B.C. Accident Statistics for the Year 2005

The following B.C. car accident statistics are for the year 2005 and were sourced from the “Traffic Collision Statistics: Police-attended Injury and Fatal Collisions British Columbia 2005″ prepared by ICBC.  The full report can be viewed at ICBC Web site located at icbc.com/library/research_papers/traffic/index.asp

# of accidents and injuries

# of reported accidents:                                              50,573

# of accidents resulting in an injury claim:                 20,370

# of injury claims:                                                       28,752

# fatal collisions:                                                         460

# of accidents police attended:                                   44,809

# of actively BC licenced drivers:                              2,912,935

# of injured / killed cyclists:                                        1,045 (3.8%) / 7 (1.5%)

# of injured / killed pedestrians:                                 1,857 (6.8%) / 68 (14.8%)

# of injured / killed motorcyclists:                              1,074 (3.9%) / 47 (10.3%)

Timing

Month with the highest casualty count:                      December

Month with the lowest casualty count:                       February

Day with highest casualty count:                                Friday

Day with lowest casualty count:                                 Sunday

Accident contributing factors

Top 5 contributing factors (%) in injury collisions (some accidents have multiple contributing factors – all were included and not weighted):

  1. Driver inattentive                                34.7%
  2. Speeding                                             20.2%
  3. Driver error / confusion                      18.4%
  4. Failing to yield to the right-of-way    17.2%
  5. Alcohol                                                  11.7%

# of injuries by type (not a complete list of injury types)

Whiplash:        8,625

Bruising:          7,352

Abrasion:         2,973

Laceration:      2,013

Fracture:          1,760

Bleeding:         1,461

Concussion:     657

Dislocation:     256

Amputations:  40

Burns:              60

Collision types

71.7% of collisions involved more than one vehicle (multi-vehicle accidents).  The percentage of types of multi-vehicle accidents are as follows:

1.                  Rear-end:                                            28.4%

2.                  right angle (T-bone style):                   21.5%

3.                  left turn into oncoming traffic:           12.7%

Alcohol related collisions

# of police-attended injury collisions with alcohol involved:             2,189 (11.3%)

# of fatalities involving alcohol:                                                         110 (27.1%)

Interest on disbursements payable by wrongdoer in New Brunswick

Synopsis: New Brunswick Court of Queen’s Bench orders a wrongdoer (defendant) to pay the interest charged to an injured claimant that accrued in order to finance the cost of the lawsuit.  This doesn’t make this decision law in British Columbia at this time, but no doubt this issue will soon be addressed in BC’s Supreme Court.  (case:  Bourgoin v. Ouellette et al, N.B.R. (2d) TBEd. FE.013, February 6, 2009 [The New Brunswick Decision])

Full article:

Advancing a personal injury case almost always requires spending some amount of money.  The money spent to advance a claim/lawsuit is called disbursements.  How much money needed depends on the case.

Example #1: a car accident case where fault is in dispute and the injuries claimed are a head injury, the amount of disbursements will be very high – into the tens of thousands, and perhaps higher.

Example #2: contrast example #1 with a case where the injured person was rear-ended (i.e. fault is then not in dispute), and the injury was a neck strain that healed within 12 months.  The second example would require a lot less in disbursement money.

What are examples of disbursements?

  • office expenses (photocopying, courier, court filing fees, fax charges, mileage, etc.).  These are relatively minor compared to the expert costs.
  • expert costs – this is where the costs add up.  To prove injuries and the future of those injuries, medical opinions are needed.  Doctors don’t provide medical opinions for free.  Other experts could include engineers, occupational therapists, economists, and others, depending on the case.
  • MRI / CT scans and perhaps other tests.

The problem faced by many injured persons the lack of money to pay for any disbursements.  Most people don’t have a spare $2,000 let along tens of thousands lying around to pay for a lawsuit.  Lawyers may advance the funds to pay for these disbursements (Dykstra & Company will in most cases – especially if fault is not in dispute).  However, lawyers often have to borrow money to pay for their clients’ disbursements.  This means the lawyers then charge interest to their clients (because the lender charges interest to the lawyers).

The New Brunswick Decision ordered the defendant to refund the interest charged to the plaintiff incurred to finance disbursements*.  The interest rate was 2.4% compounded monthly.  The Court found that the plaintiff had no other option but to borrow money to finance his disbursements.  The decision was based on the argument that in order for the plaintiff to have access to justice and enforce his rights, he had to borrow the money.

Access to justice is an ongoing issue in British Columbia, and no doubt other provinces.  This issue came to light in the media when the case against the BC ferries settled before trial because the cost of going to trial was too much for the plaintiffs.

