IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140805

Docket: S073019

Registry:
Vancouver

Between:

Alexandr Kozhikhov

Plaintiff

And

Insurance
Corporation of British Columbia

Defendant

Before:
The Honourable Mr. Justice N. Smith

Reasons for Judgment

[1]            
The plaintiff seeks judgment on summary trial for $10,863.86 in medical
treatment expenses that he says the Insurance Corporation of British Columbia
(ICBC) is required to pay under Part VII of the Insurance (Vehicle) Regulation,
B.C. Reg. 447/83 [the Regulation], of the Insurance (Motor Vehicle) Act,
R.S.B.C. 1996, c. 231.

[2]            
ICBC says there is evidence that the plaintiff’s injuries were caused directly
or indirectly by a pre-existing condition, which would disentitle the plaintiff
to the benefits he now claims. It says the conflicts in the medical evidence
can only be resolved by a full trial with cross-examination of all the experts.

[3]            
The plaintiff was injured in a motor vehicle accident on June 29, 2006.
A tort claim arising from the accident was settled on June 3, 2011. The present
action concerns only the Part VII benefits.

[4]            
The plaintiff saw his family physician, Dr. Golin the day after the
accident with complaints that included pain and stiffness in the neck and upper
back, numbness in the right leg and arm and headaches. Dr. Golin diagnosed neck
and back strain, caused by the accident.

[5]            
The plaintiff had a previous history of periodic neck and back pain that
would resolve itself with no chronic pain. He says the last incident of such
pain prior to the accident was in 2004. This was confirmed by Dr. Golin in a
report dated December 5, 2006.

[6]            
The plaintiff’s pain continued over the next two and half years and he had
a variety of treatments as recommended by Dr. Golin, including acupuncture,
massage therapy, chiropractic treatments, supervised exercise program and use
of traction devices at home, all of which provided only temporary relief. In
February 2009, an MRI showed a disc herniation and spondylosis.

[7]            
In a report dated May 14, 2009, Dr. Apel, a specialist in physical
rehabilitation and medicine, said the abnormalities shown on the MRI are age
related and not a cause of the plaintiff’s symptoms, Dr. Apel said the accident
caused “mechanical functional abnormalities” and myofascial pain syndrome.

[8]            
In a report dated June 16, 2009, Dr. Cameron, a neurologist, agreed that
the changes shown on the MRI were not significant and not caused by the
accident. He said the accident caused soft tissue and musculoskeletal injuries.

[9]            
On July 11, 2009, Dr. Condon, a specialist in pain management, diagnosed
muscular and tendon injury causing myofascial pain. Unlike the other doctors,
Dr. Condon believed the accident caused the disc herniation, but said that
injury was of “no clinical significance”.

[10]        
The plaintiff did not have significant, long lasting pain relief until
early 2011, when Dr. Helper performed a series of nerve block procedures and a
neurotomy. In a report dated March 10, 2011, Dr. Helper said the plaintiff had
been experiencing mechanical neck pain involving the facet joints at C 4-5 and
C 5-6 on the right and C 5-6 and C 5-7 on the left. He added at 5-6:

It is possible that the patient
had a mild pre-existing condition with pain emanating from the same cervical
anatomic structures that had previously only caused mild, temporary symptoms in
2001, 2002 and 2004. It is possible that the motor vehicle collision in
question resulted in further injury or significant aggravation of the same
cervical structures. However, it is my overall impression that the motor
vehicle collision in question is responsible for the majority of Mr.
Kozhikhov’s complaints

[11]        
ICBC relies on the report of Dr. Fisher, dated December 8, 2010, which
concludes at 15:

The degenerative changes through
the cervical spine were pre-existing and were not a result of the motor vehicle
accident. The C5-6 disc protrusion was probably present prior to the motor
vehicle accident and was aggravated by the accident and is probably
contributing to a minor amount of his ongoing symptoms. The majority of his
ongoing pain is myofascial in origin and should improve with reassurance and
return to regular function.

