IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20141118

Docket: S122829

Registry:
Vancouver

Between:

Marissa
MacDonald

Plaintiff

And

Insurance
Corporation of British Columbia

Defendant

Before:
The Honourable Madam Justice Fitzpatrick

Reasons for Judgment

I.                
Introduction

[1]            
The plaintiff, Marissa MacDonald, was injured as a result of three motor
vehicle accidents, occurring on March 9 and April 7, 2009 and on November 10,
2011.

[2]            
This action, commenced in April 2012, concerns Ms. MacDonald’s
claim of entitlement to medical rehabilitation and disability benefits under
Part 7 of the Insurance (Vehicle) Regulation, B.C. Reg. 447/83, promulgated
under the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231 (the “Regulation”).

[3]            
The application is for a summary trial of the issues pursuant to the BC Supreme
Court Civil Rules, Rule 9-7. At the heart of the matter is the past and
current recommendation of Ms. MacDonald’s doctors that she would benefit
from a multi-disciplinary assessment and treatment program that would assist in
addressing Ms. MacDonald’s chronic pain symptoms. In addition, Ms. MacDonald
seeks recompense for expenses already incurred by her in relation to addiction treatment.

[4]            
The defendant, the Insurance Corporation of British Columbia (“ICBC”), takes
the position that the matter is not suitable for summary trial given the
uncertainty in the medical evidence. In the alternative, ICBC says that Ms. MacDonald’s
claim does not come within the Regulation by which payment of benefits
are mandated by it.

II.              
Background

A.             
Events to Time of the Accidents

[5]            
Ms. MacDonald is a registered nurse. She is currently 30 years old.
She graduated with her nursing degree in 2007. She was employed full-time with
Mt. St. Joseph Hospital in Vancouver, BC for approximately two years before the
first motor vehicle accident in early 2009.

[6]            
Her last working day was in late January 2009, some months before the
accident. She was off work recovering from surgery for endometriosis. As far as
Ms. MacDonald was concerned, the surgery was a success and she was
scheduled to return to work just days after the accident in March 2009.

[7]            
The first motor vehicle accident was the most significant of the three
and it is my understanding that the most significant injuries arise from it. Ms. MacDonald
was riding as a passenger in the backseat of her boyfriend’s vehicle when other
vehicles in front of them suddenly crashed and their vehicle collided with the
truck in front of it. Ms. MacDonald immediately felt shock and pain and
was taken to the hospital. Her boyfriend’s vehicle was written off.

[8]            
The second and third motor vehicle accidents in April 2009 and November
2011 are said to have been minor collisions.

B.             
Post-Accident Events

[9]            
Ms. MacDonald had not worked in the five and a half years since the
first accident.

[10]        
By her account, the impact of her injuries has significantly impacted
her professional career. She had to decline an important opportunity that was
available to her to further her nursing education that would have led to a
positon at St. Paul’s Hospital emergency department. That, in turn, led to her
being unable to pursue a master’s degree that required that she obtain this
critical care specialized experience.

[11]        
Ms. MacDonald attempted to return to work at Mt. St. Joseph Hospital
in June 2010 but she was unable to complete her duties and had to leave. She
never returned.

[12]        
By reason of her disability leave, she lost her nursing position at Mt.
St. Joseph Hospital. She has also lost an important qualification that would
have allowed her to obtain certain speciality certification that she had hoped
to obtain in 2010.

[13]        
Ms. MacDonald says that, as a result of the accident, she suffered
injury to her back, neck, chest, left shoulder, abdomen, pubic bone, pelvis,
hips and groin. She also complains of nausea, constipation, headaches, anxiety,
shock, depression and disturbed sleep. She says that she has post-traumatic
stress disorder, including anxiety while travelling in a car and fear of
driving a car.

[14]        
One of the significant issues that arose was Ms. MacDonald’s weight
gain, some 100 pounds since the first accident. In 2010, she underwent a
LapBand procedure (bariatric surgery) that does not seem to have helped. In
fact, it caused nausea and vomiting. She now contends that she has swallowing
problems requiring medication to assist her in swallowing food and pills. She
is seeking medical advice on this latest issue, which may involve removal of
the LapBand.

[15]        
She has received a plethora of treatments for her various ailments.
These have included nerve root block injections, a lumbar epidural injection,
blood patches, barium swallow examinations and a gastroscopy. Her right foot
developed plantar fasciitis as a result of the use of a cane, her disturbed
gait and sciatica. She had cortisone injections to her foot. Various other
treatments include psychiatric treatment, chiropractic treatment, physiotherapy
and naturopathic treatment, Pilates, personal training sessions, massage
therapy, cranio-sacral therapy, acupuncture and prolo-therapy. In the midst of
all of this, she has had four MRIs, four CT scans, several x-rays and a body
scan.

[16]        
As if this was not enough, further issues arose. Ms. MacDonald
developed Bell’s Palsy (right side facial paralysis). She struggled with
urinary frequency and incontinence, for which she wore diapers for one year.
This appears to now be controlled by medication and pelvic physiotherapy. In
the years following the accidents, she has struggled with mental disorder that had
led to suicidal ideation and attempts. She was committed to Vancouver General
Hospital (“VGH”) and St. Paul’s Hospital for brief periods as a result of these
events.