Of course a similar decision in British Columbia wouldn’t address the high cost in BC to actually pay the trial fees.  That’s a separate issue – an issue that our provincial government must address.  However, if the BC courts decided the issue similarly to The New Brunswick Decision, in my view, access to justice would be improved.

*Note: this decision doesn’t mean that wrongdoers in British Columbia must pay the interest charged to finance disbursements (as of this article date).  However, courts in one province often consider decisions of courts in other provinces.  The New Brunswick Decision may be persuasive when this issue is addressed in the BC Supreme Court – time will tell.

Hurt? What Litigation Options are Available in BC?

Access to justice is an ongoing topic in British Columbia for persons injured in car accidents with ICBC claims.  Access to justice includes the cost and how long it takes to solve disputes.  The cheaper and speedier, the better.

A few steps the BC government has taken is to offer a variety of litigation options.

If you get hurt or have a non-family matter lawsuit (family matters have their own rules and court options), you have 3 procedural options in the Supreme Court of BC and a 4th option by going to Small Claims Court.

I’ll describe the 3 Supreme Court options first.

1.    You can opt for the regular procedure – which is the default process. This process generally takes the longest and is the most costly.  Typically, cases that are potentially greater than $100,000 proceed in this manner.

2.    You can opt for a Rule 66 expedited litigation. When a Supreme Court action is filed under Rule 66, the action will typically get a quicker trial date (usually within 8 months of filing).  However, the maximum number of trial days under this rule is 2 days.  Other ways Rule 66 actions contain costs is:

  • Limiting examinations for discovery (a pre-trial event where the lawyers ask questions to all parties to the action) to 2 hours for each party.
  • Maximizing the costs payable by the unsuccessful party to $6,600 (this amount could be more in the event special or double costs are ordered – a topic beyond the scope of this article).  Cost limitations can be good and bad – essentially it limits the risk for paying costs for all parties.
  • Not permitting by right interrogatories.  Interrogatories are written questions put to a party who then answers them in writing.
  • Jury is not an option.

3.    The third option in the Supreme Court is opting for Rule 68 expedited litigation. Rule 68 characteristics are as follows:

  • A jury is not an option (reducing the cost).*
  • Examinations for discovery are not a right. This means you don’t have to answer questions from the other side’s lawyer before the trial.
  • There is no maximum number of trial days (an flexibility advantage to Rule 66 actions.

One limitation of Rule 68 is that the action must be under $100,000.  Now the amount of an action isn’t always readily apparent – especially ICBC claims and personal injury actions.  Therefore, there’s no absolute restriction to $100,000.  However, $100,000 is a guideline when deciding to file under Rule 68..

An obligation that is unique to Rule 68 is that summaries of what witnesses will testify about must be prepared and provided to the other party.

4.  The fourth litigation option is Small Claims Court in the Provincial Court of BC. Small Claims’ primary limitation is the maximum amount that it can award is $25,000.  Therefore, if there’s a possibility a case is worth more than $25,000, Small Claims isn’t the best option.

However, if a case is certain to be less than $25,000, Small Claims is a viable option for the following reasons:

  • There are no examinations for discovery (usually beneficial for an injured person) because it keeps the costs lower.
  • Trial dates are granted fairly quickly.
  • Very little risk of costs.  There is a minimal costs provision in the Small Claims Rules – but the amount and occasion to award them are minimal.  Again costs is a comprehensive subject beyond the scope here.  No costs can be good or bad – depending on the outcome.  However, with no costs available, the risk to all parties is minimized.
  • If you don’t have a lawyer, the Small Claims process is easier to navigate than the Supreme Court of BC process.
  • A jury is not an option (again, this contains the cost).*

However, the Small Claims process requires that all parties attend a Settlement Conference presided over by a Provincial Court Judge.  These sessions are mini mediations – what is said is off the record except any further orders made by the presiding Judge.  Many cases settle at these conferences – likely because an actual judge who is proactive states what is a possible outcome.  Note that the judge who is at the Settlement Conferences don’t preside over the trial (if the matter doesn’t resolve).

I’ll conclude by making a comment about juries.  Juries add cost to a trial.  However, juries can be a very good way to decide a case and do justice for an injured person.  In fact, because juries decide a trial right away after the trial, they can speed up the process.

What to do after a Car Accident in BC

Recently ICBC set out the following top 5 things to do after a car crash (source: ICBC’s website – click here to review it).  What follows are our comments on ICBC’s top 5 things to do.

1.    Stop at the scene: If it’s safe to do so and you aren’t injured, pull over to the side of the road so you don’t block traffic and can safely exchange information with the other parties. If you can’t get to a safe area to get out of your vehicle, then stay in it until assistance arrives.

