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Difference between revisions of "ICBC and Compulsory Coverage (12:X)"
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ICBC and Compulsory Coverage (12:X) (view source)
Revision as of 23:05, 17 June 2016
, 23:05, 17 June 2016→C. Accident (“No Fault”) Benefits: Part 7 of the IVR
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=== 1. What are “No Fault” Benefits? === | === 1. What are “No Fault” Benefits? === | ||
Regardless of who is at fault in an accident, ICBC pays benefits for injuries to the occupants of a licensed vehicle and pedestrians and cyclists injured by a vehicle described in any | Regardless of who is at fault in an accident, ICBC pays benefits for injuries to the occupants of a licensed vehicle and pedestrians and cyclists injured by a vehicle described in any owner’s certificate. The accident benefits, commonly called “no fault” benefits, are payable to an insured for death or injury caused by an accident arising out of the owner’s ownership, use, or operation of a vehicle in Canada or, with some restrictions, in the U.S. (IVR, s 79(1)). | ||
In ''Amos v ICBC'', [1995] 3 S.CR. 405, the Supreme Court of Canada laid out a two-part test for determining if death or injury falls within the scope of s 79(1). The following must be met: | |||
*a) the accident must result from the ordinary and well-known activities to which automobiles are put; and | |||
*b) there must be some nexus or causal relationship (not necessarily a direct or proximate causal relationship) between the plaintiff’s injuries and the owner’s ownership, use, or operation of his or her vehicle. That is, the connection between the injuries and the ownership, use, or operation of the vehicle must not be merely incidental or fortuitous. | |||
''Amos'' reversed the BC Court of Appeal judgment and held that the plaintiff’s injuries were causally connected to the ownership and use of his vehicle. The plaintiff was shot while driving away from a gang who was trying to gain entry into his motor vehicle. However, Major J. noted that if the gunshots had been truly random and not causally connected to the plaintiff’s ownership of the vehicle then his injuries would not have been covered under s 79(1). | |||
=== 2. Who is Covered? === | |||
Section 78 of the IVR contains a definition of "insured", which includes, in part: | |||
*a person named as an owner in an owner's certificate; | |||
*a household member of a person named in an owner's certificate; | |||
*an occupant of a vehicle that is licensed in BC and is not exempted under section 43 of the IVA (vehicles from the federal or a provincial government other than BC); | |||
*any occupant of a vehicle that is not required to be licensed in BC, but is operated by a person named in a driver's certificate; | |||
*a cyclist or pedestrian who collides with a vehicle described in an owner's certificate; | |||
*a BC resident who is entitled to bring an action for injury or death under section 20 (uninsured vehicles) or 24 (remedy for hit and run accidents) of the IVA; or | |||
*the personal representative of a deceased insured. | |||
=== 3. Benefits Payable === | |||
==== a) Disability Benefits for Employed Persons ==== | |||
ICBC is obligated to pay “no fault” benefits to an insured person if: | |||
*a) within 20 days of the accident, the injury completely disables the insured; and | |||
*b) the insured is an “employed person” (IVR, s 80). | |||
An “employed person” is defined in s 78 of the IVR as a person who, on the day of the accident or for any 6 months during the previous 12 months immediately preceding the accident, is employed or actively engaged in an occupation for wages or profit. Eligible insured persons who are completely unable to engage in employment can collect either 75 percent of their average gross weekly earnings or $300 per week, whichever is less, for the length of the disability or 104 weeks, whichever is shorter. See section 80 and Schedule 3 of the IVR for more details. | |||
'''NOTE:''' There is a waiting period of seven days before disability benefits are paid out. Also, no benefits are paid for these initial seven days (IVR, 85). | |||
==== b) Disability Benefits for Homemakers ==== | |||
Insured persons who are homemakers may also eligible for no fault benefits. If a homemaker sustains an injury from an accident, and it substantially or continuously disables the insured from regularly performing most household tasks, ICBC will compensate the insured for the duration of the disability or 104 consecutive weeks, whichever is shorter (IVR, s 84(1)). The insured will be compensated for reasonable expenses incurred by the insured in hiring a person to perform household tasks on the insured’s behalf, up to a maximum of $145 per week (IVR, Schedule 3, s 2). However, there is no compensation for household tasks performed by an insured’s family members (IVR, s 84(2)). | |||
==== c) Disability Beyond 104 Weeks ==== | |||
If at the end of the first two years, the total disability continues, an insured receiving benefits under s 80 or 84 of the IVR can continue to receive the payments for the duration of the disability or until the age of 65, whichever is shorter (IVR, s 86). The no fault benefits will be reduced by the amount of the Canada Pension Plan benefits if and when such benefits become payable to the insured (IVR, s 86). | |||
'''NOTE:''' Any benefits payable under s 80, 84, or 86 of the IVR may be reviewed every 12 months and terminated by ICBC on the advice of its medical adviser (IVR, s 87). | |||
==== d) Medical or Rehabilitation Benefits ==== | |||
