Brain Injury Legal Guide

By Paul Mitchell, Q.C.
Categories: Blog, Brain Injury

1. DEALING WITH LAWYERS

(a) CHOOSING A LAWYER

Brain injury claims are complex and cause severe hardship on the survivor and their family. It is important to hire a lawyer who has experience in brain injury cases. Speak to professionals in the healthcare field who specialize in treating the brain injured (neuropsychologists and rehabilitation professionals) and ask them for names of several lawyers. Also get the names of several lawyers from your local Brain Injury Associations. Meet with several lawyers before you make a final decision.

The initial consultation usually does not cost you anything. Talk to other survivors and their families for additional names of lawyers. When discussing your case with the lawyer make sure the lawyer’s practice has a primary focus on brain injuries.

Do not hire a lawyer based upon their advertising. Not every lawyer who specializes in personal injury has the expertise to handle a complicated brain injury case. Minor brain injury cases require particular expertise as it is the most common type of brain injury yet least understood.

Victims of minor brain injury are often largely ignored or misdiagnosed by the medical professions. The lawyer must be aware of current advances in neurodiagnosis including neuropsychological assessment.

The lawyer must be up to date with recent literature dealing with the mechanics of traumatic brain damage together with the utilization of more sensitive brain imaging techniques such as the MRI, PET scan, SPECT scan and topographical brain mapping.

Another important factor in choosing a lawyer is to find a lawyer that has good rapport with the client and the family of the survivor. The survivor and their family will be spending a considerable amount of time with the lawyer before the case is concluded. It is important to choose a lawyer who has compassion, one who is a good listener and one who truly cares for the well being of the survivor and the entire family.

Some lawyers will cover expenses and other disbursements until the case is concluded. Others expect to be reimbursed as the expenses are incurred. These expenses can be significant in a brain injury claim.

Some lawyers act only for Plaintiffs. Other lawyers act for Plaintiffs but also rely on I.C.B.C. for a portion of their work, by acting for I.C.B.C. as Defence lawyers.

When interviewing lawyers you may wish to consider whether they do work for I.C.B.C. as a factor in your decision of who to retain.

(b) LEGAL FEES

Most lawyers will not charge for the initial consultation. Fees may be charged at an hourly rate or on a percentage which is called a “contingency fee”. Contingency fees vary with the amount of the claim and whether or not liability is at stake. For brain injury claims they can vary from 20% to 33 1/3%, which is the maximum allowable allowed to be charged for motor vehicle cases. Fees can sometimes be higher if liability is in question on a very difficult non-motor vehicle case such as a product liability case.

(c) ROLE OF A LAWYER

A lawyer’s goal is to achieve maximum compensation for his client. This is vitally important in brain injury claims as often the injured person’s quality of care will depend entirely on whether they have a settlement and if so, how much. With a proper settlement a severely injured survivor should be able to remain in an independent home environment and not be confined to an institution.

A lawyer’s role varies throughout the lawsuit. Immediately after the accident the lawyer’s primary role should be to ensure that the injured victim receives the proper medical and rehabilitation care to maximize their recovery. This often entails negotiating with I.C.B.C. and/or various medical facilities on behalf of the family to ensure that the injured person is receiving proper rehabilitation as soon as possible. This often requires obtaining interim funds to allow for costly rehabilitation to proceed.

Another important role of the lawyer, particularly in a mild traumatic brain injury case, is to retain appropriate medical experts who are up to date with recent developments in the field of traumatic brain injury. Recent brain imaging techniques such as PET scan and SPECT scan are gaining wider acceptance for diagnosing traumatic brain damage, however the most accurate measure of this sort of mild brain damage is done by a comprehensive neuropsychological examination, together with evidence from those who know the survivor well who can give evidence as to the effect of the injury on the person and how the survivor has changed following the accident.

