Accident Benefit / No Fault Benefits / Rehabilitation Benefits / Part 7 Benefits
Accident Benefit / No Fault Benefits / Rehabilitation Benefits / Part 7 Benefits
When you are involved in a motor vehicle accident in British Columbia there are typically three forms of insurance that come into play:
- Collision / Comprehensive Insurance;
- Third Party Liability Insurance; and
- Accident Benefits / No Fault Benefits / Rehabilitation Benefits / Part 7 Benefits
This article focuses on Accident Benefits / No Fault Benefits / Rehabilitation Benefits / Part 7 Benefits, which, for ease of reference, we will call “Accident Benefits”.
Accident Benefits are available through Part 7 of the Insurance (Vehicle) Regulations, which are regulations to the Insurance (Vehicle) Act. These benefits are available to a person injured or killed in Canada or the United States in an accident that arose out of the use or operation of a motor vehicle.
The “person” must be an “insured”, as that term is defined in the Insurance (Vehicle) Regulations. There is significant jurisprudence regarding the definition of “insured” but for the ease of explanation it typically applies to individuals who are:
- holders of a BC driver’s license;
- named in an owner’s certificate;
- a member of a household in which someone holds a BC driver’s license or is named in an owner’s certificate; or
- pedestrians or cyclists injured in a collision with the an ICBC insured vehicle within Canada.
Accident benefits are available to an “insured” regardless of who is responsible for a motor vehicle accident. This is the reason these benefits are also referred to as “no-fault” benefits. A non-exhaustive list of the available benefits includes:
- Medical and rehabilitation benefits (mandatory and permissive);
- Total temporary disability benefits;
- Death benefits;
- Homemaker benefits;
- Extended care and long-term facilities;
- Attendant care;
- Temporary accommodations;
- Home modifications;
- Respite care;
- Dental work;
- Drug and alcohol treatment services;
- Travel and accommodation expenses;
- Vocational rehabilitation;
- Job accommodation;
- Supplies and equipment;
- Prosthetics, orthotics, or specialty footwear; and
- mobility equipment and aids.
The availability of these various benefits to an “insured” are fact dependent, but if you have been injured in a motor vehicle accident you will likely qualify for some of these. The maximum amount of coverage available for these benefits is currently $150,000. This amount is in addition to the coverage provided by the BC Hospital Plan and the Medical Services Plan.
However, there are limitations and restrictions with this insurance coverage and the legislation does cap the amounts payable for certain treatment. In addition, it is important to note that ICBC is not liable for accident benefits if any expense is paid or payable to or recoverable by the “insured” from another insurer.
Accident Benefit Claims Process
To receive Accident Benefits from ICBC there are certain steps that must be followed:
- Promptly give ICBC notice of the accident;
- Within three months provide a written statement to ICBC with particulars of the accident circumstances and the consequences resulting; and
- Provide ICBC with a claims application within 90 days of the accident.
It is integral that the above statements and forms are filled out honestly and with significant detail regarding all the consequences of the accident. It is also critical that you remember that ICBC will use the information you provide throughout their processing of your Accident Benefits and may also use the information against you if you have a third-party claim against a negligent ICBC insured individual. This is why it is critical that you consult an experienced personal injury lawyer immediately following an accident.
ICBC adjusters will also sometimes state that they require a signed statement regarding the circumstances of the accident in addition to signed authorizations to allow them to obtain your medical and employment information. Despite what ICBC adjusters may state, you are not necessarily required to provide these to ICBC. They will likely use these to defend a third-party claim rather than process your Accident Benefits.
Medical & Rehabilitation Benefits
Medical and rehabilitation benefits are either mandatory or permissive.
Mandatory – If you are an “insured” injured in an accident and Accident Benefits are available, ICBC is required to pay all reasonable expenses you incur for necessary medical, surgical, dental, hospital, ambulance, physical therapy, chiropractic treatment, occupational therapy. This is a non-exhaustive list and the list provided in the Insurance (Vehicle) Regulations has been subject to numerous judicial interpretations, as has the terms “reasonable” and “necessary”. Some of the mandatory services include, but are not limited to:
- chiropractic treatment;
- medication; and
- travel expenses incurred for medical treatment.
