Category: Benefits (No-Fault)

Court Rules That ICBC Fails To Meet Burden For Section 83 Deductions

Accident benefits through ICBC, otherwise known as Part 7 Benefits, can come in many forms, including payments of benefits prior to trial, as well as payments of benefits into the future after trial.


When awards are made by a Court for future care, a common application brought by an ICBC lawyer is for the deductibility of certain future care items that would be paid in any event pursuant to the Part 7 Benefits scheme.


For example, if a claimant is awarded $10,000.00 for future care, but ICBC takes the position that $5,000.00 of this amount would be paid in any event in the future through Part 7 Benefits, then ICBC would argue for a deduction of $5,000.00 from the future care award, so as to prevent the Plaintiff from benefiting from double recovery.


The former Section 83 of the Insurance (Vehicle) Act, that allows for potential deductibilitly of parts or all of a future care award, was amended through the passage of Bill 20, which is applicable to accidents occurring on or after May 17, 2018.


Whereas previously, deductions by a Court from future care awards were not that common due to ICBC’S proven history of unjustifiably terminating benefits, the Court now does not have to consider the likelihood that ICBC will pay any future benefits when ruling on any potential deductions.


Typically, a Court when ruling on such an issue must estimate the amount of potential Part 7 future benefits, and take such an estimate into account by reducing the amount of the future care award accordingly.


In Siverston v. Griffin, the Plaintiff was injured in a motor vehicle accident, and consequently commenced formal legal proceedings for several types of damages, including the cost of future care. Following a jury trial, an award for future care was made in the amount of $60,000.00. The Court reasoned that virtually all of the future treatments in question were categorized as discretionary Part 7 Benefits.


ICBC’S lawyer applied to have this award reduced, arguing that many of the future care components that constituted the overall award could eventually be paid at different times in the future pursuant to ICBC’S Part 7 accident benefits scheme.


Counsel for the Plaintiff submitted that ICBC’S lawyer did not meet the required burden to show what the Plaintiff’s entitlement to future benefits would be, as there would be too much uncertainty as to what any future entitlement would be. Further, it was submitted that the Court could infer from ICBC’S refusal of benefits before trial, that this same pattern would continue after trial as well.


The Court refused to reduce the cost of future care award, ruling that ICBC’S lawyer had failed to meet the required burden for deductibility.


[47] To establish a basis for a deduction under s. 83(5), the defendants have the burden of establishing a correlation between the plaintiff’s claim (as determined by the court) and treatments and services available as Part 7 Benefits. It is the quantum of that entitlement that is relevant for deductibility purposes.


[48] The defendants rely on Sangha as support for the proposition that an affidavit from an ICBC claims specialist deposing ICBC accepts the court’s findings is sufficient to establish the plaintiff can expect to receive correlating Part 7 Benefits. However, Sangha was not a jury trial. The affidavit of the claims specialist in this case states “ICBC accepts the Court’s implicit finding that the future care treatments and medications set out in the reports are necessary” [emphasis added]. In Sangha, Riley J. particularized the basis of the plaintiff’s cost of future care damage award in the trial reasons. While a judge’s reasons for judgment setting out precise factual findings may not be the exclusive pathway for establishing whether and to what degree a cost of future care award reflects services or treatments that are available as Part 7 Benefits, in this case, the lump sum nature of the jury’s cost of future care award makes it impossible for me to ascertain whether and to what degree there is a correlation.


[49] The Supreme Court of Canada’s observation at para. 47 of Gurniak that “a second level of matching between a specific head of damage in a tort award and a specific head of damage under the insurance scheme in question” does not obviate the need for the correlation s. 83(5) requires. That first stage of “matching” is still required. In Gurniak, the Court was able to assess whether there was a match between the accident benefits paid under Quebec’s no-fault insurance scheme and those paid under the British Columbia Insurance Act, because both were ascertainable: Gurniak at para. 54. That is not the case here. The basis of the jury’s cost of future care award is unknown.


[50] Accordingly, I find the defendants have failed to discharge their burden to prove the plaintiff has any entitlement to Part 7 Benefits respecting the loss on which the jury determined her claim is based.