As the case progresses the lawyer’s role is to gather information and eventually convince the Defendant’s insurer and lawyer that it is in their best interests to settle the case for a fair amount. The lawyer’s primary objective at all times should be to attempt to settle the case on terms beneficial to the client. In large catastrophic cases the uncertainty of trial, and the possibility of getting nothing could be devastating for the family. The lawyer’s role is to prepare the case in such a manner that the other side wants to settle. This means obtaining the best possible experts in all of the areas that require expert evidence. Brain injury cases require numerous experts including economists, structured settlement experts, actuaries, numerous medical experts, future care costs experts including rehabilitation consultants and vocational consultants.

On the issue of liability the lawyer will attempt to reconstruct the accident using accident reconstruction experts, automotive engineers, surveyors and photographers.

The lawyer will attempt to evaluate the economic loss to the client to determine the cost of care required for their lifetime. Compiling the necessary expert evidence may take some time in a brain injury case.

Once the expert evidence is compiled settlement negotiations begin. This will often require numerous meetings between the two lawyers and the insurer and often joint meetings with the experts from both sides in an attempt to clarify the issues. Mediation is often attempted. In the end, if settlement discussions fail to achieve a settlement that is acceptable to both sides, the final alternative is to have a trial and have a Judge or Jury decide.

(d) WHY IT IS IMPORTANT TO HIRE A LAWYER EARLY

It is extremely important to hire a lawyer as early as possible in a brain injury claim.  The primary reason is to ensure the motor vehicle involved in the accident is retained and examined by an engineer before it is destroyed or crushed by ICBC.  Another important reason is to obtain witness statements and other investigations as early on as possible prior to any evidence being destroyed and people’s memories fading.

Settlement discussions and trial often boil down to a battle of the experts, with the Plaintiff’s experts saying the Defendant is at fault and the Defendant’s experts saying the Plaintiff is at fault. The Plaintiff is at a distinct disadvantage as I.C.B.C. is notified of every claim as soon as the accident happens and generally hires an accident reconstruction expert and engineer to do an immediate reconstruction on any severe claim. If a Plaintiff does not hire a lawyer immediately and waits for six months some of the evidence may be gone by the time the Plaintiff’s lawyer can hire a reconstruction expert. I.C.B.C. often has the car salvaged as soon as possible. When the car is destroyed so is valuable evidence concerning crash impact, seat belt usage and potential product liability cases against the car manufacturer. Important evidence must be secured and witnesses identified and interviewed as soon as possible.

Another important role of a neuro-lawyer is to assist the brain injured person and their family in the rehabilitation process.  This often entails acting as an advocate with the medical facility to ensure proper discharge planning takes place, as well as negotiating with ICBC to ensure proper funding for rehabilitation and discharge is secured.

It is also important to review the applicable limitation periods as soon as possible.  There are some limitation periods that are as short as three months.  If you do not comply with these limitation periods by making the proper notice and taking the proper steps you may lose your right of compensation entirely.

(e)  DISBURSEMENTS

The lawyer’s out of pocket expenses (“disbursements”) include expert fees (such as medical experts, engineers, accountants, actuaries, etc.), court fees, office expenses, travel expenses and other costs directly related to your case. Most law firms will pay these expenses on behalf of the client until the conclusion of the case. These expenses are added to your claim and if successful, most will be reimbursed by the Defendant at the conclusion of your claim.

(f)  WHAT ARE THE ECONOMICS OF HIRING A LAWYER? IS IT WORTH IT?

In our view, to obtain the most effective bargaining position with ICBC and thus achieve a more favourable settlement, it is imperative that a lawyer be hired as soon as possible.  A lawyer would commence a lawsuit, obtain a trial date and put pressure on ICBC to ensure that proper rehabilitation is secured.  They would investigate the claim, hire engineers and other experts required to properly put forth a brain injury claim. 