[17]        
Ms. MacDonald says that, as a result of her poor self-care during the
years while struggling with these conditions, she ruined many of her teeth such
that urgent dental surgeries were necessitated. She anticipates requiring
expensive dental work in the future.

[18]        
Ms. MacDonald describes that the most devastating impact of her
injuries was her development of a drug dependency. Some years back, Ms. MacDonald
was recommended
to attend a chronic pain program at St. Paul’s Hospital;
however,
the hospital recommended that she attend a program to address her
drug dependency prior to attending such a chronic pain clinic. As
a result of this recommendation, she did undertake some programs. She was
treated as an inpatient at the New Dawn Recovery House. In addition, from July
to October 2012, she entered a residential addiction treatment program at
Heartwood Centre for Women (“Heartwood”). Ms. MacDonald paid the cost of
that program herself, being $4,045.84.

[19]        
Ms. MacDonald states that she continues to be unable to work due to
her complex health issues and chronic pain but that she remains motivated to get
back to gainful employment, hopefully in nursing. She describes that a major
barrier is her dependence on methadone for pain management. Ms. MacDonald
states that she needs interdisciplinary support to make further improvements
and aid in her recovery.

[20]        
The program that has been identified is a multi-disciplinary pain
management program provided by Orion Health Rehabilitation and Assessment
Centres (“Orion Health”). This program includes occupational therapy,
physiotherapy, psychology, kinesiology, medical and pharmaceutical assessments,
consultations, acupuncture and educational programs. The goals of the program
include providing coping skills for managing pain and providing education on
medications and their uses. There is a two day multi-disciplinary assessment by
a team of specialists at a cost of $2,500. If the team concludes that a pain
management program would be beneficial, the full five week program gets
underway at a cost of $11,100.

[21]        
Ms. MacDonald describes this Orion Health program as her “last
hope” in terms of addressing her ongoing pain and addiction and, hopefully, leading
to a healthier life and, eventually, a return to her nursing career.

III.            
The medical evidence

[22]        
There is ample support from medical professionals that Ms. MacDonald
did benefit from the Heartwood program and would further benefit from a multi-disciplinary
program, such as the one offered by Orion Health.

[23]        
A multi-disciplinary pain program was identified early on as a potential
step in Ms. MacDonald’s rehabilitation. In November 2009, Ms. MacDonald
attended at Orion Health and a Multidisciplinary Pain Assessment Report was
prepared on December 4, 2009. However, the team members who assessed Ms. MacDonald
did not recommend admission into the program at that time, as they felt that
she needed further treatment for her pelvic problems, followed by physiotherapy
and fitness training, prior to being admitted.

[24]        
On May 30, 2011 and July 11, 2011, Dr. David Hunt, a pain
specialist, diagnosed a pain syndrome, mechanical low back pain, spondylosis,
urinary incontinence, fibromyalgia, depression and anxiety secondary to the
chronic pain condition, obesity and a decondition syndrome. He recommended that
Ms. MacDonald attend a full inter-disciplinary chronic pain program.

[25]        
On December 12, 2011, Dr. Stanley Karon prepared a report noting
conditions similar to those set out by Dr. Hunt, and including the further
condition of Bell’s Palsy which resulted in some paralysis of the facial
muscles. Dr. Karon noted that pre-existing conditions included the
endometriosis, a generalized anxiety disorder and mild obsessive/compulsive
disorder (“OCD”) and that Ms. MacDonald was overweight. Dr. Karon
recommended continued behavioral therapy, pain medication management and
further weight loss. He felt Ms. MacDonald’s prognosis was good but that
it would take some time before she was able to get back to any kind of
meaningful employment.

[26]        
On July 24, 2012, Dr. Ray
Baker prepared an occupational addiction medicine evaluation report. Dr. Baker
noted Ms. MacDonald’s current enrollment in the Heartwood program. He
thought her prognosis was fairly good, provided that she continued in the
program (i.e., Heartwood), along with cognitive behavioural therapy, continued mutual support group activities, an active aerobics
program and nutritional management, along with continued monitoring of her pain
medication.

[27]        
Ms. MacDonald places great reliance on the recommendations of Dr. Annabel
Mead who cared for her during the inpatient psychiatric stay at VGH and during Ms. MacDonald’s
stays at New Dawn Recovery House and Heartwood in 2012. On November 19, 2012, Dr. Mead
noted that Ms. MacDonald’s pain management medications and depression had
been rationalized and stabilized but she also noted that Ms. MacDonald
continued to struggle with chronic pain management and physical and mental
issues. She recommended that Ms. MacDonald participate in a structured
multi-disciplinary pain management program, such as what is offered at Orion
Health.

[28]        
On August 27, 2013, Dr. Donald Hedges, a specialist in addiction medicine,
assessed Ms. MacDonald. He recommended that she participate indefinitely
in an abstinence-based recovery program.

[29]        
Following the submissions heard at the 2013 hearing dates, Ms. MacDonald
obtained updated medical information in support of her claim, which was the
subject of submissions during the 2014 hearing dates.

