This series, by BC personal injury lawyer Paul Mitchell Q.C,.will explain the Top Ten mistakes to avoid with your ICBC personal injury claim.
The articles will give tips on how to ensure you do not make serious mistakes that could be fatal to your claim.
For 10 issues of Legal Alert, Paul will focus on one mistake you should avoid, and what you should do instead to ensure your ICBC personal injury claim is not prejudiced.
This month, Mistake # 5 Failing to Follow Medical Advice
Mistake # 5 Failing to Follow Medical Advice
In previous articles we emphasized the importance of going to your doctor early after an injury, and telling them all your symptoms.
It is equally important to make sure you follow all your doctor’s advice. If you fail to follow the advice given to you by your medical team, it may have severe implications on the amount of your settlement in your personal injury claim.
The case law stipulates that in some circumstances failing to follow your doctor’s advice will result in a reduction of your personal injury claim, of sometimes up to 25 -35%.
The case law imposes an obligation on all claimant’s to "mitigate" their damages. This means you must do everything, within reason, to reduce the amount of damages associated with your injury. If you fail to do so, you run the risk of being penalized with a reduction of your claim.
For example, if your GP says to get physio, and you do not, the insurance company will argue that had you received the recommended physio treatments, you would have healed faster.
Some common examples where ICBC makes this "failure to mitigate" argument ;
- failing to go to the doctor often enough, or as receommended by your doctor. This could occur by missing doctor appointment, or just failing to follow up at all in getting medical treatment
- failing to follow a recommended treatment plan, with physio, massage etc
- failing to stay off of work for a recommended time, by going back to work too early, against the advice of your doctor
- failing to take proper medication, such as anti-depressants, pain killers etc, enough, or at all
- failing to reduce activity levels for a period of time, ie going skiing, playing active contact sports such as hockey, when advised not to
Treating injuries as prescribed by a doctor is one of the most important things victims can do to help maximize the recovery from their injury claim.
Not only will you increase the chances of recovery from a medical perspective, you will avoid any defence arguments that you gave failed to mitigate, or reduce, your damages.
A " gap in medical treatment " is a huge, preventable mistake that can have severe implications to a car accident insurance settlement. A treatment gap in the context of a car accident is a period of time during which the victim of the accident either waits to get medical treatment or gets immediate medical treatment and then stops treating with the doctor. Either situation is extremely damaging to a personal injury claim.
Insurance companies often argue that if the accident victim is hurt so badly, why is he or she not going to the doctor? Why are they not following their doctor’s advice? The insurance company will use this logic to attempt to reduce the amount of money that they offer to the victim.
If you disagree with what your doctor wants you to do, explain why. If the doctor still wants you to do it, try it and report back to your doctor how it went. Usually they will then listen to your concerns and make the necessary adjustments in your treatment.
ICBC will often stop funding physio, massge, gym, and chiro treatments, even though your own doctor thinks they will be beneficial.
ICBC will then often argue that if you don’t get the required treatment, your claim should be reduced, even though they refused to fund it. If this seems to be contradictory, it is.
So even if ICBC refuses to fund treatments suggested by a medical professional, you should try and take the requested treatments anyway, by funding them yourself. The out of pocket "special damages" would then be claimed at the end of your claim when it is settled.
There are exceptions to the above rule. Sometimes prescriptions have adverse side effects. Discuss these with your doctor. If you still do not want to take medications, because of adverse side effects, for personal reasons, discuss this with your doctor or your personal injury lawyer.
So make sure you follow your doctor’s advice.
Go to all scheduled appointments.
Do everything necessary to get better, as suggested by your health care providers.
Do not give ICBC any excuse to try and reduce your claim for "failure to mitigate" your injuries.
Don’t make a mistake.
Make your case.
Paul Mitchell, Q.C.is a BC personal injury lawyer who has extensive experience with BC brain injury claims, BC spinal injury claims, BC death claims, ICBC claims, BC medical malpractice claims, and other catastrophic BC injury claims.
He acts for injured clients all over BC and Alberta, and will not act for ICBC or any other insurance company.
For more information on this article, or for a confidential discussion of your claim, contact Paul Mitchell, Q.C. at 250-869-1115 (direct line), or send him a confidential email at [email protected]
