Hergott: Victims of car crashes could be penalized

Lawyer Paul Hergott talks updates on ICBC and crashes

The rights of those injured in collisions are about to change.

Negligent drivers causing the collisions will be rewarded.

Rewards include increased employment disability benefits and complete (instead of the current partial) coverage for most care expenses.

Innocent victims will also receive increased benefits. But since 100 per cent of income losses and expenses must be paid at the time of settlement, those benefits are just a higher down payment on what ICBC will have to pay anyway.

Innocent victims will actually be penalized, because their right to compensation for “non-pecuniary losses” will be capped.

Non-pecuniary losses are the non-financial ways you are impacted by an injury.

Your injuries might cause you to miss work for a time and cost money to treat. Those are financial losses.

Non-financial losses include the unpleasant experience of discomfort and pain. And the impact those symptoms have on your day to day activities.

They include psychological symptoms as well, such as a lowered mood and irritability that can go hand in hand with physical symptoms.

Thankfully, most injured victims enjoy a complete recovery. They might endure a wretched few weeks or months, but the discomfort and pain resolves and they return to the life they enjoyed before the collision. I call that a temporary injury, because it ends. It is not permanent.

In the great scheme of car crash injuries, the temporary ones might be referred to as “minor”. Though I caution you against suggesting to anyone enduring months of pain, stiffness and headaches that they sustained a minor injury!

For collision injuries occurring on or after April 1, 2019, non-financial loss compensation for those temporary injuries will be capped at $5,500.00 (the “Cap”). The Cap is established by a government regulation called the “Minor Injury Regulation”.

But when you look at how the government has defined a “minor injury” in the legislation, you will see that they are applying the Cap to injuries going far beyond what any reasonable person would label as “minor”.

If you sustain an injury referred to as a “sprain”, i.e. an injury to ligaments, the injury is a “minor injury” unless all the fibres of an injured ligament are torn. If a “strain”, i.e. an injury to muscles, the injury is a “minor injury” unless all the fibres of an injured muscle are torn.

All whiplash associated disorders are “minor injuries” unless they include a spinal fracture or “decreased or absent deep tendon reflexes, deep tendon weakness or sensory deficits, or other demonstrable and clinically relevant neurological symptoms”.

Pain syndromes, psychological and psychiatric conditions and jaw joint injuries are “minor injuries” as well.

All of those injuries are “minor injuries” unless they result in a “serious impairment” or a “permanent serious disfigurement”.

To qualify as a “serious impairment”, it must indeed be serious, resulting in the “substantial inability” to perform the essential tasks of your employment / occupation / profession, or a training/education program you are enrolled in or accepted for enrollment. And must last longer than 12 months without an expectation of ever substantially improving.

I will give you an example.

You suffer whiplash injuries, a shoulder injury that tears some but not all fibres of ligaments and muscles as well as whiplash related headaches. You are initially unable to work, but with months of therapies and a graduated return to work program your symptoms settle down and you build up your strength to the extent you are able to return.

But you continue to suffer from headaches, neck pain and shoulder restrictions that will never completely resolve. Those ongoing symptoms restrict you from ever returning to your previously active lifestyle. And leads to depression.

That’s a “minor injury” for crashes occurring on or after April 1, 2019.

Interested in looking at the legislation yourself? Look at the “Part 7 – Minor Injuries” , section of the Insurance (Vehicle) Act. And the Minor Injury Regulation .

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