ICBC’S “Checkered Record” Of Funding Past Treatments Affects Court’s Ruling On Section 83 Deduction Application

In Olson v. Farran, the Plaintiff was injured in a motor vehicle accident, and subsequently advanced an ICBC claim for non-pecuniary damages, as well as various other types of damages, including special damages and the cost of future care.


At trial, the Court awarded the Plaintiff damages under numerous categories, including special damages and the cost of future care.


ICBC’S lawyer took issue with the amounts awarded under these categories, and sought a deduction pursuant to Section 83 of the Insurance (Vehicle) Act, which allows the Court to reduce the awards if a claimant has received or is entitled to receive benefits from ICBC. For example, if a claimant is awarded a sum of money for future treatment, however ICBC would pay this anyways in the future under Part 7 benefits, then this amount can be deducted from the court award. However, there is not always a guarantee that ICBC will make such payments in the future, which is an important factor for a Court to consider when hearing applications pursuant to Section 83 of the Insurance (Vehicle) Act. Certain benefits can be mandatory, however certain benefits are only discretionary. When benefits are only discretionary in nature, this means that ICBC does not have to pay such benefits in the future. This uncertainly is typically the key issue in Section 83 applications for deductions of trial awards.


In the case at bar, ICBC had actually paid out the entire amount of the judgement to counsel for the Plaintiff, who deposited the funds into a trust account. Shortly thereafter, however, ICBC’S lawyer gave notice of an intention to apply for a deduction in the awards for special damages and the cost of future care. Plaintiff’s counsel then filed and delivered an acknowledgment of payment of the judgment in full, and then paid out the judgment funds to the Plaintiff.


In addition to invoking the doctrines of mootness, estoppel, and abuse of process, counsel for the Plaintiff argued that the benefits that ICBC’S lawyer sought to deduct were discretionary, and that there was some uncertainty as to whether or not ICBC would even pay any future benefits.


The Court did not allow for any deductions from the special damages trial award on the basis of mootness, but did allow for a partial deduction from the cost of care award at trial. The Court was concerned with ICBC’S history of actually paying for the Plaintiff’s treatment, leading to serious concerns as to whether future benefits would be paid by ICBC.


[71] The onus of showing that a deduction should be made is on the defendant. I must estimate the amount to which Ms. Olson is entitled, exercising caution and taking into account any uncertainty concerning whether the benefits will be paid. Any such uncertainty must be resolved in favour of the plaintiff.


[72] Based on the Dr. Garbuz’s opinion, and the defendant’s position at trial that Ms. Olson would benefit from a three to six-month exercise program under the supervision of a physiotherapist, I am satisfied that a portion of the physiotherapy will be paid. I estimate that amount to be $500 and order that the amount to be deducted with respect to the physiotherapy is $500.


[73] In light of the Corporation’s past partial and disrupted payment for kinesiology, there is no certainty that the Corporation will pay for any further kinesiology treatments. I therefore decline to deduct any portion of the $800 sought by the defendant for kinesiology sessions.


[74] Similarly, there is no certainty that the insurer will pay for future massage therapy treatments, particularly where such treatments may only provide temporary relief to Ms. Olson, rather than a lasting improvement in her condition. Again, I decline to deduct any portion of the $920 sought by the defendant for massage therapy.


[75] The defendant also seeks a deduction of $870 for psychological services. Psychological therapy is a benefit payable in the Corporation’s sole discretion under s. 88(2)(f) of the Regulation.


[76] The defendant submits the Court should conclude from ICBC’s past funding for physiotherapy and active rehabilitation that there is no uncertainty about whether the Corporation will fund psychological therapy for the plaintiff.


[77] I disagree. The Corporation’s checkered record of funding the plaintiff’s treatment before trial raises significant uncertainty about whether this benefit will be paid. Further, Mr. Phan, the Corporation’s representative, offers no assurance in his affidavit that ICBC will pay for psychological therapy for Ms. Olson. Nor is there any opinion from the Corporation’s medical advisor, as required under s. 88(2), that the psychological services are likely to promote the rehabilitation of the insured. The uncertainty concerning whether this benefit will be paid must be resolved in favour of the plaintiff. I am not satisfied the Corporation will pay any portion of this benefit. Accordingly, there will be no deduction for psychological therapy.

