Application for ICBC Wage Loss Benefits Dismissed For 7 Days of Disability

The BC Civil Resolution Tribunal published reasons for judgment earlier this month dismissing an application for ICBC wage replacement benefits following 5 days of disability from a vehicle collision.

In the recent case (Cruz v. ICBC) the self represented applicant was injured in a December, 2019 collision.  His injuries caused him to miss 7 days of work.  He applied for ICBC to cover his wage loss under their no-fault benefits but they refused arguing he was not disabled enough days to qualify for benefits.  The CRT agreed and dismissed the applicant’s claim.  In doing so  Tribunal Member Kristen Gardner provided the following reasons:

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CRT Dismisses Applicant Request for ICBC To Pay Lump Sum Part 7 Benefits

Reasons for judgement were published earlier this month dismissing an applicants claim at the BC Civil Resolution Tribunal asking for ICBC to pay physiotherapy treatment expenses as a lump sum.

In the recent case (Smith v. ICBC) the self represented applicant was injured in a October, 2019 collision.  He required physiotherapy which ICBC paid for directly to the service provider.  The Applicant asked the CRT to award him $12,000 as a lump sum for treatment expenses.  The claim was dismissed with the CRT noting that while ICBC can pay a lump sum for treatment expenses doing so is entirely discretionary and continued payment of necessary treatments as they are incurred is acceptable.  In dismissing the claim Tribunal Member Kristen Gardner provided the following reasons:

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CRT Dismisses “Placeholder” ICBC Benefits Lawsuits

Earlier this year BC’s Civil Resolution Tribunal (“CRT”) noted that their forum cannot be used to preserve limitation periods for ICBC no fault benefit lawsuits where no such past benefits are outstanding.  Last week the CRT confirmed this position by dismissing such a ‘placeholder’ lawsuit.

In last week’s case (Yousefi v. ICBC) the Applicant filed a CRT action to preserve the right to seek ICBC no fault benefits should any such benefits be denied.  The CRT noted that such claims cannot be indefinitely paused and if they are not withdrawn must proceed to judgement were they will be dismissed if no past benefits are outstanding.

The CRT reached similar conclusions in two sister decision released at the same time (Shin v. ICBC and Bali v. ICBC)

In reaching such a disposition in this case  Vice Chair Andrea Ritchie provided the following reasons:

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ICBC Request for Homemaking Benefit Deduction From Jury Award Denied

In recent months ICBC is getting more aggressive in separating part 7 benefits claims and tort claims.  In addition to seeking to settle tort claims while leaving part 7 benefits claims open ICBC also appears to be bringing more applications for post trial deductions of part 7 benefits.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, considering and rejecting an ICBC request to deduct significant damages from an award for future care.

In today’s case (Canning v. Mann) the Plaintiff was injured in a 2015 collision.  She was rendered totally disabled as a result.  At trial a jury found the Defendant 80% at fault for the crash.   Damages were assessed including substantial damages for future care.  The Defendant brought an application seeking to reduce the award by over $130,000 arguing that an ICBC homemaking benefit is available.  Mr. Justice Basran rejected this argument noting this is a discretionary benefit and the test for securing it was not met.  In dismissing this portion of the application the Court provided the following reasons:

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$72,000 Part 7 Benefits Deduction Ordered Following Tort Trial

Reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, ordering a reduction of a trial award by over $72,000 to account for paid or payable part 7 benefits.

In today’s case (Sangha v. Inverter Technologies Ltd.) the Plaintiff was injured in a collision.  Following a 10 day trial the Plaintiff’s claim was assessed at $215,380.  Subsequently the Defendants applied to have this assessment significantly reduced by part 7 benefits that were paid or payable to the Plaintiff.  In reducing the judgement by over  $72,000 Mr. Justice Riley provided the following reasons and provided significant weight and reliance on an ICBC adjuster’s evidence that such benefits would be paid:

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ICBC's "Checkered Record" of Funding Treatments Impacts Part 7 Deduction Request

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, scrutinizing ICBC’s “checkered record” of paying for a plaintiff’s medical treatments.
In today’s case (Olson v. Farran) the Plaintiff was injured in a collision and was awarded just over $92,000 in damages including special damages and funds for future care costs.  The Defendant, who was insured with ICBC, requested certain damages to be deducted because of the overlapping coverage for some expenses under the Plaintiff’s own ICBC policy.
Mr. Justice Pearlman denied aspects of the request raising concern about ICBC’s “past partial and disrupted” payments.  In doing so the Court provided the following reasons.

