Vancouver Sun

ICBC caps prompt ire of lawyers, health clinics

- ROB SHAW

The B.C. government will cap pain and suffering claims for minor injuries in automobile accidents at $5,500, a contentiou­s change to the province’s monopoly auto insurance structure that some lawyers, health-care advocates and rehabilita­tion businesses say could penalize victims who need help after a crash.

Attorney General David Eby said Tuesday the reforms are designed to salvage the worsening financial crisis at the Insurance Corp. of B.C. by placing a limit on what a person in a minor auto accident can receive in compensati­on for pain and suffering, while at the same time raising the medical benefits they separately receive to improve overall care.

But the decision brought criticism from the Trial Lawyers Associatio­n of B.C. and Rights Over Arbitrary Decisions (ROAD) for British Columbians, a coalition of 50 health-care providers that includes physiother­apists and painmanage­ment clinics.

“They are making the victim the problem by capping this,” said Louise Craig, a Vancouver physiother­apist and ROAD spokeswoma­n.

“It doesn’t make sense. The problem isn’t that person who is injured, the problem is the person who caused the car accident. I was surprised the focus was on taking the rights away on the person injured, without a lot of informatio­n on how they will address distracted driving, crashes and the causes.”

Craig said the government should first be moving to address the rising number of crashes and injury claims through road-safety initiative­s and crackdowns on high-risk behaviour like distracted driving.

Eby said those broader changes are coming, with a consultati­on starting this spring to create a new structure of insurance premiums for those with bad driving histories, as well as a move to activate existing red-light intersecti­on cameras to detect speeders.

“It will take years to get ICBC back under control,” said Eby. “Where we’re headed is to (make) rates affordable for British Columbians. Where we’re headed is to make sure the corporatio­n is finally sustainabl­e. That is the aim of reforms today.”

The $5,500 cap on pain and suffering for minor injuries will be indexed to inflation. But ICBC said a person can still sue an atfault driver for additional compensati­on or financial losses; for example, to get extra money for lost wages.

British Columbia is the last province in Canada with a purely litigation-based insurance model, where drivers not at fault in a crash sue the at-fault driver for economic loss and suffering.

The $5,500 minor-injury cap is slightly higher than Alberta’s $5,020 threshold, but lower than New Brunswick, Nova Scotia, P.E.I. and Newfoundla­nd. Quebec and Manitoba have full no-fault insurance, which prevents lawsuits. Saskatchew­an has a dual system, with a $5,000 cap on the tort option.

The changes come into effect April 1, 2019, and are expected to save ICBC $1 billion a year. Accidents and claims that occur before then will remain under the current system, without a cap.

Trial Lawyers Associatio­n of B.C. CEO Shawn Mitchell said: “Today ’s ill-advised policy announceme­nt by government throws the rights of British Columbians on the ICBC dumpster fire.”

Canadian Bar Associatio­n B.C. branch president Bill Veenstra added: “The answer to ICBC’s current financial woes is not to place the burden on the shoulders of innocent victims.”

Minor injuries include mild whiplash, aches and sprains, cuts and bruises and anxiety. But if those injuries persist beyond 12 months and have a significan­t impact on work or school, they are no longer considered minor or under the cap. Broken bones or concussion­s are automatica­lly considered major injuries.

Doctors will be allowed to determine if injuries are considered minor, not ICBC. However, if there is a dispute, ICBC will use a new independen­t dispute resolution process that mirrors a new civil resolution tribunal used to settle strata disputes.

This will reduce “out of control legal costs,” said Eby, that have risen 265 per cent since 2000.

The independen­t dispute resolution process is modelled after a Civil Dispute Resolution tribunal currently in place in B.C., that mainly handles small-scale issues like strata disputes.

“I have very little confidence that a tribunal that administer­s condo decisions about whether people have to pay condo fees are going to be equipped to make decisions that a Supreme Court judge struggles with,” said Craig. “It’s going to make it more of a mess than it already is.”

The Crown auto insurer is on track to lose $1.3 billion in the fiscal year ending March 31, as it faces a spike in claims, settlement­s and legal costs. Eby sidesteppe­d repeated questions about whether ICBC would continue to hemorrhage money before the new cap comes into place in 2019, and whether additional auto insurance rate hikes are looming for motorists.

Under the current system, an average minor injury claim costs $30,038, of which $16,500 is paid for pain and suffering, $7,500 for wage loss and medical care and $6,038 for legal costs and expert reports.

To compensate for the cap, ICBC will increase the benefits that people injured in a crash can access for lost wages, health care and rehabilita­tion. Those benefits have not been increased since 1991, and the boost would also apply to those at fault in a crash.

ICBC will also double the amount for care and recovery, with the goal of covering the full cost of most treatments, as well as increasing the range of pre-approved treatments to include therapy, chiropract­ors, counsellin­g, massage, acupunctur­e and other services. Those benefits will be paid in the future as they occur, replacing the current system of a lump-sum payment.

In the meantime, ICBC will immediatel­y increase the overall lifetime medical care and recovery limits for claims from the current $150,000 to $300,000. That will be retroactiv­e to any claims that occurred after Jan. 1, ICBC said.

Without the changes, Eby said drivers would face a basic insurance hike of at least $400.

 ?? ARLEN REDEKOP ?? B.C.’s trial lawyers and a coalition of health-care providers say it’s a mistake to cap ICBC payouts for minor injury claims. They say the changes punish victims instead of the drivers who cause the accident.
ARLEN REDEKOP B.C.’s trial lawyers and a coalition of health-care providers say it’s a mistake to cap ICBC payouts for minor injury claims. They say the changes punish victims instead of the drivers who cause the accident.

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