IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150828

Docket: M113133

Registry:
Vancouver

Between:

Young
Ja Park

Plaintiff

And

Patrycja
Targonski and
Shane Jason Bunting also known as Shane Jason Ralph

Defendants

Before:
The Honourable Mr. Justice Fitch

Reasons for Judgment

A.       Introduction

[1]            
By reasons for judgment dated April 13, 2015 (indexed at 2015 BCSC 555)
I awarded the plaintiff damages for soft tissue injuries to her neck, back and
shoulders sustained in a motor vehicle accident that occurred on July 10, 2009.

[2]            
As I noted at paragraph 235 of the main judgment, the plaintiff has been
diagnosed with chronic pain disorder.  She is hypersensitive to pain and
resists engaging in physical activities that might provoke transient
discomfort, even though she has received education to assist her in
understanding that physical activity will not hurt her, but will improve her
physical and emotional strength, resilience and functionality.  The plaintiff’s
experience of pain has a deeply rooted and still operative psychological
component.  As a consequence of the interplay of these factors, the plaintiff
has become deconditioned and tends to avoid physical activity, including
regular cardiovascular exercises that have repeatedly been recommended for her,
in part because such activity triggers in her a pain avoidance response.

[3]            
The award was broken down as follows:

[4]            
At the time of the hearing, the parties were unable to agree on issues
informing calculation of the plaintiff’s net past wage loss, a calculation
required by s. 98 of the Insurance (Vehicle) Act, R.S.B.C. 1996
c. 231 (the Act).  Those issues have since been resolved and, by letter
dated August 21, 2015, the parties advised the Court that the gross past wage
loss award of $190,000 should be reduced by $56,691 to arrive at a net past
wage loss of $133,309.  This amount will be reflected in the Order.

[5]            
What remains to be resolved is the defendants’ application for an order
reducing the award for special damages and cost of future care to reflect
deductions for Part 7 benefits they submit the plaintiff is or would have been
entitled to under s. 83 of the Act and s. 88 of the Insurance
(Vehicle) Regulation, B.C. Reg. 447/83 (the Regulation).

B.       Legislative
Context

[6]            
Section 83 of the Act provides in part:

Liability reduced

83 (1) In this section and in section 84, "benefits"
means benefits

(a)        within the definition of
section 1.1, or

(b)        that are similar to
those within the definition of section 1.1, provided under vehicle insurance
wherever issued and in effect,

but does not include a payment made pursuant to third party
liability insurance coverage.

(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.

(3)        Nothing in this section precludes the insurer from
demanding from the person referred to in subsection (2), as a condition
precedent to payment, a release to the extent of the payment.

(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.

[7]            
Section 88 under Part 7 of the Regulation provides in part:

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.

(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.

[8]            
A plaintiff who has been awarded special damages or damages for cost of
future care is liable for deductions to that award to reflect benefits he or
she received, or would have been entitled to receive, under Part 7 of the
Regulation.  Part 7 governs payment of "no fault" accident benefits. 
Part 7 benefits are of two general types:  mandatory benefits under s. 88(1),
consisting of enumerated benefits ICBC is obliged to pay; and discretionary
benefits under s. 88(2) that ICBC can choose to pay if, in the opinion of
its medical adviser, provision of the service is likely to promote the
rehabilitation of an insured.  "Rehabilitation" is defined in the
Regulation to mean, "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."

[9]            
The purpose of the legislation is to:  (1) determine the amount
immediately payable to the plaintiff pursuant to the judgment; (2) prevent
double recovery; and (3) shift responsibility for future care needs from the
tortfeasor to a body that provides insurance regardless of fault: Fisher v.
Wabischewich (1978), 5 B.C.L.R. 335 (C.A.) at 336; Baart v. Kumar
(1985), 66 B.C.L.R. 1 at 12 (C.A.).

