Tag: icbc no fault benefits

Travelling Expenses "An Integral Part" of ICBC Part 7 Benefits


Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing benefits which ought to be covered under a plaintiff’s first party insurance (Part7 benefits) with ICBC.
In today’s case (Wepryk v. Juraschka) the Plaintiff was injured in a 2008 collision and sued for damages.  At trial the Plaintiff’s damages were assessed at just over $83,000.  The Defendant then applied to have some of the assessed damages deducted pursuant to section 83 of the Insurance (Vehicle) Act.  In finding that mileage and parking expenses ought to be covered by ICBC’s no-fault benefits scheme (and therefore deductible from the tort damages) the Court provided the following findings:
[10]         I also agree that $22.50 for parking should be deducted as a component of travelling expenses for treatment. Travelling expenses are an integral part of necessary treatment and as such are a benefit subject to deduction:  Petersen v. Bannon, (1991) 1 C.C.L.I. (2d) 232 (B.C.S.C.).
[11]         The plaintiff also claimed car expenses for driving to and from medical appointments at a rate of .50¢ per kilometre, and I awarded the entire amount of $1,368.90 claimed by the plaintiff on the basis of her calculations. The defendants originally submitted that the entire amount of $1,368.90 should be deducted, but now say the deduction should be $684.45. According to ICBC’s Claims Procedure Manual for Accident Benefits, ICBC will only reimburse the use of one’s own vehicle at a rate of .25¢ per kilometre. Therefore, one half of the $1,368.90 awarded at trial, or $684.45, should be deducted for driving expenses.
 

ICBC Medical / Rehabilitation No-Fault Benefits and Travel Expenses

When an ICBC “insured” is injured and receives medical or rehabilitation expenses from the Corporation is the insured entitled to payment for travel to and from the medical appointments?
Reasons for judgment from the Provincial Court of BC (Small Claims Court) were recently brought to my attention dealing with this issue and in this case (Jones v. ICBC) Judge Auxier held that mileage for travel is indeed recoverable from ICBC under the no-fault benefit scheme.
ICBC’s obligation to pay for medical or rehabilitation benefits to their insured’s is set out in s. 88 of the Insurance (Vehicle) Act Regulation which states as follows:

88 (1)  Where an insured is injured in an accident for which benefits are provided under this Part, the corporation shall, subject to subsections (5) and (6), pay as benefits all reasonable expenses incurred by the insured as a result of the injury for necessary medical, surgical, dental, hospital, ambulance or professional nursing services, or for necessary physical therapy, chiropractic treatment, occupational therapy or speech therapy or for prosthesis or orthosis.

(1.1)  Repealed. [B.C. Reg. 383/89, s. 14.]

(2)  Where, in the opinion of the corporation’s medical adviser, provision of any one or more of the following is likely to promote the rehabilitation of an insured who is injured in an accident for which benefits are provided under this Part, the corporation may provide any one or more of the following:

(a) funds to the insured once during the lifetime of the insured for the acquisition by the insured of one motor vehicle equipped as necessary and appropriate to its use or operation by the insured, the choice of make or model of vehicle to be in the sole discretion of the corporation;

(b) funds to the insured once during the lifetime of the insured for alterations to the insured’s residence that are necessary to make the residence accessible to and usable by the insured, the style and cost of the alterations to be in the sole discretion of the corporation and the alterations to be limited to necessary ramps, a necessary lift, necessary bathroom alterations and, where the insured is a homemaker or a person who lives alone, necessary kitchen alterations

(c) reimbursement to the insured for the costs of attendant care, other than care provided by a member of the insured’s family, where the insured has returned to and is residing in the community but is not capable of performing some or all of the tasks necessary to sustain an independent lifestyle, the amount of the reimbursement to be limited to the lesser of

(i)  the monthly cost of a group residence, including a long term care facility, that would be appropriate to the care needs of the insured as determined by the rehabilitation team, and

(ii)  the monthly cost of attendant care required by the insured as a result of injuries from the motor vehicle accident, the level and type of which will be determined by the rehabilitation team using the same standards and criteria applied under the Long Term Care Program of the Continuing Care Division, Ministry of Health, Province of British Columbia;

(d) reimbursement to the insured for costs incurred from time to time by the insured for the purchase and reasonable repair, adjustment or replacement of one or more of the following items:

