IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20101122

Docket: M062847

Registry:
Vancouver

Between:

Dallas Lynn
Plensky

Plaintiff

And

Marco Antonio Di
Biase and Lina Vassallo

Defendants

Before:
The Honourable Madam Justice Ross

Reasons for Judgment

[1]            
The plaintiff, Dallas Plensky, was injured in a motor vehicle accident
that occurred on July 20, 2004. The jury awarded Ms. Plensky $61,800 for
the costs of future care as one component of its verdict. The defendants’
application is to deduct an appropriate amount from the jury’s award for the
cost of future care. The defendants do not seek to deduct any Insurance
(Vehicle) Regulation, B.C. Reg. 447/83 [Regulation] Part 7 benefits
paid to date.

[2]            
As Ms. Plensky was injured in a motor vehicle accident that
occurred on July 20, 2004, the parties agree that the provisions of s. 25
of the Insurance (Motor Vehicle) Act, R.S.B.C. 1996 c. 231 [ the “Act”],
apply, see Boota v. Dhaliwal, 2009 BCCA 586 at paras. 67-68. That
section provides:

Liability reduced

25(1)    In this section and in section 26, “benefits” means
a payment that is or may be made in respect of bodily injury or death under a
plan established under this Act, other than a payment pursuant to a contract of
third party liability insurance or an obligation under a plan of third party
liability insurance, and includes accident insurance benefits similar to those
described in Part 6 of the Insurance Act that are provided under a
contract or plan of automobile insurance wherever issued or in effect.

(2)        A person who has a claim for damages and who
receives or is entitled to receive benefits respecting the claim, is deemed to
have released the claim to the extent of the benefits.

(3)        Nothing in this section precludes the corporation
from demanding from the claimant, as a condition precedent to payment, a
release to the extent of the payment.

(4)        In an action in respect of bodily injury or death
caused by a motor vehicle or trailer or its use or operation, the amount of
benefits paid, or to which the claimant is or would have been entitled, must
not be referred to or disclosed to the court or jury until the court has
assessed the award of damages.

(5)        After assessing the award of damages under
subsection (4), the amount of benefits referred to in that subsection must be
disclosed to the court, and taken into account, or, if the amount of benefits
has not been ascertained, the court must estimate it and take the estimate into
account, and the person is entitled to enter judgment for the balance only.

(6)        If, for the purpose of
this section or section 26, it is necessary to estimate the value of future
payments that the corporation or other insurer is authorized or required to
make under a plan or contract, the value must be estimated according to the
value on the date of the estimate of a deferred benefit, calculated for the
period for which the future payments are authorized or required to be made.

[3]            
Section 88 of the Regulation, provides in part:

Medical or rehabilitation benefits

88 (1)  Where an insured is injured in an accident
for which benefits are provided under this Part, the corporation shall, subject
to subsections (5) and (6), pay as benefits all reasonable expenses incurred by
the insured as a result of the injury for necessary medical, surgical, dental,
hospital, ambulance or professional nursing services, or for necessary physical
therapy, chiropractic treatment, occupational therapy or speech therapy or for
prosthesis or orthosis.

(2)  Where, in the opinion of the corporation’s medical
adviser, provision of any one or more of the following is likely to promote the
rehabilitation of an insured who is injured in an accident for which benefits
are provided under this Part, the corporation may provide any one or more of
the following:

(f)         funds for any other costs the corporation in its
sole discretion agrees to pay.

(6)  The corporation is not liable for any expenses paid
or payable to or recoverable by the insured under a medical, surgical, dental
or hospital plan or law, or paid or payable by another insurer.

(7)  The maximum amount payable by the corporation under
this section for medical, surgical, dental, nursing or physical therapy
services or for chiropractic treatment, occupational therapy or speech therapy
listed in the payment schedules established by the Medical Services Commission
under the Medicare Protection Act is the amount listed in the payment
schedules for that service, treatment or therapy.

(8)  The corporation is not liable to pay for more than
12 physical therapy treatments for an insured for each accident unless, before
any additional treatment is given, the corporation’s medical advisor or the
insured’s medical practitioner certifies to the corporation in writing that, in
his opinion, the treatment is necessary for the insured.

