BC Personal Injury Lawyer: Vancouver, Abbotsford, Surrey

All British Columbians get car insurance coverage through ICBC.  In nearly every car crash you have at least one money source, but that source is limited to wage loss and medical treatment.  In the industry, this source of money is referred to as Part 7 benefits (Part 7 of the Regulation to the Insurance (Vehicle) Act).  The other source of money is from the at-fault person or persons.  This is called the tort claim.

Part 7 benefits are available to you even if you’re at fault for the crash (and of course available if you weren’t at fault).  Even if you’re certain you caused the crash, but are injured (and prove to ICBC you’re injured), you can receive wage loss benefits (Money Sources If You Can’t Work After Your Car Accident in BC) and medical treatment (Medical Treatment Available After Car Accident in BC).  There are some very rare instances where Part 7 benefits are denied (i.e. low velocity impact (see below) and criminal acts).  Nearly everyone involved in a crash in British Columbia, including pedestrians and cyclists, have Part 7 benefits.

The second source of money is through the wrongdoer’s insurance policy.  This can seem confusing because both pots of money are held by ICBC.  However, if you weren’t 100 per cent at fault for the crash and you are injured, then you can claim (this is the tort claim) for pain and suffering, full lost wages, full reasonably medical treatment (past and future) and other appropriate compensation due to you from the at-fault driver(s).  This pot of money isn’t generally available to you until your claim is completed by settlement or court award.

You want to know if you have a claim against the at-fault driver(s).  This is important because when you succeed in a claim against an at-fault person, you get pain and suffering money, full wage loss, full reasonable medical treatment, and other forms of compensation in proportion to that other person(s’) fault.  There are several scenarios to consider:

1.    If you were a driver and ICBC admits you were not at fault:  You have a claim.  Note, however, that sometimes ICBC may admit you weren’t at fault in the beginning and then change its mind.  If this happens you will have to prove you weren’t 100 per cent at fault.

2.    If you were a driver and ICBC says you were at fault:  Just because ICBC says you were at fault does not mean you were at fault.  Many people succeed proving they weren’t 100 per cent at fault even though ICBC said so.  ICBC may deny your claim but you have the option of starting a legal action and proving ICBC wrong.

3.    If you were a passenger:  It is almost certain you have a claim.  I say almost, because if you, for instance, grabbed the wheel causing the crash, then you as passenger may be at-fault.  This is rare and so you almost certainly have a claim against your driver and/or the other driver(s).

4.    If it was a hit and run:  What if the other vehicle takes off from the scene?   If you weren’t 100 per cent at fault, you have a tort claim.  However, ICBC requires that it be notified about the fact a vehicle left the scene.  There is still Part 7 insurance coverage available to you in hit and run situations.

5.    If ICBC declares your crash to be Low Velocity Impact (LVI):  ICBC has a “no crash, no cash” policy.  This means that if a crash is small such as a minor “fender bender”, they may decide to not pay you Part 7 benefits and your tort claim.  Their reasoning is that the crash was so minor that nobody could possibly be hurt.  Fortunately, our courts have not recognized this policy.  Our courts will award both Part 7 benefits and tort compensation even when ICBC told you the crash was LVI as long as you prove your injuries and that those injuries were caused by the crash. If ICBC denies you coverage based on their LVI policy, you can file a lawsuit.

6.    If you were a cyclist or pedestrian:  If you are injured as a pedestrian or cyclist, then you have a tort claim unless you are 100 per cent at fault.  You very likely also have Part 7 benefits.

7.    If the other driver didn’t have any or enough insurance:  In BC, many persons (drivers, passengers, pedestrians, and cyclists) have underinsured motorist protection (UMP).  UMP provides insurance coverage up to $1 million.  There are several ways you qualify for UMP set out in the Regulations to the Insurance (Vehicle) Act.  You may have purchased or qualify for excess UMP which means you have $2 million in UMP coverage.

8.    If you alone caused the crash:  If you alone caused the crash, then there is no other party for you to claim against.  However, sometimes you may only be partially at fault.  Maybe the road was badly designed or some hazard was on the road.  There could be any number of reasons you aren’t 100 per cent at fault for a single-vehicle crash.  If so, you are entitled to money for your harms and losses in proportion to the other party’s or parties’ fault.  Remember, regardless of fault, you are still most likely entitled to Part 7 benefits.

Some Special Cases

Sometimes a person or entity not involved in a crash could be at fault.  It could be a municipality, town, city, or the province for poor road design, road construction, failure to maintain a road properly or some other reason.  There could be instances where a business is at fault such as a road construction company, or a company that owns a road, or a company or person did something on the roadway that caused the crash.

British Columbia law also stipulates that an owner of a vehicle can be found at-fault for a crash.  If you start a lawsuit you need to include the vehicle owners as defendants because maybe the vehicle was not roadworthy and/or the person driving was not qualified.

I haven’t listed all possible wrongdoers in an auto crash. Instead, my point is that auto crashes can be caused by persons or entities other than the drivers.