ICBC will always try to talk the victim out of hiring a lawyer.  They generally do this because they know that the lawyer will advise the victim of their rights and will ensure they obtain a proper settlement.  ICBC is acting for the person who caused the injury, and it is in their best interest to pay as little as possible for the injury.  Another important role of a lawyer is to send a message to ICBC that the client takes the claim seriously and is prepared to go to court and fight for their rights if necessary.  The primary objective is to settle if possible, but it is always imperative to have the threat of a trial to ensure that ICBC comes to the table with a fair settlement.

In our experience, brain injury claims are far too complicated for a person to attempt to negotiate with ICBC on their own.  If someone acts on their own, they usually obtain a settlement that is substantially less than what they could obtain through a lawyer, even after paying legal fees.


2. THE CANADIAN LEGAL SYSTEM OVERVIEW

Each Province in Canada has their own Court system. The tort system in British Columbia arises out of the common-law which has been in existence for hundreds of years. It permits an injured party to sue the person at fault in the Courts for compensation for injuries and damages sustained. To be compensated the injured party must prove that the other party was wholly or partially at fault.

Provincial laws vary from Province to Province, however in many cases they are similar. In British Columbia any damage action where the amount involved is under $10,000.00 must be commenced in Small Claims Court. Where damages may exceed $10,000.00 the claim must be commenced in the Supreme Court of British Columbia.

Should a case go to trial at the B.C. Supreme Court level, if either of the Plaintiff or Defendant is unhappy with the result they may appeal the Supreme Court’s decision to the British Columbia Court of Appeal. This appeal is by right which means that either party may appeal provided they follow the proper procedure and appeal within the time limits confined. When the British Columbia Court of Appeal has rendered a judgment, if either of the parties involved is still unhappy with the result they may apply to the Supreme Court of Canada for leave to appeal. The Supreme Court of Canada can refuse to hear the appeal if they feel that the case is not of national significance. If the Supreme Court of Canada grants the individual leave to appeal then the matter would be heard in Ottawa at the Supreme Court of Canada. There is no appeal from the Supreme Court of Canada.

3.  STARTING THE LAWSUIT

(a) INITIAL INVESTIGATIONS

Where liability is potentially in dispute it is crucial that the lawyer be able to investigate the motor vehicle accident as soon as possible after the accident. This requires the immediate hiring of a reconstruction expert to examine the vehicles and the scene and measure the skid marks, gravel on the road, paint marks and other evidence at the scene. The accident reconstruction expert must attend the scene as soon as possible before evidence such as skid marks, etc. disappear. They then use this information to reconstruct the accident using computer simulations, angle of crush, skid coefficients, etc. The objective is to attempt to prove that the other driver was at fault.

Our office was involved in one case where our client was in a head-on collision in the opposite lane of traffic on a corner. I.C.B.C. took the position that it was an obvious case of our client coming around the corner too fast and hitting the Defendant head-on in the Defendant’s lane.

We hired an accident reconstruction engineer who showed that the skid marks of the Defendant’s vehicle just prior to impact were angled in such a way that indicated that the Defendant’s vehicle was actually coming out of our client’s lane just prior to impact. The Defendant was actually cutting the corner. As our client came around the corner and saw the Defendant in his own lane he quickly turned left to get out of the way and ended up in the Defendant’s lane. At exactly the same time the Defendant jerked his car back into his own lane and the impact occurred.

The engineering evidence resulted in a substantial settlement. Had the skid marks not been measured immediately after the accident the Plaintiff would have in all likelihood received nothing and would have had to remain in an institution for the rest of his life. That case demonstrates the importance of retaining a lawyer who specializes in traumatic brain injury cases sooner rather than later. If you do not your case may be severely prejudiced as crucial evidence may be lost or destroyed.

(b) COMMENCING AN ACTION

When an injured party is required to sue someone they commence an action in Supreme Court. The lawyer acting for the injured person must join as a Defendant all those people who he feels may be wholly or partially at fault for the person’s injuries. In a severe motor vehicle claim this would obviously include the other driver but may also include the designer of the roadway, the municipality, the Department of Highways, the designer of the vehicle and other potential parties.

