Tag: Arbitrator Yule

CPP Children's Benefits Not Deductible From ICBC UMP Compensation


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In the unpublished decision (H v. ICBC) the Plaintiff was awarded damages following a jury trial.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.

Multi-Disciplinary Medical Assessment Denied In ICBC UMP Claim

Reasons for judgement were released last week in an ICBC UMP claim dealing with multiple defence medical exams in the context of a serious injury claim.
In last week’s case (G v. ICBC) the Claimant suffered a “severe traumatic brain injury” in a 2008 collision.  The at fault motorist was underinsured and the Claimant applied for payment of damages under his own UMP coverage with ICBC.
In the course of arbitration the Plaintiff agreed to be assessed by five different physicians of ICBC’s choosing.  These included two neuropsychologists, a neurologist, a psychiatrist and a physiatrist.  ICBC then requested a further assessment, specifically a Multi-Disciplinary Fetal Alcohol Syndrome Disorder Assessment over the course of two days.  The Claimant refused resulting in an ICBC application to compel attendance.
The parties agreed to apply the BC Supreme Court Rules in the course of the arbitration (click here to read an article discussing the lack of jurisdiction for an UMP Arbitrator to compel an independent medical exam when the BC Supreme Court Rules are not used).  In dismissing the application Arbitrator Yule canvassed some of the well known authorities considering BC Supreme Court Rule 7-6(1) and (2).  Arbitrator Yule provided the following summary of the applicable legal principles:
49…
1.  An order for a subsequent medical exam is discretionary but the discretion must be excercised judicially;
2.  Independent medical exams are granted to ensure “a reasonable equality between the parties in the preparation of a case for trial”; reasonable equality does not mean that a defendant should be able to match expert for expert or report for report;
3.  A second exam will not be allowed for the purpose of attempting to bolster an earlier opinion of another expert; there must be some question or matter that could not have been dealt with at the earlier examination; and
4.  There is a higher standard required where the Defendant seeks subsequent medical exams.
Arbitrator Yule went on to rule that the playing field was reasonably equal after five ICBC directed medical exams such that a further exam was not warranted.  He specifically pointed out that ICBC’s experts already opined on the issue of pre-existing fetal alcohol disorder without reservation and a further report would simply seek to bolster these opinions.
As of today’s date this judgement is not yet publicly available.  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


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

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.

ICBC UMP Arbitrations and Liability Findings


Useful reasons were recently released by Arbitrator Yule discussing the scope of an arbitrator’s power to address issues of liability in the course of an UMP Claim.
In the recent case (GG v. ICBC) the Claimant was injured by an underinsured Washington State motorist.  He sued for damages and ultimately settled for policy limits with the at fault motorists insurer.  The Claimant applied to ICBC to have excess damages paid under his underinsured motorist protection (UMP) policy.  The Claim was ultimately dismissed finding the Claimant did not have standing to trigger the UMP process.
The decision went on to discuss the ability of an arbitrator to Rule on liability issues when they have not been previously disposed of by a trial on the merits.  Arbitrator Yule provided the following reasons:
71.  As I have noted previously, the scheme of UMP compensation in British Columbia, in the absence of agreement between ICBC and a claimant, is premised upon an underlying tort judgement.  Sections 148.2(1) and (6) cannot mean that either party can arbitrarily and unilaterally have any issue relating to legal entitlement to recover damages determined in an arbitration because in those instances where there is a judgement int he underlying tort action, legal entitlement to recover damages will have been judicially decided.  Section 148.2(6) must at least be intended to give an arbitrator authority to determine issues of legal entitlement including contributory negligence where there is an agreement by the parties that the issue should be determined in the arbitration.  Absent the presence of collusion or fraud in obtaining judgement in a foreign jurisdiction, I think that the scheme of UMP compensation presumes that for accidents in foreign jurisdictions, issues of legal liability including contributory negligence are conclusively determined in a judgement of the foreign court.  I do not think that Section 148.2(6) entitles either a claimant or ICBC to “relitigate” an issue of liability or contributory negligence where there has been a judicial determination om the merits of the issue in a tort action in the jurisdiction where the accident occurred….I do not think a claimant who has succeeded in obtaining a judgement after trial in a foreign jurisdiction where such potential defences were not alleged, is exposed to have such defences raised for the first time in a subsequent UMP arbitration.  If the claimant here is entitled to pursue his UMP claim, notwithstanding the entered Consent Dismissal Order in the Washington action, it seems to me that the actual Order cannot be regarded as determinative of anything and is virtually irrelevant.  In that circumstance, I think Section 148.2(6) permits ICBC to raise the issue of contributory negligence, although whether the issue could be heard on its merits would be subject to full argument on the issue of whether, under Washington Law which is determinative as to issues of liability, formal admissions of fault in the pleadings constitute a conclusive determination of liability.

