08 Jun ICBC Tries To Deduct Cost of Future Treatments from Plaintiff’s Award

In the case of Del Bianco v. Yang, 2020 BCSC 410, the Plaintiff was granted judgment for his personal injury claim.  As part of that judgement, the court determined that the Plaintiff was entitled to almost $57,000 for the cost of his future care. This included massage therapy to his 75th birthday and kinesiology sessions for one year.

ICBC accepted the court’s judgement but wanted the cost of future care to be deducted from the Plaintiff’s award.

At the time of ICBC’s application, the Plaintiff was 35 years of age. This was important because it meant there was a 40-year requirement to pay for these services, as the services were awarded to him to age 75. The Plaintiff was a self-employed tile setter and stone mason, a physically demanding job. He required massage therapy treatments in order to be able to work.

Despite the Plaintiff’s numerous requests for funding or reimbursement prior to trial, ICBC did not initially respond to requests, then delayed approval and eventually did not fund any reimbursements for his treatment. Additionally, between the trial date and ICBC’s application nine months later, no payments had been made. The tort award itself was only partially paid, and that only days before ICBC’s application.

The Plaintiff was worried about ICBC’s ability to reimburse him in the future. The evidence about the lack of financial viability of ICBC was not significantly disputed.

Also, the Plaintiff was concerned that ICBC was not prepared to pay for massage at the rate that the court had ordered. ICBC would only reimburse $80 under their payment schedule, when the real cost of such treatment was $85.

It concerned the court that ICBC had not explained its failure to pay the massage therapy costs of the Plaintiff prior to trial. Liability for the motor vehicle accidents was never seriously in dispute. The Plaintiff’s injuries required massage therapy in order for him to work and effectively minimalize the extent of his tort claim.

Additionally, the court was concerned about what rate ICBC would pay for massage therapy costs in the future. ICBC wanted the Plaintiff to pay the difference himself, over and above what ICBC was prepared to pay. The Plaintiff would have to seek reimbursement from ICBC. This created a 40-year responsibility on the Plaintiff to keep track of receipts, make requests and deal with adjusters. That was completely inconsistent with the general purpose of litigation and tort awards, which was to create some finality between the parties.

The court decided that in light of the history of non-payment by ICBC, for no apparent reason, it was unrealistic to require the Plaintiff to have to deal with an ICBC adjuster for 40 years, in order to obtain what the court had already ordered he was entitled to.

The court felt there was (1) just too much uncertainty as to the ability of ICBC to make the payments at a rate ordered by the court; (2) too much uncertainty related to their past history of being disinterested or disrespectful of the Plaintiff’s claims and (3) too much uncertainty as to what the future held for ICBC for the court to have absolute confidence that if money was deducted from the tort award for Part 7 scheduled benefits, that they would actually be paid.

The court concluded that the amounts for massage therapy should not be deducted from the Plaintiff’s tort award. There was, in the circumstances of a 40-year payment period, too much uncertainty and too much of a requirement placed on the Plaintiff to potentially request reimbursement weekly for funds not paid directly by ICBC, but payable out of his pocket. The court felt that that was simply too much to expect of a Plaintiff.

The cost of the kinesiology, which was more modest and designed to take place over the next year, was deducted from the award.