Permissive – Determining what is mandatory and what is permissive can also be complicated and depend on a variety of factors. There is considerable jurisprudence within the British Columbia Courts that analyze specific medical and rehabilitation items and, sometimes, legal opinion is required before it can be determined if you qualify for a certain benefit. This is another reason it is critical that you consult an experienced personal injury lawyer immediately following a motor vehicle accident, as the law is constantly changing. Some of the permissive services that have been approved in the past include, but are not limited to:
- pain management programs;
- addiction management programs;
- personal trainers or fitness programs;
- attendant care;
- vocational training; and
- long-term care facilities.
Total Temporary Disability Benefits
Total Temporary Disability Benefits (“TTDs”) are available to an “Employed Person” if, on the date of the accident for which the claim is made, the “Employed Person” is:
- employed or actively engaged in an occupation for wages or profit; or
- employed or actively engaged in an occupation for wages or profit for any six months during the 12-month period immediately preceding the date of the accident
If you qualify as an “Employed Person” and, within 20 days after the accident, an injury has prevented you from engaging in employment for which you are reasonably suited, ICBC will pay you the lesser of $300 per week or 75% of your average gross weekly earnings in the 12-month period immediately preceding the accident. This benefit will be paid for the duration of the total disability or for two years, whichever is shorter.
There is a waiting period for TTD benefits (7 days), which can be further extended if you are eligible for EI benefits. It is recommended that you immediately apply for EI benefits, as well as Accident Benefits, if you are rendered disabled from a motor vehicle accident. This should occur even if you do not anticipate success in your application.
Furthermore, ICBC is a secondary residual insurer. If you have disability benefits that you are eligible for from another source (e.g. employment short-term disability insurance) ICBC is entitled to deduct the amounts received from the other source. However, if you receive less than 75% of your average gross weekly earnings from your other source, you may still be able to receive partial TTD benefits up to the 75% threshold.
It is recommended that if you are rendered disabled from a motor vehicle accident, you also immediately apply for all other available disability insurance. These benefits can be deducted from the TTD benefits even if you do not apply for the other disability insurance.
TTD benefits also have various complexities that may be involved depending on your factual circumstances including, are not limited to:
- Graduated return to work programs;
- Canada pension plan payments;
- Temporary returns to employment;
- Definition of “Total Disability”;
- Return to employment but incapable to earn as much as TTD benefits; and
- Eligibility for TTD benefits following 104 weeks (2 months).
Due to these complexities, we again highly recommend that you seek the advice of an experienced personal injury lawyer immediately following an accident.
If, within 20 days after in an accident, an injury disables the homemaker from performing most of the household tasks, ICBC will compensate the homemaker for reasonable expenses incurred to hire a person to perform the chores to a maximum of $145 per week.
A “homemaker” is defined as an individual of the household who does the majority of the housekeeping for the household. It is important to note that this also only pertains to interior household work and not exterior work (i.e. snow removal or lawn care).
There are also some further considerations:
- the homemaker must be disabled for greater than seven days;
- the homemaker will only be reimbursed for money paid to someone else;
- benefits are not paid when the tasks are performed by a member of the homemaker’s family who lives in the household;
- Application of the Canada Pension Plan; and
- Disability past 104 weeks.
ICBC Accident Benefits do provide some limited benefits in the event of the death of an insured. Some of the benefits may include:
- Limited coverage of Funeral Expenses;
- Lump sum payments for surviving spouse or dependent children;
- Supplemental survivor benefits.
In addition to the complexities mentioned above, due to the geographic location of the East Kootenays, there are also many interjurisdictional issues that commonly arise. For example, there are many accidents that are:
- caused by negligent Alberta drivers;
- involve British Columbia residents but the accident occurs in Alberta; or
- involve British Columbia residents travelling in an Alberta insured and registered vehicle.
These factual scenarios may create unique issues in the application of Accident Benefits or affect the interplay between Accident Benefits and a potential third party claim. Fortunately, the law firm of Rella, Paolini & Rogers has lawyers who are licensed to practice in Alberta and who are familiar with the intricacies of interjurisdictional claims. If you are involved in an accident that has any of these factual scenarios, we invite you to call us for a free consultation.
The personal injury lawyers at Rella Paolini Rogers are available to assist you with all issues pertaining to Accident Benefits and we invite you to contact us for a free legal consultation at (250) 426 – 8981 or through our website at www.rellapaolini.com.