IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120420

Docket: S79530

Registry:
New Westminster

Between:

Adriana Cikojevic

Plaintiff

And

Ryan Timm

Defendant

Before:
The Honourable Mr. Justice N. Brown

Reasons for Judgment

Table
of Contents

I.  Overview.. 3

A.  Cost of Care Table. 4

II.  Legal Principles. 7

III.  Deductions. 9

A.  Rehabilitation case
management, massage therapy, housekeeping and childrearing. 9

B.  Dr. Sass treatments. 9

C.  Costs ICBC has
confirmed the plaintiff is eligible for under s. 88(1), physiotherapy and
medication. 9

1.  Sections 88(1) of the
Regulations. 10

2.  Physiotherapy. 10

3.  Plaintiff’s position
on physiotherapy. 11

4.  Defence position. 13

5.  Findings on
physiotherapy. 13

6.  Findings on
Medication. 15

D.  Eligible s. 88(2)
costs. 15

1.  Equipment aid
findings. 16

2.  Transportation costs
findings. 17

3.  Occupational therapy,
psychological counselling, speech therapy and vocational counselling. 17

a)  Vocational
Counselling. 17

b)  Occupational therapy/
Case Management 18

c)  Psychological
counselling. 20

i.  Reasons for judgment,
psychological counselling. 21

d)  Speech therapy. 22

E.  Other restrictions or
limitations considered. 22

1.  Other significant
restrictions or limitations. 22

IV.  Conclusion.. 23

I.                
Overview

[1]            
Although I heard the trial of matter in January and February 2010, and
gave judgment June 8, 2010, further hearings on collateral matters then
ensured, most recently on April 4 and 5, 2012 – and now, another day of
hearings remains. At the several hearings following judgment, I have heard
submissions on the following matters:

a)       assessment of what benefits should be deducted from the
plaintiff’s judgment, pursuant, s. 83(5) of the Insurance (Vehicle) Act,
R.S.B.C. 1996, c. 231 [Act];

b)       calculation
of fees for financial management of the cost of care award;

c)       whether any allowance also should be made for additional fees
that the trustee of the plaintiff’s estate would charge; and

d)       what amounts should be awarded for gross up of the cost of
care award.

[2]            
Arguments for questions b), c) and d) continued on April 4, 2012, but
were set over for continuance and separate reasons will address those issues.
These reasons deal only with a), assessment of Part 7 benefits the plaintiff is
eligible to receive and with what amounts, if any, should be deducted from the
plaintiff’s cost of care award. The applicable subsections of s. 83 of the Act
to this issue include:

83(2)    A person who has a claim for damages and who
receives or is entitled to receive benefits respecting the loss on which the
claim is based, is deemed to have released the claim to the extent of the
benefits.

…

(4)        In an action in respect of bodily injury or death
caused by a vehicle or the use or operation of a vehicle, the amount of
benefits paid, or to which the person referred to in subsection (2) 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 referred to in subsection (2) is entitled to enter
judgment for the balance only.

(6)        If, for the purpose
of this section or section 84, it is necessary to estimate the value of future
payments that the corporation or the insurer is authorized or required to make
under the plan or an optional insurance 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]            
The underlying objective of these sections it avoid double recovery by
the plaintiff. At the same time, the court must safeguard the cost of care
award it has made to ensure the plaintiff is not deprived of its intended
benefits. Principles relating to this concern are discussed further on.

[4]            
Section 88 of the Insurance (Vehicle) Regulations, B.C. Reg.
447/83 [the Regulations], specifies what medical or rehabilitation benefits an
insured claimant is entitled to receive. There is no question the plaintiff is
an eligible insured; the question is what specific medical or rehabilitation
benefits coverage is available to her.

[5]            
I awarded the plaintiff $251,525 for future cost of care. The base
amount of the award was $228,659. To ensure the adequacy of the award and to
allow for negative contingencies, I increased this base amount by 10%. I
summarized the cost of care award in a table, set out here for ready reference.

A.             
Cost of Care Table

[6]            
Counsel advised that since the June 2010 judgment, ICBC has paid $17,935
towards special damages. This represents the portions ICBC agreed to pay under
Part 7 of the Regulations. ICBC refused, however, to pay anything for costs the
plaintiff incurred for massage therapy and travel. ICBC has also not approved
the plaintiff’s December 8, 2010 request for vocational counselling and has also
refused to admit the plaintiff its Rehabilitation Department management program.

