COURT CASES on BENEFITS (NO-FAULT)
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.
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.
In Thomas v Thompson, the Plaintiff received nearly $150,000 as a present day value for future care for the cost of Lyrica, a pain medication. The Court deducted this entire amount from the global award, as the Plaintiff could have received payment for this under the no-fault benefits portion of his ICBC insurance policy.
[3] The plaintiff called Dr. Latimer, a psychiatrist, who had treated him and prescribed a specific medication for neuropathic pain called Lyrica in October 2006, and considered that the plaintiff might need to continue this medication for his lifetime. In cross-examination he was asked whether alternative (and cheaper) medication might be equally efficacious, and responded that it was not; that Lyrica had a significant qualitative advantage. The cost of Lyrica at the time of trial was $7,355.76 per annum. Counsel for the defendants obtained a calculation from Mr. Robert Carson dated October 6, 2010. He concluded that the present value of $7,355.76 over the plaintiff’s life expectancy was $147,939. This was evidence that the plaintiff should have provided in asserting his claim at the earlier trial. (Mr. Thomas had claimed as a cost of future care for Lyrica $235,361.28.)
[4] The defendants say that rather than ordering the payment to the plaintiff of the present value of Lyrica as a cost of future care, the court must apply the provisions of s. 83(5) of the Insurance (Motor Vehicle) Act. This section in its entirety says this:
83
(a) within the definition of section 1.1, or
(b) that are similar to those within the definition of section 1.1, provided under vehicle insurance wherever issued and in effect,
but does not include a payment made pursuant to third party liability insurance coverage.
(2) A person who has a claim for damages and who receives or is entitled to receive benefits respecting the loss on which the claim is based, is deemed to have released the claim to the extent of the benefits.
(3) Nothing in this section precludes the insurer from demanding from the person referred to in subsection (2), as a condition precedent to payment, a release to the extent of the payment.
(4) In an action in respect of bodily injury or death caused by a vehicle or the use or operation of a vehicle, the amount of benefits paid, or to which the person referred to in subsection (2) is or would have been entitled, must not be referred to or disclosed to the court or jury until the court has assessed the award of damages.
(5) After assessing the award of damages under subsection (4), the amount of benefits referred to in that subsection must be disclosed to the court, and taken into account, or, if the amount of benefits has not been ascertained, the court must estimate it and take the estimate into account, and the person referred to in subsection (2) is entitled to enter judgment for the balance only.
[5] I am satisfied that the Part 7 benefits available to the plaintiff exceeded the present value of those benefits and judgment may not be entered for them.
WHEN YOU DISENTITLE YOURSELF to YOUR INSURANCE COVERAGE
In Kirk v Kloosterman, the Plaintiff did not have a proper motorcycle licence when he was struck by another vehicle, so ICBC was of the position that he had breached his insurance policy, and was consequently not entitled to any “no-fault” benefits. The Court held that a Plaintiff who disentitles himself to his own insurance policy can be faced with a statutory deduction in a tort claim, in this case $200,000.
[10] Ms. Kloosterman says the law is clear and settled: if the plaintiff acts so as to disentitle himself, then the Court must calculate and apply the deduction. She argues that Mr. Kirk would have been entitled to benefits under Part 7, had he possessed a valid driver’s licence.
[11] It is plain that the legislative intention is to prevent double recovery, that is, to prevent a plaintiff from recovering the same amount of monies both by way of the defendant through a tort action and by way of no-fault insurance coverage. Given the legislative intention, it seems harsh and even punitive to not only deny a plaintiff, who has been found substantially not at fault in a motor vehicle collision and awarded damages for losses sustained, no-fault benefits but also to deduct the amount of his or her potential entitlement to Part 7 from the tort award. However, the case law is binding on me, and can only be construed differently by the Court of Appeal: see Baart v. Kumar 1985 CanLII 146 (BC CA), (1985), 66 B.C.L.R. 1 (C.A.); Si v. Enns, 2001 BCSC 1120 (CanLII), 2001 BCSC 1120.
[12] Accordingly, I accept the defendant’s submissions on this issue and find that there must be a deduction.
WHEN THERE IS NO GUARANTEE YOU WILL RECEIVE BENEFITS THROUGH ICBC in the FUTURE
In Gignac v Rozylo, the result was more favorable to the Plaintiff. ICBC had argued for a deduction of a portion of the award for cost of future care, claiming that the Plaintiff could obtain payments for this under the “no fault” portion of his insurance coverage with ICBC. The Court disagreed, only allowing a $2,000 deduction, rather than the $25,000 deduction sought by ICBC.