Court Rules That Plaintiff Entitled To ICBC Disability Benefits Beyond 104 Week Mark

In Powell v. ICBC, the Plaintiff was injured in a rear end motor vehicle accident, and subsequently commenced an ICBC claim.


After the accident, the Plaintiff was totally disabled from working for a period of time of just under one month. She then returned to work part-time for a period of time of approximately 32 months, at which point she became totally disabled again. Given this timeline, the Plaintiff was not considered to be totally disabled at the point of time of 104 weeks after the accident. The previous British Columbia Court of Appeal decision in Symons v. ICBC had ruled that temporary total disability benefits (“TTD benefits”) can be revived after the 104 week mark if the accident related injuries which were originally disabling once again triggered a total disability after the 104 week mark.


The Plaintiff applied for TTD benefits again, but ICBC denied payment, stating that she was no longer entitled to such benefits.


The Plaintiff brought an application for summary judgment for a declaration that she was entitled to TTD benefits, and for judgment in accordance with entitlement to the cumulative total of such benefits.


ICBC’S lawyer argued that the matter was not suitable for a summary judgment application because of the competing experts, then argued that if the matter is suitable for such a type of application, then the matter should be dismissed, as the evidence does not show that the Plaintiff is unemployable because of accident related injuries.


The Plaintiff relied on the Symons case, which the Court found applied directly to the facts of the case at bar.


In ruling that the Plaintiff was entitled to TTD benefits, the Court commented :


[51] ……. in Symons where the issue on appeal was whether the chambers judge erred in concluding that Mrs. Symons was entitled to disability benefits under s. 86 of the Regulation. ICBC argued that an insured must have an ongoing disability and be receiving benefits at the end of the 104 week period in order to receive benefits. Because Mrs. Symons was not receiving benefits at the end of the 104 week period and because her disability did not flare up until after that period, the Regulation did not permit for the reinstatement of s. 86 benefits. The plaintiff urged a contextual and purposive approach to statutory interpretation of s. 86 that would not result in absurd results as urged by ICBC.


[52] Bennett J.A., for the Court, found at para. 17 that the regulations in question should be considered in the context of the legislative scheme to provide universal, compulsory insurance and access to compensation for those who suffer losses from motor vehicle accidents. Benefits-conferring legislation is to be interpreted in a broad and generous manner (at para. 18) …


[53] The decision in Symons applies directly to the facts in this case. The plaintiff was an employed person who sustained injury in an accident which totally disabled her within 20 days after the accident. She is entitled to disability benefits for the initial period of disability. Although the plaintiff returned to part time work for a time and did not apply for TTD benefits within or at the 104 week mark, if is accepted that she is totally disabled as a result of injuries sustained in the accident, then Symons supports her position that it is not necessary that she be actually receiving benefits or that her disability had been ongoing at the 104 week mark. The issue then becomes whether the plaintiff has satisfied the onus upon her to show that she is totally disabled as a result of injuries sustained in the accident.

Court Of Appeal Rules That ICBC Income Loss Benefits Can Be Revived After 104 Week Mark

In Symons v. ICBC, the Plaintiff was seriously injured in a rear end motor vehicle accident, and consequently advanced an ICBC claim. The Plaintiff claimed for and was granted income loss benefits from ICBC under section 80 of the Insurance (Vehicle) Regulation. At a later point in time, she returned to work, thus disentitling her to such benefits.


More than two years after the accident, the Plaintiff’s injuries that were caused by the motor vehicle accident in question resurfaced, leaving her once again totally disabled and incapable of working. However, ICBC refused to reinstate the disability benefits.


The trial judge ruled that the Plaintiff was eligible for section 86 benefits under the Insurance (Vehicle) Regulation, and ordered ICBC to pay such benefits. ICBC’S lawyer appealed.


The position of ICBC’S lawyer on appeal was that the Plaintiff was not entitled to long term disability benefits under section 86 of the Insurance (Vehicle) Regulation, as she was not receiving benefits under section 80 on the triggering date when such benefits transition into section 86 benefits, that being 104 weeks after the accident.