[7]            
ICBC has also paid fees since judgment for the services of a
psychologist and occupational therapist.

[8]            
Before trial, following advice given to it by medical examiners that it
had retained, ICBC refused to fund treatments and therapies recommended by the
plaintiff’s treating physicians and counsellors.

[9]            
The plaintiff’s Part 7 action remains outstanding. Thus far, the
plaintiff has not sought any rulings in that action.

[10]        
The plaintiff agrees the defendant should be credited for all cost of
care payments ICBC has paid under Part 7 since judgment.

II.              
Legal
Principles

[11]        
In Gignac v. Rozylo, 2011 BCSC 237 at para. 13, Wilson J.
distilled the essence of the question now before this Court:

[H]as 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,
what is the estimated present value of those benefits.

[12]        
The pertinent wording of Part 7 of the Regulations, which must be
strictly complied with, determines whether ICBC is obligated to pay for an aid,
service or treatment. The plaintiff, however, receives the benefit of any
uncertainty over whether ICBC is required to pay (See Lynn v. Pearson (1998),
55 BCLR (3d) 401 (C.A.) at para. 18; Uhrovic v. Masjhuri, 2008 BCCA 462
at paras. 37-46).

[13]        
When the trial judge is considering whether ICBC, acting under Part 7,
might refuse to fund a form of care they awarded the plaintiff, thus depriving
them of the court’s judgment, the court must realistically view the
uncertainties involved. (See Schmitt v. Thomson (1996), 18 BCLR (3d) 153
(C.A.); Boota v. Dhaliwal, 2009 BCCA 586; Van Den Hemel v. Kugathasan
(24 November 2010), Vancouver VLC-S-M-081700 (Chambers), Stewart J. at paras.
9-10).

[14]        
In similar vein, judges should be cautious when assessing a suitable
amount to deduct from the cost of care award (Schmitt at para. 19).
Examples of the uncertainties the trial judge should consider include: how long
the plaintiff will need the services; legislative changes that will take away a
plaintiff’s eligibility for Part 7 benefits; and whether the services awarded
in the judgment are mandatory, as they are under. s. 88(1) of the Regulations,
or whether ICBC has a residual discretion, as it has under s. 88(2).

[15]        
The language of Part 7, not the trial findings of the trial judge,
governs whether the plaintiff is eligible for the benefit.

[16]        
To justify a deduction, the defendant must adduce evidence. Evidence of
ICBC policies may be relevant, but submissions or opinions of counsel will not
suffice (McCreight v. Currie, 2008 BCCA 150 at paras. 9, 10, 13, 14).

[17]        
Prior conduct of ICBC in denying benefits does not automatically
preclude a deduction from a judgment award; but it is a significant factor (Sovani
v. Jin 2005 BCSC 1285 at paras. 37-38; Neilson J. discusses s. 25 of the Act,
(repealed 2003-94-20 effective June 1, 2007 (BC Reg. 166/2006) and now s. 83,
quoted above).

[18]        
Because factors such as necessity and causation, and the “nature, extent
and source of the plaintiff’s problems” determine entitlement to a benefit, the
trial judge may infer from positions the defendant took at trial that when the
plaintiff applies for a Part 7 benefit, the Corporation would continue to take
the same position. Van Den Hemel, para. 9, Boota v Dhaliwal, 2009
BCCA, 586, para 85.

III.            
Deductions

[19]        
The plaintiff has not claimed her costs of care incurred before trial,
so the defendant is not seeking a deduction for them. Post judgment, ICBC paid
the plaintiff $17,953.53 of the $20,762.16 special damages, leaving the
plaintiff entitled to judgment for past special damages of $2,826.63.

A.             
Rehabilitation case management, massage therapy, housekeeping and
childrearing

[20]        
Because ICBC has confirmed the plaintiff’s costs of rehabilitation case
management, massage therapy, housekeeping and childrearing are ineligible for
Part 7 funding; I find therefore that there should be no deductions for any of
those heads of damages.