(i)  a wheelchair;

(ii)  a medically prescribed bed for other than hospital use;

(iii)  bowel and bladder equipment;

(iv)  aids for communication, dressing, eating, grooming and hygiene;

(v)  transfer equipment;

(vi)  a ventilator;

(e) funds to the insured for vocational or other training that

(i)  is consistent with the insured’s pre-injury occupation and his post-injury skills and abilities, and

(ii)  may return the insured as nearly as practicable to his pre-injury status or improve the post-injury earning capacity and level of independence of the insured;

(f) funds for any other costs the corporation in its sole discretion agrees to pay.

(3)  Before incurring an expense or obligation under subsection (2) for which the insured intends to request payment by the corporation, the insured shall obtain written approval from the corporation and the corporation may, before giving its approval, require the insured to submit such information as it considers necessary to assist it in making a decision.

(4)  The corporation is not liable to insure, repair, replace or maintain a motor vehicle acquired by an insured under subsection (2) (a) except in the course of an approved repair resulting from a subsequent claim for insured loss or damage to the vehicle.

(5)  The amount by which the liability of the corporation under this section is limited is the amount set out in section 3 of Schedule 3.

(6)  The corporation is not liable for any expenses paid or payable to or recoverable by the insured under a medical, surgical, dental or hospital plan or law, or paid or payable by another insurer.

(7)  The maximum amount payable by the corporation under this section for medical, surgical, dental, nursing or physical therapy services or for chiropractic treatment, occupational therapy or speech therapy listed in the payment schedules established by the Medical Services Commission under the Medicare Protection Act is the amount listed in the payment schedules for that service, treatment or therapy.

(8)  The corporation is not liable to pay for more than 12 physical therapy treatments for an insured for each accident unless, before any additional treatment is given, the corporation’s medical advisor or the insured’s medical practitioner certifies to the corporation in writing that, in his opinion, the treatment is necessary for the insured.

This section does not specifically address whether ICBC needs to pay for travel expenses.   In Jones v. ICBC (reasons for judgement were delivered on June 13 from the Kamloops Registry) the Plaintiff sued ICBC for a variety of matters including payment of travel expenses to and from medical appointments under Part 7 of the Insurance (Vehicle) Act.

The Honourable Judge Auxier sided with the Plaintiff on this issue and concluded that ICBC does indeed need to pay for travel expenses under their Part 7 obligations.  Specifically, at paragraph 19 of the decision, the Judge held that “Ms. Jones has prepared a list of her visits to the doctor in Kamloops and to the physiotherapist in Kamloops.  The total is seven trips.  I find that she is entitled to mileage for that travel – each round trip being 372 km.

While the judgment does not specifically state the quantum that was awarded for this damage, a review of the Plaintiff’s Notice of Claim reveals that the mileage was assessed at $0.47 per kilometer of travel.  This is a great precedent directly addressing this issue and I would like to congratulate the self-represented Plaintiff for her success.