The Court of Appeal dismissed the appeal, ruling that a revival of benefits can occur when the original injury later causes total disability, even if this occurs past the 104 week mark.


[23]         ICBC argues that that was a case where the plaintiff was already entitled to s. 86 benefits when they were stopped, and then reinstated. I think this cuts too fine a line. Brewer says a person receiving s. 80 benefits can be reinstated if he later becomes disabled from the original injury and Halbauer says a person receiving s. 86 benefits is entitled to have them reinstated if he or she is subsequently disabled because of the original injury. In my view, if the sections are read, as ICBC suggests, to mean that only a person who is disabled “at” the 104-week mark can obtain benefits after that period, that interpretation does not accord with the context and object of the legislation, nor within the reasoning of Halbauer.


[24]         Reading the words of this legislative scheme in its entire context, harmoniously with the whole of the scheme and purpose, leads to the conclusion that if a person who was disabled as a result of an accident returns to work, and then, because of setbacks or otherwise, is again totally disabled due to the accident, she qualifies for benefits under s. 86, even if she was not disabled on the “magic” day at the end of 104 weeks. This interpretation is consistent with the object of the Act—to provide no-fault benefits for persons injured in motor vehicle accidents.


[26]         Thus, the trial judge did not err in his conclusion that Ms. Symons was entitled to be reinstated for disability benefits under s. 86.

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.

Out of Province Insurer Denied Subrogation Rights By Court in Part 7 Benefits Action

In Middleton v. Heerlein, the Plaintiffs were US citizens injured in a motor cycle accident in British Columbia. An ICBC claim was commenced. The Plaintiffs were insured by Progressive Insurance with respect to medical benefits, and received over $100,000 in this regard. Normally the amount would not be so high, but Progressive Insurance was a signatory under a Power of Attorney and Undertaking, which sees non-BC residents receive the same amount of compensation for medical benefits as permitted by the laws and jurisdiction of B.C., even though the Plaintiffs’ were non-residents of B.C. and had their insurance through Progressive. Progressive Insurance then sought to reclaim the amounts paid, arguing that they had rights of subrogation, however the argument was dismissed.


[10] The Court of Appeal in Matilda stated that the issue turned on the application of s. 25(1) and (2) of the Insurance (Motor Vehicle) Act. Progressive had argued that its policy of insurance provided it a right of subrogation, and that British Columbia had no jurisdiction to modify by statute a contract of insurance written outside British Columbia.


[11] When Matilda was decided, the relevant portions of s. 25 of the Insurance (Motor Vehicle) Act provided as follows:


25. (1) In this section and in section 26, “benefits” means a payment that is or may be made in respect of bodily injury or death under a plan established under this Act, other than a payment pursuant to a contract of third party liability insurance or an obligation under a plan of third party liability insurance, and includes accident insurance benefits similar to those described in Part 6 of the Insurance Act that are provided under a contract or plan of automobile insurance wherever issued or in effect.


(2) A person who has a claim for damages and who receives or is entitled to receive benefits respecting the claim, is deemed to have released the claim to the extent of the benefits.


[12] The court noted at para. 7:


As the chambers judge noted, in the absence of any express statutory right of subrogation the insurer’s right of subrogation is a derivative right only, which must be advanced in the name of the insured. The insurer is placed in no better position than that of the insured. The revised form of question 1 could be answered “no” simply on the ground that Progressive has no status as a subrogated insurer to advance any claim against the defendants in its own name.


The revised question, to which the above answer was given, was stated in this way at para. 2:


Does Progressive (the third party) have an enforceable right under the contract or the common-law to recover from the defendants all or part of the funds, being $17,800.00 U.S. paid by Progressive to the plaintiff?


[13] It would seem, therefore, that unless the plaintiffs can point to an express statutory right of subrogation, the answer in these cases must be governed by the result in Matilda set out above.


