IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120927

Docket: S107247

Registry:
Vancouver

Between:

Scott Young

Plaintiff

And

Insurance
Corporation of British Columbia

Defendant

Before:
The Honourable Mr. Justice Bowden

Reasons for Judgment

[1]            
By way of a summary trial under Rule 9-7, the plaintiff
is seeking a declaration that he is entitled to accident, medical,
rehabilitation and disability benefits under Part VII of the Insurance (Motor
Vehicle) Act, R.S.B.C. 1996, c. 231, and the Regulations thereto
(“Part VII”). The plaintiff said at the hearing of this matter that he is not
seeking payment thereof but an order declaring his entitlement to such benefits.

[2]            
The defendant has paid $13,564.64 in Part VII
benefits to the plaintiff but has stopped payment until the plaintiff’s
entitlement is determined. The main issue in relation to the Part VII benefits
is the implication of pre-existing health problems of the plaintiff.

[3]            
The defendant also says that this matter is not
suitable for hearing under Rule 9-7 essentially because of the complexity
of the case and conflicting evidence regarding the plaintiff’s medical
condition.

[4]            
The plaintiff is currently 42 years of age and resides
with his spouse and infant son in Vancouver, British Columbia. He was involved
in a motor vehicle accident on April 2, 2007, and as a result he alleges that
he suffered injuries to his neck and back. Prior to the accident, the plaintiff
was the owner and chief employee of Bar Smart The Performance Bartending
Company Inc. He performed and taught what is known as “flair bartending.”

[5]            
In the accident, the plaintiff’s vehicle was
rear-ended by a cement truck. The plaintiff had previously suffered problems
with his back and had surgery on March 4, 2005. He says that he was doing
well after the surgery and returned to work. Following the accident the plaintiff
says that he experienced increased pain and developed new symptoms. The plaintiff
alleges that he experienced new injuries to his neck and back as a result of
the accident.

[6]            
The plaintiff has attended physiotherapy and
exercised at a gym but says his symptoms have worsened. On February 18, 2010,
he underwent surgery to his spine and on September 30, 2010, he had further
surgery relating to his spine. The surgery was on the same site as the surgery
that was performed in 2005. The plaintiff admits that it is difficult to
determine in particular what each surgery was treating.

[7]            
The benefits sought by the plaintiff have been
set forth in detail in Tab 3 of the application record and include the
costs of massage therapy, physiotherapy, prescription and non-prescription
drugs, mileage and parking, fitness programs, miscellaneous equipment,
acupuncture, chiropractic, travel, counselling, sessions with a psychologist
and other miscellaneous items. I note that miscellaneous items include food
items such as prune juice and Blockbuster rentals.

[8]            
In his affidavit sworn November 30, 2011, the plaintiff
said that prior to the accident he was in good health, physically fit and did
not suffer from any limitations with respect to his employment, recreation or
home life.

[9]            
In the report of Dr. Mark Adrian dated September
22, 2008, it is indicated that the plaintiff admitted having pre-existing lower
back and left leg pain which limited his recreational activities and employment.
In his report, Dr. Adrian says that the plaintiff’s neck pain was causally
related to the accident. He does not appear to address whether the neck pain
resulted from the plaintiff’s pre-existing degenerative disc disease. The defendant
says this is an area that should be dealt with by cross-examination.

[10]        
In the report of Dr. R. Sahjpaul, a
neurosurgeon, he notes that an entry in Dr. Porter’s records dated January
9, 2007, indicates that the plaintiff was “still attending physiotherapy two
times per week” and had problems with mood disturbance and frustration in
addition to “Chronic pain times years.” The report also notes that the plaintiff
was on long-term medications including Gabapentin, Tylenol 3, Supadol and
Vioxx leading up to the motor vehicle accident. Dr. Sahjpaul also says
that he disagrees with Dr. Matishak’s diagnoses of disc degeneration as
being an injury. He also disagrees with Dr. Hershler’s view that the plaintiff
had almost completely recovered from his lumbar problems prior to the motor
vehicle accident. He noted that the plaintiff had significant chronic back pain
prior to the motor vehicle accident and at a young age. He opines that regardless
of the accident the plaintiff’s prognosis was not favourable and he would have
continued to experience chronic back pain and leg pain symptoms.

[11]        
Dr. Lu, a psychiatrist, reported that the plaintiff
has chronic pain that is clearly related to spinal pathology for which he
required surgery. The defendant says that this begs the question as to the
cause of the chronic pain. Dr. Lu defers to other medical specialists to
comment on the cause and effects of his chronic pain. Dr. Lu also finds
the plaintiff to have narcissistic personality disorder and comments that this
may mean that the plaintiff is psychologically vulnerable to developing a pain
disorder. Dr. Koch says that a narcissistic personality disorder develops in
the teen years. The defendant says that the plaintiff’s narcissistic disorder
may materially contribute to his pain disorder.

[12]        
Dr. Koch describes the plaintiff’s case as very
complex. He says that the plaintiff’s pre-existing personality disorders and
pain disorder placed him at very high risk of further deterioration in his
emotional and physical well-being.

ANALYSIS AND DECISION

[13]        
In seeking medical and rehabilitation benefits,
the plaintiff relies on s. 88(1) in Part VII of the Insurance
(Vehicle) Regulation, B.C. Reg. 447/83. It provides:

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.

[14]        
The defendant denies the benefits sought and
relies on s. 96(f) which provides:

96 The corporation is not liable to pay
benefits under this Part in respect of the injury or death of a person

(f) whose injury or death is caused,
directly or indirectly, by sickness or disease, unless the sickness or disease
was contracted as a direct result of an accident for which benefits are
provided under this Part.

[15]        
I agree with the defendant that the issues are
not suitable for determination under Rule 9-7.

[16]        
There are marked similarities between the facts
in the case at bar and the facts in Toukaeva v. Insurance Corp. of British
Columbia, 2006 BCSC 1140, [2006] B.C.J. No. 1708, where the plaintiff was
also seeking benefits under Part VII.

[17]        
As in Toukaeva, in the case at bar the plaintiff’s
condition is very complex and is complicated by his pre-accident condition. In
addition, there are contradictory opinions expressed by the experts which raise
questions regarding the plaintiff’s entitlement to Part VII benefits.

[18]        
Like Toukaeva, there is conflicting
expert opinion regarding the cause of the plaintiff’s complaints because of the
plaintiff’s medical condition before the accident.

[19]        
The words of Brown J. at para. 31 of Toukaeva
appropriately describe the conclusion I have reached in the case at bar:

[31] In my view, it will be
necessary to receive the oral evidence of the witnesses, both lay and expert,
to assess: the extent to which the plaintiff’s claim results from injuries
received in the motor vehicle accident or from pre-existing complaints; whether
the plaintiff is dissimulating, as some of the psychological testing suggests;
the extent to which she is disabled; and, which benefits she should be provided
pursuant to Part 7 of the Regulation. A summary trial is
therefore not appropriate.

[20]        
Accordingly, the plaintiff’s application is
dismissed with costs.

“Bowden
J.”