Deadlines (limitation dates)

It is important you know that there are some very strict deadline before which you must take certain steps after your car crash.  The key deadlines you need to know about are the following:

Steps    Deadline / limitation date
Start your injury lawsuit    Within 2 years from the date of your crash.
Start your injury lawsuit if a municipality (or town or city) is a defendant    1.    Give written notice to the municipality within 2 months from the date of your crash;
2.    Start lawsuit most likely within 2 years of your crash.  Very slight possibility (depending on the circumstances) the deadline is within 6 months from the date of your crash.
Hit and run    Give ICBC notice about your crash and that it was a hit and run within 6 months from the date of the crash.
To get wage loss and/or treatment benefits (Part 7 benefits – described in Do You Have an ICBC Claim?):    Give ICBC notice about your crash within 30 days of your crash.  File an ICBC benefits application form (CL22) within 90 days of your crash.

Just so you know, deadlines mean deadlines.  Courts RARELY extend deadlines, and only do so if there is a specific legal reason.  Deadline extensions are NOT given out of sympathy.

There are other exceptions, but the above deadlines are the key deadlines you should know about.  The take away message about deadlines is that you do not have all the time in the world to file your claim in the courts.

You should be able to find an injury attorney / whiplash lawyer who takes on auto accident injury claims, including whiplash injury cases on a contingency.

Lawyer and injury attorney fees generally

Most auto injury attorneys (often referred to as a personal injury lawyer, injury attorney, or whiplash lawyer) will take your case “on contingency”.  This means that the legal fee is a percentage of your settlement or court award.  This arrangement works for you because you don’t need to pay your attorney up front.  It also works for the lawyer because her or his incentive (or interest) is the same as yours, which is to get as you as much money for your harms and losses as possible.  In British Columbia, the highest percentage a lawyer can charge for auto injuries is 33 1/3 per cent of your settlement or court award.

Treatment accounts (liens)

Some injury attorneys (Dykstra & Company does) have arrangements with some treatment providers (chiropractors, physiotherapists, massage therapists) where your treatment fees will be paid to your treatment provider when your claim resolves.  Again, this benefits you because you don’t have to pay for treatment before you receive payment for your harms and losses.

Documentation for your auto accident claim

You know by now from chapter 8 the importance of documentation.  The documentation suggestions in chapter 8 are only a piece of the claim puzzle.  Most auto accident injury claims, including whiplash injury claims require collecting much more extensive information than is set out in chapter 8.  Your lawyer should know what to collect, when to collect it, how to collect it, and then how to organize it.

Expert opinions – how your lawyer should help

To prove your harms and losses, you need medical opinions, and possibly non-medical opinions.  The most common medical opinion will be from your family doctor.  However, depending on your injuries, you may need additional medical opinions from doctors who specialize in a particular area of medicine.

If your claim includes compensation for something you lost or need in the future (i.e. future treatment and/or future income loss), then you may need an economist and other experts (medical experts) to give opinions about what your future losses may be.  No future loss can be known for certain.  Therefore once your future limitations are determined by medical experts, an economist puts your future losses/requirements into a dollar figure.

If ICBC is saying you are at fault for your crash, then you may need an engineer’s opinion or a reconstruction of the crash.

These are just some of the more common opinions sought in auto injury claims.  There are many other possible opinions needed, depending on your claim.  The point is that a lawyer will be able to determine what issues require an opinion in order to support a particular claim.

Unlike your injury attorney’s contingency fee, experts do not wait until your claim resolves to get paid.  Most lawyers can arrange for expert payment before your claim is resolved.  This can be costly, but is part of the service provided by most lawyers.  Note, however, that when your claim resolves, your lawyer’s office will be paid back for the money spent on expert fees from your settlement or court award.

Auto Accident legal process

Advancing an auto accident injury claim requires knowing the law in this area.  A lawyer who does auto injury claims will know the deadlines, the paperwork, and what steps to take to ensure your claim is properly advanced in the courts.  Not all claims end up in court, but all claims have that potential.  Every claim right from the start should be viewed as if it will end up in court.

Can you go your whiplash / personal injury case alone?

You are not required by law to hire a lawyer.  In minor claims you may be told by one or several lawyers that you’re best off doing the case by yourself in small claims.  Maybe you can’t find a lawyer willing to take on your claim.  Sometimes, if your claim is minor, it is best for you not to hire a lawyer.

If an injury attorney / whiplash lawyer won’t take on your claim ask why

Some whiplash lawyers simply won’t take cases where there is even a possibility that you were at fault.  This doesn’t mean you were at fault.  You can either talk to other lawyers, or if no lawyer will take on your case and you strongly believe you weren’t at fault, then you will have no choice but to go it alone.

It’s a good idea to at least talk to a personal injury / whiplash lawyer

No matter whether you think your claim is minor or whether you think you are at fault, it’s a good idea that you talk to an injury attorney / whiplash lawyer about your auto accident claim.  Again, most lawyers won’t charge you a fee for a first visit.