[21]        
Although I awarded the plaintiff $9,996 for either of massage therapy or
chiropractic treatment at her choosing, the plaintiff has not yet sought
chiropractic treatment; she prefers massage therapy and will not seek
chiropractic treatment, a choice she is entitled to make. Chiropractic
treatments are covered under s. 88(1) of the Regulations, massage
therapy is not. Therefore, there will be no deduction from the $9,996.

B.             
Dr. Sass treatments

[22]        
I awarded $1,000 for a treatment program offered by Dr. Sass. I
understand ICBC has still not taken a position on this and I have no evidence
ICBC will cover it in the future. There will be no deduction from this award.

C.             
Costs ICBC has confirmed the plaintiff is eligible for under s. 88(1),
physiotherapy and medication

[23]        
Prescription and non-prescription medication, physiotherapy and
chiropractic treatments evidently are the only items ICBC acknowledges are
eligible for coverage under s. 88(1) of the Regulations. I have already
disposed of chiropractic treatments.

[24]        
The award for medications is $6,841 and for physiotherapy is $16,360.

1.              
Sections 88(1) of the Regulations

[25]        
Sections of s. 88 relevant to these various items are as follows:

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.

(3)        Before incurring an expense or obligation under
subsection (2) for which the insured intends to request payment by the
corporation, the insured shall obtain written approval from the corporation and
the corporation may, before giving its approval, require the insured to submit
such information as it considers necessary to assist it in making a decision.

…

(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.

Arbitration

89        For the purpose of
section 88 (1), any dispute between the corporation and an insured as to
whether or not an expense is reasonable, shall be submitted to arbitration
under the Commercial Arbitration Act.

2.              
Physiotherapy

[26]        
Turning now to physiotherapy, accepted medical evidence predicted the
plaintiff would not fully recover from her back symptoms. In Cikojevic v.
Timm, 2010 BCSC 800, I also found:

[501]    At p. 8 of his October 29, 2009 report, Dr. Anton
stated:

I would encourage Ms. Cikojevic to gradually increase her
level of general exercise but also recommend she receive some "hands
on" supervision and instruction in specific exercise for the core
stabilizers by a therapist with expertise in that area. She would probably
require 12 to 24 sessions before she can continue exercising independently.
There should be some provision for physiotherapy in future to help her modify
her exercise program as needed, with an average of six sessions per year
probably adequate.

[502]    Although the plaintiff has been physically active
and participated in sports at times, it appears she is still physically
de-conditioned.

[503]    I accept the evidence of Dr. Anton and treating
physiotherapists, Connie Keen and Jackie Whittaker that the plaintiff has
weakness in her core stabilizers that likely emanated from the rotational
forces she experienced at impact. It does not appear they will be able to cure
it, although more intensive physiotherapy for a period might improve the
plaintiff’s condition in that area.

[504]    Further, the plaintiff will likely require
occasional physiotherapy to help manage her pain when she becomes more active
or plays sports. Keeping active within reasonable limits is important in the
plaintiff’s case because of the role it plays in managing her tendency towards
depression.

[505]    In my view, the claim
for physiotherapy in the first year is reasonable. However, after the first
year, the plaintiff should have learned techniques from Ms. Whittaker to
strengthen her core and reduce her symptoms, though she may benefit from
treatment when she has a more severe bout of pain. I also note Ms. Whittaker’s
caution that the unnatural way the plaintiff’s muscles function in order to
support her back and the vertical load on her discs may cause some
degeneration. Ms. Whittaker also commented that hyper-tenacity of the pelvic
muscle floor is a known precursor to urinary incontinence, although Dr. Anton
did not comment on that; and in my view this requires a medical assessment.
Still, I accept that the plaintiff is at some risk for a worsening of her lower
back condition as she ages and she may require more physiotherapy. Therefore, I
increase the amount for physiotherapy after the first year to $13,000, for a
total award for physiotherapy of $16,360.