[4]            
There are a number of limitations on ICBC’s obligation to pay Part 7
benefits under s. 88 as set out in the plaintiff’s submissions:

1.         Before
incurring a rehabilitation expense for which he or she intends to request
payment from ICBC under s. 88(2), the insured must obtain ICBC’s written
approval, and ICBC may require him or her to submit such information as it
considers necessary before giving such approval (s. 88(3)).

2.         ICBC
is not liable for any expenses paid or payable to or recoverable by the insured
under a medical, surgical, hospital or dental plan or law, or paid or payable
by another insurer (s. 88(6)).

3.         The
maximum amount payable by ICBC for medical, surgical, dental, nursing or
physical therapy services or for chiropractic treatment is the amount listed in
the Medical Services Commission’s MSP payment schedules for that service,
treatment or therapy (s. 88(7)).

4.         ICBC is not liable to pay for
more than 12 physical therapy treatments for an insured unless, before any
additional treatment is given, either ICBC’s medical adviser or the insured’s
physician certifies in writing that, in his or her opinion, the treatment is
necessary for the insured (s. 88(8)).

[5]            
Certain principles are to be applied in the consideration of the appropriate
deduction to be made. These include:

(a)      the
central question of whether the plaintiff is a person who is or would have been
entitled to Part 7 benefits. If so, the court must estimate the value of the
future payments that ICBC is authorized or required to make and deduct that
amount, see Sovani v. Jin, 2005 BCSC 1285 at para. 46;

(b)      the
defendant bears the onus of proving that the plaintiff is or will be entitled
to the benefits for which it claims the deduction. Strict compliance with the Act
is required. Any uncertainty is to be resolved in the plaintiff’s favour, see Lynn
v. Pearson (1998), 55 B.C.L.R. (3d) 401 (C.A.) at para. 18;

(c)      the
estimate of future benefits is based upon the evidence from the trial in the
tort action. It is open to the trial judge to hear further evidence on the issue
of the estimate, see Schmitt v. Thomson (1996), 18 B.C.L.R. (3d) 153 (C.A.)
at paras. 19-20; and

(d)      the
court is to 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, see Sauer v. Scales, 2009 BCSC 1705 at paras. 22-23.

[6]            
At trial, Ms. Plensky advanced a claim for the cost of future care
that included high and low estimates in present day dollars as follows:

[7]            
The defendants concede that certain categories of the claim are not
covered. These are the claims for assistance with housework, massage,
acupuncture, personal training and career counselling. The total for the high
estimate of these claims is $24,939.23:

The defendants propose to exclude this amount from
consideration for the deduction. Applying the principle that uncertainties are
to be resolved in the plaintiff’s favour, it is reasonable to exclude from
consideration for the deduction, the maximum amount claimed at trial for categories
that are not covered. Thus, the maximum amount to be considered for the
deduction is $36,861 that being the jury’s award less $24,939.23 for the
categories that are not covered.

[8]            
With respect to the balance of the categories claimed, counsel for the
defendants submitted that it would be appropriate to divide the remaining items
into mandatory claims covered by s. 88(1) and discretionary claims covered
by s. 88(2). By counsel’s calculation, 60% approximately of the claims
fall under s. 88(1). Counsel submits that all of the mandatory claims
ought to be deducted, an amount he calculates to be $22,357, together with some
portion of the amount attributable to discretionary claims. It was counsel’s
submission that in the result, after appropriate consideration of all
contingencies, an appropriate deduction would be $32,000.

[9]            
It was the position of plaintiff’s counsel that an appropriate deduction,
after consideration of all contingencies, would be $5,000. Counsel noted that
even with the mandatory items, there is a requirement that the treatment be
reasonable and necessary. Payments are subject to restrictions with respect to
rates and number of visits in some cases. Further, given the substantial
discretion with respect to matters covered under s. 88(2), any reduction
should be nominal for those aspects of the claim.

[10]        
I will now consider each remaining category of claim in turn. First, with
respect to the medication, the maximum claimed was $23,620.96. The defendant’s
position is that these amounts are covered as part of necessary medical
services pursuant to s. 88(1). The plaintiff’s position is that the
writing of a prescription for medication may be covered by s. 88(1) as a
medical service, but the supply of the medication by a pharmacy is not. Counsel
noted that in Ayles v. Talastasi, 2000 BCCA 87 at para. 31, ICBC had
accepted that the medications fell within s. 88(1) and that it was obliged
to pay. Thus no issue arose as to the scope of the section. Counsel submits
that in any event Ms. Plensky’s insurer has been paying for her
prescriptions and is advancing a subrogated claim and, accordingly, ICBC is not
liable to pay pursuant to s. 88(6). Thus, ICBC’s liability to pay would
only arise in the event Ms. Plensky lost her coverage and it was not
replaced with something comparable.