[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.

BC Court of Appeal Finds ICBC Part 7 Benefits Not Repayable in Contractual Subrogated Claim

Interesting reasons were released today by the BC Court of Appeal limiting the scope of a contractual subrogated claim to exclude part 7 benefits a plaintiff recovered in an ICBC claim settlement.
In today’s case (Brugger v. The Trustees of the IWA) the Plaintiff was ordered to repay over $40,000 of a personal injury settlement he obtained to the Defendant’s due to a contractual subrogated claim they enjoyed.  The Plaintiff appealed arguing the scope of the subrogated claim could not apply to ICBC part 7 benefits.  The BC Court of Appeal agreed and reduced the ordered repayment accordingly.  In reaching this decision the Court provided the following reasons:

[44]         The Trustees have a broad discretion to establish and change the terms upon which benefits are paid but are entrusted to pay the benefits described in the Plan.

[45]         Section 9 of the Plan describes the Disabled Employee’s obligation to reimburse the Plan. It is applicable where a Disabled Employee “recovers compensation from a Third Party [a person whose acts have caused or are alleged to have caused the Disability] or receives a Settlement [the conclusion of a Disabled Employee’s claim for monetary compensation against a Third Party]”. A Settlement is deemed to include payment of compensation by ICBC for damages arising out of the use or operation of a motor vehicle by an uninsured or underinsured motorist.

[46]         Gross Compensation is defined by the Plan to be the total of sums paid or payable upon Settlement or contingent upon Settlement.

[47]         The Reimbursement Agreement binds the appellant to make the repayment called for in the Plan, hence, repayment of a portion of any lump sum cash payment made upon or contingent upon resolution of a claim for compensation made against a Third Party.

[48]         In my view, Part 7 benefits should not be included in Gross Compensation or calculation of the reimbursement obligation. Such benefits are not paid by or on behalf of a person whose acts or omissions have caused or are alleged to have caused the disability. They are not paid pursuant to Part 6 of the Regulation, which describes third-party liability insurance coverage; they are paid, rather, by the Disabled Employee’s insurer as first-party benefits. Pursuant to s. 79 of the Regulation, they are paid “to an insured in respect of death or injury caused by an accident that arises out of the use or operation of a vehicle” regardless of fault.

[49]         The Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231, draws a distinction between Part 7 benefits and a tort claim for damages. Subsection 83(2) states:

A person who has a claim for damages and who receives or is entitled to receive benefits respecting the loss on which the claim is based, is deemed to have released the claim to the extent of the benefits.

“Benefits” are defined in the Act as “the prescribed benefits”, including Part 7 benefits.

[50]         The fact that Part 7 benefits are distinct from and form no part of a tort claim, and that disputes with respect to entitlement to Part 7 benefits must be addressed by separate proceedings, was noted by this Court in Baart v. Kumar (1985), 66 B.C.L.R. 1 (C.A.). The Court there observed, at p. 12:

The enactments with which we are concerned have been changed from time to time. The general purpose of them, to shift responsibility from the person at fault to a body that provides insurance regardless of fault, has continued. The shift necessarily takes away the right to claim against a person other than the insuring body. That is a common feature in no-fault plans; the workers’ compensation scheme is a familiar example. This Court recognized that shift in Fisher v. Wabischewich (1978), 5 B.C.L.R. 335, 85 D.L.R. (3d) 106.

[51]         While the Trustees are given authority to set the terms upon which Plan Members are entitled to benefits, and have broad discretion to determine what portion of Gross Compensation represents compensation for wage loss, they have established a Plan and must abide by its terms. Without amending the Plan, they do not have discretion to include in Gross Compensation amounts received by the member that are not paid by or on behalf of a tortfeasor.

[52]         The chambers judge proceeded on the basis that the payment of the no-fault insurance benefits established by the statutory scheme of universal compulsory insurance could properly be considered to be compensation as defined by the Plan. Appellate courts must exercise caution in identifying errors of law in disputes arising from contractual interpretation: Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633. However, in my view, the issue of whether Part 7 benefits constitute monetary compensation paid by or on behalf of a person whose acts are alleged to have caused the disability is a question of law requiring consideration of the legal distinction between first-party no-fault insurance benefits and tort damages.