[14] In spite of the finding in para. 7, the court in Matilda went on to deal with what it said was a broader issue argued by the parties – provincial legislative competence over extra-provincial insurance contracts, which it framed in this way at para. 8:


The issue is whether the provisions of the Insurance (Motor Vehicle) Act purport to modify the terms of extra-provincial policies and thereby exceed the reach of provincial jurisdiction. In my view, they do not. The focus of s. 25(1) and (2) is on the tort action by Progressive’s insureds against ICBC’s insureds. The torts are the motor vehicle accidents that occurred within British Columbia and clearly are within provincial jurisdiction. The subsections simply provide that accident benefits cannot be claimed in the B.C. tort actions irrespective of where the policy paying the benefits was made. That does not purport to modify the terms of the extra-provincial policies. It merely limits the damages recoverable in tort whether by the insured beneficially or Progressive as subrogated claiming in the name of its insureds. In my opinion, the subsections address an incident of provincial jurisdiction over torts within the province and do not attempt to legislate terms of extra-provincial contracts. [Underlining added.]


[15] Although there is no argument in these applications that the current version of the statute purports to modify extra-provincial contracts, the underlined portions above would appear to offer no comfort to Progressive, as there is no material difference in wording between the section before the court in Matilda and s. 83(1) and (2) invoked by the defendants in these cases.


[16] The court in Matilda then dealt with an argument, also made in these cases, that the purpose of s. 25(2) was to avoid a double recovery, where the insured could claim damages from a tortfeasor for a loss for which he or she had already been compensated as an accident benefit. Progressive argued there, as here, that s. 25(2) was intended to prevent the insured from being paid twice for the same loss, but was not intended to prevent an insurer, that had made its insured whole through payment of benefits, from recovering those payments from the tortfeasor.


[17] After canvassing authorities, some of which are also cited on these applications, the court concluded that “the application of s. 25(2) is not limited to cases of double recovery” (para. 10).

Court Orders ICBC To Pay For Plaintiff’s Medical Expenses Under Part 7 Benefits Policy

In Kozhikhov v. Insurance Corporation of British Columbia, the Plaintiff was injured in a motor vehicle collision, and consequently brought an ICBC claim for damages for pain and suffering, as well as other heads of damages. The “tort” action was settled, however there was still the matter of Part 7 Benefits. The Plaintiff had submitted more than $10,000.00 in medical expenses, however ICBC refused to pay these, claiming that the Plaintiff’s injuries were caused directly or indirectly by a pre-existing condition, which would disentitle the Plaintiff to coverage. ICBC did not have evidence within the applicable 60 day period to support their position. The Court ruled that ICBC had to pay the Plaintiff for the medical costs.


[19] The benefits claimed in this case are subject to s. 101(b). The 60 day period for payment allows ICBC the opportunity to review and investigate the claim. Obviously, it does not give sufficient time for the extensive investigation the corporation may undertake when defending its other insured–the allegedly at fault motorist–in the tort claim, but that is consistent with summary nature of the claim and the relaxed standard of proof required of the plaintiff.


[20] ICBC relies on s. 96(f) of the Regulation, which reads:


The corporation is not liable to pay benefits under this Part in respect of the injury or death of a person


(f) whose injury or death is caused, directly or indirectly, by sickness or disease, unless the sickness or disease was contracted as a direct result of an accident for which benefits are provided under this Part.


[am. B.C. Regs. 379/85, ss. 36, 37; 449/88, s. 17.]


[21] Section 96(f) must be read in conjunction with s. 101. If the plaintiff’s injury is caused by the sickness or disease referred to in s. 101, benefits are not payable. But in the absence of evidence that s. 96(f) applies, ICBC must pay benefits within 60 days after it receives proof of the claim.


[22] In other words, if ICBC is to reject a claim for specific benefits under s. 96(f), it must do so on the basis of evidence obtained before the expiry of the 60 day deadline. In cannot use evidence obtained long after the fact to justify a failure to comply with s. 101.

Court Rules That Treatment Expenses Must Be Medically Justified

In Redl v. Sellin, the Plaintiff was injured in a motor vehicle collision, and brought an ICBC claim for damages for chronic pain, as well as several other heads of damages, such as loss of past and future earning capacity, cost of future care, and special damages. The Plaintiff sought more than $46,000.00 in “special damages” (out of pocket expenses), however, despite the Court finding the Plaintiff to be very credible, the Court largely rejected the amount, stating that there was no medical justification for many of the expenses.