[10]        
In Li v. Newson, 2012 BCSC 675 at para. 14, Abrioux J.
summarized the principles to be applied in considering deductions from cost of
future care items awarded by the Court:

(a)        the defendant bears the onus of proving that the
plaintiff is entitled to the benefits which the defendant seeks to deduct (Uhrovic
v. Masjuri, [2007 BCSC 1096] at para. 10, referring to Lynn v.
Pearson [(1998), 55 B.C.L.R. (3d) 401 (C.A.)] at para. 18);

(b)        strict compliance with the statute is required (Uhrovic
at para. 10);

(c)        uncertainty as to whether a Part 7 benefit will be
paid must be resolved in favour of the plaintiff (Uhrovic at para. 10);

(d)        the ability to make the deduction is not dependant
on the actual receipt of benefits by the plaintiff. Issues between the
plaintiff and ICBC regarding the benefits are not relevant to the deductibility
by a tort-feasor from an award to the plaintiff (Schmitt v. Thomson (1996),
18 B.C.L.R. (3d) 153 (C.A.) (at para. 18) varied on other
grounds (1996), 18 B.C.L.R. (3d) 166 (C.A.);

(e)        it is no longer a requirement that there be a
match between the heads of damage for a tort award and specific heads of
damages under the benefit recovery scheme (Gurniak [v. Nordquist, 2003
SCC 59] at para. 47);

(g)        the task of the court is to estimate the amount of
Part 7 benefits, if any, the plaintiff is or would be entitled to receive for
the costs reflected in the future care award (Uhrovic at para. 11).
It then must make the appropriate deduction;

(h)        benefits under s. 88 (2) of the Regulations
arise when ICBC’s medical adviser holds the opinion that the costs are "likely
to promote the rehabilitation" of the plaintiff. The term "rehabilitation"
is defined in s. 78 of the Regulation as follows:

"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.

(i)         the uncertainty of the entitlement of payment
created by the Regulation may lead the court to conclude that only a nominal
deduction is appropriate. Trial judges must be cautious in their approach to
determining the estimate inasmuch as a reduction results in a lessening of the
award in the tort action. If that is a result of uncertainty created by the
Regulation, ICBC cannot be heard to complain (Uhrovic at para. 9,
referring to Schmitt at paras. 18-19 and 21);

(j)         the court is to take into
account ICBC’s discretion with respect to whether certain amounts will be paid
in addition to restrictions in the Regulation with respect to amounts payable (Schmitt
at para. 22)

C.       Factual Background

(a)      Special
Damages

[11]        
The award for special damages included provision for a $129.23 gym pass,
and mileage costs totalling $4,698.80 the plaintiff incurred while pursuing
medical treatment and other various forms of physical therapy.

[12]        
The mileage component of the special damages award, calculated at
$.50/km, relates to the plaintiff’s attendance for these physical therapy
treatments and medical consultations:

a)             
Kelvin Physiotherapy: 43.4 km return x 100 visits = $2,170;

b)             
OT Consulting: 31.8 km return x 20 visits = $318;

c)              
Sorim Acupuncture: 36.6 km return x 22 visits = $402.60;

d)             
Alliance Massage: 9.2 km return x 271 visits = $1,246.60;

e)             
Dr. Nasseri (the plaintiff’s family doctor): 13.2 km return
x 56 visits = $369.60;

f)               
Dr. Dhawan (the plaintiff’s treating physiatrist): 38.4 km
return x 10 visits = $192

Total = $4,698.80

[13]        
At Dr. Nasseri’s recommendation, the plaintiff received
physiotherapy treatments from Kelvin Physiotherapy in 2009 and 2010.  She
attended 45 active rehabilitation sessions with a kinesiologist at Kelvin
Physiotherapy between April and October 2010.  When she saw Dr. Richardson
for an independent medical examination undertaken at ICBC’s request, he
recommended that she continue her activation program at Kelvin Physiotherapy
and suggested she add 8 to 12 weeks of aqua therapy.  The plaintiff subsequently
did aqua therapy exercises with her kinesiologist at Kelvin Physiotherapy.

[14]        
The plaintiff’s attendance at OT Consulting was in relation to an
intensive work conditioning and work hardening program overseen by an
occupational therapist and administered by a kinesiologist and orthopedic
physiotherapist.

[15]        
The plaintiff asked Dr. Nasseri about trying acupuncture
treatments.  Dr. Nasseri agreed this was something the plaintiff could
pursue and she did so at Sorim Acupuncture.

[16]        
The plaintiff’s regular attendance for massage therapy was recommended
by Dr. Nasseri because it provided her with short-term symptom relief.

[17]        
In 2011, the plaintiff was referred to Dr. Dhawan by Dr. Nasseri.
Dr. Dhawan administered to the plaintiff a series of trigger point
injections, including corticosteroid and Botox injections, in an effort to
relieve the plaintiff’s back pain.