Only Two Ways to Get to UMP

An important arbitration decision was released last year demonstrating that there are only two ways to get standing at an UMP arbitration proceeding; either with the consent of ICBC or by having an unsatisfied judgement against the tort feasor.  The case also addresses the effects of a tort release in subsequent UMP proceedings and lastly the consent requirement under s. 148.2(4)(b) of the Insurance (Vehicle) Regulation finding that ICBC needs to demonstrate real prejudice to rely on this section.
In last year’s case (GG v. ICBC) the Claimant was injured in a Washington State motor vehicle collision.  The at fault motorist had very low third party liability coverage and likely was underinsured for the circumstances.  The Claimant had Underinsured Motorist Protection (UMP) with ICBC.
The Claimant sued in Washington State and the at fault motorist admitted liability.   Since the Washington State court award would not be binding on ICBC regarding the value of the claim the Claimant sought ICBC’s permission to settle for policy limits and proceed to UMP arbitration to determine the value over and above this amount that would be payable.  ICBC would not consent to this.  The Claimant settled his claim and started an UMP proceeding.  ICBC challenged this arguing the Claimant did not have standing to do so.  Arbitrator Yule agreed finding there are only two ways to get standing in an UMP Claim. In dismissing the claim Arbitrator Yule provided the following reasons:
37.  The essence of the dispute between the parties regarding the entitlement issue is whether there is a “third way” for a Claimant to establish the right to proceed to arbitration.  ICBC says there are only two ways to establish that right, namely (1) an unsatisfied judgement against the tortfeasor or (2) the consent of ICBC.  The Claimant says there is a third way, namely, by admissions of the tortfeasor, both as to fault for the accident (legal liability and legal entitlement) and as to an inability to satisfy any damages that may be awarded…The Claimant asserts that in this case compelling him to obtain judgement in the Washington State action is unfair, particularly having in mind the uselessness of an assessment of damages under Washington State law.  I agree.  However, in light of the legal authorities, I am constrained to conclude that the Claimant is not entitled to UMP compensation because he has not established the necessary prerequisites.
This finding was fatal in and of itself to the Claim, however, Arbitrator Yule also addressed the effects of a full and final release as against the tort-feasor.  When the Claimant settled with the at fault driver the typical release was signed.  Arbitrator Yule found that signing this release absent ICBC’s consent compromised the Claimant’s rights to an UMP Claim and provided the following reasons:
61.  Accordingly, I am constrained to find that in the absence of the agreement of ICBC that the claimant may do so and still proceed to an arbitration of his UMP Claim, the entry of a Consent Dismissal Order in the Washington action and the provision of a Full and Final Release of SK mean that the claimant is no longer legally entitled to recover damages from SK and there is no “excess” damages that could be the subject of an UMP Claim.  Hence, the claimant is not entitled to advance an UMP claim now.

Expert Report Admissibility Can Be Determined in Advance of UMP Arbitration

In my continued efforts to create a searchable UMP Rulings Database, I summarize a 2009 ruling finding that expert report admissibility can be determined ahead of a scheduled arbitration.
In the 2009 decision (COSH v. ICBC) the Claimant was injured in a 2001 collision in California.   In the course of the proceeding the Claimant served an expert report from a rehabilitation consultant discussing future care needs.  ICBC brought an application seeking to exclude the report arguing it should be held “wholly inadmissible“.  The Plaintiff argued that the report should be admitted but in any event it was premature to decide the issue until Arbitration was underway and the report was formally tendered.
Arbitrator Yule ultimately held that the report was admissible but that certain portions went beyond the authors area of expertise.   Prior to reaching this decision Arbitrator Yule provided the following comments about adjudicating these applications prior to arbitration:
25. …I do not consider the fact that the report may never be introduced into evidence under Rule 40A(2) because COSH may elect to treat the report as notice and introduce Dr. V’s opinions viva voce at the Hearing under Rule 40A(3), as a reason for declining to address the Respondent’s objections.  In either instance there will arise the same question of admissibility, ie. whether some of his expressed opinions are outside the area of exprtise as outlined in the CV.  If his evidence were tendered through Dr. V. at the Hearing, the only difference would be that Dr. V. would give evidence and be questioned about his qualificaitons in the course of determining the scope of his admissible opinions.  However, the fundamental proposition of which the Respondent relies is that some of the opinions expressed in Dr. V’s report can only be properly given by someone wiht a degree in medicine and it is not disputed that Dr. V. does not hold such a degree.
26.  It also seems to me beneficial to both parties to know in advance of the new Hearing date whether the Respondent’s objection will be sustained….Some clarity on the admissibility of Dr. V’s opinions may assist both parties in determining what additional steps they wish to take in preparation for the new Hearing.