Botox Injections for Rehabilitation and ICBC No-Fault Benefits

You are insured with ICBC and are injured in a BC Car Accident.  You experience chronic pain and your doctor tells you that you will likely benefit from Botox Injections to aid in your rehabilitation.  Botox treatment is expensive, so you apply to ICBC to have this covered under your No-Fault Benefits (sometimes referred to as Part 7 benefits).  ICBC tells you, “sorry, Botox treatment for injury is not covered under Part 7.” Are they right?  Wrong.
Reasons for judgment were released today by the BC Supreme Court ordering that ICBC cover the expenses associated with a Plaintiff receiving Botox treatment.
The Plaintiff was injured in a 2005 BC car crash.  The Plaintiff applied for and received previous funding for various treatments of injuries from ICBC.  The Plaintiff then saw a rehabilitation specialist who recommended Botox injections.  The cost of these was expected to be $3,500.  ICBC, without a contrary medical opinion as to the reasonableness of this treatment, failed to fund it and took the position that this expense did not have to be covered.
Section 88 (1) of the Insurance (Vehicle) Regulation deals with ICBC’s no-fault medical and rehabilitation benefits and requires that ICBC cover all reasonable expenses incurred by the insured as a result of the injury for necessary services, therapy or treatment as set out in the Regulation.
Justice Macaulay, in very well thought out reasons for judgment, ordered that ICBC had to pay for the Botox injections in the circumstances of this case.  The key reasoning in the judgment can be found at paragraphs 33 – 40 which I will publish as soon as the judgement is released on the BC Court’s website.
This case is also very interesting to me from a procedural point of view.  The Plaintiff brought this application by way of summary trial under Rule 18-A.  The Plaintiff relied on his affidavit and a medico-legal report.  ICBC did not have the opportunity to cross examine the Plaintiff or the treating doctor and typically litigants are entitled to do so.  ICBC took the position that this application should not be heard until they had the chance to cross-examine.
Mr. Justice Macaulay disagreed with ICBC and allowed the application to proceed.  He ruled that “There is nothing to be gained by directing cross examination of either the doctor or the Plaintiff.  The doctor makes it clear that she recommends this treatment as one of several options because the plaintiff’s lower back problems have been intractable.  It is primarily a legal issue whether that is sufficient to trigger an obligation on ICBC under s. 88(1).  There is also no reason to expect that the cross examination of the plaintiff will result in any alteration of the evidence…cross examination will not be ordered [in Rule 18A summary trials] absent some likelihood that the procedure will produce evidence in support of the other side…I am satisfied that the proposed cross-examination of the plaintiff and his doctor are speculative and not likely to produce evidence in support of ICBC.

Medical Exams and ICBC Tort and No-Fault Claims

As many of you know ICBC is a Provincial auto insurer which enjoys certain statutory monopoly privileges in British Columbia.  Since ICBC insures almost every BC motorist when a crash happens there is a good chance ICBC represents both drivers.  When the faultless driver is injured and sues typically one adjuster is assigned to deal with his/her claim for ‘no-fault’ benefits under their own policy of insurance and that same adjuster is assigned to defend the tort claim (the claim for damages including pain and suffering) made against the offending driver.
This potential conflict of interest can create various problems.  One of which often comes up is the right of the ‘defendant’ (who is insured by ICBC) to obtain an independent medical exam in defence of the tort claim in circumstances where the ICBC adjuster already sent the Plaintiff to an independent medical exam in the process of reviewing the Plaintiff’s application for no-fault benefits.
Reasons for judgement were released today dealing with exactly such a problem.
Here the Plaintiff was allegedly injured in a 2005 motor vehicle collision.  He applied to ICBC for no-fault benefits under his own policy of insurance and also sued the other motorist in tort.  The other motorist was also insured with ICBC.  One adjuster was assigned to handle both claims.
That ICBC adjuster sent the plaintiff to be assessed with an orthopaedic surgeon.  That surgeon wrote a report .  The defence lawyer in the ICBC tort claim then applied to court for an order to send the Plaintiff to a different physician claiming that the first report was set up to review the Plaintiff’s claim for no-fault benefits and that the defendant was entitled to a report from a doctor of his own choosing to level the playing field.
Here, the court dismissed the Defendant’s application finding that when ICBC sent the Plaintiff to the first orthopaedic surgeon it may have been to assess the claim for no-fault benefits but the ICBC adjuster asked the doctor to comment on things that went beyond the scope of such an application.  The court concluded that the Defendant can ask the same doctor to comment on the Plaintiff’s condition if necessary but they were not entitled to a new doctor’s opinion in the circumstances.
The Court’s key analysis is found at paragraphs 13-15 which I reproduce below:

[13] It appears in the instant case that Ms. Dyrland was handling both the Part 7 and the tort claims arising out of the alleged accident.  Although she deposes that her intention was that the assessment by Dr. Bishop was for the purposes of the Part 7 claim only, her instructions to him suggest a wider scope.  In the case of Longva v. Phan, [2007] B.C.J. No. 1035, 2007 BCSC 690, Master Bolton considered instructions identical to those set out at paragraph 7 of these reasons.  He noted that, however specific or equivocal the adjuster’s requests might have been, a request for a “history” of the accident, recommendations concerning future treatments and surgery and, in particular, a request for comment on a contributory negligence (seat belt) issue, must be considered as solely referable to the plaintiff’s tort claim and not merely concerned with issues relating to a claim for disability benefits.  Thus, while the adjuster may have expressed her intention to limit the assessment to the Part 7 claim, the nature of her instructions suggests that she expected a report which would address not only the plaintiff’s current needs for treatment and rehabilitation but, as well, his prospects for recovery and other issues unrelated to the disability claim.  I have reached the same conclusion. The assessment prepared by Dr. Bishop on December 22, 2005 was a “first” examination. Having reached that conclusion, I must now consider whether the circumstances justify a “second” examination.