(b)      Cost
of Future Care Award

[18]        
The plaintiff sought a cost of future care award that included allowance
for her attendance at a pain program designed by Back in Motion (Physiotherapy
and Active Rehab).  The plaintiff’s attendance at a pain program was
recommended by both Dr. Nasseri and Dr. Caillier, a physiatrist who
assessed the plaintiff in 2011 and 2014.  The defendants submitted that the
cost estimate relating to the plaintiff’s attendance for the pain program at
Back in Motion included unnecessary expenditures given the assessments,
rehabilitative programs and education the plaintiff had already received.

[19]        
The Back in Motion pain program cost estimate totalled $13,990.  The
estimate includes costs associated with:  an initial team assessment on intake;
35 active rehabilitation sessions ranging from 1 ½ to 5 hours; progress
reports; a discharge report; psychological sessions; a medical consult with the
team doctor; team conferences; a medication reduction plan; progressive goal
attainment assessments; and weekly home support.  The core of the program
recommended by Back in Motion, and the lion’s share of the cost of the proposed
program ($5,250), relates to active rehabilitation sessions.  Clearly, the
program contemplates a course of vigorous physical activity to trigger the
plaintiff’s pain avoidance response and permit professional intervention around
cognitive and emotional barriers to the pursuit of physical activity.

[20]        
In addressing this cost of future care item at paragraphs 315-316 of the
main judgment, I said:

I am satisfied … that the plaintiff’s attendance at a more
holistic chronic pain management program is necessary, largely because of her
ongoing need to address the psychological barriers to a more complete
emotional, physical and functional recovery.  I have wrestled with the question
of whether the plaintiff will use such a cost of care award for its intended
purpose.  The plaintiff has, by her conduct, signalled disinclination to follow
up with this medical recommendation in the past.  On balance, I am satisfied
she will likely do so now.

Having come to this conclusion, I
agree with the position of the defendants that the cost estimate of the pain
program recommended by Back in Motion is excessive.  The plaintiff does not
need 35 active rehabilitation sessions, progress or discharge reports, nor does
she require home support – all of which are built into the Back in Motion
estimate.  She does, however, require some active rehabilitation sessions to
trigger her avoidance response to exercise-induced pain.  By eliminating
unnecessary components of the proposed pain management program, I have reached
a cost estimate of $8,500 – roughly 60% of the cost of the program envisioned
by Back in Motion.  This estimate includes the cost of psychological sessions
to support the plaintiff in weaning off her anti-depressant medication, and
assist her with the largely psychological impediments that remain.

[21]        
Although not specified in the judgment, the cost of future care award
was intended to allow for estimated costs associated with:  a series of active
rehabilitation sessions; a medical consult with the team’s doctor; development
of a medication reduction plan, in consultation with the team’s doctor, to wean
the plaintiff off her prescribed anti-depressant; consults with a psychologist
to assist the plaintiff in pushing through her active rehabilitation sessions
should they elicit the pain avoidance response the plaintiff has demonstrated
in the past; and incidental costs associated with the plaintiff’s attendance at
the program.

D.       The Positions of
the Parties

[22]        
The defendants submit that the central issue is whether the plaintiff
was entitled to receive Part 7 benefits for the gym pass, mileage and the cost
of her attendance at the pain program designed by Back in Motion: Sovani v.
Jin, 2005 BCSC 1285 at para. 46; Li at para. 14.

[23]        
With respect to the gym membership, the defendants rely on the affidavit
of Susan Muzzin, the ICBC examiner assigned to adjust the plaintiff’s claim.  Ms. Muzzin
deposes that, "ICBC considers necessary kinesiology treatment and gym
memberships as a mandatory benefit which is fully recoverable under section
88(1) of Part 7 of the Regulations".  I note that Ms. Muzzin’s
affidavit appears to blend supervised kinesiology sessions and a gym membership.
In making provision for the cost of future care, I specifically declined to
make an allowance for kinesiology sessions.  I did so because the plaintiff has
already been taught, on more than one occasion, an exercise program
specifically designed to suit her needs.

[24]        
The defendants note there is authority for the proposition that a gym
membership falls within the scope of Part 7 benefits and is deductible.  They
rely on McCreight v. Currie, 2007 BCSC 1962, rev’d on other
grounds 2008 BCCA 150, where the trial judge deducted from the tort award the
cost of a gym membership on grounds that it constituted a Part 7 benefit to
which the plaintiff was entitled.  The trial judge appears not to have made a
specific finding about whether the gym membership fell under ss. 88(1) or
88(2) of the Regulation.

