What you need to know about accidents before April 1, 2019:

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Winning Your B.C. Injury Claim:
How to Successfully Navigate the ICBC Minefield

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This book does not apply to accidents which occurred on or after April 1, 2019.

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Watch my videos on:

  • How to survive financially after an accident
  • How to prepare for your first meeting with ICBC

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TOP 5 ANSWERED

  • How do the courts and ICBC decide how much to award an injured person for pain and suffering? Find answer: »
  • I still have neck pain and headaches more than a year after my rear end collision. My adjuster says it is from stress and not doing enough exercise. Is there any way out of this cycle of pain and depression? Find answer: »
  • If I was a passenger or a driver who was clearly not at fault, how should I prepare for my initial meeting with ICBC? Find answer: »
  • Do I have to sign the medical consent form the adjuster wants me to sign? Find answer: »
  • After the adjuster prepares my statement, should I sign it? Find answer: »

  • How do the courts and ICBC decide how much to award an injured person for pain and suffering?
  • The amount that a court awards an injured person for pain and suffering depends upon whether the case is being decided by a judge or by a jury. When ICBC is pushed to the wall and a trial date is fast approaching, the amount it decides to offer is based on several factors, including what it thinks is the likely range that a judge or jury will award the injured person if the case goes to trial.

    Judges try to maintain consistency amongst awards for a similar injury and consequences of the injury. In order to do this, they review a number of written decisions of other trial judges and the Court of Appeal. They are not bound by what other judges have awarded in similar cases, but those awards give them guidance as to the range. Some judges tend to make awards at the higher end of the range; others lean more towards the lower end of the range.

    If a jury is to decide how much to award an injured person, the law does not allow the judge or the lawyers to advise the jury what range judges have awarded for pain and suffering in such cases—except in 'catastrophic' cases. In these cases, the judge informs the jury that the law in Canada has placed a cap of about $300,000 on awards for pain and suffering. Most members of the public are shocked by how low this cap has been set for a person who is catastrophically injured. Fortunately, a jury may also award damages for future care and homemaking assistance and future loss of earning capacity. This can make the total damage award very large in spite of the cap on pain and suffering awards .

    The rationale for not giving jurors a range for damages is that juries' decisions help the judges keep in touch with the views of the public they serve. If judges were allowed to give a range to the jury, the educational value of the jury award would be lost. Of course, jurors know people who have had injury claims and some of them may have had injury claims themselves, so they may have some general background. Juries also apply a lot of common sense when determining what would be fair compensation for the pain and suffering of an injured person.

    Juries tend to be generous if they:

    • admire the injured person's struggle to overcome his or her injuries,
    • believe the injuries have had a profound impact on the injured person's life, and
    • are presented with evidence that allows them to see the damage to the injured person. Examples of this would be: MRI's, x-rays, medical diagrams, medical models, objective physical test results, scars and limps.

    During their arguments to the jurors, lawyers are not allowed to suggest a range or number that would be an appropriate award for the injured person's pain and suffering, but they are permitted to suggest numbers to the jury regarding appropriate awards for all other types of damages.

  • I still have neck pain and headaches more than a year after my rear end collision. My adjuster says it is from stress and not doing enough exercise. Is there any way out of this cycle of pain and depression?
  • Many doctors traditionally thought that the small subgroup of their patients who developed chronic, long-term pain following a whiplash injury did so for psychological reasons or because they did not exercise enough. In the mid-1990s, scientists in Australia produced evidence that strongly challenged these theories. They discovered that the source of pain in over half of patients with chronic neck pain following whiplash injuries is damaged facet joints. These small joints down the back of the spine allow the spine to move. They combine with the disc space to create a three-joint complex at every vertebral level. Each facet joint consists of two opposing bone surfaces with cartilage between them. A nerve ending in each facet joint transmits pain signals to the brain.

    Damaged facet joints are often aggravated by certain exercises or by a person maintaining certain body positions (such as leaning over, reading or working on the computer) for an extended period.

    In the Australian studies, injections of local anaesthetic (called facet joint blocks) relieved the neck pain in over half the subjects and relieved headaches in about one-quarter of them. If anaesthetic is applied to a damaged facet joint, a patient's pain may drop from, say, 8 out of 10 (severe) to 1 or 2 out of 10 within a very short period of time.

    Another study showed that patients' psychological states improved rapidly after their facet joint pain dramatically improved. This is strong evidence that physically-based pain had caused the patients' depression and anxiety, and that the depression and anxiety had not caused the pain, as has been frequently claimed.

    These facet joint blocks serve a second function over and above the prime function of significantly relieving pain. The results of the blocks are very powerful evidence in a legal case—evidence that can lead to fair compensation for the long-term pain a person has suffered following a whiplash injury.

    ICBC's adjuster and, if the case goes to trial, a judge or jury, will all likely be very impressed by the evidence of a medical specialist who pinpoints and explains, using a large, clear medical diagram, the exact facet joint or joints which he has proven to be the source of the injured patient's pain. This is much more powerful evidence of why the injured person did not get better than is a vague explanation by a doctor that some people simply don't get better after a whiplash injury. The latter approach is unlikely to impress the average ICBC adjuster, judge or juror, who may be suspicious that the claimant has either a psychological problem or a so-called minor "soft tissue" injury, or that the claimant is exaggerating his or her pain and disability. They may suspect that the claimant will feel much better once the stress of the court case is finished.

    A much tighter diagnosis implicating specific joints, ligaments or nerves in the neck with supporting diagrams is much preferred to the "soft" diagnosis of "soft tissue injury. " Settlements and court awards do not magically heal damaged joints or ligaments in the neck.

