Medical Advisor Opinion a Prerequisite For Post Trial Discretionary Benefit Deduction
I have previously discussed Part 7 benefits deductions following BC motor vehicle collision injury trials. ¬†In short, a Plaintiff’s damages are to be reduced by the Part 7 benefits (past and future) that they are entitled to.
Two sets of reasons for judgement were recently released by the BC Supreme Court,¬†Vancouver¬†Registry, addressing this deduction finding that before a Court can deduct damages for ‘discretionary’ Part 7 benefits there must be evidence of the corporation’s medical advisor.
In the first case (Paskall v. Scheithauer) the Plaintiff was awarded just over $65,000 by a jury for her injuries. ¬†ICBC sought to deduct mandatory and¬†discretionary¬†Part 7 benefits from this amount. ¬†In discussing the burden required for these deductions and in¬†denying¬†the¬†application¬†Mr. Justice Smith provided the following reasons:
3]¬†¬†¬†¬†¬†¬†¬†¬†¬†The replacement hearing aids and related expenses are a discretionary benefit under s. 88(2). The defendant has provided an affidavit from an ICBC claims examiner who says that the corporation paid for a hearing aid on one occasion, in January 2007, and who says: ‚ÄúI expect ICBC will continue to re-imburse reasonable incurred hearing aid expenses‚ÄĚ.
¬†¬†¬†¬†¬†¬†¬†¬†¬†The examiner‚Äôs stated expectation falls far short of the evidence required. Before discretionary benefits can be paid, s. 88(2) requires an opinion from ‚Äúthe corporation‚Äôs medical advisor‚ÄĚ. 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 ‚Äúmedical advisor‚ÄĚ for purposes of s. 88.
¬†¬†¬†¬†¬†¬†¬†¬†¬†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‚Äôs 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‚Äôs life…
¬†¬†¬†¬†¬†¬†¬†¬†¬†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.
¬†¬†¬†¬†¬†¬†¬†¬†¬†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 the second case (Stanikzai v. Bola) the Plaintiff was awarded just over $189,000 following trial. ¬†ICBC sought to deduct some $16,000 in Part ¬†7 items. ¬†In disallowing the majority of these Mr. Justice Smith echoed his earlier comments stating as follows:
¬†¬†¬†¬†¬†¬†¬†¬†¬†In her affidavit, the adjuster says that such a fitness program is ‚Äúsimilar to physiotherapy‚ÄĚ and therefore a mandatory benefit under s. 88(1). I cannot accept that assertion. Section 88(1) refers to ‚Äúphysical therapy‚ÄĚ, which presumably means therapy by a licensed physiotherapist. It also refers to certain other specific forms of therapy. It does not refer to services by other professionals that may be ‚Äúsimilar‚ÄĚ to the named therapies.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Having regard to the requirement for strict compliance with the¬†Act¬†and its¬†Regulations, the training program is not a mandatory benefit under s. 88(1). I accept that it could qualify as a discretionary benefit under s. 88(2), but under that section an opinion from ‚Äúthe corporation‚Äôs medical advisor‚ÄĚ is a precondition to payment. There is no evidence of any such opinion. The defendants have failed to prove a basis for that deduction.
Tags: bc injury law, Mr. Justice Smith, Paskall v. Scheithauer, Section 83 Insurance (Vehicle) Act, Section 83(5) Insurance (vehicle) Act, section 88 insurance (Vehicle) Regulation, Section 88(2) Insurance (Vehicle) Regulation, Stanikzai v. Bola