[25]        
The plaintiff argues there is no evidence that the gym pass was used in
conjunction with kinesiology.  In addition, I understand the plaintiff to argue
that if a gym membership is properly classified as a discretionary benefit
under s. 88(2) of the Regulation, there is no assurance that ICBC will
reimburse the plaintiff for its cost.  The plaintiff notes, in support of this
submission, my finding in the main judgment that, "the plaintiff had a gym
membership before the accident, enjoyed going to the gym and would have
maintained that membership had the accident not occurred."  The plaintiff
submits that ICBC may well determine that this expense was not "incurred
as a result of the injury".  As a consequence, the plaintiff submits that
this is not an appropriate deduction.

[26]        
With respect to the proposed deduction for mileage costs, Ms. Muzzin
deposes that, "ICBC considers travel mileage to and from medical
appointments to be a discretionary benefit that is partially recoverable under
section 88(2)(f) of Part 7 of the Regulations at a rate of .25 [cents] per
kilometer as set out in ICBC’s Claims Procedure Manual for accident benefits".
Neither party put before me as evidence on this application ICBC’s Claims
Procedure Manual insofar as it relates to Part 7 deductions.

[27]        
Counsel for the defendants advanced a position in her written argument
on this issue that is inconsistent with the position taken by Ms. Muzzin
in her affidavit.  Specifically, counsel for the defendants submitted that, "mileage
for travel to and from medical appointments is a mandatory benefit that is
partially recoverable under section 88(1) at a rate of .25 [cents] per
kilometer as set out in ICBC’s Claims Procedure Manual for accident benefits."
In support of her submission, counsel for the defendants relies on Wepryk
v. Juraschka, 2012 BCSC 1584 at para. 8-11.  In Wepryk, Ehrcke
J., relying on Petersen v. Bannon, [1991] 1 C.C.L.I. (2d) 232
(B.C.S.C.), held that travel costs associated with obtaining "necessary
physical therapy" as enumerated in s. 88(1) of the Regulation are "an
integral part of necessary treatment and as such are benefit subject to deduction
[under s. 88(1)]".  As in this case, the plaintiff in Wepryk
was awarded in the tort judgment the entire amount of her mileage claim at a
rate of .50 cents per kilometer.  As ICBC would only provide reimbursement for
the use of one’s own vehicle at a rate of .25 cents per kilometer, Justice
Ehrcke deducted one half of the total amount of the mileage claim awarded at
trial.

[28]        
In oral argument, counsel for the defendants advanced a new submission
on this point, which conflicts with the position she took in her written
argument.  She argued that if the Court found mileage expenses referable to
obtaining "necessary physical therapy" to be a mandatory benefit
under s. 88(1), the full amount of the plaintiff’s expenditures for
mileage should be deducted from the tort award.  The plaintiff had no
meaningful opportunity to respond to this new submission.

[29]        
The plaintiff reminds me that a cautious approach should be taken to
deductions.  This is so because deductions reduce the amount of the award in
the tort action.  In addition, the plaintiff reminds me that uncertainty about
whether a benefit will be paid is a factor to be considered.  The plaintiff
submits that given the inconsistency in the defendants’ position, and the
absence of evidence that ICBC will pay for the plaintiff’s mileage, no
deduction should be made on this account.

[30]        
With respect to the pain program, the defendants rely on the assertion
in Ms. Muzzin’s affidavit that, "ICBC considers attendance at a pain
clinic to be a discretionary benefit that is fully recoverable under section
88(2)(f) of the Regulations."  Ms. Muzzin notes that ICBC has, on
many occasions, elected to pay for such treatment under Part 7.  With respect
to the plaintiff’s case, Ms. Muzzin deposes that, "should the
plaintiff attend at a pain clinic in the future … ICBC will pay up to $8,500
for such attendance if an [sic] when it is undertaken."  Ms. Muzzin
also confirmed that ICBC has not received any request from the plaintiff under
Part 7 for reimbursement relating to her attendance at a pain clinic.

[31]        
Despite Ms. Muzzin’s affidavit, the plaintiff submits there is
uncertainty about whether ICBC will pay for her attendance at a pain clinic.  Among
other things, she notes the existence of coverage contingencies and that
certain components of the pain program would only be paid by ICBC where
alternative insurance was not available.