3.              
Plaintiff’s position on physiotherapy

[27]        
Counsel stresses s. 88(1) of the Regulations requires that a
service be both “reasonable” and “necessary.” Despite recommendations of the
plaintiff’s treating physicians and occupational therapists provided before
trial, counsel emphasized the fact that the plaintiff’s adjuster refused to
cover physiotherapy treatments beyond the first twelve authorized, even though,
at that time, the adjuster had no medical report advising additional treatments
were unwarranted. Counsel accordingly submits the plaintiff faces considerable
risk that a current or a future ICBC adjuster could obtain a report from a
medical advisor stating physiotherapy is no longer “reasonable” and
“necessary.” Counsel also emphasized how important physiotherapy is to the
plaintiff’s ability to function, as well as the detrimental effects of a
funding shortfall to both her physical functioning and mental well-being.

[28]        
Counsel for the plaintiff also submits that the fact ICBC is not liable
to pay for more than 12 physiotherapy treatments unless either the insured’s or
ICBC’s medical advisor certifies, in writing, that additional payments are
necessary, raises a realistic risk that the plaintiff will not receive the full
benefit of amounts deducted from the damage award. Counsel points out the cap
on the number of treatments had already come into play in 2003. At that time, both
the plaintiff’s family doctor and Dr. Anton, a physiatrist, prescribed more
treatments beyond the twelve. But ICBC relied on the opinion of its own medical
advisor, Dr. Domisse, an orthopaedic surgeon, who stated further treatment was
not required. ICBC then denied any further funding for physiotherapy under Part
7.

[29]        
The plaintiff referred as well to ICBC’s policy on funding
physiotherapy, as set out in ICBC’s Procedure Manual and treatment flow chart,
[Brito affidavit #6 at 68 -73] which she submits shows it is unlikely ICBC
would fund physiotherapy to the same level as does the tort award. She submits
physiotherapy treatments post judgment will “decrease pain and improve quality
of life,” but not “advance recovery,” which is what s. 79 of the Regulations
requires before ICBC can fund rehabilitation treatments. This is especially
so, the plaintiff submits, because the judgment funded post-judgment to improve
physical function and the plaintiff’s quality of life for the plaintiff: but it
would not significantly advance her recovery from residual effects of the
injury, as s. 78 appears to require. Section 78 defines rehabilitation as:

“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.

[30]        
The plaintiff submits the cost of 12 treatments, calculated at the
legislated rate of $35.90 per treatment, is a realistic deduction for
physiotherapy.

4.              
Defence position

[31]        
Counsel for the defendant estimated, overall, that $23,201 of the cost
of care award is potentially recoverable under s. 88(1) of the Regulations
and $132,308 potentially recoverable under s. 88(2), for a total of $178,711.
This amount does not include the negative contingency increase of 10% awarded
in the judgment. He also points out that since the judgment, ICBC has been
funding physiotherapy under s. 88(1); as it has done also or psychological
counselling and occupational therapy under s. 88(2), discussed shortly.
Allowing for payments already made, leaves a balance of approximately $125,000,
yielding a present value of approximately $85,000. (These are estimates; they
would have to be recalculated for current amounts.)

[32]        
As for physiotherapy specifically, Counsel submits that, based on the
post judgment record, there is no reason to assume ICBC will not continue to
fund physiotherapy. Counsel also submits that a previous refusal to pay a Part
7 benefit when the plaintiff had first claimed it does not deprive the tortfeasor
of the right to seek a deduction (See McCreight v. Currie, 2007 BCSC
1962 at para 3).

5.              
Findings on physiotherapy

[33]        
I found the nature of the plaintiff’s back injury was not a
straightforward matter. The unnatural way the plaintiff’s muscles have worked
to support her back could cause future degeneration in her discs. I accepted
she remains at risk of a worsening back condition. She likely will never
recover from the effects of her back injury. She will require episodic
treatments to reduce pain levels and to maintain a level of function that will
permit her to remain as active as possible.

[34]        
As is evident from my reasons, to arrive at a fair assessment of the
plaintiff’s future care needs, I attempted to weigh a number of factors and
future possibilities in a balanced and proportionate way. I allowed for the
permanent effects of her injuries and the risk of her condition worsening in
the future. Although attempting to achieve some recovery from the back injury
was one of the objectives of the award, funding for episodic treatment was a
key component. This will be required to help the plaintiff manage her pain,
particularly when she becomes more active or plays sports: because keeping
active within reasonable limits will play a crucial role in helping the
plaintiff reduce the risk of her slipping into depression, episodic
physiotherapy to maintain function is particularly important in this case. In
addition, physiotherapy may indirectly help the plaintiff improve her prospects
for gainful employment and self-sufficiency.

