Plaintiff’s Mileage Costs and Pain Program Costs Deducted from Damages Award as they Qualified for No Fault Benefits

The plaintiff’s damages for mileage costs for using her vehicle to travel to and from medical and necessary physical therapy appointments as well as the cost of the plaintiff’s attendance at a pain program were deducted from her damages award as these amounts qualified for no fault benefits.

Insurance law – Automobile insurance – Benefits – No-fault coverage – Statutory provisions – Mandatory benefits – Damages – Benefits deductibility

Park v. Targonski, [2015] B.C.J. No. 1857, August 28, 2015, British Columbia Supreme Court, G.J. Fitch J.

The plaintiff was injured in a motor vehicle accident and recovered a judgment against the defendant. She suffered soft tissue injuries and developed chronic pain. After the judgment, the defendant sought an order reducing the plaintiff’s award of special and cost of future care damages. The reduction to the special damages award was for a gym pass and mileage costs that the plaintiff incurred while pursuing medical treatment and other various forms of physical therapy. The deduction sought with respect to the cost of future care award related to the plaintiff’s attendance at a pain program.

The defendant argued that these damages were included in the plaintiff’s Part 7 accident benefits found in the Insurance (Vehicle) Regulation, B.C. Reg 447/83 (the “Regulations”), which would mean that the plaintiff was entitled to recover these damages directly from her insurer. The deduction was sought pursuant to s. 83 of the Insurance (Vehicle) Act, R.S.B.C. 1996 c. 231 (the “Act”), which provides that a plaintiff who has been awarded special damages or damages for cost of future care would be liable for deductions to that award to reflect Part 7 benefits he or she would have been entitled to receive.

Part 7 benefits are of two general types. The first type is found in s. 88(1) of the Regulations and enumerates the benefits ICBC is obliged to pay. The second type, found in s. 88(2), consists of the discretionary benefits 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.

The court declined to deduct the gym pass award from the tort award on the basis that it was not expressly connected with the pursuit of necessary physical therapy, and did not qualify as a mandatory benefit under s. 88(1) of the Regulations. Although the gym pass could qualify as a discretionary benefit under s. 88(2), the insurer had provided no specific assurance that, if so qualified, they would pay for the gym pass as a no fault benefit. The court held that the plaintiff’s mileage costs for using her own vehicle to travel to and from medical and necessary physical therapy appointments were reasonable expenses, necessarily incurred in pursuit of a treatment that qualified as a mandatory benefit. As the expenses were an integral component of the treatment being pursued, it was appropriate that they be deducted from the tort award.

The court also granted the deduction for the plaintiff’s pain clinic on the basis that attendance at a pain clinic is a mandatory benefit payable under s. 88(1) of the Regulations. A pain clinic focused on necessary physical therapy that incidentally engages psychological and/or cognitive issues is a mandatory benefit for which the plaintiff should be reimbursed by ICBC. ICBC had provided the court with sufficient assurance that it would pay for such treatment.

This case was digested by Kora V. Paciorek and edited by David W. Pilley of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact them directly at kpaciorek@harpergrey.com or dpilley@harpergrey.com or review their biographies at http://www.harpergrey.com.

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