When a person is injured, regardless of fault for the accident, he/she is generally entitled to:
medical benefits;
rehabilitation benefits;
wage loss benefits;
MEDICAL BENEFITS:
Under Regulation 88 (1), ICBC is required to pay for all “reasonable” and “necessary” expenses for medical expenses, various therapy expenses and for any needed prosthesis or orthosis. The key here is what is “reasonable” and what is “necessary” – which is often a source of dispute with ICBC.
Unfortunately, ICBC has instituted rules/guidelines for its adjusters, which limit payment for medical or therapy expenses. For example, most adjusters currently will not pay for physiotherapy or massage unless these therapies are taken shortly after an accident, and then will only pay for a limited number of treatments. Such rules are not set out in the Regulations (essentially the insurance policy), but are followed by most adjusters. Also, adjusters generally do not pay the “user fees” for physiotherapy and massage therapy until a settlement on the tort claim is reached.
ICBC is also resistant to paying alternative medicine expenses such as chiropractic treatment, acupuncture, etc. despite the fact these treatments often help an injured party.
REHABILITATION BENEFITS:
Under Regulation 88 (2), ICBC may pay for a variety of treatments or items if they “are likely to promote the rehabilitation” of the injured person. ICBC has much more discretion with rehab expenses than for the medical expenses described above. As a result, if you get a tougher adjuster, chances are the answer to funding is “NO”.
The rehabilitation services and items include the one-time purchase of a Vehicle (usually in the case of someone who is left unable to use public transport), one-time alterations to a home (again for someone who cannot get in and around a normal home), attendant care at home, wheelchairs and various other equipment items. While the items that may be covered under Regulation 88 (2) appear unlimited, the section is usually interpreted narrowly by the ICBC adjuster.
For medical, rehab and wage benefits, ICBC is entitled to require a person to rely on any other similar coverage before being entitled to Part VII coverage. The reason being, ICBC Part VII coverage is considered “secondary” to other coverage. As a result, if an individual has a group health plan or a private health plan, those plans must be used first before ICBC can be asked to pay.
WAGE BENEFITS:
Regulation 80 provides for payment of wage benefits if an accident and injury prevents a person from working. These benefits are called Total Disability Benefits or “TTDs”. To qualify for TTDs, a person must have either been employed at the time of the accident or have worked at least 50% of the year before the accident.
There is a 7-day waiting period for these benefits, and this waiting period is further extended where a person is entitled to EI sick benefits. Unfortunately, EI benefits are often not paid promptly creating a long wait for ICBC TTDs. It is a good idea to apply for EI sick benefits immediately after an accident, even if such an application will confirm that the person is not entitled to EI. That way ICBC cannot delay payment of TTDs awaiting a response on EI coverage.
ICBC does not have to pay TTDs when EI is available because Part VII benefits are considered “secondary” coverage. In other words, you only go to ICBC if you have no other coverage. The same applies if you have disability payments coming through a private insurer or your work.
The amount of TTDs is capped at a maximum of $300/week (unless the injured person was fortunate enough to have bought the optional Part VII coverage), and is calculated at 75% of the injured person’s average weekly earnings in the 52 weeks before the accident. For a student or someone who has not worked full-time in the year before the accident, this formula can result either in not being entitled to TTDs or only being entitled to very modest TTDs.
If the injured person has other wage disability coverage, TTDs can still be obtained, provided the total received is not greater than 75% of the average weekly earnings in the year before the accident. If the private plan provided payment of 2/3 of the lost income, TTDs can be used to top up the total benefits received to 75%.
It may be that an injured person attempts unsuccessfully to stay at or to return to work. The fact that they may have been able to survive in their job for a brief time does not prevent them from being entitled to TTDs.
“Total Disability” is a confusing term – and does not mean that the injured person is unable to do each and every part of their job. The Court has held that a person is entitled to TTD benefits if he or she “cannot perform any substantial requirement” of his or her ordinary job.
If an injured person cannot do their own job, they are entitled to receive TTDs for a period of 2 years after the accident. Beyond 2 years, they are entitled to continue TTD payments only if they cannot do any job that they would be suited for based on their age, education, and experience. These TTDs beyond 2 years are only payable up to the age of 65.
With TTD benefits beyond 2 years, ICBC can require the injured person to apply for CPP disability benefits and, if CPP is received, the amount of the TTDs is reduced by the amount of CPP being received. Again, Part VII benefits are considered “secondary” insurance.
The amount of TTD benefits paid by ICBC does not come out of the $150,000 Part VII coverage limit. TTDs are paid in addition to the $150,000.
HOMEMAKER DISABILITY BENEFITS:
Regulation 84 provides benefits to a homemaker whose injuries prevent him/her from “regularly performing most of the … household tasks”. This coverage will pay for the cost of hiring someone, other than a family member, to come in and do the work. The maximum coverage available is $145/week.
While Regulation 84 specifically says that payments will not be made to cover the services of a family member, the Court ruled that, if the family member did not reside with the injured person before the accident and comes in specifically to help after the accident, then ICBC must pay.
