Focus On

AUTOMOBILE INSURANCE - Accident benefits

Wednesday, April 28, 2021 @ 6:20 AM  

Lexis Advance® Quicklaw®
Application by the defendants to deduct $165,801 in statutory benefits from the cost of future care award granted to the plaintiff in her personal injury actions. The plaintiff was awarded damages, including $191,706 for cost of future care, for injuries sustained in two motor vehicle accidents that occurred in 2015 and 2018. The accidents caused chronic myofascial pain and thoracic outlet syndrome. ICBC paid the plaintiff benefits following both accidents. It had waived the requirements for Part 7 benefits. The plaintiff had extended benefits through her spouse’s employer, which included $10,000 per calendar year for prescription drugs. The plaintiff consented to a deduction of $5,323.

HELD: Application allowed in part. ICBC’s authority to waive conditions was limited to the requirement for a medical opinion. It did not have authority to waive the requirement that the discretionary benefits were likely to promote rehabilitation. The future care items were awarded to the plaintiff for the purpose of managing her permanent conditions and maintaining the status quo, not to rehabilitate the plaintiff. The defendants had not established the plaintiff was entitled to discretionary benefits under s. 88(2) of the Insurance (Vehicle) Regulation. There were no deductions from the awards for active rehabilitation, gym passes, body pillows, heating pads and housekeeping. Based on the plaintiff’s extended health coverage, ICBC was not liable to pay for her Botox injections or prescription medications. No deductions were made for either. The cost for non-prescription medications, $2,920, and chiropractic and physiotherapy treatments, $4,557, were deducted as ICBC had waived the requirement for a medical opinion and committed to reimbursing the plaintiff for the costs. The deductions consented to by the plaintiff were granted.

Tench v. Van Bugnum, [2021] B.C.J. No. 558, British Columbia Supreme Court, M.L. Fleming J., March 19, 2021. Digest No. TLD-April262021006