CPP Benefits Deductions in UMP Claims Discussed – The Likelihood of Payment Test
Section 148.1 of the Insurance (Vehicle) Regulation requires “an amount to which an insured is entitled to under the Canada Pension Plan” to be deducted from UMP claims. Continuing in my efforts to summarize ICBC UMP decisions, reasons were released addressing this deduction following a serious injury caused by an uninsured motorist.
In SPW v. ICBC the Claimant suffered various injures due the carelessness of an uninsured motorist. Following arbitration the Claimant’s diminished earning capacity (future wage loss) was assessed at $575,000. The Claimant was receiving CPP disability payments and if these were continued to be received the present value of the future payments equalled $123,500. Arbitrator Boskovich had to determine what amount of these benefits should be deducted pursuant to section 148.1. In deducting 50% of these benefits the Arbitrator provided the following reasons:
165. In order to determine if future payments should be considered as “applicable deductible amounts” under the Regulations the law is quite settled that there has to be some evidentiary foundation to determine likelihood of the continuance and certainty of such future payments. The onus of proof that these payments will continue is on the Respondent (ICBC). While the evidence given with respect to payments having been received in the past is of assistance, it does not provide conclusive evidence that the payments will continue in the future.
166. That being said, having regard to the submissions delivered by counsel and the admissions made by the Claimant and his counsel and my own findings that the Claimant does have some residual earning capacity, which may or may not translate into income depending on what the Claimant does vocationally, I find there is a 50% contingency of the likelihood that his CPP payments will continue in the future and in this regard 50% of the net present value of the future payments should be deducted from the award.
This case is also worth reviewing for the assessment of non-pecuniary damages for the Claimant’s serious injuries. In assessing this loss at $175,000 the Arbitrator made the following findings:
23 ….he had suffered multiple injuries, including a complex pelvic fracture with separation of the symphysis pubis and fracture of the right sacrum, a left tibiofibular fracture, a fractured right humeral shaft, fracture of his left second rib, as well as a large laceration to his right thigh and multiple cuts and abrasions.
74. …those injuries have impacted his ability to walk, his gait and balance and have resulted in neck and lower back pain. He has been left with chronic discomfort, restricted mobility and reduced ability to participate in physical activities. I find that his present disability is entirely related to the motor vehicle accident…
77. After considering the authorities submitted I find, having regard to the horrific circumstances of this accident, the nature of the injuries, the ongoing pain and the residual permanent disability which has resulted in a devastating change in the Claimant’s quality of life, that he is entitled to non-pecuniary damages of $175,000.