[30]        
Dr. Brenda Lau, a pain specialist, saw Ms. MacDonald in
February 2014 and confirmed the earlier diagnosis of a chronic pain disorder. Dr. Lau
made a number of recommendations for treatment, including exercise, medication
management, psychological assessment, physiotherapy and counselling. Dr. Lau’s
report of February 6, 2014 notes:

Marissa presents with a complex
number of issues that have a number of underlying causes pointing to abnormal
contractured muscles. The central sensitization is also a big problem, she is
now trying to recovery from the barrage of medications being trialed with her
in the early stages of her pain management. She will need to dedicate her
schedule to reconditioning, aerobic improvement, breath, posture and medication
reduction. She is motivated and strongly desires to return back to work.

Ms. MacDonald says that all of these problems could be
addressed by way of the treatments available in the Orion Health program.

[31]        
Dr. Caroline MacCallum, at VGH’s Complex Pain and Addiction
Services, provided a report dated March 4, 2014, written in part by Dr. Mead.
Both doctors continue to recommend the rehabilitation program at Orion Health.

IV.           
Discussion

A.             
Is a Summary Trial Appropriate?

[32]        
ICBC contends that the medical issues are complex and I do not
understand Ms. MacDonald to contest that proposition.

[33]        
Further, ICBC says that Ms. MacDonald’s pre-existing medical
conditions contribute to this complexity particularly with regards to the issue
of causation for Ms. MacDonald’s current condition. Dr. Hunt and Dr. Karon
both identified that, prior to the first accident, Ms. MacDonald had been
suffering from endometriosis (for which she had surgery just before the
accident), an anxiety disorder (for which she was on medication) and she was
overweight.

[34]        
The unchallenged evidence of Ms. MacDonald is that she was
recovering from the endometriosis surgery and that the pain she experienced
from that surgery was completely different from the pain she experienced after
the first accident.

[35]        
Ms. MacDonald’s gynecologist, Dr. Catherine Allaire, conducted
laparoscopic uterine suspension surgery in early February 2009, just before the
accident. She examined Ms. MacDonald a number of times after the accident,
beginning in March 2009 and throughout 2010-2011. In her December 12, 2011 report,
Dr. Allaire identified some uterine prolapse, but saw no connection
between that condition and the injuries arising from the accident. Further, Dr. Allaire
stated that Ms. MacDonald’s gynecological problems were not causing her
ongoing pain symptoms in the left lower quadrant.

[36]        
While Ms. MacDonald was overweight prior to the accident, she
gained 100 pounds after the accident. Dr. Karon’s report makes clear that
it was this later weight gain that contributed to the diagnosis of morbid
obesity that led to the stomach surgery that was later determined to have caused
additional adverse health issues and to have been ill-advised.

[37]        
Dr. Karon found that there was a very good correlation between the
accident and Ms. MacDonald’s condition in late 2011. Despite these pre-existing
conditions, Dr. Karon described Ms. MacDonald as “very functional”
and an excellent nurse before the accidents. He described her as a person who,
as a result of the accidents, had become “medicalized”.

[38]        
ICBC says that the resolution of the issues in this action requires a
full trial with cross examination of the experts, citing Toukaeva v. ICBC, 2006 BCSC 1140 and Young
v. Insurance Corporation of British Columbia, 2012 BCSC 1421. However in Toukaeva,
the court found that were inconsistencies in the plaintiff’s own expert reports
regarding the need for the benefits, in addition to reports filed by the
defence refuting the medical basis for ongoing benefits. In addition, some
expert reports supported the view that the disability was caused by pre-existing
conditions.

[39]        
Similarly, in Young, the expert testimony differed as to the
causation of the pain, particularly as it related to pre-existing symptoms.

[40]        
In contrast, ICBC has not presented any medical evidence on this
application beyond producing some medical records, both pre- and post-accident,
that reference Ms. MacDonald’s pre-existing conditions. As I have stated,
these pre-existing conditions are well acknowledged by her. ICBC has not
presented any expert medical evidence to the effect that these pre-existing
conditions have contributed to Ms. MacDonald’s present condition. Nor has
ICBC presented any specific evidence to contradict Dr. Karon’s conclusion
that Ms. MacDonald was functioning fully before the accident despite her
pre-existing conditions.

[41]        
I accept the proposition that inconsistencies and uncertainty may arise
simply from the evidence of Ms. MacDonald and her medical evidence;
however, ICBC has not taken any steps to test this uncontradicted evidence,
whether through examination for discovery or cross examination on the
affidavits. This issue has now been outstanding for some two to three years,
yet ICBC has taken no steps to challenge Ms. MacDonald’s evidence. Simply
saying that one wishes to cross examine cannot lead to the inevitable inference
that such a procedure would yield evidence relevant to the application. Nor
does it lie in the mouth of the person who has, without any reasonable
explanation, taken no such steps in the interim to test the evidence to now
espouse further delay for that reason. See Kozhikhov v. Insurance Corporation
of British Columbia, 2014 BCSC 1476 at para. 42.

[42]        
In light of the above circumstances, I do not view the causation issue,
such as it is, as dictating that a summary trial is inappropriate. As I have
said, the evidence of Ms. MacDonald, supported by the expert medical
evidence submitted by her, points to the host of medical issues being faced by
her as being the result of the accident. A similar conclusion was reached in Cai
v. Insurance Corporation of British Columbia, 2013 BCSC 2213 at para. 40
where there was “no real conflict” in the medical evidence concerning the
accident-related injuries. As such, a summary trial was found to be appropriate.