[14] A party seeking to have a second examination preformed by a practitioner practicing in the same speciality or discipline as a practitioner who has already examined a person faces an uphill battle: Hothi v Grewal, [1993] 45 B.C.L.R. (3d) 394 (SC); Hamada v. Semple, [1983] B.C.J. No. 1307 (SC). Successful applicants are those who are able to demonstrate that something has happened since the first examination which could not have been foreseen or which could not, for some other reasons, have been addressed by the first examiner.  It also seems to me that material filed in support of the application should indicate why a further examination by the doctor who performed the original assessment is not appropriate.

[15] In the circumstances of this case, there appears to be no good reason why Dr. Bishop could not be asked to comment on the relevance of the disk herniation noted in January 2006, and, if necessary, perform a further examination of the plaintiff.

The concern many Plaintiff’s ICBC injury claims lawyers have in cases where one ICBC adjuster is assigned to both the Plaintiff’s and Defenant’s claims is that of ‘report stacking’.  That is there is a concern amongst some ICBC injury lawyers that ICBC may use their position as insurer for both parties to get more ‘independent’ reports than a Defendant may otherwise be entitled to.  In deciding whether to consent to an application by a defendant insured with ICBC to a further examination it is important to review the factors discussed in this useful judgement.

More From BC Court of Appeal on Deductibility of ICBC No-Fault Benefits in Tort

Reasons for judgement were released today addressing the deductibility of Part 7 Benefits from a tort award claim for damages:
I have previously discussed the deductibility of Part 7 benefits from a BC tort award here, here, and here and you can read these previous posts / articles for background information.
In the case at bar the Plaintiff was a paraplegic.  He was confined to a wheelchair since being 29 years of age.  When he was 43 he suffered injuries in a car accident.  He sued for those injuries and was awarded damages of $210,000.  The Defendant at the trial level argued that $137,223.90 of that award should have been deducted because payment for the needs that portion of the tort award was addressing was available directly from ICBC pursuant to ICBC’s no-fault Part 7 benefits.
The trial judge allowed only a nominal deduction of $1,000.
The defendant appealed arguing that the trial judge was in error for failing to allow a meaningful deduction for future Part 7 benefits.
The Court of Appeal dismissed this appeal.  In doing so the Court referenced a well known previously decided case from the Court of Appeal addressing the issue of deductibility of ICBC Part 7 Benefits in a tort trial and restated that case as good law.  Particularly the Court noted that:
Although I do not subscribe to all of the learned trial judge’s reasoning on the issue, I have not been persuaded that he reached the wrong conclusion.  The defendant bears the onus of proving that the plaintiff is, or will be, entitled to the benefits which it claims to have deducted from the award for the cost of future care.  Strict compliance with the requirements of the statute is called for.  Uncertainty as to whether Part VII benefits will be paid or whether they would “match” elements of the tort award must be resolved in the plaintiff’s favour.
While the Plaintiff was successful in this action in avoiding a potentially financially devastating ‘deduction’ this case yet again illustrates the importance of properly applying for your No-Fault Benefits from ICBC if you are injured in a BC car accident.  Failure to do so could result in a significant deduction of damages in a tort claim.
 

Deductions of ICBC Part 7 Benefits in BC Tort Claims

Reasons for judgement were released today addressing the deductions of ICBC Part 7 benefits from a tort award.
If you are injured in a BC car crash and are insured with ICBC you have the right to apply for your ICBC No-Fault Benefits.  These include certain rehabilitation and wage loss benefits.   Whether or not you are at fault for the collision you should apply for these part 7 benefits.
In your tort claim (your claim for compensation against the at fault motorist) the defendant can argue that any amount he/she needs to pay you in damages should be reduced by the amount of Part 7 benefits you are entitled to. Whether or not you actually received these benefits is irrelevant!
In today’s case the trial judge awarded various damages including $10,000 for the cost of future medical care.  The defendant argued that the $10,000 award should be deducted because the Plaintiff could receive payment from ICBC directly for those future medical expenses.
The court dismissed this defence argument finding as follows:

[22]            In this case, I am persuaded that there is an issue about whether the plaintiff’s medication is covered by Part 7 at all, given that it not only provides benefits incurred by the insured as a result of the injury but also from conditions exacerbated by the accident.

