order to receive disability benefits or replacement for lost wages, an insured person who is injured, and disabled from working because of a motor vehicle collision must meet certain criteria, several examples of which are:

Income replacement will not be paid unless ICBC is satisfied that you are continuously and totally disabled (temporarily or permanent) as a result of the injuries you sustained in the motor vehicle accident. Your lawyer will take steps to prove this, usually with the assistance of your doctor or other professional. If ICBC does not feel it has sufficient information to determine whether you are totally disabled it may send you to a doctor of its choice to provide a report on your condition. If ICBC doesn't have the proper documentation they may deny payment, even if it is obvious that you meet the definition. A medical report will typically state whether you are disabled, how long you are likely to remain in this condition, and what steps you should take towards recovery.

Will ICBC Pay For Household Assistance?
ICBC may be required to pay you up to $145 per week to cover the expense of hiring a person to do your household chores, if you are primarily responsible for this task. This coverage is under the ICBC Accidents Benefits part of your ICBC insurance policy. To be entitled to these benefits you must establish that you are "substantially and continuously" disabled from regularly performing most of your household tasks. Your family doctor or another health professional may be needed to support your claim.

What Is NOT Covered By The Basic Accident Benefits?
Other expenses that you may incur as a result of being in a motor vehicle accident in British Columbia, which are not covered under "Part 7" (but may be claimed or paid in your legal case) include: income loss above $300 per week, user fees associated with treatment, and medical or rehabilitation expenses needed but not paid for by ICBC's medical advisors. If you are responsible for the accident, you will not receive any other benefits from ICBC other than those set out in the "No Fault Benefits." If someone else is fully or partially responsible, you will claim this in your personal injury claim. Your lawyer will help you claim these as part of the legal process (see How a lawyer helps and What will ICBC pay for as Accident benefits?).

When the collision was someone else's fault

Is my claim handled differently if someone else was at fault?
If you are injured in a motor vehicle accident in British Columbia, as a result of someone else's fault or negligence, you are able to claim for the losses that arise out of the collision. This claim is much broader than a 'no fault' claim but is still defined by law. For example, you are entitled to compensation for past, present and future expenses related to the injury, as well as compensation for pain and suffering (see What am I entitled to? and Special Damages).

It is important to note that in making a claim you are not a drain on the insurance or medical system. You are not being demanding or difficult. In fact, you are doing what is appropriate: accessing benefits to which you are entitled. You are the victim of someone's negligence and it is appropriate that you are compensated. If you are injured as a result of someone else's negligence, you do not have to qualify as an insured person in order to receive compensation for the injuries you have sustained. For example, if you are injured in a car accident in British Columbia while on holiday from the United States, England or Japan, or if you do not have a license, you are still able to make a claim for all of the losses which occurred as a result of someone else's negligence.

In this situation ICBC acts as the defender of a claim, or of a legal case. ICBC defends the claim on behalf of the negligent party not the injured party. At first you or your lawyer will deal with ICBC. However, if the incident is serious you will likely need to start a lawsuit. The lawsuit is against the other driver, in name, but in reality it is defended by ICBC. ICBC chooses a lawyer specialized in defending claims for ICBC and gives the lawyer instructions for dealing with your case.

What Is My Case Worth?
This is often the first question asked and the last and most difficult question to answer. Every case is unique and it is therefore impossible, without knowing the particulars of your claim, to determine what will likely be a fair and full compensation. In settling your claim you should ensure that you are being compensated for past, present, and future needs, losses and pain and suffering. Your lawyer will be able to estimate a reasonable amount by reviewing what the Court has considered to be fair compensation in other situations that are similar to your own.

In British Columbia, the law allows a person injured by the wrongdoing of another person to collect compensation for:

There are many complicated nuances surrounding these points, it is important that you seek legal counsel to determine your entitlement. This will ensure that you are not only being dealt with properly by ICBC, but also that you receive the maximum amount which is fair and appropriate to compensate you for your injuries. Specialized lawyers are trained to thoroughly assess your condition so that your past, present, and future losses are covered by compensation. (Also, see section MAKING A PERSONAL INJURY LAWSUIT AGAINST ICBC).

