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Deductibility of Part 7 Payments

If ICBC advances me some money to pay for my treatments or medication, will that money be deducted off of my eventual settlement?

In the recent British Columbia Supreme Court Case Norris v Burgess (2016 BCSC 1452), Justice Funt discussed the deductibility of various paid or payable amounts from a jury award of $462,374.00.  The defendants asserted that following four distinct amounts should be deducted from the award:

  • Temporary Total Disability benefits of $54,966.33 (previously paid to the plaintiff by ICBC)
  • A tort advance of $2,000.00 (previously paid to the plaintiff by ICBC)
  • Part 7 benefits of $68,660.00 (previously paid to the plaintiff by ICBC)
  • $16,660.00 (the plaintiff’s entire cost of future care award, which the defendant argued ICBC would pay as the costs actually arose)

While the plaintiff agreed that items A and B should be deducted (that is – the tort award and the disability benefits), there was dispute regarding the deduction of Part 7 benefits paid (item C) and payable (item D).

Justice Funt declined to deduct the $68,660.00 in past Part 7 benefits from the jury award, given that the plaintiff’s counsel had put forward only net special damages.  That is, rather than presenting special damages inclusive of both paid and unpaid amounts (which would have run up to about $100,000.00), counsel for the plaintiff deducted the amount already paid from the special damages and only presented a claim for the remainder.  With no risk of double recovery, there was no reason to deduct the paid amounts.

Lastly, on the issue of the deductibility of future care, Justice Funt allowed a reduction of $13,230.00 to the future care award – noting that ICBC may not pay the full cost of some of the care indicated:

[35]         ICBC is an agent of the government. The Court will not presume that the future conduct of ICBC will be other than honourable. A deduction under s. 83(5) of the Insurance (Vehicle) Act is based on entitlement and “not on the possibility that claims may be unfairly adjusted in the future”: Ayles (Guardian ad litem of) v. Talastasin (2000), 73 B.C.L.R. (3d) 60 at para. 70 (C.A.).

[36]         With respect to $2,200 of future medications, if a medication is prescribed and is not excluded by s. 88(6) of the Insurance (Vehicle) Regulation, ICBC has committed to pay it. I will allow the deduction of $2,200 for future medications from the jury award, subject to a present value adjustment discussed below.

[37]         With respect to the further three amounts, ICBC has also committed to pay these “as the services … are used and the expenses incurred”. I understand ICBC’s commitment applies whether the services fall under either s. 88(1) or (2) of the Insurance (Vehicle) Regulation.

[38]         Pragmatically speaking, I do not foresee payments for occupational therapy services or a rehabilitation support kinesiologist being limited by ICBC’s policies. The fees are unlikely to be significantly capped. Accordingly, I will allow the deductions ICBC seeks for these two items, subject to a present value adjustment. With respect to psychological intervention/counselling/ assessment, uncertainty exists as to whether fees may be limited. I will reduce the $10,920 claimed deduction by 25% to take into account possible fee caps. Accordingly, the deduction allowed for this item is $8,190, subject to a present value adjustment.

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