ICBC unfair with seniors

Seniors will be hit the hardest (announced changes to ICBC).

Take this with a grain of salt. Heck, a bucket of salt. I am directly, financially interested in the future of our injury claim system.

Seniors occupy a significant portion of my personal injury practice. I pay my own, as well as the mortgages of a lot of staff, by pursuing justice for seniors.

They come to me, typically, a year or so after some bonehead has driven into the back of their car.

That’s the most common collision in my practice. It’s maddening. The answer to fixing ICBC stares me in the face every day. Simply eliminate the rear-ender and the government can go back to scooping up hefty ICBC profits.

Did I just regress, again, into road safety? 

Yes, I did.

It’s not tail-gating rear-enders. It’s rarely icy roads. The vast majority are where you have come to a stop on dry pavement. There’s a long pause, and then boom.

How easy is it to avoid driving your car into a stopped vehicle ahead of you? 

It takes more than keeping your eyes on the road. It’s a difficult lesson to learn because it seems to defy common sense. And it’s a lesson that ICBC and our other government leaders have utterly failed to put marketing resources into teaching.

Your eyes are not enough. Your mind has to be there too. 

Science has proven that with eyes squarely on the road, a distracted mind (such as by a hands free cell phone discussion which bizarrely continues to be legal while driving) will cause you to “miss” (fail to notice) fully 50 per cent of what your eyes are “seeing”.

The offending driver didn’t quickly glance away. The distracted driver was on autopilot.

Seniors don’t do that. Sure, I’m making a generalization, but really. The stereotypical senior is white knuckled. In my practice, seniors rarely cause these nonsense rear-ender crashes.

And when they’ve been injured by some moron “young ‘un” (anyone under 60!), they’re very reluctant to talk to me.

Immediately after shaking my hand in the waiting room, they’re explaining themselves: 

  • “I didn’t want to have to talk to a lawyer”
  • “All I want is to be reimbursed for my expenses”
  • “I’m not looking for some big payout.”

I’ve learned over my 20-plus year career that seniors on the whole view lawsuits as for “bad people”. If you’ve been charged with a criminal offence, you must be guilty. If you’re suing ICBC, you must be screwing the system.

It’s ironic that if ICBC had only “approved” the further care recommended by their doctor, they would never have consulted with me.

It’s not like they ran out of ICBC coverage. British Columbian drivers already have access to up front rehabilitation benefits of up to $150,000. It’s an extremely rare senior rear-ender case where that fund is accessed by more than $5,000.

And ICBC has full opportunity to provide whatever other up-front financial help they want.

But they don’t. 

They choose to leave pension earning seniors to build up debt that they’ve avoided their entire lives saying. “We’ll reimburse that at the end of your claim."

By choosing not to play fair with seniors, some of them come to me. And man, does ICBC pay for their mistake.

Once I’m involved, they know they’re hooped. The boat has sailed on their opportunity to get away with paying far less than fair compensation.

But they still try. The most common argument they make about senior claims is that an elder should receive less compensation because they have fewer years to endure the pain.

But the law says otherwise.

Here’s a nutshell of the “golden years doctrine” recently recognized by Madam Justice Griffin in the 2010 case of Fata v. Heinonen, 2010 BCSC 385:

“[88] The retirement years are special years for they are at a time in a person’s life when he realizes his own mortality. When someone who has always been physically active loses his physical function in these years, the enjoyment of retirement can be severely diminished, with less opportunity to replace these activities with other interests in life. Further, what may be a small loss of function to a younger person who is active in many other ways may be a larger loss to an older person whose activities are already constrained by age.”

If you want a more full description, I invite you to read my column on this subject from way back in 2013 (Senior compensation).

How will changes to ICBC impact seniors?

There are three general categories of losses. 

  • One is income loss. 
  • Another is expense. 
  • The third is often referred to as “pain and suffering”, to compensate for pain, stiffness, impact on activities, loss of enjoyment of retirement, etc.

According to the announced changes and ICBC’s website defining a “minor” injury, the “pain and suffering” for the vast majority of senior claims is going to be “capped” at $5,500.

What is a minor injury? Have a look at the ICBC page explaining this. As of my drafting of this column, everything is minor unless:

  • It is a “major or catastrophic” injury;
  • There are broken bones or brain injuries;
  • You are still not able to go to work or school, or have to modify your work hours or duties for more than 12 months; 
  • You are unable to care for yourself for more than 12 months.

Instead of fair compensation for the stripping of enjoyment of the retirement years, which the courts have determined starts in the range of $40,000 and goes up the higher the impact, most senior claims will be capped at $5,500.