What About the Expenses not covered by my policy?
If the motor vehicle accident was not your fault, you should be reimbursed for all of the accident related and necessary expenses that you incur as a result of your injuries. Lawyers and adjusters call these expenses "Special Damages." It is therefore important that you keep copies of all receipts for expenses related to you injuries. Some of the expenses you may later claim in the settlement of your overall claim include:

Your health following the collision

What is my first priority?
Your first priority must be to do everything possible to recover. While in hospital you should focus all your energy on you, or your loved one's, recovery. If out of hospital make sure to see your doctor and create and follow a rehab or rehabilitation plan. By retaining legal counsel you may help to avoid added stress. Your ICBC claim is secondary; it can and should wait until your injuries have been dealt with. In fact, you shouldn't resolve your claim until you know the complete effect of your injuries (see section on SETTLEMENT PROCESS).

What is my doctor's role?
Obtaining the proper medical advice and having it documented in your records can be crucial in getting a fair settlement from ICBC. Your relationship with your doctor is therefore very important. Once out of hospital, it is important to see your doctor, as he or she can assess your injuries and provide, or recommend, treatment. Another important reason to see a doctor is to create an objective assessment of your health condition. Be sure to report all ongoing symptomology to your doctor so they can properly record and deal with the ongoing problems arising from the collision. The doctors' records are essential to your ICBC claim as they list all of your ongoing problems, findings and prescribed treatments, and are crucial in helping provide objective medical assessments for you and your claim.

How much should I tell my doctor?
It will be helpful if you can provide you doctor with as much information about your injury as possible. This is not the time to be shy or embarrassed. Accurate details of the accident may provide the doctor with a better understanding of the severity of your injuries. They can only make the appropriate referrals for treatment or consultation if they have been provided with the full information about the collision and its consequences.

What Is The Fuss About My "Clinical Records"?
Clinical records are the records your doctor, physiotherapist, and chiropractor keep. They are useful because they record your health status at various points in time following the collision. ICBC may demand copies of your clinical records directly, or if you have a lawyer, he or she will likely obtain them and vet them for irrelevant or highly personal information. These records will be used as part of the evaluation process to review your status, progress and treatment over time. A lawyer is helpful in this situation as he or she can review and pass on the relevant documents for you.

How lawyers help

What are the benefits of having my own lawyer?
In our experience, having your own lawyer can be extremely advantageous when dealing with ICBC. A lawyer will inform you of your rights and deal with ICBC on your behalf. The lawyer will help determine the impact your injuries will have on your future, both short and long term. They will also consider the injuries impacts and repercussions on other aspects of your life and seek appropriate compensation. This is very difficult for anyone who is not well-versed in personal injury law.

Depending on the severity of your injuries and your level of experience and comfort in dealing with ICBC, you may be able to handle your claim yourself. If your injuries are very minor, i.e. if you did not miss any work and your injuries heal fully within a few weeks of the accident, you may be able to settle your claim without assistance.

However in many cases, and almost always in cases involving serious personal injury, a lawyer can more effectively develop and resolve your claim. A lawyer will ensure that you are fairly and fully compensated for your injuries and that all potential aspects of your claim are considered. Lawyers who are experienced in dealing with ICBC, or specific injuries, are aware of the potential issues that may arise and are able to deal with them. They have experience and knowledge regarding what evidence is necessary to support the claim and they know what the Court considers to be a fair and full compensation. Also, a lawyer will ensure that you do not settle your claim prematurely, that you do not lose your right to make a personal injury claim, and that you are compensated for all of your losses.

What Does A Lawyer Actually Do?
The lawyer's two main objectives should be 1) to ensure the victim receives proper medical care and rehabilitation to achieve maximum recovery, and 2) to ensure that the victim is dealt with fairly by ICBC and receives full compensation for all losses. Your lawyer is your advocate and your personal resource for information on your rights and obligations.