Remember, you have to prove every part of your claim, including your harms and losses which may be:

-    money you spent relating to your claim;
-    your injuries and your treatment;
-    your recovery efforts;
-    how your injuries affect your life;
-    your wage loss, past and future; and
-    your cost of future treatment and care.

This article explains how, what, and when you should document on your own.

Throughout this book I make suggestions about documenting your case.  Every auto injury claim from the time of the crash has the potential to end up in a trial.  Once your claim is filed with the court it is considered litigation.

From the moment of your crash, everything you do to prove your claim must be with the mindset that you will have to prove your claim in court.  I repeat, from the time of your crash, everything you do in proving your claim is with your intention that you will be litigating your claim.  This is even before you hire a lawyer.  The whole point of documenting your claim is to ultimately prove your claim in court.

At the top of the first page of your set of notes or entries you should write the following:

I was in a car crash on [DATE].  I am or intend to make a claim for my harms and losses stemming from that car crash, and I intend to prove my claim in court.  I will be making entries and notes documenting my claim.  All entries and notes made by me or by my agent on my behalf on this date and afterward are made in contemplation of all litigation stemming from that car crash.

Your signature
Date                Your printed name

Date this heading and sign underneath as shown.  If you keep your records on the computer, apply an electronic signature or type in your name and then type “electronically signed”.

Date all future entries and notes you make to show they were made after you intended or contemplated litigation.

The reason for this is that if you make notes before contemplating a lawsuit, your notes may have to be given to the lawyer hired by ICBC or another insurer.  It’s possible at some point you will hand over your notes to support your claim anyway.  However, you want the choice – not the obligation to do so.

What should you document?

1.    Your out-of-pocket expenses

Keep every receipt for purchases even remotely connected to your claim.  ICBC requires original receipts for reimbursement.  Courts prefer, if at all possible, original documents including original receipts.  All you have to do is throw all your receipts in an envelope.  You or your lawyer can organize them later.  If you are good at being organized, then by all means organize your documents right away.

If you lose a receipt, then note down what you bought, where you bought it, the price paid, and when you bought it.  Most likely you or your lawyer can get another receipt.

2.    Your injuries

You want to focus on recovery but at the same time you want to let ICBC and the court know about your injuries and how those injuries affected your life.

Injury claims can take a long time (sometimes up to several years) to resolve.  Chances are that after a couple of years, you won’t remember the details of how your injuries affected you in the early days after your auto crash.

The good way to prove your injuries’ impact is through notes you make as soon as you’re able to do so.

Again, you should focus on recovery; you should not dwell on your injuries.  However, it is a good idea to make notes on a weekly or monthly basis about how your injuries are affecting your life.  These notes need not be extensive; just enough for you to recall what you went through.  There are two aspects to noting down how your injuries affected you:

A.    List your injuries and your symptoms:  start from you head and go down to your toes.  Consider medication effects.  Ask yourself these questions:

1.    What hurts?

2.    Describe the pain.  Consider the following descriptors:

i.    radiating pain;
ii.    needle like pain;
iii.    sharp pain;
iv.    dull, ongoing pain;
v.    numbness;
vi.    shooting pain;
vii.    tingling; and/or
viii.    burning sensation.

3.    What movement(s) or activities, if any, causes pain?

4.    How long does the pain last (minutes, hours, days, etc.)?

5.    How often does a particular pain occur (all the time, daily, weekly, monthly, etc.)?

6.    Do you have any emotional and psychological pain such as headaches, sleep difficulty, anxiety, depression, irritability, mood swings, etc.

7.    Head injury:  If you hit your head, no matter how slight, or your head whipped back and forth, then you MUST tell your doctor.  There are many symptoms and questions to consider.  Head injury issues alone require an entire book.  Some good preliminary resources to check out for further investigation are as follows:

i.    Brain Injury Association of Canada: www.biac-aclc.ca/

ii.    Brain Injury Association of America: www.biausa.org/

iii.    British Columbia Brain Injury Association: www.bcbraininjuryassociation.com/index.php

iv.    Traumatic Brain Injury Resource Centre: www.braininjuryresources.org/

B.    Next, think about what parts of your life are affected?  Consider:

1.    Work and/or school – consider whether you can’t work or study at all; or only for shorter durations; or you can work or study, but do so through pain.

2.    Recreational/leisure activities – consider socializing, clubs, sports, hobbies, fitness, vacations (cancelled, shortened, or not as enjoyable), reading, watching movies, etc.

3.    Work in and around your home/yard – what can’t you do in and around your home?  Consider errands, shopping, finances, laundry, vacuuming, cleaning, dishes, annual projects, repairs, maintenance, car repairs, etc.

4.    Daily activities – consider hygiene limitations, walking, sitting, bending, twisting, reaching, moving your head, driving, using the computer, etc.

5.    Your relationships: it’s likely that your relationships with family, friends, and co-workers are affected by what you’re going through.  Consider and ask these people how your relationships are affected.