[43]        
As in Cai, the remaining issues involve statutory interpretation
of the Regulation as it relates to the facts in this case. The same
considerations apply here, and I conclude that a summary trial is appropriate
in this case.

B.             
Are There Other Benefits?

[44]        
Ms. MacDonald had private insurance through her employer, Health
Employers Association of BC, which is administered and managed by Healthcare
Benefit Trust (“HBT”). She began receiving long term disability (“LTD”) benefits
from HBT as a result of her inability to work after the accident in March 2009.

[45]        
Appendix C to the HBT and Nurses Union Collective Agreement includes a
“Memorandum of Understanding” (the “MOU”) that refers to a “Commitment to
Rehabilitation”. By that provision, if an employee is able to participate in a
rehabilitation program that can facilitate a return to work, and if that
program is “recommended by HBT/underwriter and approved as a Rehabilitation
Plan”, then an “Approved Rehabilitation Plan” comes about and LTD benefits may
continue.

[46]        
The Rehabilitation Plan was to be jointly determined by the employee and
HBT. In considering whether such a plan was “appropriate”, factors to be
considered included the duration of the disability and the level of activity
required to facilitate the earliest return to employment.

[47]        
Just after the first accident, HBT developed, with Ms. MacDonald, an
Approved Rehabilitation Plan that involved HBT funding services to Ms. MacDonald
from November 2009 to June 2011. The latest Approved Rehabilitation Plan (from
March 2011) was subject to review by August 2011. In accordance with the MOU, this
plan was determined by HBT to be “appropriate”, consistent with the overarching
principle that the program was to facilitate Ms. MacDonald returning to
gainful employment such that the LTD benefits could terminate.

[48]        
However, in October 2011, HBT advised that it was closing its file in
respect of providing any further rehabilitation services because Ms. MacDonald
was not improving to the point of being able to return to her employment. That
decision was confirmed in later correspondence in November 2011 in which HBT
stated:

HBT Rehabilitation Services facilitates
cost-effective rehabilitation for the purpose of resolving barriers to gainful
employment in order to shorten the duration of an LTD claim. Ms. MacDonald
was provided with significant rehabilitation; however, her Rehabilitation
Services file was closed, because the rehabilitation provided did not resolve
the barriers to gainful employment and her medical status precluded further
participation in a Rehabilitation Plan. There is no process to appeal this
decision.

[49]        
Ms. MacDonald’s counsel tried mightily to persuade HBT to continue
funding her rehabilitation expenses, to no avail. As a result of HBT’s decision,
the Heartwood costs from 2012 were incurred by Ms. MacDonald and not funded
or refunded by HBT.

[50]        
On March 27, 2013, HBT advised that benefits under the Trust, including
the LTD benefits, were then being administered by Great West Life (“GWL”). In
November 2013, Ms. MacDonald’s counsel forwarded the reports of Drs. Hunt,
Karon, Baker and Mead to HBT/GWL and sought a reconsideration of the refusal to
fund the cost of Ms. MacDonald’s attendance at Orion Health. Consistent
with the earlier decision, on February 26, 2014, GWL acknowledged receipt of the
medical information but determined that no referral to rehabilitation services
was warranted at that time.

[51]        
When HBT initially refused to fund any further rehabilitation expenses
in late 2011, such as for the multi-disciplinary rehabilitation pain program, Ms. MacDonald
requested that ICBC do so.

[52]        
In April 2012, ICBC refused, taking the position that Part 7 benefits
are secondary to other coverage and that Ms. MacDonald was required to
look to her insurance benefits in the first instance: see Antoniali v. Massey, 2007 BCSC 1458 at para. 19; Gignac
v. Rozylo, 2011 BCSC 237 at paras. 17-20. This is dictated by
the Regulation, s. 88(6) which provides:

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.

[53]        
The issue therefore is whether this exclusion clause applies in that
amounts paid by Ms. MacDonald for the Heartwood program, or which would be
payable to Orion Health, are “payable by” HBT or “recoverable by” Ms. MacDonald
from HBT.

[54]        
Much of the argument before the court concerned the matter of onus and
whether Ms. MacDonald or ICBC bore that onus. At the outset, I would
observe that it is likely the case that the person seeking benefits under Part
7 would be the person more intimately familiar with the issue as to any other
insurance plan being potentially available. In that sense, I conclude that, at
least at the outset, the onus will be on the “insured” under Part 7 to put
forward evidence about the availability or non-availability of such benefits. However,
thereafter, the onus will shift to the insurer (ICBC) to establish the
applicability of s. 88(6) as an exclusion clause: Polykandriotis v. Insurance
Corp. of British Columbia, [1979] B.C.J. No. 1903
at paras. 15-16 (Co. Ct.).

[55]        
In this case, Ms. MacDonald has produced evidence of another
benefit potentially available and has also produced the terms of that benefit,
all of which strongly suggest that it is within HBT’s discretion to make two
determinations: firstly, whether such rehabilitation services will be such as
to meet its mandate to facilitate a return to employment; and secondly, whether
HBT will fund such services.

[56]        
ICBC submits that Ms. MacDonald must do more toward satisfying the
onus. I do not agree. While the MOU is in general terms and does not specify
that it is entirely within the discretion of HBT to fund, the provisions of the
document support the conclusion that there is no “right” on the part of Ms. MacDonald
to force HBT to fund. Further, there is nothing in the MOU provisions to
suggest that HBT’s refusal to fund is subject to any appeal process or even the
court’s oversight as to whether it is “appropriate”. As quoted above, HBT
expressly told Ms. MacDonald that there was no appeal from its decision.