Court Orders ICBC Disability Benefits Paid Despite Delayed Application

Earlier this year the BC Court of Appeal found that ICBC wage loss benefits can be ‘revived’ if a collision related injury which was initially disabling retriggers disability beyond the 104 week mark.  This week a BC Supreme Court judgement confirmed this principle ordering the insurer to pay years of backdated benefits.
In this week’s case (Powell v. ICBC) the Plaintiff was injured in a collision and wad disabled for about a month following the collision.  She returned to work and pressed on until she could no longer continue several years later due to the lingering effects of her collision related injuries.  She applied for ICBC’s disability benefits but was denied with the insurer arguing that she was not longer entitled.
In finding the Plaintiff qualified for benefits under the policy and further that benefits can be revived past the 104 week mark Madam Justice Dillon provided the following reasons:

[51]         This judgment was upheld in Symons where the issue on appeal was whether the chambers judge erred in concluding that Mrs. Symons was entitled to disability benefits under s. 86 of the Regulation. ICBC argued that an insured must have an ongoing disability and be receiving benefits at the end of the 104 week period in order to receive benefits. Because Mrs. Symons was not receiving benefits at the end of the 104 week period and because her disability did not flare up until after that period, the Regulation did not permit for the reinstatement of s. 86 benefits. The plaintiff urged a contextual and purposive approach to statutory interpretation of s. 86 that would not result in absurd results as urged by ICBC.

[52]         Bennett J.A., for the Court, found at para. 17 that the regulations in question should be considered in the context of the legislative scheme to provide universal, compulsory insurance and access to compensation for those who suffer losses from motor vehicle accidents. Benefits-conferring legislation is to be interpreted in a broad and generous manner (at para. 18). The Court concluded at para. 24:

[24] Reading the words of this legislative scheme in its entire context, harmoniously with the whole of the scheme and purpose, leads to the conclusion that if a person who was disabled as a result of an accident returns to work, and then, because of setbacks or otherwise, is again totally disabled due to the accident, she qualifies for benefits under s. 86, even if she was not disabled on the “magic” day at the end of 104 weeks. This interpretation is consistent with the object of the Act – to provide no-fault benefits for persons injured in motor vehicle accidents.

[53]         The decision in Symons applies directly to the facts in this case. The plaintiff was an employed person who sustained injury in an accident which totally disabled her within 20 days after the accident. She is entitled to disability benefits for the initial period of disability. Although the plaintiff returned to part time work for a time and did not apply for TTD benefits within or at the 104 week mark, if is accepted that she is totally disabled as a result of injuries sustained in the accident, then Symons supports her position that it is not necessary that she be actually receiving benefits or that her disability had been ongoing at the 104 week mark. The issue then becomes whether the plaintiff has satisfied the onus upon her to show that she is totally disabled as a result of injuries sustained in the accident…

[62]         After consideration of all of the evidence, it is concluded that the plaintiff has established entitlement under s. 86(1) of the Regulation.

Pain Clinic Treatment a "Mandatory" Item Under ICBC's Part 7 Benefits

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing whether ICBC’s no-fault benefits cover payment for treatment at a pain clinic.  In short the Court found they do.
In today’s case (Park v. Targonski) the Plaintiff was injured in a collision and sued for damages.  At trial future care costs were awarded including $8,500 for treatments from a pain clinic.  The Defenant argued that these damages should be deducted as ICBC must cover the cost under the Plaintiff’s no fault beneifts.  In agreeing with this submission and finding such treatments are included in ICBC’s no-fault coverage Mr. Justice Fitch provided the following reasons:

[44]         …The narrow issue before me is whether a pain clinic that is focussed on “necessary physical therapy” is a mandatory benefit as contemplated by s. 88(1).

[45]         The mere fact that psychological and/or cognitive obstacles to optimal physical rehabilitation are likely to arise in the administration of what amounts, at its core, to a physical rehabilitation program does not negate the fact that the program is designed to achieve “necessary physical therapy.”  The law must take cognizance of our growing awareness of the intersection between physical and mental therapy.  Indeed, it is difficult to envision aggressive implementation of the sort of active rehabilitation Back in Motion has in mind without necessarily engaging psychological and/or cognitive issues, particularly for an individual in the plaintiff’s situation.  Looking at the issue this way, it is unnecessary and unrealistic to hold that a physical therapy program that incidentally engages psychological and/or cognitive issues ought not to be characterized as a s. 88(1) benefit in circumstances where the language of the provision does not dictate this result.  Further, it is undesirable for courts to embark upon the impossible task of deciding which discrete components of a holistic pain program constitute s. 88(1) benefits because they are purely given to physical therapy, and which components fall outside the scope of s. 88(1) because they engage psychological issues that stand as barriers to the successful implementation of an active rehabilitation program.  Such an approach is not only artificial, it is one that would breed uncertainty and spawn further litigation in an area already beset by what the Court of Appeal in Raguin charitably described as “jurisprudential inconsistencies”.

