British Columbia’s Civil Resolution Tribunal has increased a crash survivor’s impairment payout from ICBC, departing from its usual approach to migraine claims in the process.
The case stemmed from a collision on December 20, 2021, when another vehicle cut in front of the applicant while making a U-turn. ICBC did not dispute the resulting injuries, which included fibromyalgia, central sensitization, chronic migraines, a torn hip, a disc problem in her lower back, and cysts in her breast tissue. The insurer had paid her $36,842.30 based on a permanent impairment rating of 22 percent.
The applicant argued that figure undersold the severity of her condition. Under BC’s compensation rules, the highest payouts are reserved for catastrophic injuries, such as quadriplegia or amputation, and she contended her injuries belonged in that category. The tribunal disagreed, finding her injuries were serious and lasting but did not meet the threshold for catastrophic harm.
Several Claims Rejected
The tribunal rejected a number of her other arguments. It found her back injury and hip tear had already been rated appropriately. Her concussion claim failed because the applicable rules require concussion symptoms to be documented within 48 hours of a crash, a condition that was not met in her case. Her chronic pain and mood-related symptoms were also found to have already been accounted for within ICBC’s 15 percent impairment rating for her fibromyalgia, and the tribunal said compensating her again for the same condition would amount to double payment.
A Break From Precedent on Migraines
The tribunal took a different approach to her migraines. In past rulings, the Civil Resolution Tribunal has generally treated migraines as a form of chronic pain, which is not separately compensable under the impairment rules. In this decision, the tribunal accepted evidence that her migraines were chronic, triggered by light and sound, and only managed, not cured, through regular Botox injections. Drawing on the rules’ guidance covering light sensitivity and tinnitus, the tribunal ordered ICBC to add a 2 percent impairment rating specifically for the migraines.
An Overlooked Shoulder Injury
The tribunal also identified an impairment that had gone unaddressed. ICBC had rated the applicant’s breast cysts using a comparison to arm and shoulder injuries, but had never separately assessed a related loss of motion in her right shoulder, which one clinical note described as a residual frozen shoulder. Tribunal member Amanda Binnie found this to be a distinct permanent impairment that ICBC had missed, though the medical record did not yet contain enough detail to assign it a specific rating. As a result, the tribunal ordered ICBC to pay for an independent shoulder examination and to recalculate her compensation once those results are available.
Key Figures in ICBC Impairment Ruling
Additional Costs Ordered
Beyond the impairment rating changes, the tribunal ordered ICBC to cover $125 in tribunal fees and $460, representing half the cost of a private MRI the applicant obtained on her hip during the dispute. Both the added migraine rating and the outcome of the future shoulder assessment are expected to further increase her total payout.
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