[57]        
I do not accept that Ms. MacDonald should be put to the task of
demanding payment from or even commencing litigation against HBT in order to
satisfy the onus that HBT need not fund these costs. In the alternative, even
if the onus could rightly be placed on Ms. MacDonald in that respect, I
consider that the provision of the documentation and the efforts of her counsel
to reinstate HBT’s funding of her rehabilitation services met any such onus.

[58]        
ICBC also argues that HBT acknowledged that it would pay for such a program
provided that it helped "resolve the barriers to gainful employment".
Ms. MacDonald has indicated that one long term goal in seeking this
treatment program is to return to work. ICBC therefore argues that ipso
facto, the program is covered by HBT, HBT is the primary payor and s. 88(6)
applies.

[59]        
With respect, this is a simplistic view of a very complex medical
situation. While Ms. MacDonald is no doubt desirous of ultimately getting
back to work, it is clear that this goal is a long shot at best. The medical
evidence establishes that the Orion Health program is seen as a stepping stone
on a long road to potential recovery and perhaps a return to employment. This
was best expressed by Dr. MacCallum just recently in March 2014:

It is highly unlikely her back
injuries and chronic pain will ever allow her to return to the acute care
nursing settings she is accustomed to. It is also unlikely she will return to
any meaningful employment in the near future due to her pain and functional
limitations.

[60]        
Therefore, even if there was a potential for a return to work and
HBT would fund a program, the existing facts and medical opinion evidence support
that there is no clear indication that the program will have that result. As
such, HBT has decided that the program cannot necessarily be expected to
facilitate a return to employment, as required by the MOU. However, the Regulation,
which provides for mandatory payments by ICBC in certain circumstances, is not,
of course, tied to such a consideration.

[61]        
I conclude that since HBT’s decision to fund benefits is discretionary
and in any event, the program costs do not fit within the parameters of such
funding under the MOU, these expenses are not “payable by” HBT to Ms. MacDonald
or “recoverable” by her from HBT. ICBC has failed to establish that s. 88(6)
of the Regulation applies.

C.             
What is the Effect of Pre-Existing Issues?

[62]        
ICBC submits that Ms. MacDonald’s present conditions were caused,
directly or indirectly, by her multiple and significant pre-existing conditions
and that, as a result, ICBC is not liable to pay related Part 7 benefits. It
relies on the Regulation, s. 96(f):

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.

[63]        
Black’s Law Dictionary, 10th ed., defines “sickness”, in part,
as:

The quality, state, or condition
of suffering from a disease, esp. a disease that interferes with one’s vocation
and avocations; illness… Any disordered or weakened state of body or mind.

and “disease”, in part, as:

A deviation from the healthy and
normal functioning of the body.

[64]        
In Polykandriotis, the court was considering the predecessor
section to s. 96(f) and found that it precluded coverage. In that case, the
plaintiff died shortly after the motor vehicle as a result of two heart
attacks. In the face of conflicting medical evidence, the court held that the
heart attacks arose from a combination of a pre-existing heart condition and
the trauma of the accident. The court relied in part on the reasoning in Tomlinson
v. The Prudential Insurance Company of America, [1954] O.R. 508 (C.A.) at
517, which expressed the issue as whether “[t]he infirmity or disease was an
operating factor which indirectly resulted in death.”

[65]        
In Mawji
v. Insurance Corp. of British Columbia, 2001 BCSC 1610, the court
considered the provision in the context of an injury. Before the accidents, the
plaintiff suffered from the "disease" of osteoarthritis which was
asymptomatic. The plaintiff suffered injuries to her neck, back and left knee on
two occasions while riding as a passenger in a vehicle, with the knee injury exacerbating
the pre-existing condition to the point where knee replacement surgery was
recommended. Following Polykandriotis, Mr. Justice Catliff
concluded at para. 13 that the exclusion clause under s. 96(f)
applied since the plaintiff’s “injury”, being her continuing injurious
condition, was caused in part and indirectly by the osteoarthritis.

[66]        
The reasoning in Mawji was applied in Kibsey v. Wielki, 2008 BCSC 880, where the
plaintiff suffered from a pre-existing condition of ankylosing spondylitis. The
accident prevented the plaintiff from being able to carry on with the level of
activity necessary to keep the disease under control. The result was a decline
in the plaintiff’s general healthy lifestyle and enjoyment of life and his
employment was affected. At para. 14, the court found that the plaintiff’s
current and ongoing disability was caused in part, and indirectly, and even to
some extent directly, by his pre-existing condition, as a result of which
s. 96(f) applied to bar access to Part 7 benefits.

[67]        
In Wafler v. Insurance Corporation of British Columbia, 2008 BCSC
1387, the court was faced with differences of opinion on the relevant causal
contribution of the plaintiff’s pre-existing but asymptomatic degenerative
spine condition and the injuries suffered in the accident. This was in contrast
to the situation found in Mawji where the court proceeded on the factual
finding that the disease had been aggravated and was then causing the injury. The
court identified that if the reasoning in Mawji was applied to its
logical extreme, then coverage would be denied no matter how minor the
contribution of a continuing injurious condition prior to the accident and such
an interpretation ran contrary to the intent of s. 80(1) of the Regulation:
para 12. In that light, the court formulated a “but for” test:

[27]      … 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.

