The NDP have rolled out new ICBC policies including new Enhanced Care coverage. This “care based model” is advertised by the NDP as providing British Columbians with increased care such as payment for treatment ongoing indefinitely into the future despite settlement or judgement at trial.

The NDP and David Eby are asking us to trust ICBC moving forward to continue paying benefits to those injued claimants who will never recover from their accident-related injuries and who need therapy into the future. On the ICBC website, it is advertised as:

“The care you need, for as long as you need it.”

At the present time, when you reach a settlement with ICBC, any future care costs that are needed as recommended by physicians for long term injuries are no longer payable to the injured claimant. Instead, part of the settlement includes ICBC keeping “part 7 benefits open” meaning that these benefits remain in place and payable into the future despite settlement.

Also at the present time, if you proceed to trial and a judge orders a monetary amount for future care costs, ICBC is permitted to deduct the amount that would be paid by part 7 benefits and instead the “part 7 benefits are kept open” into the future to pay for those items as they are needed.

In both circumstances once the claim has settled or a trial judgement reached, the injured claimant is then left alone to deal with ICBC directly with future treatment costs which involves contact with the adjuster to approve treatment recommendations and ensure continued payment by ICBC to the therapy clinics or continued reimbursement to the injured claimant if he/she pays out of pocket.

But what happens if ICBC breaks its promise and refuses to pay your part 7 benefits despite promising to pay?

In Del Bianco v. Yang 2020 BCSC 410, the 34 year-old injured claimant sustained injuries to his neck and right shoulder in two (2) motor vehicle accidents. The case proceeded to trial where the trial judge found that his injuries were serious and chronic resulting in a permanent disability. It was also ruled that he required ongoing massage therapy into the future in order to work at his physically demanding job. A monetary award was made for the cost of this massage therapy into the future. The cost of the massage therapy was not paid to the injured claimant. Instead, ICBC “kept part 7 benefits open” and applied to deduct this cost from the judgement.

After the trial, the injured claimant was dealing directly with the ICBC adjuster who initially did not respond to his requests for payment, then delayed approval and then eventually did not fund any reimbursements of the treatment he attended.

As a result, the injured claimant applied to the court to disallow ICBC from deducting the cost of massage therapy from his judgement and to instead force ICBC to pay him directly the cost of his future care.

The judge agreed and stated the following in ruling that the future care costs of massage therapy were to be paid directly to the injured claimant:

[13]         It is concerning to the court that the representative of ICBC, Andrew Rudkowski, has not, in his affidavit, explained the failure of ICBC prior to trial to pay the massage therapy costs of the plaintiff. Liability for these motor vehicle accidents was never seriously in dispute. The injuries that required massage therapy, therapy that was necessary for Mr. Del Bianco to work, and effectively minimalize the extent of his tort claim, were lower back, shoulder and soft tissue injuries.

[14]         Equally concerning is the apparent exaggeration, even today, less than one year into a potentially 40-year commitment, as to the extent of ICBC’s commitment to pay what was ordered after trial. In paragraph 6, Andrew Rudkowski deposes that “ICBC will reimburse Mr. Del Bianco for the necessary health care services he has incurred since March 22, 2019 and he incurs in the future”. That is, as noted by defence counsel, not true. They will only reimburse under their payment schedule of $80, when the court determined on the evidence the cost of such treatment at $85.

[15]         Counsel for the plaintiff ably argued about the difficult financial circumstances that his injury and the actions of ICBC placed on the plaintiff from the time of the accident until, essentially, the time of this application. For whatever reason, unexplained, ICBC refused to pay for his massage therapy treatments. The suggestion from counsel for the plaintiff was that ICBC took the position that because he had a hernia operation after the accident, not related to the injuries suffered in the accident, that the hernia problem was the source of his discomfort. That, to a great degree, defies logic, as the hernia was, for lack of a better term, in the plaintiff’s groin or abdomen, whereas the soft tissue injuries requiring massage were in his back.

[16]         The court is faced with the representations of a claims specialist from ICBC that they will, in the future, pay these costs. The evidence about the lack of financial viability of ICBC, as attested to by the Cabinet Minister responsible for ICBC, the Attorney General, is not significantly disputed. Nor is it disputed that ICBC is not prepared to pay for massage therapy at a rate that the court has ordered.

[17]         Additionally, and though this was not raised by counsel, but is a concern to the court, it is hard to know and predict, dare I say impossible to know and predict, at what rate ICBC will, in the future, be paying for massage therapy costs. This is not just a short-term future. This is 40 years. If, as now, this would require the plaintiff to pay the difference himself, to pay over and above what ICBC is prepared to pay, when the tort award was intended to fully compensate him. He may perhaps then seek reimbursement from ICBC. This creates a 40-year responsibility on this plaintiff to keep track of receipts, to make requests and deal with adjusters at ICBC. That is completely inconsistent with the general purpose of litigation and tort awards, to create some finality between the parties.

[18]         In light of the history of non-payment by ICBC for no apparent reason, as experienced by the plaintiff, it is unrealistic, in my view, to require him for a period of 40 years, to have to continue to deal with an adjuster at ICBC in order to obtain what the court has already ordered he is entitled to.

[19]         Additionally, as noted by the plaintiff, there is just too much uncertainty as to the ability of ICBC to make the payments at a rate ordered by the court. They are, today, not prepared to pay at the rate the court ordered. There is too much uncertainty related to their past history of being disinterested or disrespectful of the plaintiff’s claims. There is too much uncertainty as to what the future holds for ICBC, as evidenced by the affidavit of the plaintiff, for the court to have absolute confidence that if money is deducted from the tort award for Part 7 scheduled benefits, that they will actually be paid.

[20]         I note the case of Li v. Newson, 2012 BCSC 675, a decision of Mr. Justice Abrioux, as he then was. He notes in para. 14, inter alia, that “uncertainty as to whether a Part 7 benefit will be paid must be resolved in favour of the plaintiff”. I find on the facts before me considerable uncertainty that payments consistent with the tort award would be paid to Mr. Del Bianco for massage therapy for the 40 years as awarded.

[21]         As such, I am not prepared to deduct amounts for massage therapy under s. 83 from the plaintiff’s tort award. These comments relate to the massage therapy treatments to age 65 and the massage therapy treatments from age 65 to age 75. There is, as noted above, in the circumstances of a 40-year payment period, too much uncertainty and, frankly, too much of a requirement placed on this plaintiff to potentially request reimbursement weekly for funds not paid directly by ICBC, but payable out of his pocket. That is simply too much to expect.

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