ICBC, No-Fault Benefits and 'Sickness and Disease'

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Interesting reasons for judgement were released today concerning traumatic injuries and pre-existing degenerative disc disease.
The Plaintiff was a building siding installer.  He had a pre-existing degenerative lumbar spine condition which was largely asymptomatic, that is it caused occasional pain but did not disable him from work.  He was injured in a BC car accident on November 22, 2005.  He became totally disabled from his work after this collision.  He applied to ICBC, and received, Part 7 wage loss benefits.
ICBC obtained a report from Dr. Dommisse in June 2006.  He stated that ‘(the Plaintiff’s) complaints have been caused by this motor vehicle accident in part.  His pre-existing condition is likely contributing to his ongoing symptoms….His continued symptoms, in my opinion, are related to the degenerative changes at L4/5 at this time.’
As a result of this opinion ICBC cut off the Plaintiff’s wage loss benefits on August 31, 2006.  ICBC did so because they took the position that the Plaintiff’s ongoing disability was ‘caused directly or indirectly by sickness or disease.’
Can ICBC do that?  The answer is yes.  Section 96 of the Insurance Vehicle Regulation places some limits on benefits ICBC has to pay their insured including those ‘whose injury was caused, directly or indirectly, by sickness or disease, unless the sickness or disease was contracted as a direct result of an accident for which benefits are provided under this Part’
The Plaintiff sued ICBC asking the court to reinstate the Plaintiff’s no-fault wage loss benefits.   In support of the Plaintiff’s case, Dr. Hirsch, a Physical Medicine and Rehabilitation Specialist, gave evidence that 

Based on today’s obtained history and review of the forwarded clinical documents, it is my opinion that the acute onset of low back pain and resultant decline in function is causally related to the November 2005 motor vehicle accident

(the Plaintiff) reported that he has made a 20 to 30% symptomatic recovery regarding his low back injuries.  He reported that for the past four months he has not noticed any further symptomatic gains.  Accordingly, I would view the prognosis for a good recovery as guarded at this juncture.

At present and in the foreseeable future, I do not foresee that (the Plaintiff) will improve sufficiently to get back to his pre-motor vehicle accident line of work. Furthermore, at present I would question whether he is gainfully employable as a locksmith.

Mr. Justice Meiklem of the BC Supreme Court dismissed the Plaintiff’s claim finding as follows:

[29]            In my view, the medical evidence in this case, notwithstanding the differences of opinion on the relative significance of the concurrent causes of (the Plaintiff’s) continuing disability and whether the injuries suffered in the accident had resolved by August 31, 2006, clearly establishes that the degenerative lumbar spine, specifically at the L4/5 facet joints was a contributing cause of his disability after that date.  While I do not find it proven that the effects of the accidental injury were fully resolved by that time, the defendant has established that, but for his degenerative disease, Mr. Wafler would not be totally disabled within the meaning of the covering provisions after August 31, 2006.

[30]            Consequently, I find that the defendant has established that the s. 96(f) exclusion applies and I decline to make the declaration sought by the plaintiff.

If you are in a dispute with ICBC regarding the payment of no-fault wage loss benefits it is important to canvass decisions such as this one addressing the potential consequences of pre-existing conditions on your ICBC insurance claim.  Ensure that your physicians carefully canvass the relationship between any ‘sickness or disease’ and traumatic injury when applying for ICBC no fault benefits.

degenerative disc disease, icbc court cases, icbc no fault benefits, icbc part 7 benefits, icbc wage loss benefits, pre-existing condition

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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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