ICBC Law

BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Posts Tagged ‘UMP Deductions’

CPP Children's Benefits Not Deductible From ICBC UMP Compensation

May 14th, 2012

While ICBC can deduct Canada Pension Plan disability benefits from an UMP Claim, can the same be done for additional “Children’s Benefits” paid by the CPP?   Arbitrator Yule addressed this question in an UMP Arbitration Decision that was recently provided to me.  In short Arbitrator Yule held that Children’s Benefits are non-deductible.

In the unpublished decision (H v. ICBC) the Plaintiff was awarded damages following a jury trial.  The Plaintiff applied for payment under his own UMP Coverage as the at-fault motorist was underinsured.  While the parties largely agreed on the deductibility of past CPP benefits from ICBC’s payment obligations, they could not agree on whether the additional CPP funds the Plaintiff received as “Children’s Benefits” were deductible.  In finding that they were not Arbitrator Yule provided the following reasons:

37.  In one sense it may well be thought that it must be a “benefit” to the Claimant to receive money (which must be paid to him in these circumstances) under a statutory scheme (the CPP) which imposes no constraint on his use of the monies.  On the other hand, it seems to me the underlying rationale for the payment of the disabled cobtributor’s child’s benefit is the expectation that the money will be used by the recipient in a general way in the partial discharge of the recipient’s legal duty to support and maintain the children who are entitled to the benefits.  In this sense, I think the benefit or right is that of the child and not of the parent or custodial person.  It is significant that the benefits payable under Division A of Part II of the CPP, one is described as “a disability pension” (what the Claimant receives on account of his own disability) and another – the benefit at issue – is described as “a disabled contributor’s child’s benefit” [emphasis added].  It is difficult to transform what the statutory CPP scheme describes as “a child’s benefit” into the parent’s/custodial person’s benefit for the purpose of s. 148.1(1)(i).  At least here where the monies are payable under another statutory scheme, I think “benefit: or “right” in s. (f.2) should be guided by the description of the benefitin the statory scheme, and where the statutory scheme itself defines the benefit as the child’s beneift, it shoudl be considered to be the child’s benefit.  This interpretation also  maintains consistency with the construction of ss. (f.2) where I have concluded that the entitlement to the child’s benefit is that of the child.

38.  Accordingly I conclude that the children’s benefits paid to the Claimant are not deductible from his UMP Compensation.

Like many UMP Cases, This decision is not publicly available but, as always, I’m happy to provide a copy to anyone who contacts me and requests one.


Contributory Negligence Finding Does Not Reduce Deductions in ICBC UMP Claim

May 7th, 2012

In my ongoing efforts to summarize historic UMP Arbitration decisions, I have recently been provided a 2005 arbitration award dealing with several issues including the deduction of CPP benefits in circumstances where a Plaintiff was found contributorily negligent.

In the 2005 case (H v. ICBC) the Claimant was injured in a 1996 collision.  His claim proceeded to trial and his damages were assessed at just over $316,000 by the Jury.  The Plaintiff was also found 10% contributorily negligent for failing to wear a seat belt.

The Defendant was underinsured and the Plaintiff applied under his own UMP Coverage for payment of damages.  The Plaintiff had received CPP disability benefits of just over $65,000.  ICBC sought to deduct the whole of this amount from the Plaintiff’s UMP claim.  The Plaintiff opposed arguing that only 90% of the past payments should be deductible in keeping with the Jury’s finding.

Arbitrator Yule disagreed with the Plaintiff finding CPP benefit deduction can’t be reduced due to a contributory negligence finding.  In coming to this conclusion Arbitrator Yule provided the following reasons:

8…Section 148.1(5) provides that an award of UMP compensation shall not exceed the amount of damages awarded, “minus the sum of the applicable deductible amounts”.  As noted previously, one of the deductible amounts is an amount to which the insured is entitled under the Canada Pension Plan.  On its plain wording, the full amount of the disability benefits to which the Claimant is entitled under the Canada Pension Plan are to be deducted from his UMP Claim.  There is nothing in the wording of the UMP Regulations to suggest that deductible amounts are to be reduced in accordance with the percentage recovery of the Claimant.  As the Respondent correctly argues, Part 7 payments, which a re also a deductible amount, are deducted in full regardless of the percentage recovery of a Claimant.

