Low Velocity Impact Handling Guidelines
This ICBC program was initially known as the Minimal/No Damage (MND) Program which was born on August 10, 1992. Prior to that date the then President of ICBC asked staff for ideas on how save money and reduce costs. In reviewing their records it was noticed that between 1988 and 1992 claims for 'soft tissue injuries' were escalating far faster than overall population increases in the province at that time. Management noted that over the 4 year period, 1988-1992, general damage payouts had increase 82%. The Corporation's management is on record stating the goal of the program was to "not to pay a penny more than it should." regarding these types of claims.
In 1999 the MND was renamed the Low Velocity Impact Program (LVI). From the initiation of the MND right up to April 22, 2003, the LVI program applied to both accident benefit and tort claims for bodily injury. On April 22, 2003 the LVI program was modified to address the unfair barriers it had created, largely thanks to the provincial Ombudsman's Office investigation.
It was created as a result of ICBC unilaterally deciding to deny all low-velocity impact claims at an impact speed of 8 kmph (about 5 mph) or less. Once the claim is denied, thereby having been accepted as a LVI claim, it would not be adjusted on its merits. At the same time, as a LVI claim, ICBC will not compensate you for any injuries you might have suffered as a result of the collision. Your claim is not to be denied (i.e. not to be deemed a LVI claim) if specific criteria are identified, which will be discussed later. How the 8 km/h cut-off was arrived at is anyone's guess, especially in light of the fact that young, fit, health male crash test volunteers have suffered symptoms at speeds as low as 2.5 mph!
Once ICBC makes the unilateral guesstimate that because of lack of damage to your vehicle the collision speed (referred to as 'closing velocity' Vc) HAD TO (emphasis mine) be at 8 km/h or less your claim automatically fell under the LVI umbrella. The result is, once it becomes a LVI claim, it will no longer be adjusted on its merits. The fact of the matter is newer cars are being made so resilient that numerous models are able to receive a rear impact at speeds in excess of 9-10 mph and show minimal to no damage at all. Even the lowly 81-83 Ford Escort was able to demonstrate no damage following multiple impacts at 9-10 mph in crash testing studies. Therefore, depending on the model of car involved, the best the ICBC personal making the decision, to file your claim as a LVI one or not, can say is the vehicle you were riding in was struck anywhere between 1-say 12 mph! Remember the FMVSS 215, which addresses vehicle bumpers, says NOTHING (emphasis mine) about your vehicle bumper design's goal being to reduce the occupant(s) risk of injury. The regulation is in place to maintain the vehicle's functional component (i.e. headlights, taillights, exhaust, etc.) is working order post collision.
Ever since the 1992 creation of the MND, official complaints have been filed with the province's Office of the Ombudsman. The complaints grew to such a level that in March 1999 the 'Office' decided to launch an official investigation into the LVI program.
They were concerned about the number and striking similarity regarding denial of fair compensation concerning these types of claims. As ICBC management stated at the outset, the program was designed to save the Corporation money, and that it did. According the Ombudsman's office it did so at the expense of fair compensation to the individual claimants by not considering the specific merits of each case. In the end, because of pressure from the Ombudsman's Office, 62 complaints and an audit of >100 MND claims files, filed in the 6 month period in early 1999, when the Ombudsman's Office started their investigation, ICBC paid out >$1.2 million to past claimants that were initially denied fair compensation.
The LVI program is one which you do not want to a part of. To be a claim in the program is to remove it being processed as a tort claim. To begin with, your claims adjustor review's your vehicle's damage and files a CL 14E report if there is minimal to no damage thereby concluding the transfer of forces to the vehicle's occupant(s) was 8 kmph or less. The adjustor is also to take photographs, for use as evidence. A CL357 statement form is also to be completed. That form is where the adjustor asks you questions about the collision (i.e. how you were sitting at the moment of impact, ie. twisted looking either way, slouched forward, etc.), did any items in the vehicle's cabin get moved (ie. did your sunglasses case land on the floor, etc.).
It's worth noting it is up to the adjustor to pay your reasonable out-of pocket health care expenses, prior to your first interview with them (which must take place within the first 5 days post collision).
Once all the required paperwork is in order it is submitted to a LVI Committee. It is made up of 3 people; a damage estimator, a claims manager and an adjustor (but it can't be the one handling your claim). Notice there is no mention of anyone academically qualified to determine injury (ie. health care provider who's formal training is in neuromusculoskeletal injury(s)-the most common type of injury suffered in these types of collisions). The fact a damage estimator is required to be on the committee is also most interesting especially in light of the fact your claim falls under the LVI program specifically because there was minimal/no damage to begin with.
There are 4 criteria that if any or a combination of them apply to you ->your claim is NOT to be included under the LVI program.
1. Is ICBC of the opinion that you were exposed to forces of 8 km/h
or less, as the occupant of the car struck from the rear. For starters,
because there is minimal/no damage to your vehicle it would be far more
accurate to state at best it is believed your vehicle was stuck somewhere
between 1-12 mph.
It is noted that the design of modern vehicles is to transfer minimal
energy to its occupant(s) in a collision. That may be so when the collision
is severe enough to result in 'plastic' deformation. That is to say
when your vehicle deforms / crushes. In that case the impact takes longer
to occur (we are talking milliseconds here), -> absorbing more of
the kinetic energy than would be transferred to you had the vehicle
not deformed/crushed. It is the transfer of kinetic (stored) energy
that is more the issue than some number possible pulled out of a hat.
