If my medical team recommends that I attend a pain clinic for my crash injuries, can ICBC be compelled to pay for this expense up-front?
In a 2015 decision of the BC Supreme Court (Park v. Targonski, 2015 BCSC 1531), Mr. Justice Finch was asked to assess Part 7 deductions from a prior trial award. Part 7 benefits are available to most BC residents injured in a motor vehicle collision. These are benefits that ICBC can be forced to pay regardless of fault for the collision, and the Regulations provide benefits that are mandatory (for which ICBC “shall pay”) and other categories of discretionary benefits (for which ICBC “may pay”). There are complexities regarding entitlement that go far beyond the scope of this post, and I strongly suggest consulting a lawyer for further information.
When a personal injury case goes to trial, the defendant driver (often through their ICBC-appointed lawyer) is able to deduct any paid or payable Part 7 benefits from the amount awarded to the victim. Against this backdrop, Mr. Justice Finch was assessed whether the future expense of a pain clinic was a mandatory Part 7 benefit. After summarizing previous case law on this point, he provided his decision that a pain clinic focused on necessary physical therapy is a mandatory Part 7 benefit:
[46] …I am of the view that a pain clinic focused on “necessary physical therapy” is a mandatory benefit; one that shall be paid by ICBC even in circumstances where it is anticipated that psychological issues may arise in the implementation of the program.
[47] As noted in Ayles v. Talastasi, 2000 BCCA 87 at para. 32:
As a claim covered by s. 88(1) I.C.B.C. is obliged to pay the benefits. It is not a matter of discretion under s. 88(2) where entitlement depends “on the opinion of the corporation’s medical adviser”. The risk in deducting too much from the tort award for discretionary benefits is that I.C.B.C. may ultimately refuse to pay on items which although found to be compensable in the tort claim were deducted on the assumption that they would be paid as a no fault benefit. In that instance the claimant is out of pocket for the expense and I.C.B.C. enjoys a windfall. But here the class of future expense is obligatory, not discretionary, and so the plaintiff does not stand to lose anything by the deduction. It is only in circumstances where the classification of the future cost is unclear or an issue arises whether the item is covered by Part 7 at all, that some caution is required.
[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.
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