IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110225

Docket: 06-4867

Registry:
Victoria

Between:

Robert
Abraham Gignac

Plaintiff

And:

Allen
Rozylo, Henry Alexander Rozylo and
The Estate of Henry Alexander Rozylo
by its unknown personal representative

Defendants

And:

Insurance
Corporation of British Columbia

Third
Party

Before:
The Honourable Mr. Justice R. D. Wilson

Reasons for Judgment

I.

[1]          
The plaintiff’s action was a claim for personal injury damages.  On 29
April 2010, following the trial of the action, among other heads of damage, I
assessed $115,975 for costs of future care, and $15,755 for special damages.

[2]          
These reasons address the application by the third party for an order:

For an estimate of the statutory
deductions the plaintiff may be entitled to receive under Part 7 of the
Regulations to the Insurance (Motor Vehicle) Act and that a deduction be
made pursuant to s. 25 of the Insurance (Motor Vehicle) Act from the
damages award for special damages and future costs of care.

II.

[3]          
In support of his claim for special damages, the plaintiff filed a
schedule of special damages.  Included in that schedule were expenditures said
to have been made for medications, physiotherapy and massage therapy.

[4]          
In support of his claim for costs of future care, the plaintiff led the
evidence of an occupational therapist and rehabilitation consultant.  A
compendium of the goods and services said to attract an award for costs of
future care was filed.  Present values for each item were calculated by an
economist.  The assessment is a total of those individual present value
calculations.

[5]          
The applicant submits that from the special damages claim, the following
attract consideration for reduction from the special damage award:

 Medications                                                  $ 
109.51

 Physiotherapy                                              $1,760.50

 Massage
Therapy $   414.25

 TOTAL $2,284.26

[6]          
The applicant further argues that from the future care costs, the
following entries attract consideration for reduction from the assessment:

 Wall Bar                                                         $ 
119.00

 Hot/cold packs                                              $
365.00

 Medications                                                  $ 
1,814.00

 Physiotherapy                                              $ 
1,175.00

 Orthopedic Therapy[1] $ 
8,162.00

 Massage Therapy                                        $ 
5,895.00

 Pool Program                                                $ 
8,162.00

 Psychological Support                                $ 
3,337.00

 Household accessories $ 
3,790.00

 TOTAL $32,819.00

[7]          
In recognition of the admonition in Schmitt v. Thomson[2]
that, “Trial judges may be cautious in their approach to the s. 24(5) estimate
inasmuch as the deduction results in a lessening of the award in the tort
action considered proper on the evidence by the trial judge”, the applicant
submits that an appropriate reduction, to recognize the “uncertainties”
involved, would be approximately 20% of the total of $35,103.26 said to be
subject to a s. 25 analysis, and the assessment at trial reduced by $25,000.  And
the plaintiff is entitled to enter judgment on this head of damage for $90,975.

[8]          
The plaintiff contends that no deduction should be made from the
assessment, on a number of grounds, including:

 (i)         he is not entitled
to receive benefits from the corporation for the goods and services asserted by
the applicant, by reason of his having a primary insurer; or the goods and
services are not rehabilitative;

 (ii)        his entitlement to
the benefits are so uncertain as to render impossible any estimate.

III.

[9]          
For the purposes of this application, the material words in the statute
are:

1 (1)     “benefits”
means the prescribed benefits.

25 (1)   In this section
“benefits” means a payment that is or may be made … under a plan
established under this Act, [3]

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

25 (4)   In an action in
respect of bodily injury … the amount of benefits … to which the claimant is or
would have been entitled, must not be referred to

25 (5)   After assessing
the award of damages … the amount of benefits referred to in [subsection 4,
above] must be disclosed to the court … [and] if the amount of benefits has not
been ascertained, the court must estimate it

25 (6)   If, … it is
necessary to estimate the value of future payments that the corporation … is
authorized or required to make under a plan … the value must be estimated
according to the value on the date of the estimate of a deferred benefit

[10]       
For the purposes of this application, the material words in Part 7 of
the Regulation are:

78 “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;

88 (1)   Where an insured
is injured in an accident for which benefits are provided under this Part, the
corporation shall, subject to subsections … (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.

88 (2)   Where, in the opinion of the corporation’s medical
advisor, 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.

88 (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.

88 (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.

88 (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.

IV.

[11]       
Manifestly, the inquiry on this application is not into what payments
the corporation will or may, in the future, make for covered benefits; nor is
it restricted to a simple determination of what coverages are available to the insured.

[12]       
This is a conventional application in a civil proceeding and the
conventional burden and standard of proof is applicable.

[13]       
In my view, the issue for determination on this application is — has
the applicant established, to the civil standard, that the plaintiff is a
person entitled to receive benefits, under the plan, which the corporation
(Insurance Corporation of British Columbia) is authorized or required to make
under the plan?  And, if so, then what is the estimated present value of those
benefits.

[14]       
In support of the application, the applicant has filed the affidavit of
Ms. Anne Lewko, sworn 20 January 2011.  Ms. Lewko is an insurance examiner
employed by the corporation.  She is the examiner assigned to handle the
plaintiff’s claim.

[15]       
In the affidavit, Ms. Lewko provides the following evidence:

7.         Pursuant
to section 88 of the Regulations pursuant to the Insurance (Motor Vehicle)
Act there are both mandatory and permissive benefits.  The benefits that
are mandatory must be for expenses which are reasonable and necessary.

