A Layman's Guide to ICBC Part 7 Benefits

• History of No-Fault / Part 7 Benefits
• Who is Entitled to No-Fault / Part 7 Benefits?
• What Things are Covered or Provided under Part 7?
• How to Apply for Part 7 Benefits
• Part 7 Benefits - Injury
• Part 7 and WCB Coverage
• Part 7 Benefits - Death
• Does ICBC get Credit for Part 7 Benefits Paid?
• If ICBC Refused to Pay Part 7 Benefits,
  What Can I Do?
• Who at ICBC Handles my Part 7 Claim?
• Can ICBC Insist that I see a Doctor of their Choice?
• Can the ICBC Adjuster Insist that I take Certain Treatment?
• Further Questions?
• Appendix

Part 7 Benefits - Injury:

As stated above, when a person is injured, he or she is generally entitled to:

• medical benefits;
• rehabilitation benefits; and
• wage loss benefits.

Medical Benefits: Under Regulation 88 (1), ICBC is required to pay for all “reasonable” and “necessary” expenses for medical expenses, various therapy expenses and for any needed prosthesis or orthosis. The key here is what is “reasonable” and what is “necessary” – which is often a source of dispute with ICBC.

Unfortunately, ICBC has instituted rules or guidelines for its adjusters which limit payment for medical or therapy expenses. For example, most adjusters currently will not pay for physio 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.

In addition, while ICBC is required to pay for physio and massage, it will not pay the user fees charged by most therapists.

Part 7 provides for up to $150,000 to pay for medical and rehabilitation expenses. While this amount is more than enough for most claims, when an individual suffers very severe injuries, the Part 7 fund may not be enough. When that is the case, it is very important to ensure that no Part 7 funds are used to repay the Medical Service Plan (MSP) for treatment from doctors or therapists. While the regulations specifically say that Part 7 can not be used when the MSP is available to pay, ICBC routinely pays MSP out of the part 7 fund. If or when this occurs, ICBC, if ask, will credit the Part 7 fund for those MSP payments – which brings the Part 7 fund back up to where it should have been.

Rehabilitation Benefits: Under Regulation 88 (2), 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 for the medical expenses described above – which can make it far more difficult to obtain coverage. 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. While the items which might be covered under Regulation 88 (2) are unlimited, this section is usually interpreted narrowly by the ICBC adjuster.

For medical, rehab and wage benefits, ICBC is entitled to require a person to rely on any other similar coverage before being entitled to Part 7 coverage. 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.

Wage Benefits: Regulation 80 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 never paid promptly – which creates a long wait for 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.

The amount of TTDs are capped at a maximum of $300/week (unless the injured person was fortunate enough to have bought the optional Part 7 coverage), and is calculated at 75% of their average weekly earnings in the 52 weeks before the accident. For a student or someone who has not worked full-time in the year before the accident, this formula can result either in not being entitled to TTDs or only being entitled to very modest TTDs.

If the injured person has other wage disability coverage, TTDs can still be obtained, provided the total 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 could 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 – and does not mean that the injured person is unable to do each and every part of their job. In the 1993 case of Kenni v. ICBC, the British Columbia Supreme Court 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 TTDs only if they cannot do any job that they would be suited for based on their age, education, and experience. These TTDs 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.

The amount of wage/TTD benefits paid by ICBC does not come out of the $150,000 Part 7 coverage. TTDs are paid in addition to the $150,000.

Homemaker Disability Benefits: Regulation 84 provides benefits to a homemaker whose injuries prevent him or 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 Regulation 2 (84) specifically says that payments will not be made to cover the services of a family member, the British Columbia Supreme Court in a 1992 case called Watson v. ICBC 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.