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Achieving-Justice

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.

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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
Google Plus:  https://plus.google.com/+HlawCanada/posts
Facebook:  www.facebook.com/personalinjurylawfirm
Twitter:   twitter.com/Hergott_Law



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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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