    Unfortunately, only a few medical specialists in British Columbia perform facet joint "diagnostic blocks" and the treatment is not funded by the Medical Services Plan. Don't let this deter you. Certain physiotherapists and medical specialists are adept at screening patients whose chronic neck pain or headaches are likely as a result of a damaged facet joint of the neck. Certain physiotherapists can initially treat such injuries to see if the injury will significantly improve without the necessity of diagnostic blocks.

    Speak to a lawyer experienced in handling severe neck injuries about how to find a medical person who can do the screening and initial treatment. The lawyer should also be able to help you access a specialist who does the facet joint block treatments if your medical practitioners think it is appropriate treatment for you.

  • If I was a passenger or a driver who was clearly not at fault, how should I prepare for my initial meeting with ICBC?
  • An ICBC adjuster will interview you and prepare a statement for you to sign. This is a very important document. ICBC often uses claimants' statements against them at a later date. One reason ICBC might use your statement later is to demonstrate that you are not believable (because your statement is not completely truthful), so be prepared to give a completely accurate statement. This is not the easiest thing to do since our memories are imperfect.

    "What difference did the injury make in your life? " This is a key question in your injury claim. The adjuster will ask you for details about your health, work history, hobbies and sports before the accident.

    Your pre-accident health

    Most people find it difficult to clearly remember details of their health prior to an accident. For example, how many times did you see your chiropractor, physiotherapist or family doctor due to neck or back pain in the two years before the accident? If you had related health concerns before your accident, phone the receptionist of your chiropractor, physiotherapist or other treatment practitioner to find out the dates and number of times you received treatment. You may also be able to get a computer printout of this. Visit your family doctor and bring a notepad. Ask him or her to quickly review with you the clinical notes about your related complaints and the appointment dates when you made the complaints.

    Your pre-accident income

    Your income tax returns and T4's are important documents in proving your earnings history and your loss of income. When you visit an ICBC adjuster, bring photocopies of your tax returns for the two years before the accident. Also bring a copy of your most recent pay stub for the current year—if you have worked the entire year and it shows your year-to-date income. Otherwise, bring copies of each pay stub for the current year. This will enable ICBC to more quickly assist you with your financial loss.

    Your hobbies and sports

    Think about what non-work activities have occupied most of your free time over the past year or two, and make a list in order of importance. Your believability could be placed in doubt if, for example, your statement indicates you cannot ski anymore and you neglected to mention that you had skied only once in the previous 3 years.

    Your injuries

    If you did not mention in your statement a part of your body where you experienced pain or discomfort and it later becomes a long-term problem, you may have difficulty proving that the accident caused this problem. ICBC's standard argument is that people often experience pain when they have not been in a car accident. Your doctor may neglect to note in his records a certain complaint within the first month or so following the accident, even though you told him or her about it. Doctors often do not write down every complaint.

    List your injuries from most severe to least severe and from head to toe so as to not miss anything, and take your list with you to the meeting with the adjuster. Be sure to note if you have dizziness or imbalance. List any psychological problems you are having such as memory, concentration and reading problems, anxiety, fear of driving, irritability, sleeplessness, nightmares, flashbacks or intrusive thoughts of the accident. Do not go into great detail, but think about the severity and pattern of each area of pain such as your neck, low back and left leg. Is your neck pain, for example, mild, mild to moderate, moderate, moderate to severe or severe? For roughly what portion of your waking hours is it at each level of severity?

    Your seatbelt and headrest

    The adjuster will likely ask if you were wearing your seatbelt and how high your headrest was adjusted in relation to the back of your head. The purpose of these questions is for ICBC to determine whether it will be able to reduce your damage claim by a certain percentage due to your failing to take reasonable care.

    The accident itself

    In most accidents, one or more drivers will be found liable for your injuries. If ICBC is the insurer for both drivers, then it doesn't really matter how much responsibility is apportioned to each driver if you were a passenger. As a passenger, however, you should be prepared to answer questions about the accident, including those relating to time and distance.

    If you wish to further prepare for answering questions about the accident, please see the answer to the question below "How should I prepare for my initial meeting with ICBC? (For drivers, cyclists and pedestrians possibly at fault").

  • Do I have to sign the medical consent form the adjuster wants me to sign?
  • No, you do not have to sign it. If you do not have a lawyer, however, ICBC will likely not provide you with benefits unless you sign the form as it stands or with reasonable amendments to it. Examples of reasonable amendments would be that you could prohibit access to your pre-accident medical records earlier than six months before your accident and to the records of your gynaecologist and the records in your family physician's file respecting your gynaecological issues. These records are irrelevant to your claim and it would be embarassing to you if they were disclosed to ICBC adjusters and managers to read.
  • After the adjuster prepares the statement, should I sign it?
  • In most cases, it is best to tell the adjuster that you will take the statement home to read it and will sign after you've determined if it is entirely accurate. You may change the statement any way you want to make it entirely accurate. Initial any changes before you sign it. If the adjuster's statement is very inaccurate or incomplete, you may prepare an amended version of your statement and then sign and date this version. The problem with changing your statement after you leave the ICBC claim centre, however, is that the adjuster could later testify that he is certain he wrote down exactly what you told him or her. This is why it is so important that you prepare yourself well before the adjuster interviews you.

    It may be safe for you to sign your statement at the claim centre after the adjuster prepares it if:

    • you were in excellent health prior to the accident,
    • you did not have any previous problems similar to your injuries,
    • your claim for income loss is simple and straight forward and
    • there is no possibility that you could be at fault.
Information provided by ICBC Injury Claims Lawyer.

Call for appointment : 604.970.2440 or toll-free 1.877.536.4520