E.       Analysis

(a)      Section
88(1) Mandatory Benefits: General Principles

[32]        
In Raguin v. Insurance Corporation of British Columbia, 2011 BCCA
482, the Court observed that there has been a trend in the legislation towards
specific enumeration of the type of mandatory benefits covered by s. 88(1).
As I read Raguin, a cautious approach is being counselled to
classifying services, not specifically enumerated in s. 88(1) of the
Regulation, as benefits ICBC is obligated to pay an insured (see, to like
effect, the observations of Fitzpatrick J. in McDonald v. Insurance Corp. of
British Columbia, 2014 BCSC 2155 at para. 95).  Nonetheless, the Court
in Raguin held that massage therapy was a mandatory service included
within the meaning of "physical therapy" despite not being
specifically set out in the provision.  The result flowed from the fact that
both the dictionary definition of "physical therapy", and the
definition of that phrase used in the related regulatory scheme, include
massage therapy.

(b)      Gym Pass

[33]        
In Stanikzai v. Bola, 2012 BCSC 1904, the Court held that
a fitness program is not similar to physiotherapy and is not a mandatory
benefit under s. 88(1).  As previously noted, in McCreight, a gym
pass was found to constitute a Part 7 benefit.  Although not entirely clear
from the judgment, even assuming that a finding was made in McCreight
that a gym pass is a mandatory benefit under s. 88(1), I note that it was
decided before Raguin.

[34]        
A gym pass is a general expense not specifically enumerated in s. 88(1)
and with broad application beyond the receipt of physical therapy.  Following Ranguin,
I am not prepared to find that a generic gym pass, not expressly connected with
the pursuit of necessary physical therapy, qualifies as a mandatory benefit.

[35]        
A gym pass may qualify as a discretionary benefit under s. 88(2),
but ICBC has provided no specific assurance that, if so qualified, they will
pay for the gym pass as a Part 7 benefit.  For these reasons, I decline to
deduct this amount from the tort award.

(c)      Mileage

[36]        
In Driscoll v. Thagard, [1999] B.C.J. No. 919 (S.C.), the Court
determined that the need for taxi transportation from Campbell River to a
counsellor’s office in Courtenay was a benefit to be paid at the discretion of ICBC
under s. 88(2) of the Regulation.

[37]        
In both Wong v. Luong, 2005 BCSC 617 and Wepryk, the
Court found that travel expenses incurred for medical or necessary physical therapy
services are an integral part of the treatment and, as such, are a benefit
subject to deduction under s. 88(1).

[38]        
I am satisfied that all of the plaintiff’s travel costs were incurred in
connection with obtaining "necessary physical therapy" as that phrase
is used in s. 88(1).

[39]        
The plaintiff’s mileage costs for using her own vehicle to travel to and
from medical and necessary physical therapy appointments are reasonable
expenses, necessarily incurred in pursuit of a treatment specifically
enumerated in s. 88(1).  As these expenses are an integral component of
the treatment being pursued, it is appropriate that they be deducted from the
tort award.

[40]        
I leave for another day consideration of the without notice submission
made by counsel for the defendants that, if properly characterized as a
s. 88(1) benefit, the full amount of the plaintiff’s mileage costs should
be deducted.  As noted earlier, counsel for the plaintiff had no meaningful
opportunity to respond to this submission.  In addition, no authority was put
before the Court by the defendants’ counsel in support of that position.  I am
not inclined to address this issue in the absence of considered submissions.  Accordingly,
and consistent with Wepryk, I deduct the cost of the mileage at a rate
of .25 cents per kilometer.  One half of the amount awarded at trial, which is
to say $2,349.40, will be deducted.

(d)      Pain
Clinic

[41]        
In case law decided prior to Raguin, there is substantial support
for the proposition that the cost of a pain clinic is a mandatory benefit
payable under s. 88(1) of the Regulation (see: Klonarakis v. Gregg,
[1999] B.C.J. No. 2255, varied on other grounds 2001 BCCA 69; Briglio v.
Faulkner, [1999] B.C.J. No. 2377 (S.C.); Ballen v. Ballen, 2000
BCSC 1264; Wong).

[42]        
As a result of MacDonald, some doubt has been cast on the issue
of whether a pain clinic falls within the ambit of s. 88 (1).