[12]        
Earlier in his report, Dr. Fisher says at 13 that the accident:

…probably aggravated some
pre-existing neck problems. Whether this is related to degenerative changes or
the C5-C6 disc protrusion and/or myofascial inflammation is difficult to
determine.

[13]        
He then said, also at 15, that if the plaintiff had not been in the
accident he “more likely than not would have had neck symptoms in the future;
however the accident has made a 10 to 15 per cent impact on frequency and
severity.” Dr. Fisher also said that the plaintiff has not shown the usual
gradual resolution of neck symptoms caused by soft tissue injury, adding at 14:

The majority of pain, however, is
probably myofascial in origin and has persisted due to his previous neck
symptoms with similar aggravating features and nonorganic factors around
chronic pain.

[14]        
It is important to note that Dr. Fisher’s report predates that of Dr.
Helper and the effective treatments that Dr. Helper provided.

[15]        
Part VII of the Regulation provides for payment of certain medical,
rehabilitation and wage loss benefits to persons injured in motor vehicle
accidents, regardless of fault. A claim under Part VII is a claim under the
plaintiff’s own insurance, as opposed to a tort claim against another person
who may be liable for the accident.

[16]        
The intent of Part VII is to allow “summary and relatively quick and
inexpensive access” to benefits without putting the plaintiff to the same test
for proving injury as he or she must meet in the tort claim arising from the
accident: Tangaro v. Riley, [1995] B.C.J. 588 at para. 12.

[17]        
In Fedyk v. Insurance Corp. of British Columbia, 2013 BCSC 1466
at para. 80, the court cited Tangaro in referring the “somewhat more
relaxed standard of proof required of an insured person claiming a benefit
under Part VII of the Regulations, compared to the tort trial.” Tangaro
was also cited in Bulic v. Insurance Corp. of British Columbia (1999), 47
B.C.L.R. (3d) 244 at para. 12, where the court said:

The claim is solely for
reimbursement for medical expenses that the plaintiffs accrued as a result of
the motor vehicle accident. This is supported by the medical reports. This is
not a third party claim for damages where the extent of their injuries and
whether their injuries were exaggerated is a significant matter for the trier
of fact. The only issue here is whether they were injured as a result of the
accident and whether it is reasonable for them to receive Part 7 benefits.

[18]        
The summary nature of the Part VII claim is confirmed by s. 101 of the
Regulations, which reads:

Benefits payable under this Part shall be paid by the
corporation

(a) in the case of weekly benefits,
within 4 weeks after it receives proof of claim, and thereafter at 4 week
intervals if the insured complies with sections 98 and 99 when required by the
corporation, and

(b) in any other case, within 60 days after it receives
proof of claim.

[19]        
The benefits claimed in this case are subject to s. 101(b). The 60 day
period for payment allows ICBC the opportunity to review and investigate the
claim. Obviously, it does not give sufficient time for the extensive
investigation the corporation may undertake when defending its other
insured–the allegedly at fault motorist–in the tort claim, but that is
consistent with summary nature of the claim and the relaxed standard of proof
required of the plaintiff.

[20]        
ICBC relies on s. 96(f) of the Regulation, which reads:

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.

[am. B.C. Regs. 379/85, ss. 36, 37; 449/88, s. 17.]

[21]        
Section 96(f) must be read in conjunction with s. 101. If the
plaintiff’s injury is caused by the sickness or disease referred to in s. 101,
benefits are not payable. But in the absence of evidence that s. 96(f) applies,
ICBC must pay benefits within 60 days after it receives proof of the claim.

[22]        
In other words, if ICBC is to reject a claim for specific benefits under
s. 96(f), it must do so on the basis of evidence obtained before the expiry of
the 60 day deadline. In cannot use evidence obtained long after the fact to
justify a failure to comply with s. 101.

[23]        
In this case, the plaintiff submitted claims based on invoices whose
dates range from July 2006 to May 2011. Although the affidavit evidence does
not clearly state it, I understand it to be common ground that the invoices
were submitted to ICBC for payment immediately or shortly after they were
issued.