Like many UMP Cases, This decision is not publicly available but, as always, I’m happy to provide a copy to anyone who contacts me and requests one.


Future LTD Benefits Not Deducted in ICBC UMP Claim Due to Payment Suspension Clause

March 30th, 2012

In my ongoing efforts to summarize UMP Arbitration decisions, a stack of historic UMP cases have recently been provided to me by colleagues in the Plaintiff bar which I will post as time permits.  To this end, below is a summary of a useful 1999 decision addressing the deductibility of future Long Term Disability Benefits in an UMP Claim.

In the 1999 decision (M. v. ICBC) the Claimant was severely injured in a 1993 collision.   The Claimant and ICBC came to a mediated settlement valuing the claim at $1.2 million.  The Defendant was under-insured and an arbitration was held to determine what amounts were deductible from the Claimant’s UMP coverage.

The Claimant had a private policy of insurance with Canada Life.   They had paid over $70,000 in LTD benefits.  It was agreed that these were deductible.   ICBC argued that these payments would continue and the present value of future payments had to be deducted from the settlement amount.

Arbitrator Yule disagreed due to a ‘payment suspension‘ clause in the LTD contract.  In not deducting future LTD payments from Canada Life Arbitrator Yule provided the following reasons:

79.  …The critical provision regarding what is payable in the subrogation provision is the term that says “if a lump sum payment is made under judgment or settlement for loss of future income or for future period or lump sum benefits which would otherwise be payable under this policy, no further benefits will be paid under this policy until such time as the monthly or periodic benefits which would otherwise be payable under this policy equal the amount received in the lump sum”…

81. …One looks to the ICBC Regulations and, in this case, the definition of deductible amount.  One item to be deducted is an amount “payable to the insured under any benefit”.  One then looks to the Canada Life Policy to see whether the future disability benefits will be payable in the sense that they are going to be paid.  In this case, the result of the payment of the UMP Claim is that the future Canada Life benefits will not be paid because of the integration provisions of the Policy.  In my view, then, the future Canada Life benefits are not payable and do not constitute a deductible amount.

Like many UMP Cases, This decision is not publicly available but, as always, I’m happy to provide a copy to anyone who contacts me and requests one.


More on ICBC UMP Deductions: Costs, Disbursements and MSP Payments

December 28th, 2011

In my on-going efforts to create a searchable UMP Claims Database, reasons for judgement were recently released addressing the deductibility of previous payments for Costs, Disbursements and ICBC paid MSP treatments in an UMP proceeding.  In short the MSP payments were found to be deductible under UMP while the costs and disbursements payments were not.

In the recent case (X v. ICBC) the Claimant was a personal injury lawyer.  He was involved in a 2004 collision.  He initially sued for damages.  The lawsuit was disposed of for payment of the underinsured defendant’s policy limits of $200,000 plus costs and disbursements with the parties agreeing have the value of the claim being privately arbitrated.

The Claimant alleged that he suffered a mild traumatic brain injury and sought damages “well over $1 million“.  This claim was largely rejected with the arbitrator assessing damages at just over $276,000.  The parties agreed that the $200,000 previous payment was deductible but could not agree whether the additional $22,575 ICBC paid for costs and disbursements were deductible from the UMP assessment.  Arbitrator Boskovich held that it was not and provided the following reasons:

538.  The codified applicable deductible amounts are very clear and not one of them contemplates a deduction for the costs and disbursements associated with a payment made:

  • pursuant to Section 20 or Section 24;
  • paid or payable under a Part VII;
  • paid by the underinsured motorist as damages;
  • paid or payable under a certificate, policy or plan of insurance providing third party legal liability indemnity to the underinsured motorist;
  • paid or payable under vehicle insurance, wherever issued and in effect, providing undersinsured motorist protection for the same occurrence for which the underinsured motorist for protection is provided under this section;
  • paid or payable to the insured under any benefit or right or claim to indemnity; and
  • paid or able to be paid by any other person who is legally liable for the insured’s damages.

539.  On their own, the costs and disbursements paid do not fall under a payment of any “benefit or right or claim to indemnity”.

540.  I do not find the $23,575.17 paid by the Respondent for the costs and disbursements associated with the underlying tort claim to be an applicable deductible amount pursuant to the UMP Regulation.