3.    Treatment notes for self-directed programs

Your medical doctors, physiotherapist, chiropractor, psychologist (or therapist), and/or massage therapist will make notes including the dates of your visits.  You do not need to keep track of these treatment efforts because they will make and keep notes in their files.

However, your treatment may include home exercises, pool therapy, exercises at a fitness facility (with or without a personal trainer), yoga, Pilates, or some other self-directed program.  Do self-directed exercises under your doctor’s guidance.  You should note down your self-directed efforts.  At the very least, keep track of the following:

1.    The dates you performed exercises or attended classes;

2.    Types of exercises you did (if following a set of exercises given to you, just indicate you did your prescribed exercises.  Keep the sheet setting out your exercises); and

3.    The location of your classes/pool/fitness facility.  If you attend an on-sight facility such as a fitness facility, yoga studio, or pool, ask if they can generate a printout in the future listing your visits.  This printout is good enough documentation of your efforts.  If not, then you can make brief notes when and where you went.

My comments in this chapter are restricted to injury claims.  I do not discuss claims for property damage such as your car or personal items damaged in a crash.

After a crash, either you or someone on your behalf must file a claim with ICBC.  You can do this online or on the telephone.  You can find the ICBC contact information at www.icbc.com/claims-repairs/.  If you have a lawyer, he or she can file the claim for you.  However, it is best that your claim be filed as soon as possible.

ICBC will contact you after filing your claim.  You will be invited to meet with an adjuster (ICBC employee).  You do not have to meet with the adjuster.  The following are some guidelines for how to deal with ICBC depending on whether you plan on hiring a lawyer or not.

If you have a lawyer or are looking for a lawyer

If you are actively looking for a lawyer or have a lawyer, then don’t meet with an adjuster and don’t sign anything at all.  All the formalities can be taken care of by your lawyer.

If you’re not sure about getting a lawyer

If you’re not sure about getting a lawyer or you’re taking your time making a decision, but you need treatment and/or lost wages right away, you don’t have to sign any authorizations releasing your information nor give a statement.  I repeat, you do NOT have to sign any authorizations releasing your information to ICBC and you don’t have to give a statement.  You will, however, have to fill out and sign an insurance benefits application called a CL22 (see below in this chapter about filling out the CL22 benefits application form).  Note that at some point a statement must be given to ICBC.  Wait to do this until you know whether you are hiring a lawyer.  If you do, have the lawyer provide the statement.

Lost wages benefits

In order to get lost wages, ask the ICBC adjuster to provide you with a blank certificate of earnings (it’s an ICBC form).  You or someone helping you will need to have your employer complete the certificate of earnings and then return it to your ICBC adjuster.  A completed certificate of earnings should be good enough proof of your earnings.

Often ICBC will also want your family doctor to confirm your injuries.  This can be done by a doctor’s note stating you need time off work and/or a CL19 medical report (see next section).

Medical treatment benefits

If you need medical treatment paid by ICBC and/or injury confirmation (for lost wages), then you can bring to your doctor, or have ICBC fax to your doctor a CL19 form which is an ICBC two page medical report form.  You then visit your doctor who will examine you and complete the form.  If your doctor confirms your injuries and confirms a particular course of treatment, then ICBC will set up an account with your treatment provider.

If you don’t need wage loss benefits or treatment paid by ICBC (in other words you have enough money to cover yourself for the time being), then you don’t have to bother with any of these forms and you absolutely should NOT sign any forms.  Just because you don’t claim for lost wages or treatment payment right away does NOT mean you don’t get those funds down the road.  Your wage loss and treatment costs form part of your overall claim.

If you’re reading this and you have signed a statement or authorizations for releasing information with ICBC, don’t worry about it.  You can easily revoke any releases by writing your adjuster a note stating you revoke all releases signed by you (or your lawyer will revoke the releases).  Any inaccuracies in your statement prepared by an adjuster can be revised.

CL22 – Considerations when filling out this ICBC benefits application form

If you want ICBC to pay you lost wages and/or treatment shortly after you file your claim, then you will most likely be asked to fill out a CL22 which is an ICBC benefits application form.  If you are hiring a lawyer, your lawyer can fill this out.  If you’re unsure about hiring a lawyer and you need benefits now, then you should fill out this form.

This form will ask you to list your injuries.  In order to provide an accurate list of your injuries, do the following:

List your injuries and your symptoms:  start from your head and go down to your toes.  Consider medication effects.  Ask yourself these questions:

a.    What hurts? and

b.    Consider emotional and psychological pain such as headaches, sleep difficulty, anxiety, depression, irritability, mood swings, etc.

If you need more space (on almost every CL22 I complete for clients I list the injuries on an attached sheet), then do so on a blank sheet of paper and attach it.  You can call it “continuation of list of injuries from page 1 for [your name]”

The CL22 also asks about any private insurance you may have.  You should make inquiries about whether you have private insurance.  In chapter 5 I discuss possible sources for private insurance benefits.

One last consideration when filling out the CL22 has to do with your employment and earnings.  Include all your employers and be precise about how much you earn as best as you can.  If your earnings change from month to month, report the average over the course of a year, but state it’s an average and an approximation.

