Canadian Biker Magazine, March 2007

After The Accident: What's Next?

By Daryl Brown

WHAT HAPPENS TO YOU IN THE EVENT OF A MOTORCYCLE ACCIDENT? The answer to that question can probably be found on the pages of your insurance policy. Some provinces-British Columbia, Saskatchewan, Manitoba and Quebec-either benefit or are shackled by public insurance systems, depending on your point of view. Here, motorcycle lawyer Daryl Brown examines some of the benefits of the BC system and leaves it to you to ask yourself: How does your insurance plan stack up in comparison?

If you have been involved in a motorcycle accident and you are a resident of British Columbia, you may be entitled to "Accident Benefits" payable by the Insurance Corporation of British Columbia, the provincial public insurer, to any motorist covered by the basic ICBC policy and injured while operating a vehicle in Canada or the United States. These terms are spelled out in Part Seven of a BC government document entitled "Revised Regulation (1984) Under the Insurance (Motor Vehicle) Act." Accident Benefits are comprised of medical benefits and partial wage loss benefits and are separate from your claim against the negligent party who may have caused the accident.

If you are not 100 per cent at fault, you may start a legal action against the negligent party for your pain and suffering, past wage loss, future wage loss or loss of capacity, out of pocket expenses and future care. This is known as the Tort action. If you are 100 per cent liable for the accident, the Tort claim may not be available to you although ICBC must still provide Accident Benefits to those that qualify. Exactly what qualifications are required to receive medical benefits and how much wage loss a person is entitled to however, is often unclear. Let's look at some of the benefits and how they may apply to you.

THERE ARE TWO TYPES OF MEDICAL BENEFITS: Mandatory and permissive. Mandatory benefits are specifically set out in Part Seven and ICBC has an obligation to pay for them. Permissive benefits are not mandatory but may be payable under certain conditions. Mandatory benefits are set out in section 88 (1) of Part Seven as all, "reasonable expenses incurred by the insured as a result of the injury for necessary medical, surgical, dental, hospital, ambulance or professional nursing services, or for necessary physical therapy, chiropractic treatment, occupational therapy or speech therapy or for prosthesis or orthosis." This list can include ambulance or air ambulance services prior to arriving at the hospital, surgical treatment and hospital fees while hospitalized in Canada or the United States and professional nursing costs, physiotherapy, chiropractics, medicine, occupational and speech therapy including prosthetic appliances over a period of time once released. To receive mandatory benefits after leaving the hospital, it may be necessary to obtain your treating doctor's recommendation. Permissive benefits include anything not specifically set out above. For example, therapists may evaluate the individual's home and recommend modifications. This could incorporate installing a wheel chair ramp to the house or hand railings in the bathroom. Home care attendants may provide ongoing care if required. A specialized motor vehicle or conversion making it operable to those missing limbs may be provided. Permissive benefits can extend to job retraining or return to work programs, psychological treatment, massage therapy, rental or purchase of computers, taxi accounts, gym passes, special clothing, pillows and mattresses or numerous other benefits to expedite the recovery process assisting the injured rider to regain their quality of life and income earning ability as it existed before the accident. Providing permissive benefits will be decided according to each situation and like mandatory benefits, may require recommendations by a treating physician or therapist.

IF YOU WERE WORKING AT THE TIME OF THE ACCIDENT and were totally disabled for more than seven days and your disability appeared within 21 days of the accident occurring, you may qualify for partial wage loss benefits. The amount payable is 75 per cent of your average gross weekly wage up to a maximum of $300 per week ($145 per week for homemakers). If you were unemployed on the day of the accident, you may still receive benefits if you worked for at least 26 weeks (or 401 hours) in the year immediately prior to the accident. Benefits are payable even if you were self-employed or working part-time. Under this scheme, ICBC is considered a secondary insurer and not required to assist if you have alternative or primary coverage elsewhere. For example, ICBC will require confirmation that you are not entitled to a disability plan through your employer or union. If you have a plan through work, it must be exhausted before you can collect partial wage loss benefits through ICBC unless you are entitled to a top up over and above your primary disability insurer. You must also apply for Employment Insurance benefits. Once you have been denied or exhausted EI entitlements, you will be eligible to partial wage loss benefits unless a top up over the weekly EI rate applies. In other words, ICBC is only required to pay partial wage loss benefits if you are not entitled to other benefits or they have expired prior to your return to work. You should be aware that ICBC will request your employer provide a history of your employment to calculate potential wage loss benefits and you will be required to repay benefits if you are successful in advancing a Tort claim. You may also be required to repay any EI benefits when your Tort claim is complete. To continue receiving partial wage loss benefits, your treating physicians will need to show your injuries disable you from working.

