On April 1, 2019 the NDP provincial government will be implementing new legislation defining minor injuries in motor vehicle accidents. The Injuries considered ‘minor’ will be capped at $5500 with respect to compensation for non-pecuniary damages. Depending on the outcome of litigation in the coming years, there will be some psychological illnesses that will fall under the caps.
The caps introduced by the NDP government go so far as defining psychological illnesses. These can be considered ailments such as depression and PTSD. Included in the open-ended list of “minor injuries” are “Psychological Conditions and Psychiatric Conditions“.
Issues and conditions affected by the caps:
- Chronic Depression
- Post Traumatic Stress Disorder
- All psychological “conditions”
- All psychiatric “conditions”
Having a successful claim to break the caps would require the victim to have a psychological illness last for longer than 12 months and have them comply with treatment in accordance with a diagnostic and treatment protocol prescribed for the injury.
Being creative with different categories of compensation
Although non-pecuniary damages are capped at $5500, we can still look into other heads of damage to substantiate claims. We can still claim for full amounts on future care, wage loss, loss of housekeeping, intrust awards. Practically speaking, these heads of damage will go hand in hand with injuries that will in essence break the caps because they apply to long lasting injuries.
Serious impairment (in order to break the caps):
- The psychological illness will need to last longer than 12 months
- Meets ‘prescribed’ criteria (the government at any time can change the prescribed criteria if for example they feel that a certain condition is breaking the caps too often)
Even if an injury is deemed to break the caps, if the damages claimed for are under $50,000 than instead of having judges in the court system assess these cases, it would be assessed by an admin tribunal set up by ICBC. These can lead to obvious problems of fairness.
When someone who has been in an accident does not agree with what the adjuster has said their claim is worth, they can go to the civil resolution tribunal to have their dispute heard. There the injured party would constitute their case with their medical records to the tribunal and an ICBC adjuster would be on the other side constitution their side of the story as to why the injured party should be compensated a certain amount. Obviously there is unfairness when pitting an experienced ICBC adjuster versus an inexperienced victim in expressing the merits of the case. The goal of this tribunal is to discourage claimants from getting lawyers.
The fear of bringing a claim through Supreme Court is that if the settlement or award is less than $50,000 (tribunal limit amount), the cost ordered will be limited to the amount that would have been permitted by the tribunal, which would be significantly less than the regular Supreme Court cost.
That means that the additional costs that are not covered by the tribunal cost will eat away from the compensation amount.
In essence, as a lawyer I would have a checklist where I would require the victim to have a psychological illness last for longer than 12 months and complied with treatment in accordance with a diagnostic and treatment protocol prescribed for the injury (where the counselors come in). As stated in section 3.
- (3) An injury is not deemed, under subsection (2), to be a minor injury if the claimant establishes that either of the circumstances referred to in subsection (2) (b) would have resulted even if the claimant had sought a diagnosis and complied with treatment in accordance with a diagnostic and treatment protocol prescribed for the injury.
What is complying with treatment in accordance with a diagnostic and treatment protocol prescribed for the injury
This is what we will find out in the months after April 1, 2019. This is the part that you as clinical counselors will need to understand in order for MVA victims of psychological illnesses to be compensated fairly.