ICBC went on to argue that the MSP payments they made under the Claimant’s Part 7 Benefit plan were deductible from the damage assessment.  Arbitrator Boskovich agreed and provided the following reasons:

544.  The payments made by ICBC to the Medical Services Plan of British Columbia for the various medical visits listed are payments made pursuant to Part VII as medical benefits and are a codified applicable deductible amount pursuant to Section 148.1(1)(c).  There will be a deduction of $551.36 for these payments.


Future CPP Benefits and ICBC UMP Deductions

December 13th, 2011

Last year an arbitration award was released addressing the deduction of future CPP benefits from an ICBC UMP Claim.

In last year’s case (ME v. ICBC) the 32 year old Claimant was severely injured in a 1997 motor vehicle collision.   She suffered serious brain trauma and as a result “was left functioning at a Grade 7 level in terms of her academics“.  Despite her long term injury the “very ambitious” claimant re-entered the workforce and by the time of her arbitration she had secured full time employment.  Prior to this the Claimant had received CPP benefits totally$78,542.94.  These benefits were terminated with the Plaintiff’s return to work.  It was agreed that ICBC could deduct this prior to paying out on the Claimant’s UMP Claim.

The parties could not agree as to how much more ICBC could deduct given the possibility of future CPP payments.  ICBC argued that the present day value of future CPP benefits should deducted, namely $135,652.  Arbitrator Boskovich found that while such a deduction would be unreasonable a modest deduction should apply to address the reality that the Plaintiff may at some point in the future receive CPP benefits.  Arbitrator Boskovitch reduced ICBC’s UMP payment by just over $20,000 to take this risk into account.  In doing so the following reasons were provided:

102.  I agree with Counsel that the standard of proof to be applied to future hypothetical events is simple probability and not the balance of probabilities.  That being said it remains that the probability, possibility or chance that a future event may occur, in this case the Claimant applying for and receiving CPP disability benefits in relation to her accident injuries, must be a real and substantial one.

103.  In addressing whether or not there is a real and substantial possibility of the Claimant receiving CPP disability benefits in the future one has to consider the relative likelihood of both positive and negative contingencies that might affect the Claimant’s ability to work and the anticipated course with respect to her accident injuries/disabilities…

116.  It has been 13 years since the accident.  2010 will be the first full year of employment the Claimant has maintained since the accident.  To assume the Claimant’s accident injuries, in particular, her very serious brain injury and deficits are going to have no impact on her ability to work to age 65 is unreasonable.

117.  However, it does not automatically mean that the impact translates into a real and substantial risk that the Claimant will face a severe and prolonged mental or physical disability such that she is not substantially gainfully employable as defined in the CPP Legislation.

118.  That is not to say there is no risk whatsoever.  I cannot ignore the concerns outlined by the Claimant’s Mother.  As well, I cannot ignore the evidence of Dr. LeBlanc.  It may be difficult for the Claimant to find jobs over the course of her working life.  Such jobs must have structured routine, few distractions and no multi-tasking.  Her cognitive issues may be aggravated in unfamiliar and stressful situations.

119.  Having regard to all of the evidence, I believe there is a 15% chance or possibility that the Claimant will apply for and receive disability benefits from CPP in connection with her accident injuries.

120.  The parties agree that the present day value of the CPP disability payments to the Claimant’s age 65 is $135,652.00 and, in this regard, the appropriate contingency deduction to be made pursuant to Regulation 148.1(1)(f) is $20,347.80

For more on this topic you can click here to read my summary of the 2008 UMP Arbitration Award in SPW v. ICBC.


CPP Benefits Deductions in UMP Claims Discussed – The Likelihood of Payment Test

August 18th, 2011

Section 148.1 of the Insurance (Vehicle) Regulation requires “an amount to which an insured is entitled to under the Canada Pension Plan” to be deducted from UMP claims.  Continuing in my efforts to summarize ICBC UMP decisions, reasons were released addressing this deduction following a serious injury caused by an uninsured motorist.