[43]        
In MacDonald, the plaintiff suffered from an addiction in
addition to her chronic pain.  Multi-disciplinary treatment for her addiction
formed an important part of the therapy the plaintiff was to receive.  Relying
on Raguin, the Court in MacDonald found that
multi-disciplinary programs offering services not specifically enumerated
cannot be read into the language of s. 88(1).  The Court also acknowledged
(at para. 96) that this strict interpretation presents difficulties as it
is unlikely the Legislature intended to adopt a "rehabilitation-in-pieces
approach to legislation that exists to promote reasonable and necessary benefit
coverage to injured persons".

[44]        
In the case at bar, there are no addiction concerns analogous to the
situation in MacDonald.  In this respect, MacDonald is factually
distinguishable from this case.  The narrow issue before me is whether a pain
clinic that is focussed on "necessary physical therapy" is a
mandatory benefit as contemplated by s. 88(1).

[45]        
The mere fact that psychological and/or cognitive obstacles to optimal
physical rehabilitation are likely to arise in the administration of what
amounts, at its core, to a physical rehabilitation program does not negate the
fact that the program is designed to achieve "necessary physical therapy."
The law must take cognizance of our growing awareness of the intersection
between physical and mental therapy.  Indeed, it is difficult to envision aggressive
implementation of the sort of active rehabilitation Back in Motion has in mind
without necessarily engaging psychological and/or cognitive issues,
particularly for an individual in the plaintiff’s situation.  Looking at the
issue this way, it is unnecessary and unrealistic to hold that a physical
therapy program that incidentally engages psychological and/or cognitive issues
ought not to be characterized as a s. 88(1) benefit in circumstances where
the language of the provision does not dictate this result.  Further, it is
undesirable for courts to embark upon the impossible task of deciding which
discrete components of a holistic pain program constitute s. 88(1)
benefits because they are purely given to physical therapy, and which
components fall outside the scope of s. 88(1) because they engage
psychological issues that stand as barriers to the successful implementation of
an active rehabilitation program.  Such an approach is not only artificial, it
is one that would breed uncertainty and spawn further litigation in an area
already beset by what the Court of Appeal in Raguin charitably described
as "jurisprudential inconsistencies".

[46]        
As is evident from the foregoing, I favour the result reached on this
point in Klonarakis.  In the result, I am of the view that a pain clinic
focused on "necessary physical therapy" is a mandatory benefit; one
that shall be paid by ICBC even in circumstances where it is anticipated that
psychological issues may arise in the implementation of the program.

[47]        
As noted in Ayles v. Talastasi, 2000 BCCA 87 at para. 32:

As
a claim covered by s. 88(1) I.C.B.C. is obliged to pay the benefits. It is
not a matter of discretion under s. 88(2) where entitlement depends "on
the opinion of the corporation’s medical adviser". The risk in
deducting too much from the tort award for discretionary benefits is that
I.C.B.C. may ultimately refuse to pay on items which although found to be
compensable in the tort claim were deducted on the assumption that they would be
paid as a no fault benefit. In that instance the claimant is out of pocket
for the expense and I.C.B.C. enjoys a windfall. But here the class of future
expense is obligatory, not discretionary, and so the plaintiff does not stand
to lose anything by the deduction. It is only in circumstances where the
classification of the future cost is unclear or an issue arises whether the
item is covered by Part 7 at all, that some caution is required.

[48]        
As I am satisfied in this case that the pain clinic is a mandatory
benefit and that ICBC is obliged to reimburse the plaintiff for all reasonable
expenses associated with her attendance at the clinic, there is no uncertainty
as to whether this benefit will be paid.

[49]        
Even if I am wrong in this, and a pain clinic of the sort Back in Motion
proposes is properly characterized as a discretionary benefit under s. 88
(2), the issue is academic in this case since ICBC has agreed to pay the full
amount of the expenditures that can reasonably be expected to arise.  As I
understand ICBC’s position on this point, the corporation will not disqualify
from payment any portion of the plaintiff’s participation in a pain clinic
program up to a maximum of $8,500.  The assurance given by ICBC has no temporal
limitations.  ICBC has, through its authorized representative, Ms. Muzzin,
provided its guarantee of payment to this extent.  As I have found there is no
risk of non-payment for any expense that might reasonably arise in connection
with the plaintiff’s attendance at a pain clinic, I deduct the fixed amount of
the pain clinic ($8,500) from the tort award in accordance with s. 83 of
the Act.

F.       Conclusion

[50]        
The order should be drawn reflecting the above-noted deductions.  Should
it be necessary, the parties have leave to speak to the issue of costs.

"FITCH J."