ICBC arguments on the failure to attend recommended treatment, mitigation, are often narrow and focused, as displayed in the following $150,000 pain and suffering injury case. ICBC argued that prior substance abuse should result in a low award but the BC Supreme Court decided this ICBC case was worth over $720,000.
The car accident was a head-on collision on 4th Avenue in Vancouver as the claimant was travelling 50-55 kph. He had not worked since the car accident. He claimed his inability to work was due to ongoing neck and back pain, as well as PTSD, anxiety, headaches and depression.
He received about 20 sessions of physiotherapy. However, following a dispute about whether his injuries were work-related, his support from ICBC for these treatments were ended. The claimant said that he could not afford to continue treatments on his own. The treatments he received did not improve his condition, but only provided temporary pain relief.
The court agreed to treat the issue of alcohol abuse either as a negative contingency, or as a relevant factor in assessing the baseline “original position” of the claimant,
[63] However, in this case the extent of the concern is moderated by the fact that the Substance Use Disorder was under some level of control before the accident, in that: (a) its effect on his quality of work was marginal, (b) he had obtained some treatment in 2013, and (c) his drinking appears to have been somewhat moderated in the months leading up to the accident.(Zwinge v. Neylan, 2012 BCSC 1138)
As a result of the car accident the claimant suffered long-lasting soft tissue injuries and spine facet joint syndrome. He was awarded $150,000 for his pain and suffering despite the finding that his quality of life was already in a diminished state before the accident, in that he was living with his parents following a marriage breakdown that ended violently, resulting in criminal charges and a return to heavy drinking.
ICBC generally has the onus of proving that it was unreasonable for the claimant not to pursue treatment. Although impecuniosity is capable of justifying a failure to take treatment, it is not reasonable for a claimant who cannot afford treatment to take no steps to try to obtain funding. If a request is made to the defendant to fund a rehabilitation program and the request is denied or ignored, then the onus will generally be discharged.
The Insurance Corporation of British Columbia, ICBC, did not seek to attribute any responsibility to the claimant for failing to more actively pursue cognitive behavioural therapy or more active physiotherapy programs after his car accident. They acknowledged that lack of finances or poverty can be a sufficient reason for failing to pursue recommended treatment. Here the claimant sought funding from ICBC, but was then caught up in a battle between ICBC and WCB, a battle that could not be laid at his feet.
The claimant went on to obtain the following award:
| Pain and Suffering | $150,000.00 |
| Past Loss of Income | 97,693.00 |
| Future Loss of Income | 400,000.00 |
| Future Cost of Care | 70,000.00 |
| Out of Pocket Expenses | 6,271.14 |
| TOTAL: | $723,964.14 |
Posted by ICBC personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B. – Serving the injured for over 22 years