Court Applies Section 83 Of The Insurance (Vehicle) Act In Deducting Cost Of Pain Clinic From Future Care Award

A plaintiff who has received a court award which includes a cost of future care component can have this award reduced to reflect benefits that the Plaintiff received, or would have been entitled to receive, under Part 7 of the Insurance (Vehicle) Regulation. A main reason for this is to prevent double recovery. Also known as “no fault” accident benefits, Part 7 benefits cover two main types, those being mandatory benefits under section 88(1) of the Insurance (Vehicle) Act, and discretionary benefits under section 88(2).

 

In Park v. Targonski, the Plaintiff sustained injuries in a motor vehicle collision, and brought an ICBC claim for numerous heads of damages, including pain and suffering, out of pocket expenses, and the cost of future care. At trial, the Court determined that the Plaintiff suffered from chronic pain disorder, with a strong psychological component, and awarded damages for numerous categories, including future care. As part of the award for future care, the Court awarded $8,500 for attendance at a pain clinic.

 

At a later application, ICBC’S lawyer argued that there should be a deduction for certain items that were the subject of the future care award. Among these items was an $8500 award for treatment at a pain clinic. Counsel for the Plaintiff argued that the Court should take a cautious approach when applying possible deductions, and that uncertainty over whether or not the benefit will in fact be paid in the future is a factor that should be considered. An affidavit from ICBC stated that if the Plaintiff attended at a pain clinic, then ICBC would pay for up to $8500 in coverage. However, counsel for the Plaintiff still took the position that there was some uncertainty, as for example, ICBC may not pay in full if the Plaintiff had alternate coverage that would cover some of the cost.

 

The Court would eventually rule that payments for the pain clinic are mandatory under section 88(1) of the Insurance (Vehicle) Regulations. Further, ICBC had given a guarantee that such payments would be made in the future. As such, the amount originally granted to the Plaintiff for future care in the form of the pain clinic was deducted from the future care award.

 

[45] The mere fact that psychological and/or cognitive obstacles to optimal physical rehabilitation are likely to arise in the administration of what amounts, at its core, to a physical rehabilitation program does not negate the fact that the program is designed to achieve “necessary physical therapy.” The law must take cognizance of our growing awareness of the intersection between physical and mental therapy. Indeed, it is difficult to envision aggressive implementation of the sort of active rehabilitation Back in Motion has in mind without necessarily engaging psychological and/or cognitive issues, particularly for an individual in the plaintiff’s situation. Looking at the issue this way, it is unnecessary and unrealistic to hold that a physical therapy program that incidentally engages psychological and/or cognitive issues ought not to be characterized as a s. 88(1) benefit in circumstances where the language of the provision does not dictate this result. Further, it is undesirable for courts to embark upon the impossible task of deciding which discrete components of a holistic pain program constitute s. 88(1) benefits because they are purely given to physical therapy, and which components fall outside the scope of s. 88(1) because they engage psychological issues that stand as barriers to the successful implementation of an active rehabilitation program. Such an approach is not only artificial, it is one that would breed uncertainty and spawn further litigation in an area already beset by what the Court of Appeal in Raguin charitably described as “jurisprudential inconsistencies”.

 

[48] As I am satisfied in this case that the pain clinic is a mandatory benefit and that ICBC is obliged to reimburse the plaintiff for all reasonable expenses associated with her attendance at the clinic, there is no uncertainty as to whether this benefit will be paid.

 

[49] Even if I am wrong in this, and a pain clinic of the sort Back in Motion proposes is properly characterized as a discretionary benefit under s. 88 (2), the issue is academic in this case since ICBC has agreed to pay the full amount of the expenditures that can reasonably be expected to arise. As I understand ICBC’s position on this point, the corporation will not disqualify from payment any portion of the plaintiff’s participation in a pain clinic program up to a maximum of $8,500. The assurance given by ICBC has no temporal limitations. ICBC has, through its authorized representative, Ms. Muzzin, provided its guarantee of payment to this extent. As I have found there is no risk of non-payment for any expense that might reasonably arise in connection with the plaintiff’s attendance at a pain clinic, I deduct the fixed amount of the pain clinic ($8,500) from the tort award in accordance with s. 83 of the Act.

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