I have been awarded damages to help pay the cost of my future care. Now the defendant in my case is seeking to have my award reduced because my own ICBC insurance MIGHT pay for those costs. Given how hard I had to fight ICBC to fund my care in the past, I’m worried that the same will happen in the future and I will be left to pay out of my own pocket. This isn’t fair.
In a personal injury case the courts rule on what amount of damages the plaintiff is entitled to in the lawsuit against the defendant. In order to avoid double recovery, after the judgement is given on damages, the defendant can then apply for those damages to be reduced by the amount that is covered by the plaintiff’s own Part 7 benefits, Part 7 benefits being the no-fault benefits that every insured person is entitled to. Under the law, some Part 7 benefits are mandatory and some are discretionary with the entitlement of the discretionary benefits relying on the opinion of ICBC’s medical adviser. There is a risk that too much can be deducted from the tort award for those discretionary benefits. The risk being that ICBC might ultimately not find the benefits to fall under the no fault benefit umbrella and at this point the plaintiff would have to pay for that care out of their own pocket. It’s a “win-win” for an insurance corporation covering both the plaintiff and the defendant, which is the case in most motor vehicle collisions in British Columbia. It’s up to the courts to decide what is reasonable, fair, and likely to happen.
In the recent case Olson v. Farran (2016 BCSC 2149) the plaintiff had been awarded damages after being injured in a collision. The defendant had applied for the trial award of costs of future care and special damages to be reduced by amounts payable under the plaintiff’s own Part 7 no fault benefit entitlement in order to avoid double recovery.
In this case, Mr. Justice Pearlman looked at ICBC’s spotty history of benefit payment to this plaintiff as an indicator of what to expect from them in the future.
[23] However, ICBC only paid these benefits after persistent and prolonged urging by the plaintiff’s solicitor and care providers. Payments were often late, and at times erratic. For example, massage therapy received by the plaintiff in September 2013 was not reimbursed until September 2014. Ms. Olson received no reimbursement for massage therapy undertaken in June and July 2014. The plaintiff discontinued her massage therapy in August 2015 after the Corporation ceased to respond to her requests for reimbursement.
[24] The Corporation provided only partial and intermittent funding for the program of kinesiology and personal training recommended by the plaintiff’s care providers.
[25] On several occasions between the time of the accident and the time of trial, ICBC only reimbursed the plaintiff for medications six months or more after their purchase, or did not reimburse the plaintiff at all.
While damages were reduced by the amount of the mandatory Part 7 benefits owed to the plaintiff, Mr. Justice Pearlman declined to reduce the award for benefits that had no assurance of being paid by ICBC:
[69] The award for massage therapy was based on Dr. Abbey’s recommendation that Ms. Olson continue to receive massage therapy for flare-ups of her low back and hip pain.
[70] In light of the Corporation’s past delayed or partial reimbursement for these therapies, I am not satisfied that the full amounts will be reimbursed.
[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.
[78] The deductions from the award of costs of future care for Part 7 benefits total $4000.
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