|
|
About Compensation
There are different types of compensation to which an accident victim
may be entitled depending on the severity of the injuries.
General or non-pecuniary damages
This is to compensate an accident victim for pain and suffering and
loss of enjoyment of life. It is based on various factors such as the
nature of the injury, the degree of pain and suffering and loss of
enjoyment of life, the length of the recovery process, and whether
there is likely to be future disability.
The amount of compensation in this category is determined on the basis
of previous court awards in similar cases.
Past loss of income
This is the loss of earnings from the date of the accident until the
settlement or court award. Accident victims were entitled to their
gross income loss for accidents occurring prior to June 17, 1997.
However, the British Columbia government changed the law for accidents
occurring after that date so that now income tax and employment
insurance premiums are deducted from gross income to calculate past
loss of income.
Certain documentation such as confirmation of employment, pay stubs,
and income tax returns are usually required in order to prove this
part of a claim. Such things as loss of promotion or loss of
opportunity to pursue a career because of the accident would require
additional proof.
An issue often arises as to whether "collateral benefits" such as
disability insurance benefits, employment insurance, or social
assistance benefits should be deducted from the claim for lost income.
Legal advice is required in these situations.
Special damages
A claimant is entitled to reimbursement for out of pocket expenses
incurred because of his or her injuries. This would include such
things as prescription and non prescription medication, user fees for
treatment by a physiotherapist, chiropractor, or massage therapist, as
well as mileage or transportation costs to medical treatment, etc.
In certain cases, an injured person will also be entitled to recover
compensation on behalf of family members for providing services such
as home care for the injured person, but only if the services provided
were beyond the normal things that family members would ordinarily do
for each other.
Impaired Earning Capacity
A serious injury may result in loss of future income particularly if
there is a permanent disability. It is not necessary to prove that a
loss of future income is certain or even "probable" only that there is
a "real possibility" that the loss may occur.
Often as a result of a serious injury, a person may not be able to
pursue a career path that otherwise would have open to the person, or
it may be delayed or compromised as a result of the injury.
There are four questions that are taken into consideration by the
courts when determining whether a person has an impaired earning
capacity:
- Has the person been rendered less capable overall of earning income
from all types of employment?
- Is the person less marketable or attractive as an employee to
potential employers?
- Has the person lost the ability to take advantage of all job
opportunities which might otherwise have been open to the person had
the injury not occurred?
- Is the person less valuable to himself or herself as a person
capable of earning income in a competitive labour market?
If the answer to any of these questions is "yes", then a dollar value
must be attached to the loss. An economist or actuary can determine
the value of that loss over the course of the person's lifetime.
Cost of Future Care
These are future expenses that an injured party will be subject to
after settlement or a court award. Examples would be the cost of
medication, medical treatment and therapy, nursing care, and even
home, workplace, and vehicle modifications to allow an injured person
to live independently as much as possible.
Of course, these expenses must be medically justified and would arise
in the case of serious injury. An occupational or rehabilitation
consultant can assess the needs of the injured party. An economist
could then provide the "present value" of these future expenses.
No Fault benefits
Regardless of fault for an accident in this province, if certain
conditions are met, an injured person is entitled to benefits from
ICBC for such things as a total inability to work, medical treatment,
rehabilitation, retraining, as well as other specified benefits. The
maximum lifetime amount of no fault benefits to which a person is
entitled for medical and rehabilitation expenses is $150,000.
Death benefits and funeral expenses are also payable to the family of
a deceased in the case of a fatal accident.
By Stuart Lein
December, 2006
|
|