Not only will a lawyer answer your questions and provide you with all of the information needed to maximize your ICBC claim, but they will also make the process of dealing with ICBC much easier to ensure that the primary focus of your attention is on your health, or the health of your loved one. Once you retain a lawyer, you will no longer deal with ICBC personally; rather, ICBC will go through your lawyer.

The lawyer is hired by you and his or her obligation is to you, whereas the adjuster works for ICBC. The lawyer is your personal advocate in dealing with ICBC and is hired to protect your interests and advocate on your behalf. Any discussion you have with your lawyer is confidential and cannot be revealed to anyone else, including ICBC. This allows you to fully discuss the issues of your case without fear of the adjuster learning certain details of the conversation.

As the case continues, the lawyer's role is to collect evidence and gather information which will be used to resolve the claim. This is obtained through consulting with various medical experts, vocational experts, care and rehabilitation experts and other professionals, which can include economists, structured settlement experts and many others who can properly assess the compensation that is needed. If necessary, the lawyer will address the issue of liability (who is responsible) by attempting to reconstruct the accident using reconstruction experts, automotive engineers, surveyors, photographs and other procedures.

What are the Perceived Concerns And Myths About Retaining A Lawyer, and are they true?

How Do I Know If I Have A Case?
If you or the Plaintiff does not hire a lawyer immediately some of the evidence necessary for accident reconstruction may disappear. Important evidence must be collected and witnesses interviewed as soon as possible to ensure the accuracy of the claim. It is likely that ICBC will know more than they tell you about the accident circumstances and they will not advise you to pursue a claim, even if it is in your best interests.

What if ICBC Says They Won't Pay?
Consult a lawyer immediately. If ICBC says they won't pay because the collision is your fault or is an "LVI" or low velocity minimal impact claim, it is vital that you obtain a second opinion from an experienced personal injury lawyer.

How Will I Pay My Lawyer?
In personal injury cases lawyers are usually paid a "contingent fee". A contingent fee is calculated as a percentage of the money recovered for the client. The lawyer is not paid until the case is resolved and receives a portion of the settlement for their work. The 'fee' is usually set as a percentage of the claim and while different percentages may apply for different types of cases, they are usually 20-30%; the maximum allowed in B.C., for cases involving automobile collisions, is 33 1/3%.

What Are Disbursements?
In order to bring a claim or prosecute a case, expenses are necessarily incurred. These costs vary but most commonly relate to obtaining records and medical opinions. Called 'disbursements, these costs can be quite expensive. For example, a neuro-psychologist's assessment and opinion could cost $5,000 to $10,000. Depending on the case, a lawyer may pay for these related costs while the case is ongoing. At Webster & Associates, we pay for these costs for the cases we take on, but practices vary throughout the province. Disbursements are generally claimed as a 'flow through' expense at the end of the day and their recovery depends upon a number of issues.

Don't be afraid to have a frank discussion with your lawyer about how disbursements will be paid. This is your claim and not something to be shy about.

Lawyer obligations under ICBC defence retainers

From the Ethics Committee
Benchers' Bulletin 2006: No. 3 July-August

The Ethics Committee recently considered several questions arising out of an agreement that the Insurance Corporation of British Columbia has with law firms that represent ICBC in the defence of motor vehicle claims. ICBC calls this agreement its Strategic Alliance Agreement (SAA).

As part of the SAA, law firms whose lawyers are retained to act as part of a legal team for ICBC must not permit those lawyers to bring actions against the Corporation that include allegations of bad faith or claims for punitive, aggravated or exemplary damages. ICBC also requires that firms acting for ICBC in the prosecution of actions alleging fraud must not act against the Corporation in defending any such actions.