An action is commenced in the Supreme Court of British Columbia by filing a Notice of Civil Claim. The Defendant’s lawyer will file a Response to Civil Claim which will either deny or admit liability. If liability is admitted the only issue before the Court will be a determination of the amount of the Plaintiff’s damages.


4. PRE-TRIAL

After an action has been commenced the parties then exchange documents which are relevant to the proceedings. The entire system in British Columbia is predicated on full disclosure of any and all documents relating to the Plaintiff and Defendant’s claim. The purpose is to get all the cards on the table so there are no surprises. This allows both sides to know as much as possible about the other side’s case which will hopefully facilitate and encourage a settlement.

The most important pre-trial proceeding is the Examination for Discovery. The Supreme Court Rules allow each opposing lawyer to examine the other party under oath, before a Court Reporter, concerning any relevant issue to the lawsuit. The Court Reporter records each word and creates a transcript of the questions and answers at the Discovery. The Defendant’s lawyer will ask the injured party how the accident occurred, what injuries they received, details of their employment history and how the injury has affected their lives. The purpose is to disclose as much evidence as possible to facilitate settlement.

5. SETTLING OUT OF COURT

(a) DEFENDANT’S LAWYER – INSURANCE ADJUSTER

It is important to understand that the insurance company, generally I.C.B.C., acts for the person who is at fault in the accident. Their goal is to pay as little as possible for the injured party’s claim. I.C.B.C. is usually the insurer of the injured Plaintiff as well but the insurance coverage that applies is that of the one who is at fault in the accident. The insurance adjuster and/or Defendant’s lawyer is acting on behalf of the party at fault and the insurance company insuring him. It is therefore in the insurance company’s best interest to pay as little as possible to settle the claim.

(b) SETTLEMENT NEGOTIATIONS

Settlement can happen at any time both before an action is commenced, before or after Discovery, and any time up until the conclusion of the trial and the rendering of the Judge’s or Jury’s verdict.

The vast majority of personal injury cases are settled without the necessity of trial because of our system’s encouragement of settlements.

(c) MEDIATION

Personal injury mediation is another process used in attempting settlement. The Plaintiff and Defence lawyer jointly hire a third party, generally a lawyer, to assist the parties in coming to an agreed resolution of the matters at issue. It is typically referred to as “assisted negotiation”. A mediator is used to assist the parties in coming to a settlement. The mediator has no power to impose a settlement. His only position is to assist and recommend.

The mediation process usually takes more than a day and is not binding on either party. It offers a speedy forum for dispute resolution at a reasonable cost.

There is no ideal time to have a mediation. Most personal injury mediations occur after Examinations for Discovery, however some occur earlier in the litigation process. Some major loss cases have gone to mediation prior to an action even being commenced. In some cases the case has gone to mediation after trial but before the appeal is concluded.

The Plaintiff is generally present with the lawyers as well as a representative from the insurance company. The Defendant’s insurer must attend with sufficient authority to settle based upon the Plaintiff’s most liberal demand. Mediation gives both sides an opportunity to sit across a table from each other with the assistance of a trained objective third party. The Plaintiff and his or her lawyer can tell the adjuster face to face the problems they have had with their injury and why they feel their settlement offer is reasonable. Similarly, the adjuster and Defendant’s lawyer may tell the Plaintiff and lawyer directly of their rationale for their assessment of the Plaintiff’s claim. The adjuster is usually frank about the value of the case and is quite prepared to outline the basis for his or her proposal having regard to his or her opinion on various points.

It is often as a consequence of the insurance adjuster hearing the Plaintiff describe his or her perceived needs and future aspirations that a solution can be developed by the parties.

 

6. THE TRIAL

If the matter cannot be settled a trial will be held. Brain injury cases are exceedingly complex and the trials of these actions can take anywhere from one week to four weeks in duration depending upon the complexity of the issues and liability.