In addition to the disability benefits described above, ICBC is obligated to pay all reasonable expenses incurred by the insured as a result of the injury for necessary medical, surgical, dental, hospital, ambulance or professional nursing service, or for necessary physiotherapy, chiropractic treatment, occupational therapy or speech therapy or for prosthesis or orthosis (IVR, s 88(1)). In appropriate cases, ICBC may also provide attendant care to the insured to perform duties normally undertaken by the insured (IVR, s 88(2)(c)). Under Schedule 3, s 3, ICBC’s liability for rehabilitation benefits is limited to $150,000. Also, ICBC is not liable for expenses payable to the insured under a medical, surgical, dental, or hospital plan, or paid or payable by another insurer (s 88(6)). | |||
==== e) Death Benefits ==== | |||
In the event of the applicant’s death, ICBC will pay: | |||
*a) up to $2,500 for funeral expenses (see s 91 and s 4 of Schedule 3 of the IVR); | |||
*b) $5,000 if the deceased was a “head of a household” (i.e. was providing the “major portion” of household income), plus a Supplemental Death benefit of $1,000 for each survivor other than the first, plus Additional Death Benefits of $145 per week for the first survivor and $35 per week for each additional survivor for a duration of 104 weeks (see s 92 –94 and Schedule 3 ss 5, 6 and 7 of the IVR); | |||
*c) $2,500 if the deceased was a “spouse in household” (i.e. was supporting the household or helping to raise dependent children), plus a Supplemental Death benefit of $1,000 for each survivor other than the first, plus Additional Death Benefits of $145 per week for the first survivor and $35 per week for each additional survivor for a duration of 104 weeks (see s 92 - 94 and Schedule 3 ss 5, 6, 8 of the IVR); and | |||
*d) $500 to $1,500 for the death of each dependent child, depending on the child’s age (see Schedule 3, s 5 of the IVR). | |||
'''NOTE:''' Status with respect to “head of household”, “spouse of household” or “dependent child” is determined at the date of death resulting from a motor vehicle accident. | |||
=== 4. Restrictions and Exclusion of Benefits === | |||
Students should check the IVR carefully to find what restrictions are applicable to a given claim for benefits. The following is merely a brief summary of some very complicated provisions. Generally, ICBC is not liable to pay any of the benefits discussed above, in any of the following situations: | |||
*if the applicant resides outside BC and the vehicle in which he or she was riding or driving at the material time was not designated in an owner’s certificate (s 96(a)); | |||
*if the applicant at the time of the accident was an occupant of, or was struck by, a vehicle that could not be licensed under the MVA or ''Commercial Transport Act'' (s 96(b)(i)); | |||
*if the death or injury resulted from the injured person’s suicide or attempted suicide, whether “sane or insane” (s 96(c)); | |||
*if applicant was an occupant of a vehicle being used in an illicit trade at the time of the accident (s 96(e)); or | |||
*if the death or injury is a result of the applicant's medical condition, as distinct from an injury caused by the accident, unless the condition was itself a direct result of an accident for which benefits are provided under Part 7 of the IVR (s 96(f)). | |||
Also, under s 90 of the IVR, ICBC may terminate an insured’ s benefits if an insured refuses to undergo any: medical, surgical, or other similar treatment, which, in the opinion of the ICBC medical adviser and the medical practitioner attending the insured, is likely to relieve, wholly or partly, the insured’ s disability; orretraining or educational program likely to assist in the insured’ s rehabilitation. If ICBC intends to terminate an insured’ s benefit, ICBC must first give an insured at least 60 days notice in writing, by registered mail, of their intention to terminate benefits. Under section 90(3) of the IVR, the insured may, within that 60-day period, apply to the Supreme Court for an injunction against the termination of the benefits, on the ground that: the treatment required of the insured is unlikely to relieve the disability; the treatment may injuriously affect the balance of the insured’ s health; or the treatment program is not likely to assist in rehabilitation. 5.Forfeiture and Breach of Conditions The same provisions apply as those outlined under Third Party Legal Liability. These are contained in s 19 of the IVA and s 55 of the IVR. See Section II.B.10: Forfeiture of Claims and Relief from Forfeiture and Section II.B.11: Breach of Conditions and Consequences, above. 6.Making a Claim Under Part 7: Procedural Steps and Considerations a)Limitation Period Section 103 of the IVR provides that any action started to enforce no fault or accident benefits must do the following:the insured must have “substantially” complied with sections 97-100 (See Section II.C.6.b) Duties in Sections 97-100 of the IVR); and the action must be started within two years after the date of the accident for which the benefits are claimed, or where benefits have been paid, the date the insured last received a payment. This limitation period also applies to minors.In other words, the limitation date for Part 7 actions for minors do not commence at age 19 but commences on the date of the accident. b)Duties in Sections 97-100 of the IVRAn insured must meet the requirements set out in s 97-100 of the IVR. If an insured fails to do this to the prejudice of ICBC, ICBC may deny coverage of a claim. The following is a brief summary and claimants should refer to the IVR for more detail. The insured must comply with the following: | |||
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