Be sure to keep a copy of the signed CL22 you give to ICBC.

If there is no way you are hiring a lawyer and you want to settle your claim on your own

If you are absolutely certain that you are not getting a lawyer, ICBC will likely not settle with you unless you sign releases for certain information.  You will also have to sign a statement.  I do not recommend you take this course.

If ICBC makes you an offer, I suggest that you run your settlement offer by a lawyer to make sure you’re not getting ripped off.  Sometimes ICBC will make decent offers to people without lawyers.  Other times an offer is too low.

If you settle with ICBC, be sure you’ve recovered from your injuries.  Once you settle, it is very, very difficult (and rare) to have the settlement set aside.

Types of treatment available

I couldn’t possibly list all the available treatment; however, the following is a very brief list of common treatment types that many auto crash injury victims receive:

1.    physiotherapy;
2.    chiropractic;
3.    massage therapy;
4.    water therapy;
5.    yoga, Pilates, fitness gym membership;
6.    self-directed exercises at home or a gym (often set out by a physiotherapist);
7.    medical equipment;
8.    counselling (somewhat common after auto crashes);
9.    pain clinics using a variety of rehabilitation techniques; and
10.    medication.

This is a short list of the more common treatments widely available.  For more severe injuries that are not healing, or unique circumstances, there are numerous other options available that your doctor can prescribe or recommend.

Treatment costs money; how can I pay for it?

There are a number of ways to get full or partial payment for your treatment.  Here are some of your options:

1.    Private Insurance: Just like lost wages, find out if you have private insurance coverage through your employer, spouse, parent(s), union, or some other source.  These insurance plans often include some form of coverage for treatment.  Each plan is different so you will have to talk to your plan administrator or the insurance company to find out what coverage is available.  Get your application to your insurance company as soon as possible.  For coverage, you’ll most likely need your doctor to fill out a form.

2.    Medical Services Plan (MSP):  Yes, our public healthcare system will cover you for some treatment if you are on premium assistance (you earn less than $24,000 per year).  The following is a basic list of the common treatments available through MSP and how much MSP will pay.  MSP will only pay the indicated amount for up to 10 visits during a calendar year.

a)    acupuncture            $23.00
b)    chiropractor service        $23.00
c)    massage therapy        $23.00
d)    naturopathy            $23.00
e)    physiotherapy            $23.00
f)    podiatry (non-surgical)    $23.00

For a comprehensive list of what MSP covers, you can visit www.health.gov.bc.ca/msp/index.html.
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3.    ICBC:  Your own insurance policy (Part 7 – described in chapter 10) with ICBC includes partial payment for some forms of treatment.  I said partial payment because unfortunately you will have to pay user fees for each visit.  Here is a basic list of treatment and the amount ICBC will pay (the amount you will have to pay, i.e. your user fees, will depend on what the treatment provider charges):

Treatment    What ICBC pays?
Massage Therapy:    $23 per visit for up to 12 visits during the first 8 weeks after a car crash.  You will need a medical doctor’s prescription note to present to ICBC. This is not a required benefit by law; instead it’s an ICBC policy that’s been in place since 2002.

Physiotherapy:    $25.20 first visit; $17.65 – $23.60 each other visit.  Generally you need a doctor’s note, although sometimes a treatment plan from the physiotherapist will suffice for ICBC to pay a portion.

Chiropractic care:    $22.27 initial visit; $17.35 each other visit – treatment plan set out by chiropractor is sufficient.

Yoga / Pilates / fitness gym membership:    Payment is up to ICBC.  If your doctor prescribes this type of treatment, ICBC may pay for it or a portion.

Medical equipment:   ICBC covers a variety of medical equipment when prescribed by a medical doctor.

Counselling:    In some cases ICBC will pay some or a portion of counselling fees.

Pain clinics:   In some cases ICBC will pay some or a portion for a pain clinic.

Medication:    If prescribed by a medical doctor, you will be reimbursed upon submitting original receipts (keep a copy of the receipt).

If your injuries are serious, ICBC will provide an occupational therapist to coordinate your treatment and recommend home/work/transportation modifications necessary.

There is other medical coverage available from ICBC.  I simply provided the more common forms of treatment.  For a complete list of what ICBC covers, check out the Regulations to the Insurance (Vehicle) Act.  An unofficial free version is available at www.qp.gov.bc.ca/statreg/reg/I/InsurV/InsurV447_83/447_83_00.htm.  Scroll down and click on “Part 7”.

Each chiropractor, massage therapist and physiotherapist charges their own rates.  The amount you will pay for each visit (i.e. your user fee) will depend on how much a particular treatment provider charges.  When you book your appointment just ask the office what your user fee will be.

ICBC exercises its discretion whether to pay for treatment.  If you are denied treatment but need it, write ICBC asking whether you are denied, and if so, to provide you in writing with their reasons for doing so.