[21] However, as the applicant points out, the Blue Cross plan does not reimburse the plaintiff for 100% of his expense. For example, according to the evidence at trial, the plaintiff was paying $60 per visit for physiotherapy, and $37.50 per visit for massage therapy. The Blue Cross plan provides $10 per visit for physiotherapy and, for massage therapy, $10 per visit for 8 visits, with a maximum of $750 per year. The plaintiff would be entitled to benefits under the plan for the excess of his expenditure over the Blue Cross contribution, up to the maximum allowed under the plan.
[22] I find the plaintiff entitled to those benefits. There is a risk of double recovery for the future costs of medications, physiotherapy and orthopaedic therapy. I assess the present day value of the plaintiff’s entitlement for those items at $2,000. The assessment on costs of future care will be reduced accordingly.
[29] Alternatively, if I am wrong in my interpretation of the legislation, and ICBC policy is a relevant factor, then the applicant has not persuaded me that it is more likely than not that this plaintiff is entitled to the benefits in controversy. The scales are evenly balanced. Policy may authorize the benefit or it may not. According to Ms. Lewko:
11. It is ICBC policy that the exercise of discretion for permissive benefits must be rationally connected to the relevant factors governing an objective assessment of the entitlement to the benefit.
That is a level of abstraction which does not allow for a determination of entitlement on a balance of probability.
[30] In result, the cost of future care assessment is reduced by $2,000.
In other words, there is no guarantee that ICBC would make the payments anyways, so the Court would not agree to the deduction that they sought.
In Boota v Dhaliwal, the Plaintiff was awarded $28,205 for cost of future care. The trial judge deducted the nominal amount of $1,000 from this amount, believing that the Plaintiff would likely not be paid the full amount for future care in the future by ICBC. The lawyer for ICBC had argued that it should have been a far greater amount than this. The British Columbia Court of Appeal dismissed ICBC’S lawyer’s appeal.
[82] That leaves for consideration the question of the award of $28,205 for future cost of care and whether the trial judge erred in making only a nominal estimate under s. 25.
[83] The s. 25 estimate should be, as it was here, based upon the evidence and arguments advanced at the trial: Coates v. Marioni, 2009 BCSC 686 at para 35; Schmitt v. Thomson (1996), 132 D.L.R. (4th) 310, 70 B.C.A.C. 290 at para. 19.
[84] Section 25(5) says that the “court must estimate” the amount of benefits to which the claimant is entitled. That necessarily involves some kind of itemized examination of benefits that the appellant may claim in the future under Part 7. After all, how else is the court to perform the estimate? Gurniak has been interpreted to mean that this s. 25 assessment or estimate is not to be matched with heads of damage claimed in the tort action for deductibility purposes, but that interpretation does not preclude the court from taking into account the itemized amounts claimed in the tort claim when making its estimate under s. 25. I recognize that in advancing its s. 25 claim the respondent is not limited to specific items claimed by the appellant in the tort action, although usually one would expect some overlap between the future cost of care and the estimate of items to be deducted under s. 25.
[85] The trial judge may exercise caution in her findings about the likelihood that ICBC would in the future pay any benefits under s. 88 of the Regulations: Schmitt at para. 19. The trial judge may have regard to the position taken at trial. (Uhrovic v. Masjhuri, 2008 BCCA 462, 86 B.C.L.R. (4th) 15 at paras. 37–42). Should the trial judge take into account the verdict in her assessment of the likelihood of payment? In my view that is one of the considerations that may be taken into account in adopting a cautious approach. In my view, the trial judge may properly infer that the same considerations propounded by ICBC at trial, and which appear to have been reflected in the damage award, may determine ICBC’s position on an application for payment of future benefits.
[86] In summary, the Court may take into account the evidence and submission on necessity and causation in assessing the likelihood of ICBC paying the Part 7 expenses. This is so because those same factors are pre-conditions for payment under Part 7. It was implicit in the comments of the trial judge at paras. 51 and 53 of her reasons for judgment that she considered the appellant was unlikely to be entitled to receive payment under Part 7. I cannot say that she erred in her conclusion. I would not accede to this argument.
EXPENSES INCURRED for TREATMENT MUST BE REASONABLE
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.