[23]            I find that the amount awarded for the cost of future care, particularly medication, is not to be deducted from the judgment.

This case summarizecd the law of Part 7 benefit decutions very well, particularly the court held that:

1.         When considering a s. 25 deduction, the central question is whether the plaintiff is a person who is or would have been entitled to Part 7 benefits.  If the answer to that question is affirmative, the court must estimate the value of further payments that the Corporation is authorized or required to make under the Regulation, and deduct that amount from the judgment: Sovani v. Jin, 2005 BCSC 1285, 47 B.C.L.R. (4th) 97.

2.         Issues between the plaintiff and ICBC over delivery of Part 7 benefits are not relevant considerations in determining a s. 25 deduction: Sovani.

3.         The court has no discretion to reduce an estimate of future s. 88(1) benefits for the purposes of a s. 25 deduction: Ayles (Guardian of) v. Talastasin, 2000 BCCA 87, 73 B.C.L.R. (3d) 60.

4.         Medication is an expense that falls under the mandatory or non-discretionary provision of s.88(1) of the RegulationAyles.

5.         Section 88(1) requires the Corporation to pay benefits for all reasonable expenses incurred by the insured as a result of the injury.

6.         The plaintiff may have had a pre-accident underlying “disease” entitling the Corporation to invoke an exemption from liability contained in s. 96(f) of the RegulationMawji v. Insurance Corporation of British Columbia, 2001 BCSC 1610.

7.         Trial judges must be cautious in estimating s. 25 deductions and any uncertainty as to entitlement must be resolved in favour of the plaintiff: Schmitt v. Thomson, 18 B.C.L.R. (3d) 153, 132 D.L.R. (4th) 310 (C.A.); Lynne v. Pearson, 55 B.C.L.R. (3d) 401, 111 B.C.A.C. 139.

If you are insured with ICBC and are injured by another in a BC car crash make sure you apply for your Part 7 Benefits.  If you don’t it can take money right out of your pocket in your tort claim and cases such as this one are a stark reminder that ICBC often makes such an argument in tort claims.

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

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.

"On the Road Again…" ICBC claims and Litigation Privilege

As an ICBC claims lawyer I find myself frequently traveling throughout BC representing clients involved in ICBC claims. This week I’m back in one of my favourite destinations (particularly this time of year), sunny Kelowna, BC. The lake, the heat, what’s not to love?
I try to minimize the amount that travel interferes with business as usual, but despite my best efforts the responsibilities of life on the road do get in the way, so here is the ‘travel version’ of my reporting on recent ICBC claims…
Litigation Privilege. An ICBC claims lawyer representing his/her clients may come into the possession of privileged information. One of the most common types of privilege claimed over evidence by ICBC claims lawyers is the medico-legal report.
When a lawyer obtains a report providing an opinion as to the extent of injury caused in a BC car accident that report may very well be privileged and not disclosed to ICBC. The problem is, oftentimes a privately paid report authored by an independent physician or other hired expert may provide useful rehabilitation advice for a client. So the question is, can such a report be disclosed to the client’s treating physician to better aid in rehabilitation without waiving legal privilege and forcing disclosure to ICBC? A judgement released today seems to say that this can in fact be done.
In this case the Plaintiff had 2 claims, the first being the ‘tort claim’ meaning the claim against the motorist who injured the Plaintiff (who happens to be insured by ICBC) and a ‘part 7 claim’ meaning a claim against ICBC directly for the enforcement of any ‘no fault benefits’ that may be owing as a result of the same BC car accident.
The Plaintiff’s lawyer obtained a report that made some rehabilitation recommendations. This report was shared with the Plaintiff’s treating physician who adopted some of the recommended treatments. The ICBC defence lawyer argued that this disclosure ‘waived’ the claim for privilege. The Plaintiff lawyer disagreed. The ICBC defence lawyer made a motion asking the BC Supreme Court to order that the privately hired report be handed over to ICBC. Master Caldwell of the BC Supreme Court dismissed the motion stating that:
I am unaware of any authority which would dictate that reports which are prepared for purposes of litigation but which are provided to an individuals GP for treatment purposes lose the protection of privilege. No such authority was provided to me.
This is a great result for Plaintiff’s involved in ICBC claims and is certainly must reading for an ICBC claims Plaintiff lawyer who wishes to share a private report with a client’s treating doctor for treatment purposes.

