ICBC's "Checkered Record" of Funding Treatments Impacts Part 7 Deduction Request
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, scrutinizing ICBC’s “checkered record” of paying for a plaintiff’s medical treatments.
In today’s case (Olson v. Farran) the Plaintiff was injured in a collision and was awarded just over $92,000 in damages including special damages and funds for future care costs. The Defendant, who was insured with ICBC, requested certain damages to be deducted because of the overlapping coverage for some expenses under the Plaintiff’s own ICBC policy.
Mr. Justice Pearlman denied aspects of the request raising concern about ICBC’s “past partial and disrupted” payments. In doing so the Court provided the following reasons.
[71] The onus of showing that a deduction should be made is on the defendant. I must estimate the amount to which Ms. Olson is entitled, exercising caution and taking into account any uncertainty concerning whether the benefits will be paid. Any such uncertainty must be resolved in favour of the plaintiff.
[72] Based on the Dr. Garbuz’s opinion, and the defendant’s position at trial that Ms. Olson would benefit from a three to six-month exercise program under the supervision of a physiotherapist, I am satisfied that a portion of the physiotherapy will be paid. I estimate that amount to be $500 and order that the amount to be deducted with respect to the physiotherapy is $500.
[73] In light of the Corporation’s past partial and disrupted payment for kinesiology, there is no certainty that the Corporation will pay for any further kinesiology treatments. I therefore decline to deduct any portion of the $800 sought by the defendant for kinesiology sessions.
[74] Similarly, there is no certainty that the insurer will pay for future massage therapy treatments, particularly where such treatments may only provide temporary relief to Ms. Olson, rather than a lasting improvement in her condition. Again, I decline to deduct any portion of the $920 sought by the defendant for massage therapy.
[75] The defendant also seeks a deduction of $870 for psychological services. Psychological therapy is a benefit payable in the Corporation’s sole discretion under s. 88(2)(f) of the Regulation.
[76] The defendant submits the Court should conclude from ICBC’s past funding for physiotherapy and active rehabilitation that there is no uncertainty about whether the Corporation will fund psychological therapy for the plaintiff.
[77] I disagree. The Corporation’s checkered record of funding the plaintiff’s treatment before trial raises significant uncertainty about whether this benefit will be paid. Further, Mr. Phan, the Corporation’s representative, offers no assurance in his affidavit that ICBC will pay for psychological therapy for Ms. Olson. Nor is there any opinion from the Corporation’s medical advisor, as required under s. 88(2), that the psychological services are likely to promote the rehabilitation of the insured. The uncertainty concerning whether this benefit will be paid must be resolved in favour of the plaintiff. I am not satisfied the Corporation will pay any portion of this benefit. Accordingly, there will be no deduction for psychological therapy.
[78] The deductions from the award of costs of future care for Part 7 benefits total $4000.