Claims And Compensation FAQ

  • Can I recover the cost of the treatment I am getting?

    • Yes. If you are following your doctor’s advice, you can recover the money spent on treatment.

    In one of our cases our client was told by a doctor to do pulse signal therapy, a treatment not widely accepted by the medical community.  At trial ICBC’s doctor said that no study had ever validated this treatment.  He also said that chiropractic treatment was not advisable and could even prolong recovery.

    The judge decided that both treatment costs were recoverable.  Our client undertook pulse signal therapy and chiropractic treatments because she was following a medically recommended course of treatment. The fact that another doctor later said that he would not have recommended such treatments is not a reason to deny this claim.

    The judge also decided that chiropractic treatment was legitimate because our client said it helped to "take the pressure off" her back and provided some relief from pain.

    We can help you help you recover your treatment expenses.  Contact us.

    Read the case:  Wilson v. Manzano

  • Who will pay for my treatment in the future?

    • The cost of future care can be awarded.
    • The care must be medically justified.
    • The evidence must show that you will likely incur those expenses.

    In one of our cases the judge awarded damages to our client for 10 years of medication, chiropractic treatment, and household cleaning assistance.

    In another of our cases the judge awarded damages for the cost of orthotics over the 23 years remaining in our client’s working life.

    We can help you maximize your award for future treatment expenses.  Contact us.

    Read the cases:  Wilson v. Manzano, Lutz v. Lim

  • My spouse became disabled after the collision – can I recover the cost of his care since my injuries prevent me from providing that care?

    • Probably not. You can only get money for losses that were foreseeable at the time of the collision.

    In Milliken v. Rowe the plaintiff had a shoulder injury.  Three years later her husband was disabled by a rheumatoid disease.  Due to her shoulder injury she needed outside help to care for him.  The trial judge made an award for this, but the Court of Appeal reversed the decision.

    The possibility, at the time of the collision, that a spouse may become disabled someday is not enough to support an award.  It might never occur:  the need for care may never arise, the spouse might die before care is needed, the plaintiff’s full-time work may mean there is no ability to provide care.  From a legal perspective, the costs of the husband’s care were too remote to be recoverable.

    We can determine what your recoverable losses are.  Contact us.

    Read the case:  Milliken v. Rowe

  • How does a pre-existing injury affect my claim?

    • The person who hit you is liable only for the injuries that he caused you
    • You will be fully compensated for your injuries, even if they are more serious than expected due to your pre-accident injury.
    • Any pre-existing injuries that are not affecting your day to day functioning will not affect your award

    Often, ICBC will argue that a claimant has a pre-existing problem and therefore damages should be reduced.

    We represented Mr. Lutz who was a 38 year old paving equipment operator.  He was in good health but had suffered a foot injury in his teens and many serious skiing injuries before his car accident.  However, he was not having any ongoing functional problems from these injuries.  A vehicle drove onto and parked on his previously fractured foot.  At trial, he continued to experience tenderness and numbness in his foot, and intermittent lower back pain. He took painkillers, used orthotics, and went to his chiropractor regularly.  He missed no time from work but reduced his usual leisure activities. ICBC argued that his complaints stemmed from his childhood injury and a workplace injury.  The Judge decided that our client had suffered a permanent partial disability that might require surgery. His boyhood injury had left him vulnerable to injury. There was nothing to suggest that his current foot symptoms would have occurred but for the accident.  Mr. Lutz was awarded $45,000 for pain and suffering and $6,670 to cover the costs of future orthotics and treatment.

    In Morgan v. Galbraith, our client Mr. Morgan had a bad back before the collision, and had back surgery.  Even after surgery his back flared up occasionally, requiring therapy and time off work.  After the collision his back pain became constant.  The trial judge accepted that the accident was the cause of the constant pain.  The pre-accident back condition made him more vulnerable to injury.  If the accident has not occurred, he probably would have continued to have episodic pain, but it was not inevitable that he would have had constant pain.  No deduction was made from the $100,000 award for the pre-accident back pain.

    In Bouchard v. Brown Brothers, Mr. Bouchard had been diagnosed with early degenerative disc disease before the collision.  However, he had no back pain for a year and a half before the collision.  The trial judge accepted that even without the collision there was a measurable risk that he would have serious back problems one day.  The trial judge reduced his damages by 40% to account for this risk.

    The Court of Appeal decided that a 40% reduction was too much.  All the evidence indicated that if the collision had never occurred Mr. Bouchard’s back would have gradually, not suddenly, deteriorated.  A 20% reduction was substituted.  No reduction was made on the past income award or out of pocket expense award, as Mr. Bouchard’s back would not have deteriorated before trial if the accident had not happened.

    We can help you determine what your claim is worth.  Contact us.

    Read the cases:  Lutz v. Lim

    Morgan v. Galbraith

    Bouchard v. Brown Bros. Motor Lease Canada Ltd.

  • What is my pain and suffering worth?

    • Each case depends on its facts – there is no "meat chart" assigning a value to an injury.
    • The main factors are: what is the injury, how disabling is it, and how long did it or will it last?

    The courts frequently refer to the following factors to consider when determining awards for pain and suffering:

    1. age of the plaintiff;
    2. nature of the injury;
    3. severity and duration of pain;
    4. disability;
    5. emotional suffering;
    6. loss or impairment of life;
    7. impairment of family, marital and social relationships;
    8. impairment of physical and mental abilities;
    9. loss of lifestyle; and
    10. the plaintiff’s stoicism (as a factor that should not, generally speaking, penalize the plaintiff)

    In one of our cases, our 40 year old client injured his neck, shoulders and back.  He was off work for about 2 ½ months.  He had virtually recovered in 8 months.  The judge was impressed by his candid description of his injuries.  The judge considered that he was somewhat inactive before the collision, so the injuries did not greatly interfere with his pre-collision lifestyle.   Our client was awarded $20,000 for his pain and suffering.