[35]        
As mentioned, counsel for the plaintiff emphasized that ICBC is not
liable to pay for more than twelve physiotherapy treatments caused by each
accident; and that for more treatments beyond that number, ICBC’s medical
advisor must certify in writing his opinion that the treatment is necessary. In
the past, the plaintiff’s adjuster has chosen to rely on the opinion of its own
medical advisor over those of the plaintiff’s treating physicians. Counsel for
the defendant submits that ICBC has accepted my findings on causation, but that
does not mean it will see the plaintiff’s treatment and funding needs in the
same way.

[36]        
In this regard, counsel for the plaintiff referred to Boota v.
Dhaliwal, 2009 BCCA 586. The trial judge was similarly concerned services
would not match the definition of rehabilitation in s. 78 of the Regulations
and the Court of Appeal upheld the trial judge’s decision to deduct only $1,000
from a $28,305 award.

[37]        
As far as the amount paid by ICBC for physiotherapy to date, I do not
know the amount. Whatever the amount, it should be deducted from the cost of
care award.

[38]        
Although a judge is not required to match items in a tort award to
specific Part 7 benefits, “it is, where present, a valuable aid to attempt in a
fair fashion to attempt to aid in a fair fashion to unravel what portion of the
tort award contains Part 7 benefit items”: Ogilvie v. Mortimer, 2008
BCSC 634 at para. 20. And, as confirmed in Boota at para 79, some
comparison of heads of damages and their overlap with Part 7 is a logical way
to estimate the deductions. This approach also gives the parties opportunity to
see where the judge might have erred. But ultimately, it is an assessment that
is required, not precise calculations, which, given the current wording of the
Regulations and the evidence usually available to the court are unattainable
anyway.

[39]        
As for physiotherapy treatments, I find a realistic assessment of the
deductible amount payable is $3,000.

6.              
Findings on Medication

[40]        
The total amount of medications, as per part 1 of the Table of Damages,
$6,841, should be deducted from the award.

D.             
Eligible s. 88(2) costs

[41]        
ICBC has acknowledged the plaintiff could be eligible for funding under
s. 88(2) for equipment, devices and incidentals such as auto shut off
appliances, a GPS device, daytimer/electronic aids, a fire extinguisher,
equipment for stretching, pain relieving ointment and travel costs of $1,675.
The present value of these, including travel costs, is $7,013.

[42]        
As for treatment services, ICBC also agrees occupational therapy,
psychological counselling, speech therapy and vocational counselling could be
eligible under s. 88(2). The total value of these items is:

a)       Occupational
therapy and case management, $75,463

b)       Psychological
counselling, $18,200

c)       Speech
therapy, $16,503

d)       Vocational
Counselling, $15,000

[43]        
Defence counsel points out that of these items, vocational counselling
is the only one s. 88(2) specifically refers to. Occupational therapy and
speech therapy, on the other hand, are specified under s. 88(1). The reasons
for the way ICBC approached this were not really articulated, but the logical
surmise is that ICBC concluded s. 88(1) did not cover these items; but also
that they could still be eligible as a discretionary item under s. 88(2). I
agree with the plaintiff that given that ICBC has approached the plaintiff’s
eligibility this way, deductibility of benefits should be assessed
accordingly.

[44]        
Relevant portions of section 88(2) state:

(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:

(e)        funds to the insured for
vocational or other training that

(i)         is consistent with the
insured’s pre-injury occupation and his post-injury skills and abilities, and

(ii)        may return the insured
as nearly as practicable to his pre-injury status or improve the post-injury
earning capacity and level of independence of the insured;

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

(3)        Before incurring an
expense or obligation under subsection (2) for which the insured intends to
request payment by the corporation, the insured shall obtain written approval
from the corporation and the corporation may, before giving its approval,
require the insured to submit such information as it considers necessary to
assist it in making a decision.

