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Les Leyne: Injury lawyers threaten to shun therapists who help ICBC

There’s a concerted effort by personal injury lawyers to shun any occupational therapists who co-operate or consult with the government in redesigning the ICBC claims process.
David Eby-2012505.jpg
Attorney General David Eby

There’s a concerted effort by personal injury lawyers to shun any occupational therapists who co-operate or consult with the government in redesigning the ICBC claims process.

An email from one firm threatens to “maintain a list” of all such therapists and they “will be permanently disqualified from doing any work for us on any matter whatsoever.”

Attorney General David Eby condemned it as a a “blacklist” and read it into the record this week during heated debate on legislation (Bill 11) that sets the stage for determining ICBC payouts outside of the court system.

Eby introduced the bill in March saying it would cut premiums by 20% (an average of $400). The biggest change involves eliminating most lawsuits over damages to save legal fees and expenses, in return for higher degrees of guaranteed care.

It’s been the subject of arguments in the industry and a campaign by trial lawyers to cancel the plan.

The warning to occupational therapists illustrates how intense the fight is getting.

Personal injury lawyers work closely with them in getting clients’ injuries assessed and treated and preparing them to testify during trials.

Occupational therapists who were invited to consult with government were required to sign non-disclosure agreements, because the topic was upcoming legislation.

The lawyer objects to that secrecy, and warns the firm will shun any therapists found to have signed one, in the belief that it demonstrates bias in favour of ICBC.

The email states: “We will maintain a list of every therapist who has signed an NDA. … Failing to disclose that you or someone in your firms has signed the NDA will be grounds for the OT to refund to us all money we have paid, and to forfeit any fees for work done but not yet billed.

“We will make repeated FOI searches of ICBC to verify our list. We will share this list with other firms.”

The email also warns the firm also has a list of experts from outside B.C. who would be happy to expand their business here.

The therapists’ association said such threats are inappropriate because the lawyers are trying to restrict engagement and feedback. It’s seeking legal advice.

But in the meantime, a working group suspended meetings as a result of the email, one of several that are circulating on the same theme.

The association is far from unanimous on the overall issue. A breakaway group has formed that opposes the new model. And a Victoria occupational therapist, who spoke on condition of anonymity, said the lawyers’ warnings are helping expose the “Machiavellian” approach Eby is taking by way of non-disclosure agreements.

The enforced secrecy interferes with their rights, she said. It masks erroneous claims the government is making about how much better accident victims will be treated.

She said they will be tied to ICBC’s bureaucracy for the rest of their lives and will lose the right to have legal advocates help with all the issues that arise.

Eby said non-disclosure agreements are common when consulting on proposed bills and are not blanket gag orders.

Trial lawyers estimate 10,000 people work regularly in the legal industry surrounding ICBC claims.

Eby told the legislature: “B.C. can no longer afford that kind of infrastructure around how we resolve claims … subsidized by car insurance rates.”

Regarding consultation with people who feel “we’d like to continue the current system, because we’re making a lot of money under that system,” he said those submissions aren’t helpful.

“Because that’s the very reason why we’re changing the system.

“It is an incredibly difficult thing to say that those folks are going to have to transition their work over the next decade to something else … but those costs are no longer sustainable. … We are going to transfer money from this administration into delivering lower rates and better benefits.”

Also under the heading of “incredibly difficult” will changing the operating mode at ICBC.

For almost 50 years, it has been operating largely in a grudging, adversarial stance. Now it is supposed to reverse course and become the permanent financial provider for crash victims, responding to whatever needs are prescribed by medical teams.

Lawyers, therapists and drivers aren’t the only ones facing a big adjustment.

lleyne@timescolonist.com