    We can help you determine what your claim is worth.  Contact us.

    Read the case:  Thomson v. Hunt

  • How long do I have to settle my claim?

    • Two years from the date of the collision
    • In the case of a minor, before age 21

    In some cases the two year limitation can be postponed.  However, in Tolentino v. Gill the court refused to do this and the claim was dismissed.  The claimant had spoken to the adjuster about his claim 18 months after the collision and was told it was not necessary to hire a lawyer at that time.  They agreed that the adjuster would gather some more medical information and the claimant would contact her after he returned from a trip.  He never called her.  About 13 months later he realized he should retain a lawyer.

    The judge noted that the adjuster does not have a legal duty to tell a claimant about the limitation period.  If the adjuster had promised that she would not rely upon the limitation period and would settle his claim, the claimant would have won.  However, neither the adjuster’s words nor her conduct implied that there would be no legal problem with settling the claim regardless of the expiry of the limitation period.  There was nothing that prevented I.C.B.C. from relying on the limitation period.

    Contact us before the two year anniversary of the collision.  We can help.

    Read the case:  Tolentino v. Gill

  • Can I recover compensation if I do not know how the collision happened?

    • Yes, in some cases
    • The judge must look at the direct and circumstantial evidence. If it is more likely than not that the defendant was negligent, then the defendant must present evidence negating negligence.
    • The judge must weigh all the evidence in deciding whether the other party was negligent

    In McKenzie v. Mills the car was found upside down in a ditch, after having crossed the oncoming lane in snowy condition.  The driver was drunk and was given a 24 hour suspension.  The passenger did not recall how the accident had happened, and the driver gave no evidence.  ICBC argued that the plaintiff had failed to prove that the single-car accident had occurred as a result of the driver’s negligence.

    The judge decided that the accident was caused by the driver’s negligence.  The driver was intoxicated at the scene and it was reasonable to infer she was driving while drunk.  She had provided no explanation on how the collision occurred without her negligence and so failed to refute the case of negligence against her.

    You may be entitled to compensation even if you do not know all the facts.  We can help.  Contact us.

    Read the case:  McKenzie v. Mills

  • ICBC says that the damage to my car is so little that I could not have been injured. Will I get nothing?

    • No. The courts do not accept that people cannot be injured if there is little damage to the car.

    ICBC has a Low Velocity Impact Program that denies compensation to car accident victims where there is little or no damage the vehicle.  ICBC’s position is not supported by any medical or scientific evidence.

    Fortunately, our courts have not accepted ICBC’s position.  In the case of Gordon v. Palmer, Mr. Justice Thackray stated:

    "I do not subscribe to the view that if there is no motor vehicle damage then there is no injury. This is a philosophy that the Insurance Corporation of British Columbia may follow, but it has no application in court.  It is not a legal principle of which I am aware, and I have never heard it endorsed as a medical principle."

    We have experience in cases where ICBC has denied claims under their LVI program and we can help you.

  • Can I recover lost earnings from under the table jobs?

    • Yes, if you can prove how much money you lost.

    In Stein v. Kline, Mr. Stein had a day job, and also worked on an as-needed basis for his brother, doing construction.  Although he had done this for 20 years, he had never declared the income on his tax returns.  The judge noted that proof is difficult where there is no corroborating evidence like tax returns, but not impossible.  However, Mr. Stein failed to prove the amount of his loss.  He provided a rough estimate that did not have a clear evidentiary foundation.  This was not enough.

    Proving losses for under the table earnings is difficult, but we can help.  Contact us.

    Read the case:  Stein v. Kline

  • I lost a promotion – will I get compensation for the lost raise?

    • Yes, if you can show that the promotion was a real and substantial possibility, not mere speculation

    In Bossio v. Li the plaintiff was government worker.  His boss said that he would have put the plaintiff’s name forward for a promotion, except that he noted a change in the plaintiff’s personality and some depression.  He was concerned that the plaintiff would not be able to do the new job.  The changed personality and depression was caused by the collision.

    The judge said that there was a real and substantial possibility that the plaintiff would have been considered for a promotion had he not been injured.  However, since the job would have been posted it is possible he would not have been the successful candidate.  The loss is calculated according to the probability that the event would have occurred.  Here there was a 25% chance the plaintiff would have got the promotion, so he was entitled to 25% of the past value of the raise.  He was also entitled to compensation for his pay level being a step or two behind what might have otherwise been, carrying on into the future.

    We can help determine what your losses were.  Contact us.

    Read the case:  Bossio v. Li

  • If my injuries prevent me from doing my job can I recover damages for my loss of income until my retirement?

    • You can be awarded damages for your loss of future income.
    • You can also be awarded damages for loss of future earning capacity.
    • If you have the ability to do another job, the law requires you to mitigate or lessen your loss by earning income at the substitute job.

    We were counsel for a 43 year old woman who suffered chronic back pain that prevented her from returning to her job as a Construction Safety Officer (CSO).  Although she preferred to do outdoor work, she was able to return to employment as a secretary which paid less than the CSO job.  The Judge awarded her $219,000 for future income loss and $25,000 for loss of earning capacity.

    We can help you maximize your award for lost income.  Contact us.

    Read the case:  Wilson v. Manzano