….

[29]      In my view, the medical evidence in this case,
notwithstanding the differences of opinion on the relative significance of the
concurrent causes of Mr. Wafler’s continuing disability and whether the
injuries suffered in the accident had resolved by August 31, 2006, clearly
establishes that the degenerative lumbar spine… was a contributing cause of his
disability after that date. While I do not find it proven that the effects of
the accidental injury were fully resolved by that time, the defendant has
established that, but for his degenerative disease, Mr. Waffler would
not be totally disabled within the meaning of the covering provisions after
August 31, 2006.

[Emphasis added].

[68]        
The “but for” test formulated in Wafler was applied in Cai at
paras. 52-56. The court there found that a pre-existing back condition was
not a “contributing factor” regarding the plaintiff’s injuries and did not meet
that test.

[69]        
In Paskall v.
Scheithauer, 2012 BCSC 1859, the court found that the need
for treatment arose from the plaintiff’s pre-existing cerebral palsy and
therefore, s. 96(f) applied so as to deny any right of payment of benefits:
paras. 16-17, 19.

[70]        
Both parties made extensive submissions concerning the reasoning on this
issue found in Kozhikhov. I understand that the decision is currently
being appealed by ICBC, with various issues raised particularly as regards to the
standard of proof and the court’s application of s. 96(f). I have not
found it necessary to address or rely on this decision in coming to a
conclusion in this matter.

[71]        
The issue then can be framed as follows: can it be said that Ms. MacDonald’s
pre-existing medical issues remain a contributing factor in respect of her present
injurious condition, and for which she seeks treatment?; or, can it be said
that “but for” those pre-existing conditions, she would not be in such an
injurious condition?

[72]        
ICBC argues that Ms. MacDonald’s pre-existing medical problems (endometriosis,
anxiety and weight issues) still have relevance today. I have related some of
that evidence above in the discussion as to the appropriateness of a summary
trial. I would further note, or reiterate, this evidence in relation to this
issue as follows.

[73]        
Ms. MacDonald underwent surgery for endometriosis in February 2009,
just prior to the first accident. She was prescribed pain medication at that
time. Assuming that endometriosis is a “disease”, Dr. Karon stated in his December
2011 report that it was “under control and hasn’t been an issue in the past
three years”. Likewise, Dr. Allaire in December 2011 noted that Ms. MacDonald’s
disability and pain medication had increased since the accident and that her
gynecological problems were not causing her pain symptoms. In July 2012, Dr. Baker
stated that the endometriosis issues had “healed” to the point that Ms. MacDonald
was taking steps to return to work. Accordingly, the evidence establishes that
the endometriosis has no current relevance to the ongoing pain syndrome from
which Ms. MacDonald suffers that has led to her need to undergo this
multi-disciplinary assessment and treatment program at Orion Health. Simply,
she does not face any issues from the endometriosis now and it is not a
contributing factor at this time. It cannot therefore be said that “but for”
this previous condition, Ms. MacDonald would not have her current injuries
for which she now seeks treatment.

[74]        
Ms. MacDonald weighed approximately 200 pounds prior to the
accident. I have not been referred to any authority describing obesity as a
“sickness” or “disease”, although it is well established that obesity is a
major contributing factor in various sicknesses and diseases. In any event, the
evidence establishes that Ms. MacDonald went on to gain some 100 pounds after
the accident, leading to the failed LapBand surgery and the further
complications. Again, Dr. Karon noted that even though Ms. MacDonald
was overweight prior to the accident, she was fully functional at that time. Again,
the “but for” test is not met in relation to the obesity issue.

[75]        
In his 2011 report, Dr. Hunt refers to dysphoria and depression as
well as anxiety and refers to Ms. MacDonald’s past history of anxiety. Dr. Karon
confirms that Ms. MacDonald was taking some medication for her pre-existing
anxiety and his note of March 11, 2009, just two days after the accident,
describes her anxiety and OCD as “ongoing”. It does appear that in 2008, prior
to the accident, Ms. MacDonald attended a clinic regarding her anxiety
issues.

[76]        
I agree with ICBC that the anxiety issues are not as clearly delineated
regarding their pre- and post-accident status as perhaps the other matters.
However, Dr. Karon’s December 2011 report tied Ms. MacDonald’s “mood
disorder” to her significant chronic pain issues and other issues (such as
urinary incontinence, Bell’s Palsy, fibromyalgia and obesity), all of which
arose after the accident. No chronic pain condition was diagnosed prior to the
accident. Indeed, Dr. Karon stated that prior to the accident, Ms. MacDonald
was “very functional, happy and capable”, evidence that confirms that her
anxiety condition prior to the accident did not adversely affect her
functioning. This was in marked contrast to her condition at the time of Dr. Karon’s
report, where depression was diagnosed and her suicide attempts were noted.
Similarly, Dr. Baker’s July 2012 report linked Ms. MacDonald’s
current problems to the chronic pain and disability from the accident, which
led to depression, suicide attempts, narcotic addiction, deconditioning and
weight gain. Dr. Mead’s November 2012 report and Dr. MacCallum’s
March 2014 report also tie Ms. MacDonald’s chronic pain symptomology with
“associated psychological impairments and sub-optimal functioning.”