[55]         Generally speaking, claims for special damages are subject only to the standard of reasonableness. However, as with claims for the cost of future care (see Juraski v. Beek, 2011 BCSC 982; Milina v. Bartsch (1985), 49 BCLR (2d) 33 (BCSC)), when a claimed expense has been incurred in relation to treatment aimed at promotion of a plaintiff’s physical or mental well-being, evidence of the medical justification for the expense is a factor in determining reasonableness. I accept the argument expressed through Dr. Frobb, that a patient may be in the best position to assess her or his subjective need for palliative therapy. I also accept the plaintiff’s counsel’s argument that in the circumstances of any particular case, it may be possible for a plaintiff to establish that reasonable care equates with a very high standard of care. In the words of Prof. K. Cooper-Stephenson in Personal Injury Damages in Canada, (2d ed., 1996) at p. 166:

Even prior to the Supreme Court’s endorsement of the restitution principle [in Andrews v. Grand & Toy Alberta Ltd. and Arnold v. Teno], in the area of special damages the courts had been prepared to allow optimum care, and damages were awarded for expenses of a character that stretched far beyond the resources of even an affluent Canadian.

That being said, and while Dr. Frobb’s paradigm of the patient becoming their own physician may have at least a superficial appeal, plaintiffs are not given carte blanche to undertake any and all therapies which they believe will make them feel good.

[56]         In the present case, Ms. Redl undertook an extraordinarily wide variety of therapies, some without advice, and some less conventional than others. She did so at considerable expense. It is probable, in my view, that she undertook this course of action in part through a desire to recover quickly and in part on the basis of her positive past experience, pre-accident, with massage therapy and chiropractic. However, her firm beliefs notwithstanding, there is no medical evidence that the therapies she undertook accelerated her return to work or have otherwise improved her physical condition. With regard to the palliative effect of the therapies, Ms. Redl did not experiment with trying one modality at a time. She did not experiment with lengthening the time between appointments. There is no evidence that the palliative effect of these therapies was any greater than what may have resulted from the use of over-the-counter medications. Ultimately, the evidence does not persuade me on a balance of probabilities that Ms. Redl’s physical or mental well-being is or could reasonably have been expected to be any greater as a result of undertaking these frequent therapies, than it would be if she had stuck to her pre-accident pattern of weekly or bi-weekly massage and monthly chiropractic treatments.

Minor Deductions Allowed For Benefits Under Section 83(2) Of Insurance (Vehicle) Act

When a Plaintiff is awarded damages as a result of injuries arising from a motor vehicle accident, ICBC’S lawyer will often invoke Section 83(2) of the Insurance (Vehicle) Act and argue for a reduction in the amount of “no-fault” accident benefits (Part 7 benefits) that has been awarded to the Plaintiff, arguing that the Plaintiff could or would have been entitled to such benefits under their insurance policy. This can sometimes lead to a very harsh reduction in damages.


In Stanikzai v. Bola, the Plaintiff was injured in a motor vehicle accident, and brought an ICBC claim for damages. At trial, the Plaintiff was awarded damages for loss of income and cost of future care. ICBC’S lawyer submitted that there should be deductions from these amounts to reflect benefits that the Plaintiff had received, or was entitled to receive. The Court allowed for a minor deduction, but otherwise rejected the submission from ICBC’S lawyer.


[14]        The award to the plaintiff included amounts for past income loss and cost of future care. The defendants seek to deduct $14,825.40 for benefits in respect of employment insurance as well as future physiotherapy treatments and fitness programs. The Act and Part 7 of the Regulations provide for payment of certain disability, medical and rehabilitation benefits. Where a plaintiff has been awarded a judgment, deductions are to be made for benefits the plaintiff has received or is entitled to receive.


[18]        …..     There is no evidence on this application that the employment insurance authorities would have accepted any claim for benefits the plaintiff might have made. The defendants have not met the onus of proving that this deduction is appropriate.


[20]        Some benefits are therefore mandatory under s.88(1), while others are discretionary under s.88(2). Physiotherapy is a mandatory benefit and the affidavit from the adjuster says that “ICBC will pay” for two physiotherapy sessions a year for 18 years at a cost of $17.65 a session, totalling $635.40.