But the government has announced that we will have an option. Pay more for your insurance and the cap will not apply to your claim.

Seniors on fixed incomes, least able to afford higher insurance premiums, paying more to be able to achieve fair compensation from the actions of bad drivers?

How about make the bad drivers pay? 

If we refuse to take concrete action to reduce crashes, why not make bad drivers pay a $10,000.00 deductible for running into the back of stopped vehicles rather than passing the loss onto the victims?

The law has not yet been written. A politician has made an announcement. We can fix this. How? I hate politics, and that’s what this is. 

I’m clearly not politically savvy as can be seen from my utter failure to have a road safety impact after years of columns on the subject.

I’ve signed this petition: R.O.A.D. BC Petition. I invite you to do the same.


Ignore ICBC roadblocks

My qualifications are in law, not medicine.

But the bulk of what I do is reviewing and advising my clients about their medical care.

Because if I don’t, many of my clients will face the legal consequence of achieving less than full, fair compensation.

Injured victims, hoping to be compensated for their injuries and losses, have a legal duty to take reasonable steps to recover from their injuries as quickly and fully as possible.

That legal duty directly aligns with the goal of everyone who is injured.

But it’s not as easy as it sounds.

The first roadblock is often a financial one.

ICBC’s up front financial support is often short lived and restricted.

I am regularly consulted by victims whose care has been based on what ICBC agreed to fund instead of on medical recommendations.

I hear reports of “I had my 12 ICBC authorized physiotherapy sessions,” and “I had the four sessions with a kinesiologist my adjuster approved”.

When I ask why they ended a particular type of care: “ICBC told me I could do one or the other, not both."

ICBC adjusters don’t have medical training. Why would you allow their funding decisions to dictate your care?

Care decisions must be left to your doctor and others on your medical team, not an ICBC adjuster.

Many don’t have a choice. It’s either ICBC funded or they cannot afford it.

Financing has to be found. Somehow. I recommend taking a “beg, borrow or steal” approach to affording care.

No. Don’t steal. But those words help with thinking outside the box.

As upsetting as it might be to have to ask a friend or family member for help weathering the financial storm of an injury, it’s less upsetting than “facing the music” of unfair compensation.

One classic ICBC defence argument is that you didn’t do enough to get better.

That argument might not fly if you took a “beg, borrow or steal” approach and still could not afford care.

But they still have the “magic pill” defence.

The magic pill defence works like this. Your doctor recommends that you work with a kinesiologist. You have the four sessions that ICBC was prepared to fund.  

Three years later, as a trial date approaches, a specialist in physical medicine and rehabilitation (physiatrist) says that it takes many more sessions to properly establish and supervise an active rehabilitation program that will optimize your recovery.

You are given an uncertain prognosis. Even though it’s now three years after the crash, you might recover if you follow through with another 20-30 sessions.

So ICBC offers a settlement that includes the money for 20-30 sessions with a kinesiologist. But they won’t offer compensation for a lifetime of pain because of the possibility that that those sessions will act like a “magic pill” and fix you.

I don’t have any formal medical training, but I have had the benefit of over 20 years of monitoring the care and recovery of my clients and reading countless reports by medical specialists.

I have come to learn the following:

  1. It is important to develop a family doctor relationship to give a doctor the opportunity to become familiar with you and properly direct your care. Jumping from doctor to doctor makes continuity of care impossible;
  2. When care is recommended, follow through fully. Diligently attend however regularly and however long you are directed to. Don’t stop without consultation with the therapist and informed approval from your doctor;
  3. But you must keep your doctor informed. If your overall recovery stalls and ongoing passive therapies are giving you only temporary relief, have a serious discussion with your therapist and your doctor about weaning off those therapies and trying something else. Continuing to attend passive therapies might actually hurt you by (in the words of one specialist I’ve consulted with) “perpetuating illness behaviour”;
  4. Active rehabilitation (stretching and strengthening) programs are always, every time, going to be recommended at some point. Be on the lookout for a transition of your care from “passive” (a therapist doing things to you) to “active” (you doing stretching and strengthening).  If it’s not happening, ask your doctor if that transition is appropriate. Once prescribed, it is important to follow through fully, ensuring you are crystal clear about whatever program is being prescribed, how often you should participate in it and for what period of time;
  5. Keep pushing your doctor to get you better. Our medical system is a reactive, not a proactive one. Your doctor’s clinic is unlikely to give you a call if you don’t come in for a year to ensure that your care is on the right track. Ask your doctor how frequently you need to get in for follow-up appointments in order to maximize the prospect of achieving as full a recovery as possible;
  6. If your doctor runs out of ideas for getting you better, ask for a referral to a specialist. My final recommendation is that you keep your eye focused on the prize of a full recovery, not your ICBC claim. By looking after your recovery, you will naturally be doing what needs to be done to maximize the prospect of a fair outcome with ICBC. 