The reason you want all this in writing is so that ICBC has much less of a chance to successfully argue that you weren’t injured because you failed to get treatment.  It also prevents ICBC from arguing you didn’t do anything for treatment, and therefore you shouldn’t be compensated for your harms and losses.

Like wage loss benefits discussed in chapter 5, in order to get treatment benefits you will need to fill out an ICBC benefits application form called a CL22.  I discuss how to fill out the CL22 in chapter 7.

4.    Treatment provider lien:

Some treatment providers are willing to collect payment for your user fees and any other fees when your claim is resolved.  Generally, these treatment providers will require that you sign what is called a “lien”.  The lien entitles them to be first in line to claim money when your claim resolves.  A lawyer may be able to arrange for a lien with treatment providers.  Availability of liens depends on your case and the treatment provider.

One downside to a lien is that if your settlement or court award does not pay off your treatment fees owing, then you will most likely (depending on the terms of the lien) have to pay off the balance owing out of your pocket.

5.    CPP disability benefits and BC Employment and Assistance

If you apply for benefits through CPP disability and/or BC Employment and Assistance (BCEA), your benefits may include payment or partial payment for treatment.  Their Web sites are located at:

CPP disability benefits: www.hrsdc.gc.ca/eng/isp/cpp/disaben.shtml

BCEA: www.eia.gov.bc.ca/bcea.htm

6.    Pay for it yourself and claim the money back later

You can pay for the treatment yourself.  That expense forms part of your claim against the wrongdoer(s).  Keep your receipts, especially for medication and medical equipment.  You don’t need to keep receipts from your treatment providers (physiotherapist, chiropractor, and massage therapist) because they can quickly produce a statement listing all your visits and how much each visit cost.

Sources for money if you an ICBC claim

If you are in the hospital and missing work, then if possible, ask a family member or friend to tell your employer that you are in the hospital and aren’t sure when you will be able to return to work.

The following are steps (sources for income) you should take if your doctor recommends you not to go to work (or you are in the hospital and you have a family member or friend who can help you out):

1.    Private insurance: short term and long term disability benefits

Find out if you have private benefits through your work, union, spouse, parent, or another source.  You want to find out if you have short term or long term disability benefits.  Short term and long term disability benefits pay you your lost wages (or a portion) fairly soon after your crash.  If you do have private benefits, immediately make an application.  If your application is successful, you will receive wage loss benefits (money and likely some treatment) while you’re off work.

Your family doctor will likely have to complete some forms for you.  If you don’t know whether you have these benefits, contact your human resources department, your supervisor, or your union for a claim form and a booklet explaining the application process.  Short term and long term disability coverage will often pay you the most (compared to Employment Insurance, Canadian Pension Plan disability, BC Employment and Assistance, and ICBC wage loss) while you cannot work.

Every private wage loss benefits package is slightly different.  However, generally you do not need to repay the benefits until you receive compensation for your injury claim.

The downside to applying for private wage loss benefits is that it may take several weeks, or in some cases, several months to find out if you will receive any wage loss payments.  Most likely, waiting this long will strain you financially.  So, no matter whether you applied for private wage loss benefits, you should simultaneously apply for Employment Insurance.

2.    Employment Insurance (EI)

EI is provided by the Canadian Government.  If you qualify, you will find out quickly.  However, the downside is that you will not receive the amount of money you earned working and you do not receive benefits for your first 2 weeks off work.  To apply for Employment Insurance, visit www1.servicecanada.gc.ca/en/ei/menu/eihome.shtml.

Keep in mind that if you receive compensation for your injuries from the wrongdoer (i.e. at-fault person(s)), then you will have to repay EI.

If you are denied EI, then ask for a letter from EI setting out the denial and the reason you were denied.  Keep this letter.

3.    ICBC: disability benefits for employed persons and homemakers

If you have no private insurance (or there is a delay in approval) and no EI (or are approved for EI but didn’t receive benefits for your first 2 weeks off work), then you can and should apply for wage loss benefits from ICBC.

File an injury claim with ICBC.  You will most likely need to fill out an ICBC benefits application form called a CL22.  In chapter 7, I discuss filing a claim with ICBC and how to fill out the CL22 form.  These immediate wage loss benefits are under your insurance coverage with ICBC known as Part 7 benefits.  I briefly explain Part 7 benefits in Chapter 10.

If you are a homemaker and your injuries from your car crash prevent you from doing most or all of your work in the home, then ICBC will reimburse you for hiring someone to perform that work in your home.

The upside to applying to ICBC for wage loss benefits is that you should receive payment quickly.  The downside is that ICBC wage loss benefits pays only $300 per week.  Also, you don’t receive benefits for your first week off work.

In order to apply to ICBC for wage loss, you will have to speak to an ICBC adjuster (an ICBC employee).  That is okay.  Just don’t sign any authorizations releasing your information and don’t make a statement.  To make a claim, visit www.icbc.com.