Some relevant provisions of a standard SAA state the following:

Article 6.2(a)(vi): wherein ICBC at its sole discretion may impose penalties or restrictions, including termination of the SAA, where "the Firm or any member of the Legal Team, in the performance of the Legal Services, fails to act in the best interests of ICBC or ICBC's insureds...";

Article 6.2(b)(i): wherein the same penalties or restrictions can be imposed where "the Firm or any member of the legal team was or is engaged in any activity that was, is or may be contrary to ICBC's strategic business or financial direction or initiatives, or the interest of ICBC's insureds;"

Article 9.4: Members of the Firm's Legal Team will not directly or indirectly:

Against ICBC which include allegations of bad faith, or claims for punitive, aggravated or exemplary damages.

Article 9.5: The Firm will not directly or indirectly:

Brought on by ICBC against alleged fraudulent claimants or defendants, if the Firm has agreed to act for ICBC in the prosecution of fraudulent claims or actions.

In the Committee’s opinion, a lawyer who accepts the restrictions required by ICBC must decline to act against ICBC if it appears there is a reasonable basis for believing the evidence supports a claim that the lawyer or lawyer’s firm has agreed not to prosecute.  A lawyer already acting for a client when such evidence merges must withdraw.  When a lawyer declines to act or must withdraw, it is proper for that lawyer to advise the client or prospective client to seek the advice of other counsel with respect to the claim.

In the Committee’s opinion, a lawyer may properly act against ICBC for clients whose cases fall outside the restrictions.  However, a lawyer acting in these circumstances must advise these clients of the lawyer’s relationship with ICBC and the implications of the restrictions the lawyer is under.

Settlement of ICBC claims

How Can A Lawyer Help Me Settle My Claim?
A lawyer will help ensure that you are fairly and fully compensated for your injuries, and that all potential aspects of your claim are considered. Lawyers experienced in dealing with ICBC are aware of potential issues that may arise and are able to deal with them. They have experience and knowledge regarding what is necessary to support your claim and know what the Court considers to be fair and full compensation. A lawyer should ensure that you do not settle your claim prematurely, that you do not lose your right to make a personal injury claim (the tort claim), and that you are fully compensated for all your losses.

Can I Settle Without A Lawyer?
It is possible to settle your claim on your own, but the more complicated the case (ie: the more serious the injury or consequences) the more likely you will need a lawyer. An experienced lawyer knows the intricacies of an ICBC claim, and how to obtain the necessary opinions to ensure that the claim includes all the legally relevant details that will likely increase the value of your claim. (See What does a lawyer do?)

Should I Wait Until ICBC Makes Me A Settlement Offer?
Like any insurance company, ICBC aims to keep its settlement payouts as low as possible. In order to achieve this, ICBC adjusters generally discourage injured people from hiring lawyers. Claimants who do not know or understand their legal rights cannot demand appropriate remedies, they are at the mercy of the ICBC adjuster. Without legal counsel, claimants are usually limited in their ability to gather and present the evidence to ICBC. Without resources, it is difficult to create a viable alternative but to accept what ICBC offers. A lawyer will build a case and present the best case to ICBC to obtain a fair result for the injured person.

When Should You Settle?
Deciding when to settle your claim depends on the type and severity of the injuries you suffered as a result of a car accident, your course of recovery, and other factors (see When to settle a case involving serious injuries). ICBC may attempt to settle your claim soon after the accident. It is widely known that a fast settlement means less money. You should not take the easy way out through an early settlement where the short-term satisfaction of an early settlement will be outweighed by the years of inadequate funding and care you will endure in the long-run. To ensure that you are receiving full and fair compensation for your injuries, you should not settle your claim until you know the full extent of your injuries and are able to evaluate the impact of the injuries on your future. It is difficult to make an accurate assessment of the full impact of your injuries without competent legal assistance.

As stated above, there are many details when it comes to valuing a claim and it's important to ensure that all the appropriate information regarding your claim is collected and evaluated in a timely manner. This may be the key reason to hire an experienced personal injury lawyer. You should be aware that once your claim is settled you are no longer entitled to compensation from ICBC in relation to your injuries from the car accident.