[45]        
The plaintiff points out that even if ICBC’s medical advisor certifies a
requested treatment as necessary, ICBC still retains a sole residual discretion
whether to fund the recommended treatment. Section 88(2)(f) confirms ICBC can
pay for any other costs it, in its sole discretion, agrees to pay.

1.              
Equipment aid findings

[46]        
I agree with the plaintiff that the types of equipment and aids listed
in ss. 88(2) (a), (b) and (d), with the exception of 4.1 and 4.4 in the
Chart of Cost of Care, auto shut off valve, $56, and fire extinguisher, $128,
are not of the kind awarded in the judgement. I find no deduction for them is
warranted. In addition, pain-relieving ointment does not appear to accord with
how the Regulations define rehabilitation. There should therefore be a
deduction of only $189.

2.              
Transportation costs findings

[47]        
ICBC’s position on coverage of travel costs under Part 7 has shifted.
Initially, in a July 9, 2010 letter, the corporation refused to pay the portion
of special damages I awarded for transportation costs. Later, in February 24,
2011 correspondence, ICBC indicated transportation could be recoverable under
Part 7.

[48]        
ICBC’s Procedures Manual mandates coverage for transportation. A
s. 99 examination by the medical practitioner of the insured is covered,
as well as a dentist, physiotherapist or chiropractor, selected by ICBC. (I
note in passing that ICBC is no longer liable to a claimant who fails to
“comply” with the adjuster’s choice of examiner.) Also covered are
transportation travel costs for treatments unavailable locally.

[49]        
I find there should be no deduction for travel costs awarded in the
judgment.

3.              
Occupational therapy, psychological counselling, speech therapy and
vocational counselling

a)              
Vocational Counselling

[50]        
In December 2010, the plaintiff applied for approval of vocational
counselling before incurring the expense, as s. 88(3) required of her, but ICBC
did not approve funding for it.

[51]        
Counsel pointed out that on a strict reading of s.88 (2)(e), for an
insured to be eligible for vocational counselling, it appears the vocational
counselling’s purpose must be consistent with the claimant’s pre-injury
occupation and their post injury skills and abilities. Interpreting this
literally, it is difficult to see how the profile of the plaintiff, who was a
high school student and worked part-time in a meats shop, would qualify. I note
that counselling can be directed towards improving an insured’s post-injury
earning capacity and independence for activities of daily living. Nevertheless,
it is not possible to predict with much confidence how an adjuster would
interpret the section, whether literally or liberally and contextually – that
is, whether they would take into account factors such as the age of the insured
and the fact that they had not yet had opportunity to acquire skills or to
establish a pattern of pre-injury employment. I think most adjusters would
apply the section contextually. But in my view, the plaintiff’s right to the
service should be clear, especially given the important role vocational
counselling will play in helping the plaintiff maximize her residual earning
capacity; and considering also that the availability of vocational counselling
influenced my assessment of the residual value of her future earnings.
Considering these factors, as well as ICBC’s refusal of the plaintiff’s request
for funding, there should be no deduction from the award for vocational
counselling.

b)              
Occupational therapy/ Case Management

[52]        
I made the following findings regarding occupational therapy.

[491]    I agree the plaintiff requires occupational therapy
to assist her in those areas where she is weak, and to learn strategies and
skills to adapt to or minimize her deficits. I also agree that the plaintiff
requires occupational therapy that is more intensive initially so that she can
incorporate what she has learned in a natural and reflexive way.

[492]    However, in the five years following, I am not
persuaded the plaintiff will require the level of therapy and case management
recommended by Ms. Tse. I accept Dr. Anton’s view that the plaintiff should be
weaned from too much reliance on occupational therapy and counselling, but also
that she will require some assistance in the future. I agree this is especially
important when the plaintiff is in a transition phase or dealing with a crisis.

[493]    While I understand Ms. Tse’s reasoning in support of
the cost of a case manager, especially after age 65, in my view, the plaintiff
should be able to make appointments and meet commitments with the help of her
iPhone and other organizational aids and structuring, which she has found
helpful. Some additional case management time for periodic reviews might be
justifiable.

[494]    Further, the plaintiff is capable of mitigation in
the form of thoughtful use of her occupational therapy time. She must
understand that occupational therapy funds are not unlimited. Excessive
psychological dependence is undesirable, as I understand Dr. Anton’s concern.