ICBC Can Do That!?!? What You Need to Know About Part 7 Benefits

OK, imagine this:
You are injured in a car accident that is not your fault. You incur medical expenses and send ICBC (your own insurer) the bill. Your ICBC adjuster does not to pay.
You sue the driver that injured you (who also happens to be insured by ICBC). The same ICBC adjuster hires the lawyer to defend the driver and tells that lawyer what to do (that’s the way it often works).
At trial you claim the medical expenses as special damages (special damages are expenses related to the other person’s wrong-doing). The Judge agrees these are reasonable special damages and awards you compensation.
(Thanks for bearing with me, here’s where it gets interesting)….The ICBC hired lawyer then says, “Your Honour, the Plaintiff should have been reimbursed this expense by ICBC so you should not award this money to the Plaintiff” The Judge, in his most eloquant voice responds, “you’re right counsel, I have no choice but to make this deduction”.
That’s exactly what can happen! ICBC can refuse to pay for an expense then the lawyer hired by ICBC in the ‘tort trial’ can argue that the court should not award reimbursement of the expense because you should have had ICBC pay for the expense.
When you sue someone for car accident related injuries in BC, the defendant (most often times insured by ICBC) can argue that due to the operation of s. 83 of the Insurance (Vehicle) Act,he should not have to pay any money covering benefits you could have received from ICBC as your own insurer. (Whether or not you received the benefits is an entirely irrelevant consideration… the deduction can be used even if you applied for these benefits and ICBC refused to pay…click here to read Sovani v. Jin, a case where almost $100,000 in damages were deducted from the jury’s verdict).
Section 83 reads as follows:
83 (1) In this section and in section 84, ‘benefits” means benefits

(a) within the definition of section 1.1, or

(b) that are similar to those within the definition of section 1.1, provided under vehicle insurance wherever issued and in effect,

but does not include a payment made pursuant to third party liability insurance coverage.

(2) 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.

(3) Nothing in this section precludes the insurer from demanding from the person referred to in subsection (2), as a condition precedent to payment, a release to the extent of the payment.

(4) In an action in respect of bodily injury or death caused by a vehicle or the use or operation of a vehicle, the amount of benefits paid, or to which the person referred to in subsection (2) is or would have been entitled, must not be referred to or disclosed to the court or jury until the court has assessed the award of damages.

(5) After assessing the award of damages under subsection (4), the amount of benefits referred to in that subsection must be disclosed to the court, and taken into account, or, if the amount of benefits has not been ascertained, the court must estimate it and take the estimate into account, and the person referred to in subsection (2) is entitled to enter judgment for the balance only.

(6) If, for the purpose of this section or section 84, it is necessary to estimate the value of future payments that the corporation or the insurer is authorized or required to make under the plan or an optional insurance contract, the value must be estimated according to the value on the date of the estimate of a deferred benefit, calculated for the period for which the future payments are authorized or required to be made.

This may seem like boring stuff but it could cost you well over $100,000 in your ICBC claim.
In another example of the s. 83 argument in action, reasons for judgment were released today that are well worth reading for anyone advancing an ICBC claim. After trial the Jury awarded damages including $32,000 for cost of future medical care. The defence lawyer then argued that a portion of the $32,000 should be reduced because of section 83. This argument is often made by ICBC defence lawyers after trial. In this case the deduction was not made but depending on the facts of any given ICBC claim such a deduction very well could be made.
The bottom line is that if you are advancing an ICBC ‘tort’ claim you must apply and follow up for all of the ‘no-fault’ benefits you may be entitled to. Failure to do so can result in a significant reduction of your award of damages.

Contact

If you would like further information or require assistance, please get in touch.

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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