MASSAGE THERAPY
In Raguin v ICBC, the British Columbia Court of Appeal confirmed that coverage for massage therapy under your ICBC policy accident benefits is mandatory, and not merely permissive. The Plaintiff had sought reimbursement for massage therapy costs, however ICBC had refused. The Plaintiff was successful at trial, and the decision was upheld on appeal. This is an important decision for injured claimants, as, previously, ICBC would not provide massage therapy benefits beyond eight weeks of the accident.
[31] The following observations about ss. 88(1) and (2) are uncontentious. The imperative word “shall” is used in relation to ICBC’s obligation to pay for the benefits described in s. 88(1), making such payments mandatory. Under s. 88(2), ICBC is given discretion, as indicated by the permissive word “may”, to pay for additional benefits that are “likely to promote the rehabilitation of an insured who is injured in an accident”.
[32] Although the benefits listed in s. 88(1) are mandatory, ICBC has a limited power to challenge an insured’s claim made under that subsection. This power is derived from the requirements that the expenses incurred must be both necessary and reasonable. In determining whether a particular treatment is necessary and reasonable, ICBC may require a medical examination of the insured under s. 99(1) of the Regulation. ICBC may also demand a medical certificate under s. 98(1) of the Regulation or a medical report under s. 28 of the Act.
[33] ICBC has referred to the maxim, expressio unius est exclusio alterius (to express one thing is to exclude another), to support its submissions. The maxim presumes that the Legislature has not erred in excluding a particular thing; if the Legislature meant to include a particular thing, it would have done so expressly: Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed (Canada: LexisNexis Canada Inc., 2008) (“Sullivan”) at 244. ICBC argues that failure to expressly include “massage therapy” alongside the comparable items “physical therapy” and “chiropractic treatment” in s. 88(1) supports that massage therapy was deliberately excluded.
[56] Physical therapy is a mandatory benefit under s. 88(1) but it is not defined in the Regulation. The dictionary definition and the definition in the related regulatory scheme define physical therapy as including massage. The Health Professions Act defines “health profession”. Regulation of health professions, such as physical therapy, includes the restriction of the provision of a designated service to a person registered to practise that specific designated health profession. Massage therapy is designated as a health profession and is governed by the Massage Therapists Regulation. Registration with the College of Massage Therapists is required and no person other than a registrant may practise massage therapy.
[57] In light of the provisions to which I have referred, ICBC’s submission that including massage therapy as a benefit payable under s. 88(1) would open the floodgates to all manner of questionable procedures is unsupportable.
[58] While the Regulation does not refer specifically to massage therapy in s. 88(1), I am of the view that, when all of the relevant provisions in the Regulation are read together with the Health Professions Act and its related Regulations, physical therapy may properly be interpreted as including massage therapy. To be payable under s. 88(1), the other requirements must be met as stated in the section; that is: “[w]here an insured is injured in an accident for which benefits are provided under this Part, the corporation shall … pay as benefits all reasonable expenses incurred by the insured as a result of the injury for … necessary physical therapy … .”
[59] In this case, the respondents’ doctor recommended massage therapy as part of the infant plaintiffs’ recovery. There is no suggestion that the recommended treatment was unnecessary or provided by someone other than a registered massage therapist, or that the expense was unreasonable.
TRAVELING EXPENSES
In Wepryk v. Duraschka, the Plaintiff was injured in a motor vehicle accident, and brought an ICBC claim for damages. An issues that arose was reimbursement of certain traveling expenses, such as parking and mileage costs. The Court held that such costs are “an integral part of necessary treatment” and, as such, should be awarded under Part 7 of a claimant’s policy.
[10] I also agree that $22.50 for parking should be deducted as a component of travelling expenses for treatment. Travelling expenses are an integral part of necessary treatment and as such are a benefit subject to deduction: Petersen v. Bannon, (1991) 1 C.C.L.I. (2d) 232 (B.C.S.C.).
[11] The plaintiff also claimed car expenses for driving to and from medical appointments at a rate of .50¢ per kilometre, and I awarded the entire amount of $1,368.90 claimed by the plaintiff on the basis of her calculations. The defendants originally submitted that the entire amount of $1,368.90 should be deducted, but now say the deduction should be $684.45. According to ICBC’s Claims Procedure Manual for Accident Benefits, ICBC will only reimburse the use of one’s own vehicle at a rate of .25¢ per kilometre. Therefore, one half of the $1,368.90 awarded at trial, or $684.45, should be deducted for driving expenses.