But your primary focus must be on getting better.

Vanessa vs. Goliath

Disability insurance companies have all the power — until a lawsuit pursued by a tenacious lawyer evens the playing field.

Have you ever been unfairly denied disability benefits?

Vanessa Godwin was, when applying for long-term disability (“LTD”) benefits.

She dealt with a claims specialist, an insurance company representative. But as noted in an eventual court decision, that job title was “…in fact the lowest position in the claims department.”

The claims specialist wasn’t satisfied with information and medical opinions contained within the LTD application. More was required. And then more. And then more.

Ms. Godwin was lucky. Her medical doctor, therapist and psychiatrist were exceptionally generous with how responsive they were to the various hurdles facing their patient.

Doctors and therapists do not get into their care giving fields for the purpose of writing letters to support disability applications. Doing so takes them away from their busy practices, treating patients. 

And they don’t charge near what their time is worth for that extra effort.

It took a series of denials and appeals before Ms. Godwin’s initial claim for benefits was finally allowed. In the later court decision, it was determined that deficiencies in the way the “claims specialist” handled the claim resulted in a 10-month delay.

Ms. Godwin faced another set of hurdles after 24 months.  

The initial claim for long-term disability benefits required establishing her inability to perform her own occupation.To recover benefits beyond 24 months, she had to establish her inability to perform any occupation.

Unsatisfied with the opinions of Ms. Godwin’s doctors and therapist, the claims specialist required her to attend a psychiatric medical examination with a psychiatrist, Dr. Alex Levin, hired by the insurance company for that purpose.

Dr. Levin, by the way, is a psychiatrist often retained by ICBC in defence of motor vehicle crash claims. In the later court case, counsel for Ms. Godwin provided a list of court decisions “…that found reports written by Dr. Levin to have strayed into advocacy or to have lacked objectivity, or that otherwise found his conclusions unsustainable."

The opinions of Dr. Levin contradicted the opinions of Ms. Godwin’s doctors and therapist, and were used to deny the claim.

Dr. Levin had assessed Ms. Godwin’s symptoms as not being disabling. 

That was in the context of Ms. Godwin specifically complaining about the way Dr. Levin conducted his assessment of her, continually interrupting her from having the opportunity to describe her symptoms.

It turned out that Dr. Levin’s practise was to audio record his assessments. Ms. Godwin’s lawyer specifically requested that audio recording, but that request was ignored. In the eventual court decision, the following finding was made about that failure:

“I do also find that [the insurance company’s] utter failure to investigate the existence of the audio recording was simply shocking, representing a complete dereliction of duty.”

In the circumstances, it was not enough for the insurance company to blindly rely on Dr. Levin’s opinions.  Quoting from the court decision:

“…Dr. Levin’s report seems less than a balanced assessment, and more like a piece of advocacy. Desjardins’ claims staff ought to have had a sufficient degree of sophistication to recognize it as such and to question whether it could be properly be relied upon.”

After exhausting her appeals with the insurance company, Ms. Godwin’s only recourse was to hire a lawyer to pursue a lawsuit against them.

On the eve of trial, the insurance company finally reinstated Ms. Godwin’s benefits in full.

But that wasn’t the end of the story. The trial proceeded. Not to enforce payment of the disability benefits. The insurance company had folded on that point four days before the trial started.

The trial was to hold them to account for how they had treated Ms. Godwin in their handling of her claim.

I invite you to read the court decision: Godwin v. Desjardins Financial Security Investments Inc., 2018 BCSC 99.

Warning: reading about the way Desjardins treated Ms. Godwin might dig up and aggravate psychological scars from your own experience if you have been given the run-around by an insurance company.

But the court’s rebuke of their claims handling might provide a level of cathartic healing.

The end result, after 12 days of trial, was a judgment against Desjardins for:

  • $30,000 to compensate Ms. Godwin for the added mental distress arising from their “bad faith” handling of her claim; and
  • Another $30,000 awarded because aspects of the handling of her claim “…were so exceptional as to require denunciation in the form of a punitive damages award."

It is yet to be seen what Desjardins will have to pay, in addition to those amounts, in “costs." 

