This series, by Pushor Mitchell personal injury lawyer Paul Mitchell Q.C., will explain the Top Ten mistakes to avoid with your ICBC claim.
The article 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 claim is not prejudiced. This month, Mistake #7
Mistake #7; Seeing the ICBC adjuster to give a statement, and signing all their forms
There are many misconceptions about your obligations to meet with an ICBC adjuster and give a signed statement.
When you are in an accident and are injured, you make a claim to ICBC for your personal injuries.
Claimants generally start by calling the ICBC 1-800 Dial-A-Claim hot-line. The ICBC person on the phone makes an appointment for the claimant to see an adjuster.
If you are seriously injured, ICBC will often send an adjuster to your bedside in the hospital.
Why do they want to meet with you so soon? And why in person?
Of course they want to find out how the accident happened, and the extent of your injuries.
But do you have to meet with them? Do you have to give them a signed statement?
This is where it gets very interesting.
You have no legal obligation to meet with the adjuster, or provide a signed statement.
You are only obligated to give a report to ICBC, not a signed statement. The purpose of the report is to apply for Part 7 No Fault benefits.
You also have to complete and sign an ICBC Accident Benefit Claim form.
The adjuster will try and insist that you must sign a statement. Why?
The adjuster wants to be able to use the statement against you later. They will try and use anything that is mis-stated, omitted or confusing against you.
Often ICBC will try to discredit a claimant with very minor mistakes in the statement.
If you have an appointment with ICBC and need more time to consider your options, call ICBC and postpone your appointment until you have had a chance to get advice from your own lawyer.
The way the statement is prepared by the adjuster also often causes concern. The adjuster listens to your story, and the writes or types out the statement in the words of the adjuster, and then they ask you to read it and sign it.
In many cases the claimant is confused, disoriented, or on medication, and very vulnerable. Often they sign something they do not understand, or have not read carefully.
I have seen cases where the statement prepared by the adjuster distorts the accident circumstances, to the detriment of the person giving the statement.
One of the other big issues to be careful with is that adjuster also asks the claimant to sign several other forms, which the claimant in not obligated to sign, and which may be detrimental to your claim.
The most common one is a blanket form allowing the adjuster to get access to your entire medical history, including all medical records, from all your medical advisors, including your family doctor.
You should never sign this form. Any medical records going to ICBC should be carefully reviewed ahead of time, to ensure irrelevant medical information or information which may be unfairly prejudicial to your claim is excluded.
For example, if you had a psychological issue ten years ago, and were on medication, you may not want the adjuster to know this, and it may be irrelevant to the injuries you have in your case.
ICBC often uses these past medical issues to try and minimize your claim, and try and allege that pre-existing “psychological issues”, or prior physical injuries that healed long ago, are really the cause of your present symptoms.
The ICBC defence expert doctor will often obsess over these small irrelevant past medical issues, and try and cast the blame for all your symptoms on pre-existing medical issues.
Many court decisions deal with how far back in time ICBC is allowed to go in reviewing the claimant’s history. Many cases say only two years.
Do not give ICBC ammunition to raise all sorts of weird defences to your claim by giving them carte blanche access to your entire medical history.
This is a particular problem in brain injury cases. ICBC will scour the medical records for the slightest examples of anything that they can blame for the current cognitive symptoms , including prior bouts of depression etc.
The best thing to do is do not sign the authorizations. You are not obligated to.
Your lawyer will get the records, and provide only those the lawyer believes are relevant.
If ICBC disagrees, they can apply to court to get access to the records, and let the judge decide. In some cases the judge will review the entire records first, and exclude irrelevant material before it is disclosed to the defense.
The moral of the story is ….the adjuster wants you to sign a statement, usually in their words, not yours.
This statement will be used against you by ICBC.
Your entire medical history should not be given up to ICBC, when it is often not relevant.
The ironic, and unfair, thing about giving ICBC a signed statement, is that the other driver gets to see your statement (as ICBC is defending him /her ), but ICBC will seldom ever disclose a copy of the other drivers statement to you.
Why? They do not want you to use anything in that statement that could hurt the other driver’s position.
Is that fair? I don’t think so.
Is that totally one sided ? Absolutely.
Don’t make it easy for ICBC to distort or minimize your claim.
Don’t let them create a statement for you to sign, in their words, not yours.
Don’t give them access to your entire medical history.
Don’t allow them to try to create a defense to your symptoms based on irrelevant prior medical issues.
Don’t make a mistake.
Make your case.
Paul Mitchell, Q.C. has extensive experience with brain injury, spinal injury, death claims, and other catastrophic injury claims, as well as medical negligence 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 at [email protected]
