This ICBC injury insurance Appeal case concerned the nature of the claim for injury benefits under Part 7 of the Insurance  Regulations and the interpretation of s. 96(f) of the Regulation when a claimant has a pre-existing condition . The case stands for the proposition that ICBC must prove that but for the pre-existing condition, the Claimant would not have become totally disabled(Kozhikhov v. Insurance Corporation of British Columbia,2015 BCCA 515).

The claimant had a history of periodic neck and back pain and was subsequently injured in a motor vehicle accident. The claimant settled the tort case against the at fault driver with ICBC. ICBC however refused to reimburse the claimant for certain medical treatment expenses claimed under Part 7 of the Regulation stating that the injuries were caused directly or indirectly by a pre-existing condition, within the meaning of s. 96(f) of the Regulation, which disentitled him to the benefits.

 Following a summary trial pursuant to Rule 9-7 of the Supreme Court Civil Rules, the court ordered ICBC to pay the claimant the Part 7 benefits claimed in the amount of $10,863.86.  The judge’s order was based on his interpretation of s. 96(f) of the Regulation.  The reasons for judgment are indexed as 2014 BCSC 1476.

As the trial judge described in his reasons, Part 7 of the Regulation provides that ICBC cover payments of certain medical, rehabilitation and wage loss benefits for people injured in motor vehicle accidents, regardless of fault. The Court of Appealed however disagreed with the judge’s interpretation of section 101 this way:

[43] Thus, I respectfully disagree with the trial judge when he said at para. 22: “In other words, if ICBC is to reject a claim for specific benefits under s. 96(f), it must do so on the basis of evidence obtained before the expiry of the 60 day deadline.  It cannot use evidence obtained long after the fact to justify a failure to comply with s. 101.”

[44] I would observe, however, that the insured may rely on s. 101 of the Regulation to say that summary determination of entitlement is appropriate because ICBC should be in a position to address the claim.  It seems to me the mischief to which [ the claimant] refers (that of ICBC requiring a judicial determination of every Part 7 claim) might be otherwise addressed by regarding s. 101 as a statement of the obligation the insurer owes to address claims in good faith in a timely manner.  If evidence is not available until after the presumptive period within which claims should be addressed, s. 101 ought not to preclude ICBC from relying upon any evidence available at trial, and should not limit the evidence that either party can lead at the hearing.

[45]   Having made these observations, however, in my view, it was not necessary to interpret s. 101 in the manner the judge did to reach his conclusion that the intention of the legislation is to deal summarily with Part 7 benefits.  Indeed, it was not necessary to refer to s. 101 at all to hold that Part 7 is intended to be an interim, summary way of determining these benefits.

[46] It follows that while the judge erred in his interpretation of s. 101 of the Regulation, that error has no effect on the outcome of this appeal.  The judge’s error was inconsequential because he ultimately interpreted s. 96(f) in a way that made payable the entire amount claimed of $10,863.  As explained below, I agree with the judge’s interpretation of the test for causation under s. 96(f).

  At the heart of the debate is the meaning of “caused, directly or indirectly” and the Court of Appeal made it clear that the Legislature did not  intend  to “disqualify an injured party from Part 7 benefits due to minor pre-existing conditions”( para 59).

  The Court of Appeal concluded again that ICBC had failed to prove that, but for the pre-existing condition, the claimant would not have needed the treatments then claimed under Part 7 and ordered ICBC to pay the benefits refused.

Understand more about starting a claim for ICBC injury benefits:

Posted by ICBC Claims Lawyer Mr. Renn A. Holness, B.A.  LL.B.Working only for the injured against ICBC and other insurance companies.

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