In SPW v. ICBC the Claimant suffered various injures due the carelessness of an uninsured motorist.  Following arbitration the Claimant’s diminished earning capacity (future wage loss) was assessed at $575,000.  The Claimant was receiving CPP disability payments and if these were continued to be received the present value of the future payments equalled $123,500.  Arbitrator Boskovich had to determine what amount of these benefits should be deducted pursuant to section 148.1.  In deducting 50% of these benefits the Arbitrator provided the following reasons:

165.  In order to determine if future payments should be considered as “applicable deductible amounts” under the Regulations the law is quite settled that there has to be some evidentiary foundation to determine likelihood of the continuance and certainty of such future payments.  The onus of proof that these payments will continue is on the Respondent (ICBC).  While the evidence given with respect to payments having been received in the past is of assistance, it does not provide conclusive evidence that the payments will continue in the future.

166.  That being said, having regard to the submissions delivered by counsel and the admissions made by the Claimant and his counsel and my own findings that the Claimant does have some residual earning capacity, which may or may not translate into income depending on what the Claimant does vocationally, I find there is a 50% contingency of the likelihood that his CPP payments will continue in the future and in this regard 50% of the net present value of the future payments should be deducted from the award.

This case is also worth reviewing for the assessment of non-pecuniary damages for the Claimant’s serious injuries.  In assessing this loss at $175,000 the Arbitrator made the following findings:

23  ….he had suffered multiple injuries, including a complex pelvic fracture with separation of the symphysis pubis and fracture of the right sacrum, a left tibiofibular fracture, a fractured right humeral shaft, fracture of his left second rib, as well as a large laceration to his right thigh and multiple cuts and abrasions.

74.  …those injuries have impacted his ability to walk, his gait and balance and have resulted in neck and lower back pain.  He has been left with chronic discomfort, restricted mobility and reduced ability to participate in physical activities.  I find that his present disability is entirely related to the motor vehicle accident…

77.  After considering the authorities submitted I find, having regard to the horrific circumstances of this accident, the nature of the injuries, the ongoing pain and the residual permanent disability which has resulted in a devastating change in the Claimant’s quality of life, that he is entitled to non-pecuniary damages of $175,000.


Gross Past Tort Payments Deductible in ICBC UMP Claims

July 27th, 2011

This is the second in my series of UMP Case Summaries.  In today’s case (LD v. ICBC) the arbitrator had to address whether legal fees can be taken into account when considering the deductibility of past tort payments.

In LD the Claimant was involved in as 2003 collision in California.  The Claimant was insured with ICBC and had UMP coverage.  The at fault motorist only had $25,000 in Third Party Liability coverage and ICBC agreed that the Claimant’s claim exceeded this amount.

The parties agreed to have the value of the claim determined via UMP Arbitration.  Total damages of $86,608.31 were assessed.  Prior to this the Claimant already settled with the Defendant’s insurer for the policy limits of $25,000.  She had to hire counsel to achieve this result and after legal fees she received $16,054.

The Claimant argued that only the $16,054 should be deducted from the UMP damage assessment.   The arbitrator (Donald Yule) disagreed and deducted the full $25,000.  In doing so he provided the following reasons:

ICBC, however, submits that the correct deductible amount is what the M’s liability insurer was obliged to pay, namely $25,000.   (This position) is supported by the decision of Arbitrator Paul Fraser, Q.C. in Cederberg v. ICBC (May 18, 1995)….As Mr. Fraser concluded, the obligation to pay attorney’s fees arose out of a separate and independent contract with the attorney which, in no way, reduce the amount paid by the tortfeasor or payable by the tortfeasor’s insurer.  I agree with his analysis.  The full amount of the settlemetn of the M’s liability insurer is therefore a deductible amount.

This decision is also worth reviewing for the non-pecuniary damage assessment.  The Plaintiff suffered various soft tissue injuries.  Non-pecuniary damages were assessed at $55,000.  In doing so Arbitrator Yule made the following findings:

I find that in the accident Mrs. D suffered a Grade III whiplash associated disorder injury, bilateral thoracic outlet syndrome and right ulnar neuropathy, a Grade II lumbosacral spinal strain injury and myofascial pain in her shoulder ridge areas, and bruising to the knee.  These injuries caused headaches, interference with sleep, fatigue, irritability and anxiety.  The bruising resolved in short order.  The low back symptoms resolved within 2 years.  Headaches, and neck pain extending into the shoulders, while significantly inmproved by September, 2005, have nevertheless persisted to the date of hearing…

…I assess Mrs. D’s non-pecuniary damages at $55,000.

I should note that, adjusting for inflation, this assessment is closer to $58,000 in today’s dollars.