Firefighters and paramedics respond to a crash in Nanaimo. (Nanaimo News Bulletin photo)

Advocates, lawyers say ICBC minor injury caps could hit victims at their weakest

Attorney General says that caps could save ICBC $1 billion a year

Legal experts and disability activists alike are worried about the toll minor injury caps could take on vehicle collision victims in the province.

Ronald Nairne, of Burnaby’s Giusti Nairne law firm, takes issue with the victim of a car crash being treated differently than someone hurt in any other accident.

“Simply because I’m in a car, my damages are being limited,” said Nairne, who’s part of R.O.A.D. BC, a coalition of British Columbians who are committed to protecting the rights of anyone who becomes injured on our roads and ensuring accountability for ICBC.

He pointed out scenarios in which he’d have more options for redress if he wasn’t in a vehicle.

“If I go onto my neighbours property and there is a gigantic hole in (sic) the property that’s unsafe and I step in that hole and twist my ankle, fall down and hurt my back and sue my neighbour… the judge says that was unsafe, the neighbour’s responsible for that and you have a minor injury, I’m going to award you $25,000,” said Nairne.

“If I get that same exact injury, but I get injured in a rear-end accident, I’m only going to be eligible for $5,500.”

The province introduced the idea of minor injury caps for ICBC in February, as a way to cool the financial “dumpster fire” of the provincial auto-insurer and stem its losses, which the province said would amount to $1.3 billion this year.

Attorney General David Eby said that the caps are supposed to save ICBC a much-needed $1 billion a year as annual injury claims have risen from $3 billion in 2014 to almost $4 billion in 2017.

The province defines a “minor injury” as an abrasion, contusion, laceration, a pain syndrome or a psychological or psychiatric condition that does not result in a serious impairment or a permanent serious disfigurement of the claimant.

An Attorney General spokesperson said that all conditions, from “cuts to psychological and psychiatric conditions resulting from a collision can vary in impact, from minor to severe” and that each would be assessed on a case-by-case basis.

READ MORE: ICBC rates could go up 30 per cent by 2019: report

But the CEO of the People in Pain Network explained capping minor injury costs only takes advantage of people when they’re at their weakest.

“I just worry about the fact that people can look really well and be really suffering.

“I just think that there’s going to be a lot of people caught in no-man’s land,” said Devine.

The People in Pain Network works with people who have chronic pain and Devine said that’s the group she’s most worried about with the new rules.

The province defines a minor injury as an abrasion, contusion, laceration, a pain syndrome or a psychological or psychiatric condition that does not result in a serious impairment or a permanent serious disfigurement of the claimant.

“People have a lot of trouble now getting doctors to believe that they chronic pain, never mind if you add a complication to the situation and make it more difficult for people to get the help that they need,” said Devine.

She’s worried that minor injuries could grow into major conditions.

However, a ministry spokesperson said that “at any point during recovery, a medical professional can determine if an injury diagnosis, including a mental health injury due to a collision, has changed and should no longer be considered minor.”

While Devine agrees that’s a good step, she wonders how it would turn out in reality.

“If they decide that this is a minor injury and it turns out not to be, the hoops and the process that they have to go through to get it reclassified is in a lot of cases really overwhelming for people,” she said.

“Or it would be denied and denied and denied and years go by and the window to improve their condition is lost.”

An Attorney General spokesperson said that collision related victims can challenge ICBC’s decision “at the independent Civil Resolution Tribunal and have the matter resolved in months, not years.”


@katslepian

katya.slepian@bpdigital.ca

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