CONCUSSIONS AND THE NEW ICBC INJURY CAP
The new ICBC injury caps only apply to motor vehicle accidents that occur after April 1, 2019. In other words, if you were injured in a car or pedestrian accident prior to April 1, 2019, the caps do not effect your personal injury claim. Your personal claim will be handled under the existing rules.
To the surprise of personal injury lawyers and brain injury advocacy groups, the BC Government decided in November of 2018 to include concussions or mild traumatic brain injuries under the ICBC injury claims cap. This announcement was contrary to the BC Government’s advice to the public in May of 2018 that concussions would be excluded from the ICBC injury claims cap. The cap applies to pain and suffering damages. It does not apply to wage losses.
Media outlets and ICBC executives announced that brain injuries with concussion symptoms lasting more than four months would come out of the cap. However, it’s not that simple. It’s not enough to simply say that your symptoms from a concussion are lasting more than four months.
To be eligible for removal from the ICBC cap, the BC Insurance (Vehicle) Regulations state your car or pedestrian accident concussion injury must meet the following criteria:
(a) is not resolved within 16 weeks after the date the incapacity arises, and
(b) is the primary cause of a substantial inability of the claimant to perform
(i) essential tasks of the claimant’s regular employment, occupation or profession, despite reasonable efforts to accommodate the claimant’s incapacity and the claimant’s reasonable efforts to use the accommodation to allow the claimant to continue the claimant’s employment, occupation or profession.
(ii) the essential tasks of the claimants training or education in a program or course that the claimant was enrolled in or had been accepted for enrollment in at the time of the accident, despite reasonable efforts to accommodate the claimant’s incapacity and the claimant’s reasonable efforts to use the accommodation to allow the claimant to continue the claimant’s training or education, or
(iii) the claimant’s activities of daily living.
As you see, the four-month period of symptoms is subject to some important fine print that the BC Government, ICBC and the Media is not highlighting.
It looks like you’ll have to prove that the concussion results in some type of functional incapacity for at least four months. It’s not clear whether the disability needs to be partial or total.
The onus of proof is on you to show that your injury is NOT minor.
This is why you need great, experienced legal counsel on your side. It’s hard enough to suffer from a concussion and go through the recovery period. It’s even harder when ICBC and the BC Government have set up a law that essentially labels your serious injury as “minor” and you must disprove that.
That’s why we are on your side and will help, represent and argue on your behalf. We have over 20+ years of experience handling ICBC concussion claims.
Please call us if a careless driver caused you to sustain a concussion in a car, truck or pedestrian accident.
Don’t face ICBC alone, call us for your free, first time ICBC injury claim consultation.
We’ll meet you at your home or hospital by appointment.
PHONE 604-876-7000 FOR ICBC INJURY HELP