Can ICBC Ask a Court to Make Deductions from Personal Injury Trial Awards?

By Ivar Lee, Vancouver personal injury lawyer and Partner at Paine Edmonds LLP

As a Vancouver personal injury lawyer, I am often asked by clients with an ICBC injury claim whether deductions can be made from a Court's award after a trial for personal injury compensation. Specifically, a Court may award compensation for expenses already incurred for past medical treatment and it may also award compensation for future expenses for future medical treatment. 

The issue arises because ICBC's basic Autoplan policy also provides some disability and medical rehabilitative benefits or also referred to as "Part 7 benefits" (such as physiotherapy, massage therapy, and medications) so it is often argued by ICBC that they are permitted to ask the Court to deduct such benefits from the amounts awarded for medical expenses paid or to be paid.  ICBC bases this argument on a provision of the Insurance (Vehicle) Regulation which in effect sets out the terms and conditions of a basic Autoplan policy.

In Jurczak v. Mauro, reasons for judgment released on August 8, 2013, Mr. Justice Silverman of the BC Supreme Court discussed this issue which is often the source of dispute following a personal injury trial.  The reasons nicely summarize the analysis to be applied when addressing this issue.  

First, the Court must determine whether any of the amounts awarded for past or future benefits are Part 7 benefits.  Second, the Court must then estimate the amount of the deduction.  The defendant (in effect, ICBC on behalf of the at fault driver) bears the onus of proving that a deduction should be made.  Most importantly, if there is any uncertainty whether the benefits will be paid must be resolved in favour of the plaintiff (ie. the injured person). 

In determining whether benefits will be paid, the Court considers whether such benefits are "mandatory" or "discretionary".  Mandatory benefits are benefits that ICBC is obliged to pay, the most common example being 12 physiotherapy treatments following a car accident.  Discretionary benefits are those types of medical expenses which ICBC may provide if they are likely to promote the rehabilitation of an insured in the opinion of ICBC's medical adviser.

In summary, if an item awarded as compensation for past or future medical treatment is also an ICBC mandatory benefit and there is little to no uncertainty that ICBC will in fact reimburse or pay the amount in future, it is very likely the Court will make a correlating deduction.  If however the item is an ICBC mandatory benefit and there is uncertainty whether ICBC will reimburse or pay in future, it is less likely that the Court will made a corresponding deduction.  Thus, if an item is an ICBC discretionary benefit, it is even less likely a deduction will be made unless there is strong evidence that ICBC will in fact reimburse or pay for the item in future.

In Jurczak v. Mauro, Mr. Justice Silverman refused to make the full amount of deductions sought by ICBC, largely on the basis that the evidence was insufficient to meet the onus of proving that the benefits would in fact be paid:

[34]         With respect to the $1,244.35 that the defendant seeks to deduct for physiotherapy treatments, I agree that they are, at first blush, mandatory benefits under s. 88(1).  However, unlike the other benefits referred to in that subsection, “physical therapy treatments” are also referred to in s. 88(8) which must be read together with s. 88(1).

[35]         In my view, the two subsections when read together lead to the conclusion that reimbursement is only mandatory for 12 physiotherapy treatments.  There is no obligation on ICBC to reimburse for the balance.

[36]         The insurer has already reimbursed the plaintiff for more than 12 physiotherapy treatments prior to June of 2007.  Therefore, only non-mandatory benefits remain in terms of physiotherapy.

[37]         The defendant says that the insurer will nevertheless pay these benefits.  This is conveyed through the assertions of the defendant’s lawyer and adjuster.

[38]         I accept as truthful the stated beliefs and intentions of counsel and the adjuster.  However, while I do not ignore them, these assertions provide something less than an undertaking from the insurer and something less than certainty that the benefits will be paid.

[39]         There is no assurance that counsel or the adjuster, or both, will not be replaced, or that the insurer’s instructions will not change.

[40]         In McCreight, the Court said this:

… the submission did not include any explanation as to the authority under which ICBC could pay the full amount of the future care award for physiotherapy under Part 7. Moreover, there was no suggestion counsel was speaking for ICBC.  His submission on behalf of the respondent reads as an opinion as to what ICBC would do and why. While such a submission might be helpful to a trial judge called upon to estimate the value of potential Part 7 benefits, I am not persuaded it is evidence, expert or otherwise, on which the trial judge can rely for a finding of fact…

[41]         I am less than confident that the entire amount will be reimbursed.  There is a real risk that it will not be.

[42]         I am required to estimate the amount to which the plaintiff is entitled.  In doing so, I am required to be cautious and to take into account any uncertainty concerning payment.  The onus of establishing that a deduction should be made is on the applicant.  Any uncertainty as to whether the benefits will be paid must be resolved in favour of the plaintiff.

If you have any questions about your ICBC injury claim such as whether ICBC can validly seek deductions from an award if you went to Court which may very well affect your decision to settle or not, please do not hesitate to contact me or any of our Vancouver personal injury lawyers at Paine Edmonds LLP for a free consultation about your ICBC injury claim.  Visit us at pelawyers.com to learn more or call us at 604.683.1211 to arrange your free consultation.