UNIQUE TO MOTORCYCLISTS, ICBC may pay up to $300 if you helmet is damaged in the accident. While this amount is usually not enough to cover the cost of today's hi-tech helmets, it is worth saving your helmet for this purpose if it sustains damage.

THE LAW PROVIDES ONLY A TWO-YEAR WINDOW IMMEDIATELY following the date of your accident to officially commence your legal action against ICBC if benefits are not provided although, in some instances this limitation may be extended. If you fail to start your legal action in time, you may be barred from doing so, thereby forfeiting your entitlements. It should also be noted that Part Seven limits the amount of medical benefits payable to $150,000 per incident per person. In Accident Benefits coverage, British Columbians have arguably the most comprehensive plan in the country. Meeting the criteria to collect and continue receiving benefits, however, can be confusing sometimes resulting in foregone entitlements. If in doubt, seek professional advice.

Daryl Brown is a lawyer (www.motorcyclelawyer.ca), former motorcycle safety instructor and past Canadian Motorcycle Drag Racing Association Modified class record holder.

SIDEBAR 1 : Public systems worse?

The results of a 2002 study conducted by the Vancouver-based right wing think tank Fraser Institute suggests that public auto insurance systems are actually among the worst performers in terms of cost and affordability of vehicle insurance premiums. The study compared insurance markets in Canada, United States and the UK where only four of the 61 jurisdictions examined-British Columbia, Saskatchewan, Manitoba and Quebec-have public auto insurance systems. The study compared the total amount of money spent on auto insurance premiums as a percentage of the total local economy (GDP) in each jurisdiction, and also compared total premiums paid for auto insurance as a percentage of total disposable income in each jurisdiction. According to the Fraser Institute, the results of this analysis showed that of the 61 jurisdictions studied, BC, Saskatchewan and Manitoba had three of the four least affordable premium rates for auto insurance ranking 61st, 59th and 58th respectively. "The evidence is even clearer that public monopoly auto insurance systems in particular are among the very worst performers, especially in terms of the concerns most often cited by consumers: cost and affordability," says the study.

FACTOID BOX 1 INJURIES DOWN:

The numbers of traffic deaths and injuries across Canada have been declining steadily over the past several decades, says Transport Canada. In 1984, 4,120 people were killed, 237,000 injured in collisions on Canadian roads and highways. By 2003, the latest year with complete collision statistics from Transport Canada, those numbers had dropped to 2,778 killed, 222,260 injured.

FACTOID BOX 2 ROAD NETWORK:

With 19 million vehicles on the roll, the Canadian road network is used beyond capacity, says the Insurance Bureau of Canada. The bureau says the number of vehicles on Canadian roads has increased by more than five million in the past 20 years.

SIDEBAR 1 : Who pays for what?

Note: This site is for information purposes only and is not meant to be construed as legal advice or motorcycle riding instruction. Circumstances concerning proper riding technique are subject to change with conditions and experience. Contact your local riding school for more information. For legal consultation, contact Motorcycle Lawyer, Daryl Brown @ 400-713 Columbia St., New Westminster, BC, 604-526-1821 or 604-612-6848. Content provided by Motorcycle Lawyer.ca is not to be reproduced without authorization. Motorcycle Lawyer.ca is a pending trade mark and any unauthorized use of the name or likeness is prohibited.

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