$140,000 Non-Pecuniary Assessment for "Partial Spinal Cord Injury" and Knee Injury

In my ongoing effort to create a searchable UMP Claims database, I summarize a 2009 UMP Decision dealing with an assessment of damages for serious injuries, including a partial spinal cord injury leading to temporary paralysis, following a head on crash.
In the 2009 decision (EH v. ICBC) the 10 year old Claimant sustained serious injuries when she was involved in a head-on collision on the Malahat Highway.  The Claimant’s injuries were severe and her right leg was completely paralyzed following the collision.  She fortunately went on to make an “excellent” recovery, however was expected to suffer from long term problems as a result of her injuries.
The at-fault driver was an “underinsured” motorist and the parties agreed to have the quantum of the claim assessed via UMP arbitration.  Arbitrator Yule assessed the Claimant’s non-pecuniary damages at $140,000 and in doing so provided the following reasons:
76.  At age 10 the Claimant sustained serious, multiple injuries in the Accident.  The three most serious injuries were:
a.  A Brown-Sequard partial cervical spinal cord injury
b.  Bony cervical spine injuries including compression fractures at C-7, T-1 amd T-2, facet subluxation at C-7 – T-1 and avulsion of the C-7 spinous process; and
c.  an anterior tibial spine avulsion injury in her right knee (anterior cruciate ligament avulsion and grade 2 medial collateral ligament strain)
77.  At the outset, her right leg was completely paralyzed.  She:
a.  spent 50 days in three different hospitals
b.  experienced neuropathic pain (excruciating pain to mere touch) for 20 days;
c.  required her neck immobilized in sandbags when in bed;
d.  at all other times wore a Minerva brace for 60 days;
e.  wore an extreme right knee brace for 75 days; and
f.  wore a plastic boot on her right foot for foot drop for approximately 5 weeks.
As of August, 2006, approximately five months post-accident she:
a.  had received 70 physiotherapy treatments; and
b.  40 occupational therapy treatments.
The Accident and the acute treatment phase was a wholly frightening experience for a young child.  For par of her hospitalization she was in isolation.
78.  The Claimant sustained a number of permanent disabilities as follows:
a.  right leg limp
b.  weakness, fatigue and reduced endurance in the right leg;
c.  loss of sensitivity of the left leg exposing her to the risk of burns or frostbite

87.  …having in mind the Claimant’s initial complete right leg paraplegia, the extreme neuropathic pain which lasted for 20 days, the significant permanent restrictions resulting from weakness, fatigue and decreased endurance of the right leg, the impending surgical repair of right knee ligament damage and the early onset of symptomatic degenerative spinal arthritis I assess damages at $140,000.

Cost of Future Care Reports and Hearsay Evidence


When presenting an injury claim with a future care component expert evidence is often called to address not only the future care required, but also the cost of future care.  These experts sometimes rely on hearsay evidence in discussing the costs of the items recommended for future care.  Can this evidence be admitted?  This question was squarely answered in a 2008 ICBC UMP Arbitration which I summarize in my continued effort to create a searchable UMP caselaw database.
In the 2008 decision (MEN NN and DN v. ICBC) the Claimants sought damages following the wrongful death of their father/husband following a motor vehicle collision.  The matter was arbitrated under UMP.  In support of their claim the Claimants sought to introduce an expert report from a rehabilitation consultant to address future care needs for the surviving family members.  ICBC objected to this report on several grounds.  One of ICBC’s objections was that the report relied on hearsay evidence in addressing future care costs.  Arbitrator Yule rejected this argument and admitted the report (with a few modifications based on other objections).  In addressing the hearsay component Arbitrator Yule provided the following useful reasons:
18.  As noted previously, the Report as it applies to the claims of DN and NN also includes the commercial cost of various services such as courier service, handyman service, storage locker fees, taxis and airfares.  The cost of various services is considered to be within the scope of opinion evidence customarily given by rehabilitaiton experts notwithstanding that, to some extent, it may be hearsay information obtained from other service providers.  Cost of care expers routinely include informaiton regarding the costs of services in their reports.   In Jacobson v. Nike (1996) BCLR (3d) 63, the cost of care experts were Ms. Schulstad, a nurse with experience and education in rehabilitation nursing, and Ms. Harris, whose background was in occupational therapy.  Levine J. (as she then was) accepted these witnesses as qualified to provide expert evidence concerning both the care required and the costs of providing it.  At paragraph 185 the Judge said:
I am satisfied from the evidence of his injuries and function and of the clinical records that the plaintiff requires personal attendant care and homemaker services to sustain or improve his physical and mental health.  I am also satisfied that consultants with the experience, skill and training of Ms. Schulstad and Ms. Harris are qualified to assess his specific care needs and to provide expert evidence concerning the care required to meet his medical needs and the costs of providing for them.
In MacDonald v. Neufeld, [Vancouver Registry, September 3, 1993] the cost of care expert, Mr. Simpson, included in his report the cost of airplane tickets and other expenses for a travelling companion.
19.  As a practical matter, the admissibility of costing information on this basis makes eminent sense.  If it were not admissible as part of Ms. Stewart-Blair’s report, then one of the Claimants could herself make the same inquiries, but adducing the evidence in that fashion would be subject to the same objection as hearsay.  Thus, in the absence of admissions, the various service providers themselves would have to give evidence which would be both an inconvenience to them and an inefficient use of Hearing time.  Accordingly, I rule that the costs information in the Report of commercially provided services in relation to the claims of DN and NN is admissible.
For more on this topic from a Judicial authority, the latest case from the BC Court of Appeal is worth reviewing for their practical take on the role hearsay evidence can play in expert reports.

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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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