If you don’t have a lawyer and you need money as soon as possible, your ICBC adjuster will need employment confirmation from your employer.  ICBC has a form they can send to your employer.  To speed up the process, you can take the form to your employer or have ICBC fax it to them.  Then be sure your employer fills it out immediately and gets it back to ICBC.  Once ICBC receives confirmation of your wage, hours, and employment, you should receive payments shortly.

ICBC will also want confirmation that you are not receiving EI.  That is where your denial letter from EI will come in handy.  Provide a copy to ICBC.  Again, be sure you keep a copy for your file.

4.    Sick days, vacation time, and/or employer benefits

Another option to getting income is using your sick days and/or vacation time.  If you’ve exhausted other sources for income, or you prefer not to pursue other sources, then you can ask your employer about using sick days and/or vacation time.

Another option is to ask your employer if they will keep paying you while you recover.  Your employer may have a policy to pay your wages for a period of time while you can’t work.

5.    Canada Pension Plan disability benefits

If you are 18 to 65 years of age and have paid into Canada Pension Plan (CPP), then you may qualify for a CPP disability pension plan.  In order to apply you will need to fill out an application form.  Your doctor will likely also have to complete a form.  You can find CPP disability forms, contact information and further eligibility information online at www.hrsdc.gc.ca/eng/isp/cpp/disaben.shtml.

6.    BC Employment and Assistance

If you applied for and were not approved for financial benefits from all of the above sources, then you can apply for assistance through BC Employment and Assistance (part of the BC Ministry of Housing and Social Development).  You can find application, eligibility, and contact information online at www.eia.gov.bc.ca/bcea.htm.

7.    Loans

If you can avoid taking out a loan, then do so.  However, sometimes it’s your only option.  Consider some of the following loan options:

• Take out a mortgage, a line of credit, and/or personal loan from a bank.  The advantage is you’ll probably get a better interest rate than the option under (ii) below.  The downside is you have to make payments right away and so you’ll be using the borrowed funds to pay the loan.  If the funds expire before your claim resolves, then the bank may foreclose on whatever security you gave.
• If you hire a lawyer, there are lending institutions who lend money to persons with injury claims.  The advantage is you don’t have to make payments until your claim is resolved.  Also, depending on the loan, if your settlement or award is not sufficient to pay back the loan, you don’t have to repay the balance owing out of your pocket.  The downside is the interest rate is very high.
• Borrow from family and friends.  An obvious option, but it can strain relationships.  I recommend you and your lender each see your own lawyer.  Of course this adds to the cost, but it’s better that everyone is clear about the terms of the loan.

What if I’m not given modified or light duties at work even though that’s what my doctor prescribed?

If your doctor says you should do modified or light duties at work, then be sure that is what you are doing.  If not, talk to your supervisor.  If your supervisor has no modified or light duties available, then return to and tell your doctor.  In this instance you are now medically unable to work and so you should explore your options for money set out at the beginning of this article.

Is there anything I can do to protect my claim if or when I return to work?

Yes.  First, pay close attention to what you can and cannot do.  If something hurts, don’t do it and document it.  Second, keep your supervisor and your co-workers informed about how your injuries are affecting you on the job.  Your supervisor, bosses, and co-workers can help your claim.  They can support your claim for wage loss (remember you have to prove every harm and loss).  They can also give good evidence about how your injuries affected you.  Many people spend most of their time at work.  That means you might see your co-workers more than you see your family and friends.  Therefore, your co-workers are a very good source of evidence about how your injuries affect your life.

Document, Document, Document

Remember to document who your supervisors are and try to keep current contact information for them.  Your claim can take several years to resolve and during that time your co-workers and supervisors may leave or you may get a different job.

Preparing a Personal Injury Claim in BC

A very important building block to your claim is what your friends, family, and co-workers can say about how your injuries have affected you.

When you testify in court about your harms and losses you may come across as self-interested because you’re seeking money as compensation.  However, your friends, family, and co-workers have little or no self-interest in your claim.  Decision makers such as judges and juries listen very carefully to what your friends, family, and co-workers have to say.

How do you tell your friends, family, and co-workers that you’ve been hurt and how your harms and losses affect your life?

The answer is two-fold:

1.    Let people know you’re hurt; and
2.    Tell people how your injuries affect you.

I’m not saying that you have to give long-winded complaints to everyone daily.  What I’m saying is that if you’re hurt, you should say so and let people know how your harms and losses affect you.  For instance, if you had to quit your softball league, tell people involved in your life that this upsets you and that you miss your teammates and the exercise and whatever other enjoyment you gained from softball.

The point is that you shouldn’t think that telling other persons is whining or a bother.  Your friends and family, and your co-workers, will most likely be sympathetic and will offer assistance, as long as you are factual and sincere.

Suppose your injury is whiplash causing you neck pain and headaches.  These injuries are largely unnoticeable to other people.  Not to you though.  When you get a headache and you have to stop what you’re doing, tell someone.  You can say, “I have to stop working at the computer and lie down or go for a walk because I have another headache.”

If the other person is willing to listen, from time to time explain what kind of pain you suffer, how long it hurts, and how often it hurts.