[495]    The plaintiff is an intelligent young woman and has
the desire to improve and overcome her deficits as much as she can. In my view,
she has the capacity to learn what Dr. Lewington and Ms. Tse have to teach her,
although she will need some help gaining insight into difficult situations and
ways to deal with them. Further, she will need additional therapy when taking
on a new job or new responsibilities. She will need help overcoming her
deficits and there is a real chance challenging new situations will overwhelm
her ability to cope.

[496]    Bearing in mind the
benefits Dr. Anderson, Dr. Anton and other experts see in occupational therapy,
I allow $4,867 for case management after age 65, and $5,000 for additional case
management hours before age 65 to allow for situations in the plaintiff’s life
when the need will likely arise. I award $7,512 for occupational therapy for
the first five years, $10,084 for episodic increases every five years, and
$48,000 for maintenance therapy after the first five years, totalling $75,463.

[53]        
I understand that since the judgment, ICBC has been funding occupational
therapy, although I do not have the current figure. The defendant is of course
entitled to a credit for the total amount paid to date.

[54]        
My award for cost of care attempted to balance various contingencies and
anticipated episodes in the plaintiff’s life where the intervention and
assistance of an occupational therapist would be required to help her overcome
her cognitive deficits, especially her planning and organizational problems. The
plaintiff should be able to function without benefit of occupational therapy at
times, but when she has to learn something new such as a new job skill, or deal
with new or emotionally challenging situations such as conflict at work or
parenting challenges, she will doubtless require intensive therapy. As noted,
she will also require a certain ongoing level of moderate therapy after five
years has elapsed since the judgment.

[55]        
Longer-term therapy does not fit well with the goals of rehabilitation,
as defined in the Regulations. So far, ICBC has exercised its discretion to
fund occupational therapy, which of course encompasses far more than employment
assistance. The plaintiff testified at trial that she had found occupational
therapy was critical to her ability to cope with stress and the challenges of
daily living that most people can manage without too much difficulty. In my
view, ICBC’s residual sole discretion on whether to fund, constitutes a
realistic risk that the plaintiff could lose the benefit of her award,
particularly as ICBC would not accept her into its rehabilitation management
program. I say this because her participation in that program could at least
ensure continuity in information and consistency in the management of her
rehabilitation requirements.

[56]        
It is important to recall that the plaintiff functions in some spheres
of life quite well. But as new challenges or pressures mount, so in proportion
do her cognitive coping resources melt away. It is not difficult to foresee a
situation where the plaintiff manages well enough for a time without any need
of occupational therapy; but then combinations of circumstances accumulate and
in their course necessitate an intense period of assistance from an
occupational therapist. In such circumstances, a denial of funding because the
plaintiff has managed without occupational therapy for a considerable period is
realistic risk to further funding.

[57]        
Further, in my view, ICBC should at least have confirmed how and why it
has exercised its sole discretion and whether it sees the insured is entitled
to receive occupational therapy for the reasons I awarded it. Otherwise, a
judge has little basis upon which to come to a reasonable assessment of how
much, if anything, to deduct from the cost of care award. As it stands, I can
only guess how, in coming years, ICBC might choose to exercise its sole
discretion.

[58]        
In addition to the amounts already paid, I assess $4,000 is a realistic amount
to deduct from the award for occupational therapy,

[59]        
I note ICBC has not admitted the plaintiff as a client into its
rehabilitation program. It appears the plaintiff will pay all costs of case
management. I find no corresponding service that will become available to her
under Part 7, and which would warrant deductions.

c)              
Psychological counselling

[60]        
Post judgment, ICBC has paid some amounts for psychological counselling.
All these sums paid should be deducted from the future cost of care award.

[61]        
The plaintiff submits, however, that the issue is how long ICBC will
continue funding, particularly considering, as counsel put it, “the goals of
Part 7 are ’rehabilitation in the shortest term possible’.” Counsel referred to
the ICBC Procedures Manual, which sets out policies for psychological
counselling:

-treatment must be provided in a timely manner with a set
schedule that includes an end date;

-if more than four treatments are required, request a
treatment plan; and

-a maximum of eight one-hour treatments may be authorized,
although no more than four treatments should be authorized initially.

i.                
Reasons for judgment, psychological counselling

[62]        
In my June 2010 reasons, I stated,

[497]    I agree with the recommendation for counselling in
the first year at a cost of $3,200.