[21]        I agree that a deduction for physiotherapy is required and rely particularly on the adjuster’s clear statement under oath that ICBC will pay for these treatments. That is one factor that distinguishes this case from Paskall v Scheithauer, 2012 BCSC 1859 (CanLII), 2012 BCSC 1859, where an adjuster merely said that he “expects” the corporation to pay certain benefits in the future.


[22]        However, I note that the adjuster has calculated the total deduction simply by multiplying the cost of a single physiotherapy session by the number of sessions over an 18 year period. An award for cost of future care is made on the basis of the present value of the goods and services that will be required over the relevant period. The amount that the defendant is entitled to deduct should be similarly discounted to reflect the present value of those future payments. I leave it to counsel to agree on that calculation.

Court Disallows Deductions For Mandatory And Discretionary Part 7 Benefits

In Paskall v. Scheithauer, the Plaintiff was injured in a motor vehicle accident, and brought an ICBC claim for damages. The Plaintiff was awarded about $65,000.00 by a jury, and ICBC’S lawyer argued for deductions from this amount for mandatory and discretionary benefits. The Court rejected these submissions.


[11]         Some benefits are mandatory under s. 88 (1), while others are discretionary under s. 88 (2). In Li v Newson, 2012 BCSC 675 at para 14, Abrioux J. summarized some of the governing principles relevant to an application for deduction of benefits:


(a) the defendant bears the onus of proving that the plaintiff is entitled to the benefits which the defendant seeks to deduct ;

(b) strict compliance with the statute is required;

(c) uncertainty as to whether a Part 7 benefit will be paid must be resolved in favour of the plaintiff;

(d) the ability to make the deduction is not dependant on the actual receipt of benefits by the plaintiff. Issues between the plaintiff and ICBC regarding the benefits are not relevant to the deductibility by a tort-feasor from an award to the plaintiff;

(e) it is no longer a requirement that there be a match between the heads of damage for a tort award and specific heads of damages under the benefit recovery scheme;

(g) the task of the court is to estimate the amount of Part 7 benefits, if any, the plaintiff is or would be entitled to receive for the costs reflected in the future care award. It then must make the appropriate deduction;

(h) benefits under s. 88 (2) of the Regulations arise when ICBC’s medical adviser holds the opinion that the costs are “likely to promote the rehabilitation” of the plaintiff. The term “rehabilitation” is defined in s. 78 of the Regulation as follows:

“Rehabilitation” means the restoration, in the shortest practical time, of an injured person to the highest level of gainful employment or self-sufficiency that, allowing for the permanent effects of his injuries, is, with medical and vocational assistance, reasonably achievable by him.

(i) the uncertainty of the entitlement of payment created by the Regulation may lead the court to conclude that only a nominal deduction is appropriate. Trial judges must be cautious in their approach to determining the estimate inasmuch as a reduction results in a lessening of the award in the tort action. If that is a result of uncertainty created by the Regulation, ICBC cannot be heard to complain;

(j) the court is to take into account ICBC’s discretion with respect to whether certain amounts will be paid in addition to restrictions in the Regulation with respect to amounts payable.


[14]         The examiner’s stated expectation falls far short of the evidence required. Before discretionary benefits can be paid, s. 88(2) requires an opinion from “the corporation’s medical advisor”. No evidence from any such person has been put forward. The expert who provided a care opinion for the defendant at trial is an occupational therapist. There is no evidence that ICBC accepts her in the capacity of its “medical advisor” for purposes of s. 88.


[15]         Although the opinion of a medical advisor is a precondition to the payment of discretionary benefits, the corporation is still not bound to pay them. The examiner’s expectation is no more than an opinion about what his employer will do in the future. There is no evidence that he has the authority to make that decision and no explanation of the basis on which he feels able to express an opinion on what the corporation will do for the remainder of the plaintiff’s life.


[18]         At this stage of the proceeding, I believe it is appropriate to acknowledge the fact that in cases such as this the corporation has conduct of the defence on behalf of its insured. There is certainly no evidence that the corporation now disavows the position it instructed counsel to take at trial.


[19]         Accordingly, I find that the defendant has failed to meet the onus of proving the plaintiff is entitled to the benefits for which deduction has been sought.