In the case of a Low Speed Rear Impact Collision (LOSRIC) there is typically minimal/no damage to the vehicle that is struck from behind (called the 'target' vehicle). The vehicle's front end that does the striking is called the 'bullet' vehicle.
ICBC literature is this area also takes great pains to inform the reader
that all of the components of a modern bumper (isolators, bumper covers,
impact pad, etc.) are there to 'absorb impact forces' and 'minor impact
forces are generally contained within the bumper assembly'. Such statements
are in sharp contrast to the facts. In might interest you, and ICBC,
Transport Canada's Motor Vehicle Safety Act's Motor Vehicle Safety Regulation's
Standard 215 says nothing about bumper design requirements being in
place to reduce forces to a vehicle's occupant(s). Even better is the
fact that the actual tests, that are the subject of Standard 215, are
conducted in the form of "Every vehicle that is impacted at its
unloaded vehicle weight by a pendulum-type testing device…".
The pendulum-type device swings at 8km/h (5 mph). Again, Standard 215
is only in place for a vehicle, post strike, must have functioning equipment
(i.e. taillights, headlights, turn signals, exhaust system, etc.). The
best that can be said for a vehicle's bumper system, that passes the
test, is that it is able to withstand being struck at 8 km/h. In other
words the bumper meets the Canadian government's minimal threshold to
pass the test. Said test does not tell you the maximum amount of 'pendulum-type
device' impact the bumper can withstand before demonstrating crush damage.
Even better is the fact that in vehicle to vehicle crash testing the
resultant empirical data demonstrated bumpers being able to exceed the
minimal standard by 2-8X before being damaged.
2. Do you have any pre-existing health problems, injuries or conditions, prior to the collision in question: ICBC breaks this section down to 'Subjective' and 'Objective' headings.
Under Subjective, your claim will be deemed to be Non-LVI if you have had any 'soft tissue' symptoms within the 6 months prior to the collision. Also of note is one that I find most interesting. Here ICBC wants to know if you had you been undergoing 'Chiropractic Maintenance' type care, pre-collision. Strange that ICBC should single out a single profession's specific type of care here, but such that it is, it is listed.
Under Objective, they simply cite examples of pre-existing conditions, defaults your claim out of the LVI program. Examples include; prior spinal surgeries, prior 'disc problems', prior 'arthritis problems', any autoimmune conditions (i.e. multiple sclerosis, lupus, fibromyalgia, diabetes, etc.) or any stage of pregnancy.
What is interesting is the just mentioned 'prior arthritis problems' which is so common in the population that 20% of young people in their 20's have X-ray confirmed early osteoarthritic changes evident. Once we are in our 50's, about half of us have it. At 60 years old and up, osteoarthritis is confirmed by X-rays to afflict 85% of the general population. To top it all off, there is NO correlation between degenerative osteoarthritis and an equivalent amount of pain. In other words just because you had a set of X-rays taken and the subsequent report stated you have osteoarthritis, does not mean it is the cause of your pain. On a personal note, I have what is called a bilateral Pars Defect (my L5 vertebrae split in half and its respective disc has lost over half its height. In other words I have an advancing case of degenerative osteosrthritis and I have never missed a single day at the office because of low back pain!
If anything, X-ray confirmed degenerative osteoarthritis is a literature cited risk factor making you more susceptible to injury in a Low Speed Rear Impact Collision (LOSRIC). So don't let anyone tell you "The cause of your pain is your arthritis." Remember, forewarned is forearmed!
We should also discuss the area of 'prior disc problems'. This topic is so big entire textbooks are dedicated to it. Suffice to say there are problems with the inside of the disc itself, called Internal Disc Disruption and problems of the disc's contents migrating into the area inhabited by the spinal cord (protrusion, bulges, herniations, etc.).
So if all your examination consisted of was a turn the neck till it hurts, followed up by the finger pressure hunt and peck -> then told you have a sprain/strain, you might want to question the thoroughness of the examiner. Degenerative arthritis is 'objectively' evident only through X-rays. Disc imaging is more elaborate. We haven't even touched in the area of Alteration of Motion Segment Integrity (AOMSI). All 3 areas, and more are covered in the Imaging section of the web site.
3. Is there any evidence you actually have an injury? Now here's an interesting criteria. One would think they would simply ask for a specific isolation/reproduction of the chief complaint (cc) via standard orthopedic/provocation testing and palpation. Such is not to be.
Under this criteria they have a list of 'OBSERVED' (their emphasis not mine) signs such as lacerations (cuts), swelling, bruising. They make special note of a 'muscle spasm' (which must be charted by the examiner). Also listed is redness (I kid you not!), heat, and a reduced range of motion. All in all not exactly a notable list of 'objective evidence of an injury', but hey it is what it is. What is most interesting is the mention of fractures and tissue tears. Said tears are within reason. We are talking impacts typically under 12 mph here so the chances of one suffering a fracture is up there with my being asked to be an ICBC consultant!
4. Finally, they ask for any extraordinary reasons the committee should consider ejecting your claim from the LVI program. Examples would include extreme frailty, extremely deconditioned, major surgeries, etc.
There's more, but I think you got the idea about this set of guidelines. Also, it is clearly stated in the guidelines about a claim is not to be denied and therefore deemed a LVI claim because of just vehicle damage criteria alone. All 4 criteria, listed above, must be considered.
In closing the April 29, 2004 correspondence from the then president and CEO of ICBC, Nick Geer's letter to Howard Kushner (then B.C's Ombudsman) summed it up best "… the individual submitting a claim bears the responsibility of proving that she or he should be compensated for any injuries sustained in the accident."