VICTORIA — Concussions and mental health problems caused by an automobile crash will be considered a “minor injury” and fall under the new $5,500 cap on pain and suffering, according to new rules set by the provincial government.
Attorney General David Eby signed a cabinet order that declared sprains, strains, aches, cuts, bruises, minor whiplash (including forms called TMJ and WAD), concussions and mental health issues caused by vehicle crashes to be designated minor injuries under new caps that begin April 1, 2019.
The inclusion of concussions and mental health has worried some lawyers and health care practitioners opposed to the cap, who say it can take a long time for symptoms of brain damage, depression or post-traumatic stress to show and that the long-lasting effects are not minor for those suffering.
In response, the Insurance Corp. of B.C. said it has set special rules for concussions and mental health injuries. ICBC will consider them to become major injuries not limited to the $5,500 pain and suffering cap if they persist for more than four months, said the president and CEO, Nicolas Jimenez.
“The advice we got from the medical community is they are trickier to diagnose and trickier to, quite frankly, treat, so we are better to proceed cautiously and put them on a short time frame,” Jimenez said.
Other minor injuries — whiplash, sprains, etc. — will only be considered major if they are still problems after 2 months.
ICBC cites medical research that indicates approximately 85 per cent of people with mild concussions fully recover within three months.
Doctors of B.C., which represents physicians, was consulted on the timeline and agrees with ICBC, said president Dr. Eric Cadesky.
“When we look at things like concussions, pain and the emotional consequences of a car accident, four months is a good indicator of whether those conditions are going to improve or not,” he said.
The NDP government passed legislation to set the insurance caps earlier this year in an attempt to save more than $1 billion annually from the cash-strapped public auto insurer, reduce the rising costs of claims and prevent ICBC rate hikes. Broken bones and other more serious injuries do not fall under the $5,500 pain and suffering cap.
B.C. was the last province in Canada to have a fully tort-based insurance claims system, frequently leading to lengthy and costly court cases. Disputes over the new caps on pain and suffering claims will first go to a new civil resolution tribunal process that’s mainly been used for strata disputes. People can still sue for such things as the cost of future care and loss of wages.
To compensate for the cap, the government has raised significantly raised the fees ICBC pays for medical treatment, and added kinesiology, acupuncture, massage therapy and counselling to the list of approved services. Drivers at fault in a crash will also get full medical care costs, instead of lesser benefits outlined in the old rules.
But B.C.’s Trial Lawyers Association, which has opposed the cap, said the latest details remain troubling. Even with a four-month time frame for concussions and mental health, the new regulations set a steep definition of “incapacity” that a person will need to suffer to be considered as having a major injury, said lawyer Ron Nairne, the incoming president of the association.
That incapacity definition includes being unable to work, go to school or complete the “activities of daily living” defined in the rules as preparing your own meals, managing finances, shopping, using public transportation, cleaning your home and managing your medication.
“That is so narrowly defined that it will be very difficult for people to escape the definition of minor injury based on that particular provision,” said Nairne.
He said it appears government is trying to set rules that “capture the majority of claims” as minor, and concussions along with mental health should be excluded.
“There’s no such thing as a minor concussion because concussions are a form of brain injury,” said Nairne. “The government is doing the exact opposite, and deeming these to minor injuries.”
Other reaction was mixed.
The Physiotherapy Association of B.C. said Tuesday the changes are a positive step because ICBC is expanding the list of treatment providers and fees to enhance psychotherapy recovery.
But ROAD B.C., an organization that represents some other types of health care providers, said the new definition of minor injury is beyond what most British Columbians would consider fair.
One other change in the new rules set by Eby is that government has dropped a proposal to allow motorists to spend an extra $1,300 a year for additional insurance to get a cap of $75,000 on minor injuries.
“It was an idea,” said Jimenez. “But it’s not something that was embraced and put into our policy framework.
“These are really complicated changes, and I think quite frankly we are proceeding on the basis of get the system change in, and we’ll monitor and evaluate as we go.”