Will there be pressure to settle?
Usually not. The pressure you feel may be a result of several factors. You may feel pressure if ICBC mails you a settlement cheque hoping you will accept it and resolve the claim, or If ICBC makes a time-limited offer. You may also feel pressure to settle if the two-year limitation period is approaching and you haven't decided what to do. In this case, to ensure that you are not out of time, you must issue a writ to preserve your legal rights under your claim. Consult a lawyer immediately.

Some claimants settle because they perceive this to be the path of least resistance. However, the worst reason to settle is most often due to external pressures. Claimants with financial pressure as a result of an inability to work, or with constraints on their ability to work full time may wish to accept a settlement to fulfill their current financial needs. This approach is very shortsighted. You should only accept your ICBC settlement after you have determined the full extent of your losses; past, present and future.

What additional factors should be considered in settling serious injury claims?
If you have sustained serious injuries as a result of a motor vehicle accident which result in long-term or permanently debilitating symptoms and disabilities, it is best to seek the advice of a lawyer before even beginning to negotiate your ICBC claim. If you obtain a lawyer, he or she will consider the medical evidence available from experts immediately after the collision. This will indicate whether your condition has stabilized, or is likely to either improve or deteriorate in the future. Your lawyer will also assess how your injuries will affect your ability to earn income.

In our opinion, no case should be resolved without having a very good idea, based on the medical and other evidence, of the extent of the current disability and considerations of future problems. It is important to repeat that there are many details when it comes to valuing a claim, and it's important to ensure that all the appropriate information regarding your claim is collected in a timely manner. This may be one of the key reasons to hire an experienced personal injury lawyer.

How Long Will It Take to Settle?
Factors that determine how long it takes to settle a case include the severity of the injury, complexity of the case, previous medical issues, and how clear the determination of fault is regarding the injury. Your claim should not be settled until your injury has stabilized, and the long-term impact of your injuries on your employment and life can be accurately assessed. To reiterate the statement above, no case should be resolved without having a very good idea, based on medical opinion, about the extent of your current disability and the problems you may experience in the future.

Is It Possible to Settle Too Soon?
Yes. Once you settle your claim, you can no longer seek compensation for those same injuries. Your case is closed for good. Your personal injury claim for damages for income loss and cost of care requires consideration of all future events. Your compensation for pain and suffering is largely based on the severity of the injuries and the length of time they persist. You may not receive full compensation if you settle before your injuries have resolved or before you understand that they will persist, or before the consequences become known. If you do not know how long you will be disabled, what type of future treatment you may require, or to what extent your health might recover, you may end up suffering due to inadequate compensation.

Although you may be anxious to settle your claim and put your personal injury case behind you, it's very important that you ensure that all your losses resulting from the accident are accounted for. Try to look beyond the desire for immediate compensation and consider your future and the means you will require to live a healthy and happy life.

What Happens After I Settle?
After you settle your case, you will be given a cheque by ICBC and will be required to sign a release. Accepting the cheque and signing the release will prevent you from seeking future money or assistance from ICBC in relation to the accident considered in your claim. If after settlement you determine that you have not been fairly compensated, signing the release essentially removes the possibility of obtaining further compensation. It is very important that prior to settling your ICBC claim, you have fully investigated your injuries and their potential future impact and you have been provided with all the necessary advice, especially legal advice.

Personal injury claims

What Is A Personal Injury Claim?
A personal injury claim or tort claim or motor vehicle negligence case is simply a way of describing any claim (likely involving ICBC) where you have a right to compensation as a result of an injury caused by another motorist. You are not entitled to a personal injury claim if you are at fault for the accident.

A personal injury claim is a claim intended to compensate you (to the extent that money can) for your injuries and losses which are the result of someone else's negligence. All past, present, and future losses as well as all expenses are recoverable. You are also entitled to compensation for pain, suffering, lost wages, medical needs and expenses involved in obtaining treatment.

ICBC is aware that if another person is at fault and you sustained injuries in a motor vehicle accident, you are entitled to make a tort claim and ICBC will typically offer to settle your tort claim, regardless of whether you have suggested a desire to settle.