[498]    The plaintiff also claims $21,400 compensation for
the predicted need for counselling for major depressive episodes every five
years. The plaintiff’s last major episode was eight years ago, although she
also experienced less serious depression about five years ago and I accept her
evidence that she has to fight against falling into depression. However, she
has been largely successful in doing so. Moreover, in future she still has the
option of antidepressants and following through with her physician until she
finds one that has fewer side effects and is effective for her. I also note
that occupational therapy and the application of what she learns from Dr.
Lewington should further reduce the need for psychological counselling in
future. It is worth noting the plaintiff’s major depressive episode occurred
after her disappointing performance in Grade 12 and when she was dealing the
fact she had not recovered.

[499]    Nevertheless, I accept that the evidence supports
the real possibility the plaintiff will need further psychological counselling.
In my view, $15,000 is fair and reasonable, given that the plaintiff will have
other therapeutic options, including antidepressants, provisioned in this
award. I note that Dr. Lewington’s counselling should encompass pain
management.

[500]    I award a total of
$18,200 for counselling.

[63]        
My reasons anticipate a lifetime of episodic need for psychological
counselling. Even if a practitioner chosen by ICBC recommends psychological
counselling, ICBC’s policies regarding funding for counselling appear to
significantly limit the number of treatments. Moreover, the adjuster is not
bound by the medical examiner’s recommendations anyway.

[64]        
Further, the plaintiff’s needs will fluctuate and they will depend, in
part, on how well she copes with external stressors that her brain injury
amplifies and consequently erodes her ability to cope. She could go without
requiring counselling sessions for say, for one year, and then require weekly
treatments for a period of several months. Such unpredictable patterns do not
lend themselves well to rigid formulae.

[65]        
In addition, concerns similar to those in the case of occupational
therapy pertain here. All considered, I assess a $3,000 deduction for
psychological counselling.

d)              
Speech therapy

[66]        
The defendant has not provided the court with criteria ICBC uses for funding
of speech therapy. And I understand it has not yet taken any position on how it
will exercise its discretion for speech therapy under s. 88(2) of the Regulations.
Nothing should be deducted for speech therapy.

E.              
Other restrictions or limitations considered

1.              
Other significant restrictions or limitations

[67]        
The defendant highlighted a number of other restrictions or limitations
that could expose the plaintiff to a realistic risk of a funding refusal. I
have commented already on some of these, such as restrictions on the number of
physiotherapy treatments an insured person is eligible for under s. 88(8).
Additional restrictions and limitations include caps on the amounts ICBC will
pay for services, as set out in s. 88(7) of the Regulations; the
risk that an insured’s benefits would be terminated if an insured disagrees
with a treatment recommended by practitioners under s. 90; and a risk that an
insured’s condition is attributed to other causes and not her injuries, under
s. 96.

[68]        
With some cases of personal injury, it becomes difficult to conceive of
causation ever becoming an issue and leading to a denial of services. But in
cases such as this, involving as it does a subtle frontal lobe injury and its
resulting lifelong interference with the plaintiff’s executive functioning, a
host of life’s challenges, one of a kind that would fail to produce symptoms
for a person with a normal brain, in the plaintiff’s case reliably can be
expected to produce a range of symptoms and functional problems that require
therapy or services. Causation in such situations arising years later may be
difficult to assess. I find, considering the matter realistically, that the
plaintiff is at significant risk that a medical examiner or an adjuster, or
both, would see the matter differently than did the experts witnesses whose
opinions I accepted.

[69]        
I have, therefore, accordingly taken into account the foregoing
restrictions and limitations embodied within the Regulations in making my
foregoing assessments.

IV.           
Conclusion

[70]        
I find $17,000, represents a fitting amount to deduct from the cost of
care award. It is not necessary to adjust this figure for the 10% gross up for
negative contingencies I included in my judgment.

[71]        
The defendant is additionally entitled to credit for amounts ICBC has
paid to date for physiotherapy, occupational therapy and psychological counselling.

“N. Brown J.”