In my negotiating experience as a personal injury lawyer most cases involving the Insurance Corporation of British Columbia, ICBC, settle based on offers made before the beginning of a trial. It is not uncommon for injury claimants to receive offers of settlement from ICBC before the claimant has hired a lawyer and before the injury has healed.
In this article I will address three steps that an injury claimant can take to help improve the settlement in cases that involve physical injuries or conditions that pre-date the car crash in question. Check out my video about how dealing with causation can help settle your ICBC injury claim. Remember that the object of personal injury law in British Columbia is to put the injured claimant back in the position that they were in before the car accident injury.
Here are a few practical steps to help achieve the best conclusion to a personal injury claim involving prior medical conditions:
1. Prior to offers or settlement with ICBC obtain past medical records- Through the freedom of information legislature a claimant can obtain a bevy of personal medical information that may help provide an accurate history, if relevant. A big warning, before obtaining medical records decide what documents are relevant to the issues in question and whether these documents will become evidence at a trial of the case. Obtaining bundles of irrelevant records and providing them to ICBC can be time consuming, costly, and may prejudice your real personal injury case.
2. Appoint an expert and commission an opinion- Before a claimant mediates or tries to resolve the injury claim they must reconcile the opinions that they currently have with the opinions that are needed. As a general rule, an injury claimant cannot succeed unless she shows as a matter of fact that she would not have suffered the loss “but for” the negligent act or acts of the at fault driver. Currently, family doctors, chiropractors, and medical specialists involved in a claimant’s care can give opinion evidence about pre-existing vulnerabilities and the like, subject to their qualifications. Not every case requires an independent medical examination to allow a concerted effort to be made to resolve the dispute.
3. Satisfy the Requirements in the Rules of Court- This involves making sure that expert reports are in the appropriate form, and are served on ICBC lawyers within the time set by the Rules. See my article on best lawyers and the 84 day deadline.
I am not surprised when people call my personal injury law firm asking for assistance with getting records, obtaining opinions, dealing with the court process, or just dealing with the ICBC adjuster to get a fair settlement. For lawyers having knowledge and experience in the field of personal injury law, these practical steps are only the beginning to an often complex matrix of medical and legal issues that will lead to a final resolution. How personal injury lawyers settle ICBC cases often involve employing legal analysis to provable facts, not an easy task for a lay person.
Posted by Mr. Renn A. Holness, B.A., LL.B.