[77]        
I find that the “but for” test supports that Ms. MacDonald’s
anxiety condition prior to the accident is not a contributing factor at this
time. It cannot be said that “but for” that pre-existing anxiety condition, Ms. MacDonald
would not be as injured as she currently is and require the recommended treatment
for her conditions.

[78]        
The medical evidence, including Dr. Karon’s report, confirms that Ms. MacDonald’s
addiction to narcotics, for which she sought treatment at Heartwood, all arose
from narcotics prescribed for her severe back pain. Dr. MacCallum
described that program as “stabilization of pain medication, abstinence from
opiate use, transition to methadone for pain.” There is nothing in the evidence
to suggest that this condition arose from any medication use or psychological
predilection prior to the accidents, whether from the anxiety, the February
2009 surgery or otherwise. In particular, nothing in Dr. Hedge’s August
2013 report, where he specifically addressed addiction issues, suggests that
this is the case.

[79]        
Assuming that addiction is a “disease”, the evidence establishes that
this condition arose after the first accident and that Ms. MacDonald was
not suffering any addiction issues prior to this accident. As such, it cannot
be said that her medication use prior to the accident had any relationship to
her later addiction issues which led to her treatment at Heartwood. The “but
for” test is therefore not satisfied.

[80]        
I conclude that ICBC has failed to establish that the exclusion under
the Regulation, s. 96(f) applies.

D.             
Is This Type of Treatment Covered?

[81]        
Finally, ICBC submits that Ms. MacDonald has not demonstrated that
she has incurred any expense payable in accordance with the Regulation,
s. 88(1):

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.

[82]        
ICBC is required to pay certain medical and rehabilitation expenses,
provided that they come within the above provision. As icbc notes, there are two conditions precedent for mandatory
benefits: the expenses must be "necessary" and they must be "as
a result of” the injury which arises from the accident: see Boota v.
Dhaliwal, 2009 BCCA 586 at para. 75.

[83]        
The mandatory provisions in s. 88(1) stand in contrast to those in
s. 88(2) where ICBC may provide funds to an insured at its discretion and
where ICBC’s medical advisor advises that funded benefits under this section
are likely to promote the rehabilitation of the insured who was injured in an
accident.

[84]        
In Tiessen v. ICBC, 2008 BCSC 1822 at paras. 33-36, the
court noted that a strong medical opinion will usually support that a
recommended treatment is both reasonable and necessary. Nevertheless, it always
remains the case that the court has the ability to scrutinize the medical
opinion in question and accept or reject that opinion, in whole or in part, in
deciding whether or not the treatment comes within the provisions of the Regulation.

[85]        
Ms. MacDonald relies on Klonarakis v. Gregg, [1999] B.C.J. No. 2255,
1999 CanLII 2338; varied 2001 BCCA 69. At the BC Supreme Court, Mr. Justice
Macaulay considered the issue as to whether the cost of a non-residential pain
clinic offering counseling and a back rehabilitation program came within the
provisions of the Regulation, s. 88(1). He noted:

[17]      The services offered by
the two programs do not fit obviously within these services or treatments. The
pain clinic offers counseling, bio-feedback and psychological assistance to
individuals suffering from chronic pain. The back rehabilitation program offers
an active rehabilitation program. Although the two programs are not
specifically listed in s. 88(1), there can be no doubt that their
objective coincides with that of the services and treatments that that are
listed to assist the plaintiff’s recovery from his injuries.

In result, the court in Klonarakis found that the
cost of the residential pain clinic came with the definition of “medical
services” set out in s. 88(1). The Court of Appeal allowed ICBC to deduct
two treatment items from the judgment under s. 25 (repealed 2003-94-20,
effective June 1, 2007 (B.C. Reg. 166/06) and now s. 83) of the Insurance
(Vehicle) Act but entered a further term by consent that ICBC would pay the
amount of the deduction to the plaintiff.

[86]        
In Briglio v. Faulkner, [1999] B.C.J. No. 2377 (S.C.) the
court, citing Klonarakis, also found at para. 22 that services from
a pain clinic came within the provisions of the Regulation, s. 88(1).

[87]        
ICBC relies on two decisions, both post–Klonarakis, that it says have clarified
the approach to the interpretation of s. 88(1) and clarified the
scope of what services are included within its mandatory payment provisions.

[88]        
The first decision is Raguin v. Insurance Corporation of British Columbia, 2011 BCCA 482. In that
case, the court noted to what point in time had been inconsistent approaches to
the interpretation of what services were included within the mandatory benefits
prescribed in s. 88(1). The court stated:

[44]      While not determinative
of the issue before us, it appears that the trend in the legislation is toward
specific enumeration of the type of mandatory benefits that can be covered and
limitation of the role of the insured’s physician regarding what type of
service may be necessary.

Notwithstanding, the court held that massage therapy, though
not specifically set out in the provision, was included within the phrase "physical
therapy" set out in s. 88(1).

[89]        
ICBC argues that the decision in Raguin has effectively overruled the
decision in Klonarakis that the
cost of a pain clinic or addiction counselling comes within the mandatory items
in s 88(1).