[24]        
The first, and to date only evidence ICBC had to support denial of
claims under s. 96(f) was Dr. Fisher’s report, dated December 8, 2010. Once it
had Dr. Fisher’s report in hand, it was open to ICBC to raise the s. 96(f)
issue in respect of any invoices submitted after December 8, 2010 or up to 60
days before that date.

[25]        
However, to the extent that claims had been submitted more than 60 days
before the date of Dr. Fisher’s report, ICBC had already become obliged to pay
them. It cannot use the subsequently acquired evidence to justify its previous
failure to comply with mandatory time requirement in s. 101.

[26]        
I therefore find that ICBC cannot rely on Dr. Fisher’s report to deny
payment of any claims submitted before October 8, 2010. By my calculation, this
amounts to approximately $3,900 of the amount claimed after deducting
approximately $700 that ICBC paid at some point.

[27]        
However, there were significant invoices submitted after the date of Dr.
Fisher’s report which are properly at issue in this action. The question then
becomes whether ICBC’s liability to pay those benefits can be decided on
summary trial.

[28]        
Rule 9-7(15)(a) of the Supreme Court Civil Rules, B.C. Reg.
168/2009, reads:

(15) On the hearing of a summary trial application, the court
may

(a) grant judgment in favour of any
party, either on an issue or generally, unless

(i) the court is unable, on the
whole of the evidence before the court on the application, to find the facts
necessary to decide the issues of fact or law, or

(ii) the court is of the opinion that it would be unjust to
decide the issues on the application,

[29]        
In the leading case of Inspiration Mgmt. Ltd. v. McDermid St.
Lawrence Ltd. (1989), 36 B.C.L.R. (2d) 202 (C.A.), McEachern C.J.B.C. said
at para. 48 that, in determining whether it would be unjust to give judgment on
summary trial:

[T]he chambers judge is entitled
to consider, inter alia, the amount involved, the complexity of the matter, its
urgency, any prejudice likely to arise by reason of delay, the cost of taking
the case forward to a conventional trial in relation to the amount involved,
the course of the proceedings and any other matters which arise for
consideration on this important question

[30]        
This case should be determined on summary trial if possible,
particularly because the cost of taking the matter to a full trial will likely far
exceed the amount in dispute. The issue is whether the plaintiff’s injury is
caused by sickness or disease within the meaning of s. 96(f) and the question
is whether that can be resolved on the basis of the evidence now before me.

[31]        
In Polykandriotis v. Insurance Corp. of British Columbia, [1979]
B.C.J. No. 1903, the victim of a car accident suffered a number of fractures,
then died in hospital after suffering the second of two heart attacks. The
court found that the deceased’s damaged heart was not caused by the accident
and was at least a factor in the victim’s death. Therefore the exclusion from
liability under the identically worded predecessor to s. 96(f) applied and ICBC
was not liable to the plaintiff for death benefits and funeral expenses.

[32]        
ICBC also relies on the more recent decision of this court in Mawji
v. Insurance Corp. of British Columbia, 2001 BCSC 1610. In that case, a
plaintiff with pre-existing osteoarthritis injured her neck, back and left knee.
Catliff J. said at para. 13:

The uncontradicted evidence
therefore, is that the accidents have caused the plaintiff’s disease of
osteoarthritis to become exacerbated to the point where her disease now
seriously handicaps her. On this basis it seems clear that the defendant is not
liable to pay benefits to her because her injury has been caused indirectly by
her disease. In the context of Part 7 it seems to me that "injury"
refers to the continuing injurious condition of the claimant. Such continuing
condition is one that is caused indirectly by her underlying disease.

