ICBC Law

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.

 

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.

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.

Do you have questions about this case or a claim of ‘litigation privlelge’ in an ICBC injury claim? If so click here to arrange a free consultation with Victoria ICBC injury claims lawyer Erik Magraken (with associated offices in Victoria, Nanaimo, Kelowna, Port Hardy, Kamloops, Duncan, Courtenay, Qualicum Beach, Port McNeil, Tofino, Vernon, Dawson Creek, Revelstoke, Ucluelet, Salmon Arm, Castlegar, Sicamous and Nakusp)

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.

Do you have questions about this case or ICBC Part 7 Benefits (ICBC ‘No Fault’ Benefits) that you wish to discuss with a BC personal injury lawyer? If so click hereto arrange your free consultation with Victoria ICBC injury claims lawyer Erik Magraken (with associated offices in Victoria, Nanaimo, Kelowna, Port Hardy, Kamloops, Duncan, Courtenay, Qualicum Beach, Port McNeil, Tofino, Vernon, Dawson Creek, Revelstoke, Ucluelet, Salmon Arm, Castlegar, Sicamous and Nakusp)