2.    Call 911: Your personal safety and well-being is most important. If you or others are seriously injured call 911.

3.    Summarize the scenario: ICBC’s new claims cards, available at any Autoplan broker or ICBC Claim Centre, will remind you of the important information you’ll need to record at the scene, such as the date, time and location of the crash, the contact information of others involved, their vehicle’s make, model and licence plate number and insurance policy information. The card also allows you to sketch the crash scenario including the directions of travel and any nearby road signs or traffic lights. [You can get a copy of ICBC's new claim card here.]

4.    Gather additional information: Make sure you get contact information for any witnesses. Pictures can be more powerful than words. If you have a cell phone camera or a disposable camera in your glove box, take photos of the crash scene and the damage done to vehicle(s) or property.

5.    Call Dial-A-Claim: Call ICBC’s Dial-A-Claim.  In the Lower Mainland call 604-520-8222; elsewhere in B.C. or outside call 1-800-910-4222. ICBC recommends you try and report the crash as soon as you can.  The claims representative will capture the details of the crash and tell you if you need to visit a claim centre or an autobody repair shop. If you’ve been injured, your wellbeing is the most important thing – you can ask a friend or family member to report the incident on your behalf. Once the claim has been reported, you can contact us later, when you’ve recovered.

I have three comments about ICBC’s top 5 things to do after a car crash.

First, if you have even the slightest discomfort, see a doctor before doing anything else.

Second, you have the right to see a lawyer before you make your claim to ICBC.  Yes, it’s a good idea to make a claim shortly after the accident; however, you have the right to see a lawyer before you do and a week or two delay will not compromise your claim.

Third, if a friend or family member reports your claim via Dial-A-Claim, ensure that whoever reports the claim says they are a friend or family member.  The reason for this is if the initial report is inaccurate, you can explain why.

I have four comments about the ICBC Claims Card.

First, if you’re hurting and filling out the ICBC Claims Card causes you discomfort, let the authorities collect the information.  You just focus on not aggravating your injuries and getting medical help.

Second, if you’re capable of completing the card, don’t restrict your comments to the spaces provided.  Write on the back side or another piece of paper.

Third, if the police show up, discuss your notes of how the crash happened with the police officer(s).  If your report differs from the police report, then there’s a difficult discrepancy to solve.

Fourth, if you’re injured, when able to do so, note down your injuries or have someone do it for you.  Be sure to be thorough and descriptive when reporting your injuries, pain, and discomfort to all medical persons who treat you.

Not Enough Insurance Coverage?

What if the person who causes your crash in British Columbia doesn’t have any or enough insurance through ICBC to pay for your accident’s harms and losses?

Then you can access the insurance coverage provided through ICBC’s Autoplan called underinsured motorist protection, usually referred to as UMP.  Fortunately many British Columbians and motorists/passengers/cyclists/pedestrians in BC automatically have $1 million in UMP coverage.  Some persons have $2 million in coverage, depending on your coverage.

Who has the minimum $1 million UMP coverage?

1. all persons in a vehicle for which the owner purchased through ICBC the universal compulsory insurance coverage through ICBC (“ICBC coverage”). Essentially, any vehicle for which the owner bought the minimum vehicle insurance coverage in BC;
2. the individual owner or renter of the vehicle that has ICBC coverage;
3. an assigned corporate driver;
4. all holders of a valid British Columbia driver’s licence;
5. all members of the household of an individual set out in 2, 3, and 4 above.

As you can see, most people in an accident in BC will have UMP.  This information is from section 148.1 of the Regulation to the Insurance (Vehicle) Act.

Who has $2 million UMP coverage?
You can get an extra $1 million in UMP coverage from your auto insurance broker where you buy your basic auto insurance.  Just let them know.  The first $1 million in UMP is included in your auto insurance policy.  The second $1 million in UMP will cost you $25 per year.  If you buy the $2 million policy, it covers the following persons if injured by an underinsured motorist?

1. you no matter which vehicle you are in;
2. all the occupants in your vehicle;
3. members of your household (not in vehicles they own); and
4. you and your household members when injured as a passenger or cyclist.

Note that UMP is not available in provinces or U.S. states where the right to sue and recover damages for injury or death caused by a vehicle accident is barred by law.  This means in most no-fault provinces or states UMP is not available.  Have your insurance broker provide you a letter stating whether UMP will apply in the provinces or states you plan to visit.

Ch. 10: Do You Have a Claim?

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.

Ch. 9: Talk to an Injury Attorney About Your Auto Accident

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.

Ch. 8: Document Your Car Accident

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.

Ch. 7: Should You Talk to ICBC?

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.

Ch. 6: Need Money for Medical Treatment?

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.
.

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.

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