[46]         As is evident from the foregoing, I favour the result reached on this point in Klonarakis.  In the result, 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.

Out of Province Insurers Have No Subrogation Rights Over Part 7 Benefits Paid

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, shutting down an attempt by the Progressive Max Insurance Company from exercising subrogation rights with respect to Part 7 benefits paid.
In today’s case (Middleton v. Heerlin) the Plaintiffs were US residents involved in a motorcycle collision in BC.  They were insured with Progressive and received over $100,000 in medical/rehab and other benefits from Progressive by virtue of Progressive filing a Power of Attorney Undertaking promising to provide their insured with minimum coverage required under BC law for BC crashes.
In the Plaintiffs lawsuit against the alleged at fault motorist Progressive sought to get their money back arguing they had rights of subrogation.  The Court shut this argument down noting similar arguments were dismissed by the BC Court of Appeal in 2000 and that recent statutory changes do not change this result.  In dismissing Progressive’s argument Mr. Justice Johnston noted as follows –

[11]         When Matilda was decided, the relevant portions of s. 25 of the Insurance (Motor Vehicle) Act provided as follows:

25.       (1)        In this section and in section 26, “benefits” means a payment that is or may be made in respect of bodily injury or death under a plan established under this Act, other than a payment pursuant to a contract of third party liability insurance or an obligation under a plan of third party liability insurance, and includes accident insurance benefits similar to those described in Part 6 of the Insurance Act that are provided under a contract or plan of automobile insurance wherever issued or in effect.

            (2)        A person who has a claim for damages and who receives or is entitled to receive benefits respecting the claim, is deemed to have released the claim to the extent of the benefits.

[12]         The court noted at para. 7:

As the chambers judge noted, in the absence of any express statutory right of subrogation the insurer’s right of subrogation is a derivative right only, which must be advanced in the name of the insured. The insurer is placed in no better position than that of the insured. The revised form of question 1 could be answered “no” simply on the ground that Progressive has no status as a subrogated insurer to advance any claim against the defendants in its own name.

The revised question, to which the above answer was given, was stated in this way at para. 2:

Does Progressive (the third party) have an enforceable right under the contract or the common-law to recover from the defendants all or part of the funds, being $17,800.00 U.S. paid by Progressive to the plaintiff?

[13]         It would seem, therefore, that unless the plaintiffs can point to an express statutory right of subrogation, the answer in these cases must be governed by the result in Matilda set out above.

[14]         In spite of the finding in para. 7, the court in Matilda went on to deal with what it said was a broader issue argued by the parties – provincial legislative competence over extra-provincial insurance contracts, which it framed in this way at para. 8:

The issue is whether the provisions of the Insurance (Motor Vehicle) Act purport to modify the terms of extra-provincial policies and thereby exceed the reach of provincial jurisdiction. In my view, they do not. The focus of s. 25(1) and (2) is on the tort action by Progressive’s insureds against ICBC’s insureds. The torts are the motor vehicle accidents that occurred within British Columbia and clearly are within provincial jurisdiction. The subsections simply provide that accident benefits cannot be claimed in the B.C. tort actions irrespective of where the policy paying the benefits was made. That does not purport to modify the terms of the extra-provincial policies. It merely limits the damages recoverable in tort whether by the insured beneficially or Progressive as subrogated claiming in the name of its insureds. In my opinion, the subsections address an incident of provincial jurisdiction over torts within the province and do not attempt to legislate terms of extra-provincial contracts. [Underlining added.]

[15]         Although there is no argument in these applications that the current version of the statute purports to modify extra-provincial contracts, the underlined portions above would appear to offer no comfort to Progressive, as there is no material difference in wording between the section before the court in Matilda and s. 83(1) and (2) invoked by the defendants in these cases…

[21]         I conclude that Matilda governs the interpretation of s. 83, is not affected by the change in wording from s. 26 to s. 84, and is a full answer to these applications.

[22]         Both applications are dismissed with costs to the defendants.

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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