It’s an unfortunate fact that cars accidents can cause injuries, sometimes they’re minor, but other times, they can be serious. ICBC was established to make sure residents of British Columbia were protected against loss of income, medical costs not covered by the provincial program, and compensated for their pain and suffering.
But what happens to your claim if you have an existing condition or are still suffering the effects of a previous injury? At DBM, we advise our clients that ICBC will look closely at any pre-existing conditions. We recommend getting legal help to make sure your previous injuries are not necessarily barriers to your future claim.
The truth is that any pre-existing condition will be taken into account if you find yourself in front of a judge. The court will only give you compensation to the point that you can live your life the way you lived it before the accident. That point right before the accident is called your “original position”. The defendant is only responsible for injuries that make you worse off than you were at your original position. But what if you had a condition that made you MORE likely to get injured? Should you be punished for that? The law says no.
There are two broad rules for pre-existing conditions, the Thin Skull Rule and the Crumbling Skull Rule. The Thin Skull Rule is good for you; the Crumbling Skull Rule is not.
What is the Thin Skull Rule and how does it work?
The Thin Skull Rule works like this: Let’s say you broke a leg in a skiing accident. Your leg heals, you feel fine, but now your leg is weaker and more susceptible to injury. Then, you are in a minor car accident, and because of your previous injury your leg breaks again.
The person who caused the car accident had no way of knowing that your leg was weaker than the average person’s leg. Nevertheless, you will still be eligible for full compensation because without the trauma of the car accident, your leg would not have gotten worse, so the accident had a direct impact on your well-being-you are less well than you were before the accident.
What is the Crumbling Skull Rule and what difference does it make in a claim?
This can be complicated and often these cases go to court where medical experts weigh in on your condition before and after the accident, but also how your health would be in the future even if there were no accident.
Here’s an example: Let’s say you have a condition where you have chronic and degenerative arthritis in your lower back. Prior to the accident, you get occasional back pain, but nothing that can’t be effectively treated and managed-you don’t even miss work because of it.
Now, you’re in a car accident, which aggravates your condition to the point where you are now in constant severe pain. In this case, a judge may agree that the accident caused the constant pain, but she could also hear evidence from medical experts that your back would eventually become that painful because of your condition anyway. The judge could very well reduce your settlement because you would probably end up suffering from severe chronic pain even without the accident.
What about the kinds of injuries that don’t show up on x-rays, like PTSD?
It’s the same principle. If you have PTSD but it is under control through treatment and the trauma of a car accident causes it to flare up again, you would probably be covered under the Thin Skull Rule the defendant driver will be found responsible for your new symptoms.
However, if your PTSD is not under control or has the potential of getting worse with time, then the Crumbling Skull Rule may apply, even if the accident makes your condition worse. Judges might rule that untreated PTSD would likely get to the same point with time.
These cases are hardly ever cut and dried, and many of them go through a long process, often ending up in court. At DBM, we strongly urge anyone with any kind of pre-existing condition who has been injured in a car accident to seek legal help. You want to ensure you receive what you are entitled to, no more, no less.
Contact DBM if you have any questions. We’re here to help.