This ICBC offer to settle case raises two important issues: (1) What ICBC accident benefits should be deducted from the award against the driver; and (2) Should a claimant be denied costs for not accepting an ICBC offer which is the same as the court award.
This ICBC personal injury case involved two car accidents. First accident, the claimant was traveling to Grand Forks when the vehicle driven by her husband lost control on Highway 33, went into the ditch and ended up on its roof. The claimant was transported by ambulance to the Kelowna General Hospital. Second Accident occurred between Clinton and Cache Creek, British Columbia when the vehicle she was in stopped as a result of geese on the road. The vehicle she was in was rear-ended by another vehicle. (Wiebe v. Wiebe,2018 BCSC 1062)
Relationship Between the Offer and the Judgment
The judge reaffirmed that legal costs should be used as a penalty for unreasonable litigation and not as a penalty for wrongly guessing the outcome of the litigation. The difference between the ICBCs’ Offer and the net award was nominal and in the circumstances of this case the judge said, “is of little assistance in the analysis as to the appropriate costs to be awarded”.
However, the claimant in this case should have been aware of the frailties of the case given a brutal cross-examination of her expert by taped video deposition. This reason alone was enough to convince the judge the claimant should have accepted the ICBC Offer. The judge also took into account the evidence of the financial means of the claimant and her comments about the effect of losing her legal costs, “While I would be disappointed at such a result, it would not be an insurmountable setback for me”. This is not the circumstance for most ICBC injury claimants.
The Judge deprived the claimant of her costs from the date of service of the ICBC Offer. However, ICBC was not be awarded their costs.
ICBC Accident Benefit Deductions
Physical therapy which includes massage therapy is a mandatory deduction pursuant to s. 88 (1) of Part 7. A mandatory deduction for physical therapy requires that the expense be reasonable and necessary.
Judge Abrioux conveniently summarized the applicable legal principles to be applied when analysing a deduction for future cost of care items awarded by the court at para. 14 in Li v. Newson, 2012 BCSC 675 which included these keys points:
1) The defendant bears the onus of proving that the plaintiff is entitled to the benefits.
2) Uncertainty as to whether a Part 7 benefit will be paid must be resolved in favour of the plaintiff.
3) The ability to make this deduction is not dependent on the actual receipt of benefits by the plaintiff.
4) There is no requirement to match between the heads of damage for a tort award and specific heads of damage under the benefit recovery scheme.
5) Benefits under s. 88 (2) of the Regulations arise when ICBC’s medical advisor holds the opinion that the costs are “likely to promote the rehabilitation” of the plaintiff. The term “rehabilitation is defined in s. 78 of the Regulations as follows:
“Rehabilitation” means the restoration, in the shortest practical time, of an injured person to the highest level of gainful employment or self-sufficiency that, allowing for the permanent effects of his injuries, is, with medical and vocational assistance, reasonably achievable by him.
6) The court will take into account ICBC’s discretion with respect to whether certain amounts will be paid in addition to restrictions in the Regulations with respect to amounts payable.
The defendants relied on the affidavit of an ICBC Adjuster which stated:
[11] Based upon the Court awarding 18 physiotherapy visits at a cost to ICBC of $23.60 per visit, then the amount to be paid out by ICBC under Part 7 would be $424.80, with the balance of the $900 awarded by the Court to be paid by the Plaintiff as user fees.
[12] Based upon the Court awarding 52 massage therapy visits at a cost to ICBC of $23 per visit, then the amount to be paid out by ICBC under Part 7 would be $1196, with the balance of the $4209 awarded by the Court to be paid by the plaintiff as user fees.
[10] I am authorized on behalf of ICBC to accept the decision of the Court, on causation and reasonableness, as set out in the Reasons for Judgment, and of future benefits payable under Part 7, in place of the opinion of ICBC’s medical advisor, for the purposes of Part 7 payments. And, in particular, in place of ICBC’s right to rely upon the opinion of the corporation’s medical advisor pursuant to sections 87 and 90 of the Insurance (Vehicle) Regulation.
The court determined that the treatments were necessary in the tort action. In this case there was no reluctance by ICBC to pay for the physical therapy benefits. In making the deduction the judge pointed out,
[32] The physical therapy benefits are a mandatory deduction pursuant to s. 88 (1) of Part 7. While ICBC is bound by any restrictions as to payment in the relevant statutes Mr. Mann has expressly stated on behalf of ICBC that they will pay for these benefits. There is nothing in the evidence that would suggest that there is any uncertainty as to whether these benefits will be paid.
Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.