Types of Part VII Benefits
When a person is injured, regardless of fault for the accident, he/she is generally entitled to:
- Medical benefits;
- Rehabilitation benefits;
- Wage loss benefits; and/or
- Homemaker Disability Benefits
In the event of a death, Part VII coverage provides:
- Payment of funeral expenses, and
- Payment of loss of support benefits.
However, like any insurance policy, the benefits actually paid are often limited and there is an abundance of “exclusions”, which ICBC uses to restrict the amount they pay out. In many instances, ICBC sets internal policies / procedures, which help them restrict what will be paid under Part VII.
If you do not like the decision made by the adjuster at ICBC, you can go through the ICBC review procedure or sue ICBC under contract. Alternatively, if you have a personal injury claim, you can look for payment of the expenses in that claim when a settlement is reached or you go to trial.
Note that for medical, rehabilitation and wage loss benefits, ICBC is entitled to require a person to rely on any other similar coverage before being entitled to Part VII coverage. The reason being, ICBC Part VII coverage is considered “secondary” to other coverage. As a result, if an individual has a group health plan or a private health plan, those plans must be used first before ICBC can be asked to pay.
1. Medical Benefits:
Under Section 88(1) of the Regulations, ICBC is required to pay for all “reasonable” and “necessary” expenses for medication and therapy. The key here is the distinction between what is “reasonable” and what is “necessary”. This requirement is often the source of dispute with ICBC as often they take the view that the expense is not reasonable and/or necessary.
Unfortunately, ICBC has instituted policies/procedures for its adjusters, which limit payment for medical or therapy expenses. For example, most adjusters currently will not pay for physiotherapy or massage unless these therapies are taken shortly after an accident, and then will only pay for a limited number of treatments. Such rules are not set out in the Regulations (essentially the insurance policy), but are followed by most adjusters. Also, adjusters generally do not pay the “user fees” for physiotherapy and massage therapy, until a settlement on the tort claim is reached.
ICBC is also resistant to paying alternative medicine expenses such as acupuncture, IMS, etc… despite the fact these treatments often help an injured party and are recommended by the treating physician.
2. Rehabilitation Benefits:
Under Section 88 (2) of the Regulation, ICBC may pay for a variety of treatments or items if they “are likely to promote the rehabilitation” of the injured person. ICBC has much more discretion with rehab expenses than with the medical expenses described above. As a result, if you get a tough adjuster, chances are the answer to a request for reimbursement will be “NO”.
The rehabilitation services and items include the one-time purchase of a motor vehicle (usually in the case of someone who is left unable to use public transport), one-time alterations to a home (again for someone who cannot get in and around a normal home), attendant care at home, wheelchairs and various other equipment items. While the items that may be covered under Section 88 (2) of the Regulations appear unlimited, the section is usually interpreted narrowly by the ICBC adjuster.
3. Wage Benefits:
Section 80 of the Regulations provides for payment of wage benefits if an accident and injury prevents a person from working. These benefits are called Total Disability Benefits or “TTDs”. To qualify for TTDs, a person must have either been employed at the time of the accident, or have worked at least 50% of the year before the accident.
There is a 7-day waiting period for these benefits, and this waiting period is further extended where a person is entitled to EI sick benefits. Unfortunately, EI benefits are often not paid promptly. This creates a long waiting period for receipt of ICBC TTDs. It is a good idea to apply for EI sick benefits immediately after an accident, even if such an application will confirm that the person is not entitled to EI. That way ICBC cannot delay payment of TTDs awaiting a response on EI coverage.
ICBC does not have to pay TTDs when EI is available because Part VII benefits are considered “secondary” coverage. In other words, you only go to ICBC if you have no other coverage. The same applies if you have disability payments coming through a private insurer or your work.
Unless the claimant purchased additional optional coverage, TTDs are calculated at 75% of the claimant’s average weekly earnings in the 52 weeks prior to the accident, up to a maximum of $300/week. Of note, this maximum figure has been in place for well over a decade and has not been adjusted for inflation so it is obviously inadequate for most claimants.
If the injured person has other wage disability coverage, TTDs can still be obtained, provided the total amount received is not greater than 75% of the average weekly earnings in the year before the accident. If the private plan provided payment of 2/3 of the lost income, TTDs can be used to top up the total benefits received to 75%.
It may be that an injured person attempts unsuccessfully to stay at or to return to work. The fact that they may have been able to survive in their job for a brief time does not prevent them from being entitled to TTDs.
“Total Disability” is a confusing term. It does not mean that the injured person is unable to do each and every part of their job. The Court has held that a person is entitled to TTD benefits if he or she “cannot perform any substantial requirement” of his or her ordinary job.
If an injured person cannot do their own job, they are entitled to receive TTDs for a period of 2 years after the accident. Beyond 2 years, they are entitled to continue TTD payments only if they cannot do any job that they would be suited for based on their age, education, and experience. TTD payments beyond 2 years are only payable up to the age of 65.
With TTD benefits beyond 2 years, ICBC can require the injured person to apply for CPP disability benefits and, if CPP is received, the amount of the TTDs is reduced by the amount of CPP being received. Again, Part VII benefits are considered “secondary” insurance.
The amount of TTD benefits paid by ICBC does not come out of the $150,000 Part VII coverage limit. TTDs are paid in addition to the $150,000.
4. Homemaker Disability Benefits:
Section 84 of the Regulations provides benefits to a homemaker whose injuries prevent him/her from “regularly performing most of the … household tasks”. This coverage will pay for the cost of hiring someone, other than a family member, to come in and do the work. The maximum coverage available is $145/week.
While Section 84 specifically says that payments will not be made to cover the services of a family member, the Court ruled that, if the family member did not reside with the injured person before the accident and comes in specifically to help after the accident, then ICBC must pay.
5. Death Benefits:
In the event of a death resulting from an accident, regardless of fault, Part VII provides for payment of certain benefits.
Section 91 of the Regulations provides for the payment of funeral expenses up to a maximum of $2,500. You need only show receipts to ICBC exceeding $2,500 and the entire amount will be paid.
Sections 92 through 95 of the Regulations provide additional death benefits to the surviving family members. The amount of these benefits depends on the relationship of the deceased to the surviving family members. For example, the benefits are more if the person killed was the “head of household” as defined in Section 92 of the Regulations.
For illustration purposes, if the head of the household dies leaving a spouse and 2 young children, the spouse would receive a lump sum payment of $5,000 plus $145/week for 104 weeks for a total payment of $15,080. Each of the children would receive a lump sum payment of $1,000 plus $35/week for 104 weeks for a total payment of $4,640 each. Any money payable to a child under age 19 is paid directly to the Public Guardian and Trustee.
It is common for ICBC to pay out the weekly payment amounts in a lump sum rather than pay them over the 104 weeks.
Please note that these Part VII death benefits will be deducted from your ICBC “tort” claim so really they just amount to an advance on the death claim.
Also, in the event of a death, the family is usually entitled to CPP death benefits over top of any ICBC coverage. Therefore you should apply to CPP.