Mr. Justice Saunders provided a time line for each party to provide their submissions on that point, specifically asking that their submissions address the decision of Mr. Justice Neill Brown in Tanious v. The Empire Life Insurance Company, 2017 BCSC 8,] where the extraordinary award of costs was made “…for full indemnification in order to put the plaintiff in the position she would have been in had she not been forced to retain counsel and enforce the contract through litigation."

I cannot say enough about the incredible grit and advocacy shown by the lawyer who pursued this case through a 12-day trial to hold the insurance company to account after the underlying disability benefits case had already been won.

Faith Hayman, I salute you.

Without lawyers like Faith Hayman and a justice system that can give you your “day in court” against the unfairness of a massive insurance company, injustice can run unchecked.

Grab the life preserver

Are extended medical benefits available after a car crash?

Those lucky enough to have an extended medical plan have a financial safety net to help pay for the expense of being injured.

It’s an important safety net. A recent survey revealed that 48 per cent of Canadians are $200 or less away from not being able to meet their monthly financial obligations (CBC news report).

Even a day or two of missed work can push you over the financial brink. Add in twice or three times per week massage, chiropractic or physiotherapy and you’ve got a serious and ongoing financial problem.

Each care session is likely to cost in the range of $50-$70. The up-front contribution billed directly to ICBC is under $18 for a typical physiotherapy or chiropractic session and $23 for massage therapy. It’s up to you to pay the remaining user fee.

ICBC adjusters regularly provide a $500 “advance” to help pay these expenses, but obviously that doesn’t go far. Some injured victims are encouraged to send in their receipts for periodic reimbursement, but many face lengthy delays.

If you are lucky enough to have extended medical benefits, can you access them for these expenses even though you have an ICBC claim?

Absolutely. I’ve never heard of an extended medical plan that excludes care for crash related injuries.

Why, then, are injured victims often discouraged from accessing that financial relief?

Rather than encourage financially strapped victims to submit user fee receipts to their extended medical plans, ICBC adjusters regularly encourage them to keep track of their receipts for reimbursement at the end of the claim as part of a final settlement.

That leaves injured victims in ongoing financial distress, unnecessarily.

I suspect it’s a negotiating strategy. The more financially desperate you are, the more likely you will prematurely settle your claim for less than fair compensation. 

My advice is to minimize your financial stress by accessing whatever financial relief might be available to you.

ICBC’s legal obligation to compensate you for your injuries, expenses and losses (on behalf of the negligent driver who caused your injuries) does not have any impact at all on your separate right to expense reimbursement through an extended medical plan.

ICBC can wait all they want to reimburse your expenses. If you have already been reimbursed through your plan, that money is simply handed over to the plan when it finally arrives.

The obligation to reimburse the plan is called the plan’s “subrogated interest”, and is a term of most extended medical plans. When you submit your receipts for reimbursement, you are typically asked if the expenses were incurred because of a third party who you are making a claim against.

Answering “yes” to that question will trigger some paperwork where you are required to commit to paying the plan back with the proceeds of your ICBC settlement.

It is critical that you be honest with your extended medical plan (as you must be with everyone else you deal with), so please answer this question honestly.

And keep that commitment in mind! Ensure that ICBC reimburses all your expenses in your final settlement, including those already reimbursed by your plan. Otherwise, you might find your extended medical plan reaching into your own pocket to recover their subrogated interest.

Does this sound complicated? Most personal injury lawyers offer a free initial consultation. Take advantage of that opportunity to learn about your rights and obligations.

More Achieving Justice articles

About the Author

Paul Hergott began practicing law in 1995, in a general litigation practice. Of the various areas of litigation, he became most drawn to, and passionate about, pursuing fair compensation for injured victims. This gradually became his exclusive area of practice.

In 2007, Paul opened Hergott Law, a boutique personal injury law firm in the Central Interior, serving personal injury clients from all over British Columbia. Paul’s practice is restricted to acting only for the injured victim, never for ICBC or for other insurance companies.

Paul became a weekly newspaper columnist in January of 2007, when his first column entitled “It’s not about screwing the Insurance Company” was published. 

Please feel free to email or call Paul (1.855.437.4688) with legal issues you might like him to write about in his column, or to offer your feedback about something he has written.

Email:   [email protected]
Firm website:  www.hlaw.ca
Achieving Justice Legal Blog:  http://www.hlaw.ca/category/all-columns/
One Crash is Too Many Road Safety Campaign: www.onecrashistoomany.com
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The views expressed are strictly those of the author and not necessarily those of Castanet. Castanet does not warrant the contents.

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