8.         Section
88 sets out various medical expenses which are mandatory for payment.

9.         ICBC
claims handling procedures include reasonable expenses for necessary medication
as part of the mandatory benefits under section 88(1) even though
medication is not specifically listed in section 88(1).

10.       Permissive
benefits pursuant to section 88(2) may be provided in the discretion of the
assigned examiner.  Section 88(2) sets out various kinds of permissive benefits
as well as “other” benefits which may be paid.  The “other” benefits are not
defined.

13.       Psychological
services are not a specific listed permissive benefit.  It would fall under the
“other” category.  ICBC policy is that typically psychological services is a
permissive benefit under section 88(2).

14.       Massage therapy is not a
specific listed permissive benefit.  It would fall under the “other” category. 
ICBC policy is that typically massage therapy is a permissive benefit. 
According to the current ICBC claims handling policies, with a GP referral,
ICBC will pay for a maximum of 12 visits within the first eight weeks from the
date of loss.

[16]       
I have presumed that the words “mandatory” and “permissive”, used by
Ms. Lewko, are synonymous with the statutory language of “required” and “authorized”. 
I have further presumed that Ms. Lewko’s reference to “other” refers to s.
88(2)(f), referred to above.

[17]       
In response to the application, the plaintiff has filed an affidavit
sworn 9 February 2011.  Attached to the affidavit are copies of on-line
printouts of a Pacific Blue Cross Extended Health Care Plan.  This plan is
available to the plaintiff’s wife as an employee of the Province of British
Columbia.  The plaintiff is a named insured on that policy.

[18]       
The plaintiff says that Blue Cross is the primary insurer and the
corporation is the secondary insurer.  Therefore, it is argued, the plaintiff
is not entitled to benefits by reason of s. 88(6) of the Regulation.

[19]       
In the reply argument, the applicant contends that the material provided
by the plaintiff is inadequate for a determination of the plaintiff’s
entitlement under the Blue Cross plan.

[20]       
I am not persuaded that this is so.  The material provided by the
plaintiff sets out an inventory of the plan benefits.  It is certainly far more
detailed than is to be found in either of s. 88(1) or (2).  I am satisfied that
Blue Cross would be the primary insurer for physiotherapy, orthopaedic therapy,
massage therapy, psychological support and medications.

[21]       
However, as the applicant points out, the Blue Cross plan does not
reimburse the plaintiff for 100% of his expense.  For example, according to the
evidence at trial, the plaintiff was paying $60 per visit for physiotherapy,
and $37.50 per visit for massage therapy.  The Blue Cross plan provides $10 per
visit for physiotherapy and, for massage therapy, $10 per visit for 8 visits,
with a maximum of $750 per year.  The plaintiff would be entitled to benefits
under the plan for the excess of his expenditure over the Blue Cross
contribution, up to the maximum allowed under the plan.

[22]       
I find the plaintiff entitled to those benefits.  There is a risk of
double recovery for the future costs of medications, physiotherapy and
orthopaedic therapy.  I assess the present day value of the plaintiff’s
entitlement for those items at $2,000.  The assessment on costs of future care
will be reduced accordingly.

V.

[23]       
As I understand Ms. Lewko, if a benefit is not “specifically listed”,
then, an insured’s entitlement to the benefit is dependent upon “ICBC claims
handling procedures”, or “ICBC claims handling policies”, or “ICBC policy”.

[24]       
Legislative support for this approach is s. 88(2)(f), the “other”
category, referred to above.

[25]       
The statute does not direct me to determine entitlement to benefits
pursuant to ICBC policy; the direction is to determine entitlement pursuant to
the plan.

[26]       
Section 88(2)(f) is subject to the opinion of the corporation’s medical
advisor that an expenditure is likely to promote the rehabilitation of an
insured.

[27]       
The opinion of that medical advisor is a necessary condition before
resort may be had to s. 88(2)(f) of the Regulation.  Absent the necessary
condition, the corporation is not authorized to pay benefits.

[28]       
Rehabilitation means restoration.  This plaintiff’s debilitating
condition is chronic pain.  Current medical science has no cure for this
condition.  I find it improbable that a medical advisor would opine that any of
the goods and services contained in the assessment of future care costs, would
promote the rehabilitation of this plaintiff.  Those goods are services were
recommended by the occupational therapist as necessary to enable this plaintiff
to maintain an optimum level of functioning, now and in the future, and to
maximize independence and prevention of further disability.

[29]       
Alternatively, if I am wrong in my interpretation of the legislation,
and ICBC policy is a relevant factor, then the applicant has not persuaded me
that it is more likely than not that this plaintiff is entitled to the benefits
in controversy.  The scales are evenly balanced.  Policy may authorize the
benefit or it may not.  According to Ms. Lewko:

11.       It is ICBC policy that the
exercise of discretion for permissive benefits must be rationally connected to
the relevant factors governing an objective assessment of the entitlement to the
benefit.

That is a level of abstraction which does not allow for a
determination of entitlement on a balance of probability.

[30]       
In result, the cost of future care assessment is reduced by $2,000.

                   “R.
D. Wilson, J.”                    

The
Honourable Mr. Justice R. D. Wilson