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.

bc injury law, Mr. Justice Fitch, Pain Clinic, Park v. Targonski

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ERIK
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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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