Am I Entitled To Make A Personal Injury Claim?
You are entitled to make a personal injury claim if you have been injured as a result of another person's negligence. The negligent person may be the driver of another car, or the driver of the car you were in. At times there are complex situations involving other parties such as road maintenance contractors. If you are found to be partly responsible for the accident, the portion that is found to be your fault will be deducted from your claim.

What If I Can't Find The Other Driver?
The short answer is that you may still able to make a claim if you have complied with certain legal steps. You may have your own "uninsured" motorist protection for unknown drivers and you may be able to access funds specifically allocated for this type of situation. If this is your situation, you should consult a lawyer immediately. It is important that certain legal steps are taken right away.

What If The Driver Is Not Insured or Fully Insured?
Again, the short answer is that you may still be able to make a claim. In B.C. an insured person can make a claim against an uninsured (or "underinsured") defendant and the claim is defended by ICBC. Again, you may have your own insurance to access or a fund administered by ICBC. This will allow at least a certain amount of coverage to be available to you. You should consult a lawyer if this is your situation, and you should do so as soon as possible following the collision.

What If The Other Driver Is From Another Province?
You are only entitled to make a personal injury claim if you have been injured as a result of another person's negligence. This is no different in circumstances where the at fault motorist is from another jurisdiction. Because the insurance system in the U.S. is different, motorists from some jurisdictions my have minimal insurance. In such a situation, there may be inadequate insurance. (see What if the driver who caused the accident is not insured, or fully insured).

When Should I Start The Legal Process?
The general process for making a claim with ICBC is described above. If your claim is not resolved in a timely way, you may preserve your legal rights by filing a Writ Summons with the Court. If you do not do this in accordance with BC's "Limitation Act", usually within two years of your motor vehicle accident, you will lose your rights to make a personal injury claim. A lawyer will ensure that you preserve this right and will help you receive maximum compensation. As work and research is needed to prepare these detailed court documents, it is not advisable to retain a lawyer only a very short time before the time to file the Writ of Summons expires.

What are the Time Limits to File a Legal Claim?
Almost always, you must begin a lawsuit within 2 years following the accident or your claim will not be valid. There may be exceptions to this rule, including if the injured person is under nineteen years of age, or considered mentally incompetent. You almost certainly need a lawyer to preserve this right by filing the appropriate court documents. What is stated above bears repeating. Investigative work and specific legal searches are needed to accurately name the appropriate parties and preserve a plaintiff's legal rights. It is not advisable to consult or retain a lawyer only a very short time before the time to file the Writ of Summons expires.

What Is A Tort Claim?
A tort claim is simply another name for a legal case, a personal injury claim or a lawsuit. In each case the injured party seeks compensation for the injuries they have sustained as a result of the negligence or wrong doing of the other party. In a tort claim, you claim damages from the person who caused injury, to be paid by their insurance company. In reference to a motor vehicle accident, a tort claim can be made in the form of a personal injury lawsuit . (See What is a Personal Injury Claim? and Who is entitled to make a personal injury lawsuit?).

Which Lawyer Should I Choose?
Like any other professional, you want to be sure that the lawyer your select is up for the test. Please refer to our "10 essential questions for TBI lawyers guide". It is intended for cases involving traumatic brain injury, but it's principles apply to the retainer of legal counsel for almost any situation.

In general, be sure your ICBC lawyer only works for injured individuals, has experience in personal injury, is an advocate for rehabilitation, has recent trial experience, is available, accessible, respectful and a good listener.

Be aware that some lawyers who work for ICBC sign agreements with ICBC that might prevent them from taking on all aspects of an injured person's case. If your lawyer works for ICBC, be sure to ask if the have signed an agreement with ICBC, or refer to the Law Society of British Columbia's website and search under "ICBC Strategic Alliance Agreement".

We always strive to provide the best possible content and resources.
Your feedback is appreciated.

Back to the top

Copyright © 2007 Webster and Associates. All rights reserved.
XHTML   |   Design by Pacifica

"));