At trial the Plaintiff presents his case first. This involves the Plaintiff and his family and friends as well as all the appropriate medical experts outlining how the injury has impacted on his or her life. All of the experts will either have their reports tendered as evidence or they will appear at trial to give evidence on the Plaintiff’s behalf. If liability is in dispute the initial part of the trial generally revolves around the Plaintiff’s view as to how the accident happened. This usually involves not only the evidence of the Plaintiff but also any witnesses involved and all of the experts and reconstruction engineers hired by the Plaintiff’s lawyer. The objective is to prove to the Judge that the Defendant was wholly or partially at fault.

Once liability is concluded the Plaintiff will then put forth his case in quantifying damages. This would include loss of income claim, damages for pain and suffering and cost of future medical care. All of the expert witnesses give evidence, one at a time. Each witness is asked questions by the lawyer who called them to the stand (“direct examination”), and then they are asked questions by the opposing lawyer (“cross-examination”).

Once the case for the injured party is concluded the lawyer for the insurance company will proceed to put in the Defendant’s case. This would include the Defendant’s witnesses and any reconstruction expert and engineer concerning the issue of liability and also any experts which the Defence may have concerning the quantification of the Plaintiff’s damages. These experts would mirror the Plaintiff’s experts and would include experts such as economists, vocational consultants and other medical experts.

Once the Defendant’s case is concluded both the Plaintiff and Defence have an opportunity to present final argument. This is where the lawyer summarizes the evidence that has been put forward and quotes legal precedents and previous cases and attempts to convince the Judge to rule in their client’s favour.

Following the conclusion of the case the Judge will reserve judgment and render a written judgment. As brain injury cases are complex and lengthy these judgments can sometimes take months for the Judge to complete.

If the trial is in front of a jury, the jury will render its decision immediately.

Once the written judgment is rendered by the Judge each party has 30 days to commence an appeal.


7. LIMITS OF INSURANCE

Catastrophic brain injury cases often involve substantial amounts of money in damages. Unfortunately many Defendants do not carry sufficient insurance. There is a “limits problem” when the amount of the potential claim may exceed the amount of insurance coverage that the Defendant carries.

For example, if the Defendant only carries $1,000,000.00 of insurance and the Plaintiff’s claim is worth two million dollars, the Plaintiff may only recover $1,000,000.00 from the Defendant’s insurers and would be left to try and collect the balance from the Defendant personally.

If there is inadequate coverage this can cause severe financial hardship on the injured party and may adversely impact on their ability to pay for the required medical care for the balance of their life.

As a result of this the Plaintiff’s lawyer must carefully assess whether there is any possibility that someone other than the other driver may be partially at fault for the accident. This requires a careful review of the circumstances surrounding the accident, including the design and/or maintenance of the road and also the design and maintenance of the automobile.

There are numerous product liability cases involving the manufacturers of motor vehicles for improper design and manufacturing defects including rollover cases (roof crush cases), seat belt design cases, seat belt assembly cases, design of the interior of the car and many others.


8. UNDERINSURED MOTORIST PROTECTION (U.M.P.)

As described above, when the amount of the Plaintiff’s potential claim may exceed the amount of insurance coverage that the Defendant carries there is a “limits problem” (i.e. the limits of the Defendant’s insurance is insufficient to pay the Plaintiff’s claim). Underinsured Motorist Protection (U.M.P.) provides the Plaintiff with a certain amount of protection for this problem in some situations. The Plaintiff’s lawyer must ascertain immediately whether there is any U.M.P. coverage that may apply and the extent of the coverage.

In general terms if the Plaintiff is a registered owner of a vehicle or is a dependent relative of a registered owner of a vehicle then he or she will be covered by Underinsured Motorist Protection of varying amounts. If there is U.M.P. in existence the limits of insurance available for the Defendant will be increased to the amount of the U.M.P. coverage of the Plaintiff. This area is exceedingly important whenever there is a limits problem.