[33]        
However, in Wafler v. Insurance Corporation of British Columbia,
2008 BCSC 1387 at para. 12, Meiklem J. said:

[T]here is some force to the
argument that the approach applied in Mawji, taken to its logical
extreme, would deny coverage to any claimant with a pre-existing condition of
sickness or disease that contributed in any way whatsoever, no matter how minor
the contribution, to a continuing injurious condition following a motor vehicle
accident. I agree that such an extreme interpretation would defeat the clear
insuring intent set out in s. 80(1) of the Regulation to provide wage-loss
benefits to insured persons who are totally disabled as a result of injuries
sustained in motor vehicle accidents.

[34]        
Meiklem J. said at para. 27 that such an extreme result is avoided by
proper application of the “but for” test of causation:

The drastic consequence that the
present plaintiff suggests, of exclusion from coverage for anyone suffering any
degree of degenerative condition that is rendered symptomatic by an accident,
is avoided so long as it is understood that a pre-existing disease which is
aggravated must meet the “but for” test in respect of the total disability in
order to bring it within the s. 96(f) exclusion.

[35]        
Those comments were followed in Cai v. Insurance Corp. of British
Columbia, 2013 BCSC 2213, where Bruce J. said ICBC had failed to prove that
but for the pre-existing condition, the plaintiff would not have become totally
disabled.

[36]        
Although Wafler and Cai related to wage loss benefits,
there is nothing in the language of s. 96(f) to suggest a different standard or
approach should apply to the type of benefits at issue here.

[37]        
The issue here is more specific than the general cause of the
plaintiff’s injury, as would be the issue in a tort action. It is whether “but
for” a pre-existing sickness or disease, the specific treatments for which the
plaintiff claims would have been unnecessary.

[38]        
The evidence ICBC relies on is at best ambiguous on this issue. Dr.
Fisher does not clearly identify the pre-existing “disease” said to be causing or
contributing to the plaintiff’s injury, saying it may be the disc herniation,
the degenerative changes or myofascial inflammation. He then diagnoses the
plaintiff as currently suffering from myofascial pain and says that is related
to the pre-existing condition. Rather than identify the previous illness and
explain how it was aggravated by the accident, Dr. Fisher appears to have
worked backward from his present diagnosis to conclude that the earlier pain
must have had the same cause.

[39]        
By contrast Dr. Helper diagnosed the plaintiff’s pain as mechanical back
pain related to specific spinal structures and provided treatment specifically
directed to those areas. The fact that those treatments were successful in
relieving the plaintiff’s pain is compelling evidence that, on the balance of
probabilities, Dr. Helper’s diagnosis was correct and his opinion is to be
preferred over that of Dr. Fisher.

[40]        
Dr. Helper refers to aggravation of a pre-existing condition as only a
possibility and clearly states that the majority of the complaints for which he
treated the plaintiff were the result of the accident. That conclusion is
consistent with the evidence of all the other medical opinions, except that of
Dr. Fisher. It follows that even if some of the plaintiff’s pain was related to
a pre-existing condition, the evidence does not show the post-accident
treatment would have been unnecessary in the absence of the pre-existing
condition.

[41]        
ICBC argues that at least some of the doctors on whose opinions the
plaintiff relies were not aware of his pre-accident history of neck and back
pain. However, that history is clearly referred to by Dr. Helper, whose opinion
I consider the most important, and by Dr. Golin, who was most familiar with
that history.

[42]        
On all the evidence, I find that ICBC has failed to show that, but for
the pre-existing condition, the plaintiff would not have needed the treatments
now claimed under Part VII. The suggestion that cross-examination at trial may
lead to a different result is purely speculative. In Everest Canadian
Properties Ltd. v. Mallmann, 2008 BCCA 275, Newbury J.A. said at para. 34
(referring to Rule 18A, the predecessor of the current Rule 9-7):

It is trite law that where an
application for summary determination under Rule 18A is set down, the parties
are obliged to take every reasonable step to put themselves in the best position
possible. … Where the application is brought by a plaintiff, the defendant
may not simply insist on a full trial in hopes that with the benefit of viva
voce evidence, ‘something might turn up’.

[43]        
The plaintiff is entitled to summary judgment in the amount sought.

“N.
Smith, J.”