[90]        
The second decision is Stanikzai v. Bola, 2012 BCSC 1904. The
issue before the court was whether kinesiology/trainer fees, which were said to
be “similar” to physical therapy by a registered physiotherapist, were within
the provisions of s. 88(1). Mr. Justice Smith rejected that such a
training program came strictly within the provisions of s. 88(1) as a mandatory
benefit: paras. 23-25. This stricter approach, while not referring specifically
to Raguin, is consistent with the comments of the Court of Appeal in
that case.

[91]        
ICBC does not contest the proposition that if Ms. MacDonald
received services from a medical doctor while at Heartwood or would receive such
services at Orion Health, then those would come within the phrase "medical
services" under s. 88(1).

[92]        
There is little evidence detailing what actual services are provided at
Heartwood. Heartwood is described by Dr. Baker as a “residential treatment
program for women with addiction often complicated by other psychiatric or
medical conditions". He refers to it as a "high quality, multi-disciplinary
treatment program". The best I can glean from this evidence is that while
medical doctors are certainly involved in addiction treatment at Heartwood,
such as Dr. Mead, there were other persons providing treatment or services
who were not medical doctors.

[93]        
The same can be said for Orion Health. As I have indicated above, the
services provided include occupational therapy, physiotherapy, psychology,
kinesiology, medical, pharmaceutical assessment, consultations, acupuncture and
“programs”. I have no reason to believe that the approach of Orion Health at the
present time is any different than that taken in late 2009 when Ms. MacDonald
was earlier considered for admission. The 2009 assessment form indicates that
the assessment team members included one medical doctor along with psychologists,
physiotherapists and occupational therapists. In its November 12, 2013 letter, Orion
Health refers to services for both assessment and treatment from “appropriate
disciplines". If treatment proceeds, it is clear that the services
provided do include physical therapy services, counseling and education.

[94]        
Certainly physiotherapy and occupational therapy services and also “medical
services” provided by a medical doctor at Orion Health would come within
s. 88(1). As for the rest of the services, Ms. MacDonald says that so
long as any other services at Orion Health are under the “direction” of a
medical doctor, they also come within that section.

[95]        
I am reluctantly driven to the conclusion that Ms. MacDonald’s position
is not supportable. As ICBC argues, I think correctly, the Raguin
decision has confirmed that the proper interpretation of the section is a more
restrictive one in the sense that it is driven by the specific enumerated
services that are described in s. 88(1). In accordance with that approach,
I see no basis upon which services could be seen to be included as long as they
are overseen or supervised by a medical doctor. Services provided by others do
not become “medical services” simply because a medical doctor directs them or
oversees or supervises them.

[96]        
From a public policy perspective, this strict interpretation of the
enumerated services presents some difficulties. It is unlikely that the
Legislature intended to adopt a rehabilitation-in-pieces approach to
legislation that exists to promote reasonable and necessary benefit coverage to
injured persons. However, in the absence of clear guidance in the Regulation
that s. 88(1) is capable of supporting multi-disciplinary programs,
these programs cannot be read-in to include other services not specifically
enumerated, such as the court did in Raguin.

[97]        
Even accepting Ms. MacDonald’s proposition regarding medical
supervision, there is no evidence that in fact, the services at Heartwood and
the “other services” at Orion Health either were or would be under the
supervision of a medical doctor (although I appreciate that Dr. Mead continued
to treat Ms. MacDonald for pain and addiction issues throughout her stay
at Heartwood).

[98]        
The difficulty is that the argument for both Heartwood and Orion Health
is an all or nothing proposition. Both are, as described above,
multi-disciplinary treatment programs that bring in various disciplines in
order to offer a team approach to dealing with a host of problems, such as Ms. MacDonald
has. I have no hesitation in finding that some of the services, such as
provided by a medical doctor, were or would be covered under s. 88(1) but
it is equally apparent that some are not. In my view, this leads to the
conclusion that the treatment programs, as a whole, are not covered under
s. 88(1).

V.             
DISPOSITION

[99]        
I have great sympathy for Ms. MacDonald’s position. Her situation
is admittedly complex and her medical doctors did recommend the Heartwood
program, which addressed her addiction issues and has given her some basis upon
which to go forward and address her other issues. Further, her medical doctors
have repeatedly recommended Orion Health as a treatment program to tackle the
many remaining issues that she must address. No doubt she faces a great many
challenges in regaining her health, let alone any form of employment.

[100]     However, I
am persuaded that the mandatory payment provisions in s. 88(1) are not
applicable in respect of such programs. They may, of course, be matters that
can be pursued in respect of the discretionary provisions found in s. 88(2)
of the Regulation, however, that matter was not before me.

[101]     It occurs
to me that there may be at least some recovery by Ms. MacDonald for a
portion of the costs of the Heartwood or Orion Health programs based on an
assessment or apportionment of the costs referable to the enumerated services
in s. 88(1). That is a matter for further evidence as I am unable to make
that determination at this time. It may also be the case that ICBC would
consider and agree to such assessment or apportionment.

[102]    
The action is dismissed, with costs. However, such dismissal will be
without prejudice to Ms. MacDonald bringing a further action, if she
wishes to do so, for the recovery of at least a portion of the costs of the
Heartwood or Orion Health programs which may come within the enumerated
services in s. 88(1). I stress, however, that I am not making any
determination in that regard at this time. In the event that a later action is
filed, I am not seized.

“Fitzpatrick
J.”