U.M.P. coverage may be available in situations where it is not so obvious. For example, U.M.P. coverage may be available to an individual who is injured as a passenger in a motor vehicle or who is a pedestrian. It also may be available to children from either of their parents’ motor vehicle insurance. In situations where the parents have separated the U.M.P. may be available from either or both of the parents by virtue of their ownership of different vehicles. It also may be available from the parents’ policy even though one of the parents may reside out of Province.

A careful examination of the U.M.P. policies that may be applicable in the accident is a crucial part of every substantial brain injury claim.


9. STRUCTURED SETTLEMENTS

(a) INTRODUCTION

A personal injury claim can either be settled by way of a lump sum payment or by way of a structured settlement or a combination of the both (i.e. part lump sum, part structured settlement). A structured settlement is a settlement in which the victim is compensated over time rather than receiving a single lump sum payment. Structured settlement may only be utilized in a personal injury action. The main advantage to a structured settlement is that the payments the client receives over time are received tax free. This income tax advantage was created as a matter of public policy by the Federal Government many years ago to encourage out of Court settlements in personal injury claims.

The stream of income is provided by the purchase of an annuity from a Life Insurance Company. The major advantage to the Plaintiff is that all the periodic payments are tax free. What follows is a summary of some of the advantages and disadvantages to both the Plaintiff and to the insurer (Defendant).

A structured settlement should be seriously considered in every traumatic brain injury case.

(b) ADVANTAGES TO THE PLAINTIFF

All periodic payments are tax free to the recipient. In lump sum Court awards the interest generated from the Plaintiff’s investment of the monies is taxable. This advantage has been reduced somewhat by the Court’s recent allowance for a “tax gross up” in lump sum awards to account for the impact of taxation awards for future care only.

Funds in a structure are not prone to being squandered or spent too quickly.

The income stream can be designed (or structured) to meet the individual needs of the Plaintiff. They can be indexed for inflation and lump sum payments in the future may be included.

The money is managed without expense to the Plaintiff.

The periodic payments are guaranteed by both the insurer and the annuity company.

(c) DISADVANTAGES TO THE PLAINTIFF

The funds are locked in at today’s interest rates. You cannot decide at a later date to “cash out the settlement”.

The rate at which the structure is indexed is set for the life of the annuity. If inflation skyrockets to a higher rate than the indexing rate used, the real purchasing power from the monthly payments would be substantially reduced over time.

(d) ADVANTAGES TO THE INSURER (DEFENDANT)

If the intent is to provide the Plaintiff with a certain income stream over time there are cost savings to a structured settlement. It costs less to purchase an annuity than to provide a lump sum that would be invested to yield the same stream of after tax income from a lump sum.

The structure may contain a reversionary clause which allows the remaining payments to be made to the insurer if the Plaintiff dies before the end of the guarantee period.

(e) DISADVANTAGES TO THE INSURER (DEFENDANT)

The insurance company remains contingently liable for all the payments for the life of the annuity.

The ongoing bookkeeping requirements for tax purposes.

(f) STRUCTURED SETTLEMENT DEFINITIONS

Annuitant: The owner of the policy.

Annuity Policy: The contract between the owner and the issuer where the issuer agrees to pay specified amounts of money at fixed intervals to the annuitant who is the owner.

Beneficiary: The person who is entitled to receive further payments on the annuity should the Plaintiff (the measuring life) die, where the agreement specifically contains a guarantee period and where death occurs prior to the end of the guarantee period.

Guarantee: Most policies provide that the periodic payments mat be guaranteed to be paid for a certain length of time even if the Plaintiff dies. If the Plaintiff dies before this guarantee period the annuity may form part of his or her estate and the payments will continue to be made for the balance of the guarantee period. If the Plaintiff lives beyond the guaranteed period he or she would continue to receive the annuity payments for the balance of their lifetime, if the contract was life contingent.

Indexing: The annual increases to the periodic payments to cover the increase in the cost of living.

Issuer: The company that issues the policy is generally a life insurance company. These issuers are normally one of several major Canadian life insurance companies with assets of in excess of $5 Billion Dollars.

