At its core, a personal injury claim involves assessing the difference between an injured claimant’s reality, and what their reality would have been had a car accident, or other injury-causing event, had not happened.
The COVID-19 pandemic has altered the course of our collective realities, and in this Legal Alert we’ll explain its potential impact on those with existing and new personal injury claims.
Health Care Treatments
A personal injury claimant has a duty to mitigate their damages, which means you must take reasonable steps to minimize your loss. If you don’t, the court (or an adjuster) can reduce the amount of compensation owing to account for your failure to mitigate. If your doctor recommends a rehabilitation program, mental health counselling, or other therapies such as chiropractic care or physiotherapy, you are expected to follow that recommendation and avail yourself of treatment if available. If you don’t, you risk having your compensation reduced.
Like most rules, there are exceptions. If you cannot afford the recommended therapies you will not be penalized, as long as you have applied for any insurance rehabilitation benefits to which you may be entitled, including ICBC’s Part 7 benefits. You are not expected to sell your car to afford massage therapy. In other words, if it would be unreasonable for you to follow recommended treatment, you will not be penalized for failing to do so.
If your treatment provider is closed due to COVID-19, there is not much you can do about it and you would not be penalized for suspending your course of treatment. However, ICBC has announced[1] that they will temporarily fund telehealth services in place of in-person treatments, and that the initial pre-authorized treatment period will extend to at least May 1, 2020 or 12 weeks from the date of the collision, whichever is later. Many counsellors and psychologists continue to offer virtual counselling. As the health care crisis peaks and some treatment providers begin to re-open, they may offer modified services.
It may not be enough to simply suspend your course of treatment because of COVID-19 to avoid a reduction in your award for damages. You will need to consider what alternative options are available and decide whether those options are reasonable in your circumstances, or not. With layoffs and an economic downturn, your financial ability as well as new childcare responsibilities may also factor into your decision, as well as your specific vulnerabilities to COVID-19.
Ideally, you should discuss any modified treatment plan with your doctor and take written notes of the advice that you receive. However, given the current strain on our health care system, you may not be able to get an appointment as soon as you would like. In such circumstances, you should document the reasons for your decision to modify your treatment plan so that the reasonableness of your decision can be supported down the road, while also consulting with your doctor as soon as possible.
To summarize, personal injury claimants who are unable to continue with their recommended course of treatment due to COVID-19 should consider modified treatment if available, speak with the doctor as soon as possible, and document their decisions and thought process.
As always, our clients are encouraged to discuss any such concerns with us. We remain fully available for appointments by phone or videoconference.
Layoffs and Employment Disruptions
A personal injury claimant whose ability to work has been impacted is generally entitled to compensation for past wages that would have been earned but for the injuries sustained, and for reduced capacity to earn income going forward.
The COVID-19 pandemic has caused widespread disruption of the workforce and many have found themselves unemployed or underemployed. That said, certain industries and types of employment are more affected than others. Health care professionals and grocery store employees are mostly continuing to work, whereas restaurants, dentist offices and gyms have mostly closed.
If you are unable to work because of your accident-related injuries but would otherwise have been employed, there should be no impact on your claim. If, however, your employer shut down or laid off employees and there would not have been a job to return to even if you were able, your claim may be reduced to account for that disruption in the job market. If you would have been entitled to employment insurance or other benefits had you been working at the time of such layoffs, that can also be taken into account in assessing your claim for lost wages.
If you are self-employed or run a small business the principles are the same: in assessing your claim for loss of earnings we compare your real-world income with the income that you likely would have earned had you not been injured. If your business would likely have flourished in the current environment (i.e. if you run a commercial sanitizing company), or if your business would likely have seen a downturn (i.e. a restaurant or gym), that positive or negative contingency will be taken into account in assessing the amount of income that you lost because of your injuries, and not because of the COVID-19 pandemic.
As with other aspects of a personal injury claim, documentary evidence is key to proving your loss. Keep records such as correspondence and emails from your employer, market trend bulletins from your trade association, and detailed notes of any phone relevant conversations.
Quality of Life
A personal injury claimant is entitled to compensation for the impact that their injuries have had on their quality of life. These are called non-pecuniary damages, or ‘pain and suffering’, and are measured with factors such as the extent of disability, the duration of symptoms, the age of the claimant, missed recreational opportunities, impact on family life, and pre-injury lifestyle.
It remains to be seen how COVID-19 will impact claims for ‘pain and suffering’. A triathlete who missed their season due to accident-related injuries would have had their missed season accounted for in their claim, however if their season was cancelled due to COVID-19 anyways their claim may be impacted. A grandparent who was unable to play with their small grandchildren due to accident-related injuries would have been compensated for missing those precious opportunities, however if quarantines and social distancing would have kept them isolated from family in any event her claim may be impacted.
Nuts and Bolts of Litigation
All three levels of court in British Columbia have suspended regular operations due to COVID-19. At the time of writing, BC Supreme Court hearings until May 29, 2020 and Provincial Court hearings until May 16, 2020 have been adjourned, with few exceptions. Filing deadlines have been suspended. Once regular operations resume we can expect a backlog of matters that will require court-time, and personal injury trials may be rescheduled behind other, more urgent, matters such as criminal trials and custody disputes.
Fortunately, necessity is the mother of invention and a number of solutions have emerged to ensure that personal injury claims are not stuck at a standstill. Some independent assessment providers have developed virtual assessment services, where the claimant is assessed through videoconferencing. Examinations for discoveries and mediations can proceed by videoconferencing. Many lawyers and insurance adjusters are continuing to work remotely, ensuring that negotiations continue without interruption.
The BC government recently announced[2] that limitation periods are suspended during the provincial state of emergency, which should ease some pressure for claimants who have not yet commenced legal action. That said, we encourage such claimants to contact a lawyer for advice that is specific to your situation without delay.
We remind our clients that we are fully operational and available for telephone and videoconferencing appointments throughout the COVID-19 emergency. Prospective clients are equally invited to contact us regarding their specific legal concerns.
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[1] https://www.icbc.com/about-icbc/contact-us/Pages/covid-19.aspx