[11]        
In view of the position taken by ICBC with respect to the scope of
s. 88(1) in Ayles, I think it unlikely indeed that medications
prescribed for conditions caused by the accident would be not be found to fall
within that section. However, given s. 88(6) and the evidence that Ms. Plensky’s
extended health insurer is paying for her medications, ICBC’s obligation to pay
is contingent. Accordingly, there should be a substantial reduction with
respect to this category of claim.

[12]        
The next category is the claim for physiotherapy. This claim falls
within the scope of s. 88(1). However, such claims are subject to the
requirement they be reasonable and necessary. In that regard, Ms. Kennedy,
who gave evidence with respect to ICBC’s policies and procedures, stated that
if the corporation’s medical advisor gave the opinion that the treatments were
not necessary, the corporation would deny treatment. Payment in addition is
subject to the restrictions imposed by s. 88(7) and (8). In that regard,
while the schedule in the claim called for treatments at $85 per session,
ICBC’s schedule for payments as set out in its Claims Procedures Manual (“CPM”)
provides for payment of $17.65 per visit with $23.60 for a prolonged visit. Thus
assuming the claim was for 25 sessions at $85 or $2,125, the maximum recovery
would be $590, which amount should be subject to a further deduction with
respect to the contingency that it would be found unnecessary by the
corporation based on advice from its medical advisor.

[13]        
The claim for kinesiology was presented at $85 per session. Again,
assuming the claim was for 25 sessions, the maximum would be $2,125, provides
that kinesiologists will be paid at $50 per hour for one-on-one treatment. If
treatment is in a group setting, the rate will be pro-rated. It is not clear on
what basis these services will be approved. Ms. Kennedy testified that
there was some discretion to pay beyond the limits stated in the CPM; however,
it appeared that this varied by the individual adjuster. The maximum amount
provided for this category pursuant to the CPM is $1,250, to which a further
deduction for the contingency that further treatment would be found not
necessary by the ICBC advisor would be appropriate.

[14]        
The next category is the claim for Feldenkrais physiotherapy at 10
sessions for $130 per session. The CPM provides that there is no Part 7
coverage for any type of alternative therapy or treatment, even when it is
provided by licensed or regulated practitioners referred to in s. 88(1) of
the Regulation. Ms. Kennedy was not familiar with this form of
therapy and did not know if it would be regarded as an alternative therapy. In
any event, if recognized as a form of physiotherapy, presumably the tariff
would apply. However, given the uncertainty surrounding whether this treatment
would be recognized by ICBC, in my view, provision for this claim should not be
included in the deduction.

[15]        
The next category is the claim for psychological counselling in where
$12,011.35 was the maximum claimed. The claim advanced by the plaintiff was for
approximately 76 sessions spread over four years at a cost of $170 per session.
Psychological counselling is covered as a discretionary claim pursuant to s. 88(2).
Services are subject to the tariff that prescribes a maximum hourly rate
payable of $145 for a registered psychologist with a Ph.D. Thus, the maximum
coverage would be $11,020 which would require a significant additional
reduction for contingencies given that this is a discretionary category.

[16]        
The final category is Botox injections, the maximum claimed being 12
injections at $380.40 for a total claim of $4,564.80. The defendants’ position
was that these were covered under s. 88(1) as they have been prescribed by
Ms. Plensky’s physician.

[17]        
Excluding the claims for medications, the value of the allowable claims
pursuant to the CPM is $17,424:

With respect to medications,
while the amount claimed is large, $23,620.96, ICBC’s responsibility to cover
the costs is contingent upon Ms. Plensky losing and not replacing her
present long-term disability coverage. Thus, as noted, it is appropriate to
consider a significant reduction with respect to this claim. In addition, as
discussed above, all the other claims, but in particular the claim for
psychological counselling, are subject to a degree of uncertainty with respect
to whether they will be accepted as reasonable and necessary. Psychological
counselling further falls within the discretionary category. In the result, in
my view a fair deduction after consideration of all of the contingencies, and
taking a cautious approach, is $10,000.

“Ross
J.”