Measuring Life: The party in whose life the annuity policy is placed. This is generally the Plaintiff alone or it could be the Plaintiff and another party.

Medical Age Rate Up: Also means having the Plaintiff “age rated”. The actual life expectancy of the measuring life is crucial to the cost of the annuity. For example, if a Plaintiff is normally expected to live to be 76 years old, but because of his injuries is only expected to live to be 56 years old he is “age rated” to “life minus 20”. This age rating is determined by the insurance company by their review of medical information regarding the measuring life.

Owner: The person who pays the premium to purchase the policy.


10. NO-FAULT BENEFITS (PART VII BENEFITS)

(a) OVERVIEW OF NO-FAULT BENEFITS

British Columbia has a partial “no-fault system” which means that an injured person in a motor vehicle accident is entitled to certain benefits even if he or she caused the accident. The system is commonly referred to as “Part VII benefits” or “no-fault benefits”. The benefits are called Part VII benefits because they are set out in Part VII of the Regulations under the Insurance (Motor Vehicle) Act.

The scope and amount of benefits payable under Part VII have changed many times over the years so it is important to determine the year in which the motor vehicle accident occurred. Part VII benefits are comprised of three separate areas:

(i) Medical and rehabilitation benefits.

(ii) Disability benefits for employed persons (i.e. to compensate the individual for wage loss while that person is totally disabled from working) and homemakers.

(iii) Death benefits including funeral expenses and other benefits for survivors.

No-fault benefits are payable regardless of whether the injured person is at fault or not. If a party commences a legal action under our tort system to obtain further compensation, any Part VII benefits received will be deducted from the settlement or judgment.

In certain situations Part VII benefits will be disallowed. For example it has been held that a claimant who had breached the conditions of his insurance policy was not entitled to Part VII benefits (i.e. if he or she is not authorized and qualified to operate the motor vehicle, if the driver/claimant was impaired, if the vehicle was involved in a race or speed test, if the vehicle was involved in an accident to escape or avoid arrest or similar police action or if the vehicle is being used for illegal or prohibited trade or transportation).

If an insured is eligible for benefits under W.C.B. or U.I.C. the amount of these benefits will be deducted from the Part VII benefits payable by I.C.B.C. If the benefits from these other sources exceed the benefits that the claimant is entitled to receive from I.C.B.C., then I.C.B.C. will not be obliged to pay any Part VII disability benefits. These benefits from other sources are deducted even if the insured elects not to claim the benefits from W.C.B. or U.I.C.

If the claimant has a dispute with I.C.B.C. concerning Part VII coverage he may sue I.C.B.C. An action for Part VII benefits must be commenced within two years from the date of the accident or, where benefits have been paid within two years, from the last benefit payment being paid.

(b) MEDICAL AND REHABILITATION BENEFITS

Medical and rehabilitation benefits are either mandatory (which I.C.B.C. must pay to the insured) or permissive (which I.C.B.C. may pay). Rehabilitation is defined in the Regulations as “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” (Reps. S.78).

(c) MANDATORY BENEFITS

I.C.B.C. is required to pay all reasonable expenses incurred by the insured as a result of the injury including medical, surgical, dental, hospital, ambulance, professional nursing services, physiotherapy, chiropractic treatment, occupational therapy, speech therapy or for prosthesis or orthesis (Regs. S.88(1)).

A dispute between I.C.B.C. and the insured as to whether an expense is reasonable shall be submitted to arbitration under the Commercial Arbitration Act.

(d) PERMISSIVE BENEFITS

I.C.B.C. may provide various benefits to an insured who is injured in an accident where, in the opinion of the Corporation’s medical advisors, the provision of any one or more such benefits is likely to promote the rehabilitation of the insured (Regs. S.88(2)).

Some permissive benefits may be provided only once during the lifetime of the insured, for example:

(i) Funds to purchase one motor vehicle equipped as necessary and appropriate for use and operation by the insured (Regs. S.88(2)(a)).