It’s important that you keep track of these witnesses.  It should be easy because they will be in your life.  All you need to do is jot down names of people, and generally, over time, what they may know.  This writing down contact information is most important with co-workers because they may leave the job or you may leave the job.  If you hire a lawyer, she or he will talk to them to see how they can help your case.

The point is that you shouldn’t suffer in silence.  It helps you recover if you talk about your injuries.  It helps your claim too.

I love the Internet.  It’s a terrific way to keep in touch with people, to learn, and be entertained.

Web pages

If you set up Facebook, MySpace, Twitter, Flickr, blogs, Web sites or any other visible online pages, you must review those sites.  You must also review information your ‘friends’ may have of you on their sites.  What should you look for?

The question you must ask yourself is:  is there any information displayed that could result in someone thinking less of me?

Your case could be decided by a jury of 8 people you don’t know and who don’t know you, or to a judge who doesn’t know you.  The last thing you want is for those 8 people or a judge to get a bad first impression of you because of some information they learned about you from any of your sites.  Worse yet, your online information may discredit you in some way.

How will your online information make its way to a court?

Easy.  If you end up suing someone, the person you sue or their insurance company may investigate you, and that might include searching your Web sites.  Any relevant information found may be shown to the jury.  In fact, ICBC will likely start doing online searches of your name very early on in your claim.

The last thing you need is to have a judge or jury question your credibility due to some information or photographs pulled off one of your Web pages.

Ideally you will deactivate all your Web sites until your claim is resolved.

However, if that is not possible or will cause you hardship, then examine your Web pages carefully.  Consider the content from the perspective of a total stranger.  If unsure, be cautious and deactivate your websites.  If deactivating your websites makes your life difficult, then have a lawyer review it.  Don’t “delete” your sites, because that could be destroying evidence.  Deactivating is better to do because no additional evidence can be created (i.e. posting to your Facebook wall – or other pages).

E-mail and your computer – marked “Without Prejudice”

Chances are, if you have a computer, you’re on the Internet.  Once your computer is connected to the Internet, your stored information and e-mail accounts are accessible.

You will read throughout this book that you should make notes from time to time.  Also, you may discuss your crash and/or injuries by e-mail with other people.  These notes, documents, and communications may be important to your claim.

In some instances, once you start a lawsuit, a court may require that some or all the information on your computer be provided to the other side.  Once you file a claim with ICBC you should assume the information on your computer can end up with ICBC.

So, what are you to do?  In addition to writing out the blurb set out in chapter 8 (i.e. your litigation intention blurb), you should mark at the beginning of each document and communication “Without Prejudice”.

“Without Prejudice” doesn’t mean you can prevent your computer information ending up in the wrong hands.  What it will do is ensure that nobody other than you can use those “Without Prejudice” marked notes, documents, and communications in your claim, including at your trial.

There is no substitute for photographs and video footage of both the crash and all of your injuries.  Read this chapter to learn the what, when, where, why, and how.

Photographs are great; video footage is a good addition (not a substitute).  Only take video footage if you own your own video camera or you can get your hands on one from a friend or family member.  It’s not necessary to go out and buy a video camcorder.  Note that some digital cameras can take short video footage.  Maybe your camera does.

Don’t worry if you’re not an expert photographer.  Basic digital technology today or even disposable cameras will do the job nicely.  Just get the photographs taken as soon as possible and do your best.

If you’re too hurt to take photographs or video, then ask someone to take photographs and video for you.

What should you take photographs and video footage of?

1.    Your injuries: photographs are best, video can be helpful;
2.    The car crash scene: photographs are important, video is very helpful.

1.    Your injuries

If your injuries are not visible (i.e. back pain), then don’t bother taking photographs.  If, however, your injuries are in anyway visible, then photograph them.

If you had surgery, get photographs of the area where you had surgery as soon after your surgery as possible.  I suggest that you continue taking photographs periodically over time documenting your post-surgery healing process.

If you use aids such as crutches or a wheelchair, get photographs and video, if possible.
If you have a cast or any other bandaging, get photographs of it.

Digital cameras permit unlimited photographs, so experiment with the light, angles and distance to ensure you end up with a good variety of quality pictures.

I recommend you take photographs of your injuries over the course of your recovery.  For every batch of photographs you or someone else takes, ensure you note down who took them and the date taken.

2.    The crash scene

A few photographs taken of the crash scene as soon as possible after the crash can be helpful, especially if ICBC is saying the crash was your fault.  If you hire a lawyer, she or he will most likely get photographs of the scene.  However, no matter how good your lawyer’s photos are, yours can be the most important because they were taken the soonest.

Caution – don’t jeopardize your recovery

Whatever you do, don’t jeopardize your recovery to get photographs or other evidence.  Your recovery is your number one goal.  For instance, if you were injured a long distance away from your home or you aren’t very mobile; don’t worry about not getting photographs.  Photographs and video are helpful to your claim, but they are not worth it if it causes you more harm.  Remember, you or your lawyer can get photographs later on if necessary.