(ii) Funds to alter the insured residence to make it accessible which are limited to necessary ramps, lifts, bathroom alterations and where the insured lives alone or is a homemaker, necessary kitchen alterations (Regs. S.88(2)(b)).

Other permissive benefits may be provided on a monthly basis or from time to time as costs are incurred. These include:

(a) Reimbursement for costs of attendant care which is limited to the lesser of the monthly costs of the group residence or the monthly costs of attendant care not to exceed 12 hours per day (Regs. S.88(2)(c)).

(b) Cost for a wheelchair, medically prescribed bed, bowel and bladder equipment, grooming and hygiene aids, transfer boards or lift, eating aids, communication aids, dressing aids and respirator equipment.

(c) Funds for the insured to undergo vocational training.

S .88 (2) is re produced below:

(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 it injured in an accident for which benefits are provided under this Part, the corporation may provide any one or more of the following:

(a) funds to the insured once during the lifetime of the insured for the acquisition by the insured of one motor vehicle equipped as necessary and appropriate to its use or operation by the insured, the choice of make or model of vehicle to be in the sole discretion of the corporation;

(b) funds to the insured once during the lifetime of the insured for alterations to the insured’s residence that are necessary to make the residence accessible to and usable by the insured, the style and cost of the alterations to be in the sole discretion of the corporation and the alterations to be limited to necessary ramps, a necessary lift, necessary bathroom alterations and, where the insured is a homemaker or a person who lives alone, necessary kitchen alterations;

(c) reimbursement to the insured for the costs of attendant care, other than care provided by a member of the insured’s family, where the insured has returned to and is residing in the community but is not capable of performing some or all of the teaks necessary to sustain an independent lifestyle, the amount of the reimbursement to be limited to the lesser of

(i) the monthly cost of a group residence that would be appropriate to the needs and lifestyle of the insured, or

(ii) the monthly cost of attendant care not exceeding 12 hours per day;

(d) reimbursement to the Insured for costs incurred from tine to time by the insured for one or more of the following items:

(i) a wheelchair with required attachments

(ii) a medically prescribed bed with required equipment;

(iii) bowel and bladder equipment;

(iv) grooming and hygiene aids;

(v) transfer boards or lift;

(vi) eating aids;

(vii) communication aids;

(viii) dressing aids;

(ix) respirator equipment;

(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 ant level of independence of the insured;

(f) funds for any other coats the corporation in its sole discretion agrees to pay.

(3) Before incurring an expense or obligation under subjection (1.1) or (2) for which the insured intends to, request payment by the corporation, the insured shall obtain written approval from the corporation and the corporation may, before giving its approval, require the insured to submit such information as it considers necessary to assist it in making a decision.

(4) The corporation is not liable to insure, repair, replace or maintain a motor vehicle acquired by an insured under subsection (2)(a) except in the course of an approved repair resulting from a subsequent claim for insured lose or damage to the vehicle.

(5) The amount by which the liability of the corporation under this section is limited is the amount set out in section 3 of Schedule 3.

(6) The corporation is not liable for any expenses payable to or recoverable by the insured under a medical, surgical, dental or hospital plan or law, or payable by another [usurer.

(7) The maximum amount payable by the corporation under this auction for medical, surgical, dental, nursing or physiotherapy services or for chiropractic treatment, occupational therapy or speech therapy shall not exceed the amount that would be paid for the same service, treatment or therapy under the tariff of fees approved by the Medical Services Commission if the service, treatment or therapy ware an insured service under section 4.09 of the Medical Service Act Regulations, 8.C. Reg. 144/68.

(8) The corporation is not liable to pay for more than 12 physiotherapy treatments for an insured for each accident unless, before any additional treatment is given, the corporation’s medical advisor or the insured’s medical practitioner certifies to the corporation in writing that, in his opinion, the treatment la necessary for the insured.

[am. B C. Regal 335/84, 8.21; 379/8S, a.33; 449/88, s.l4; 383/89, s.l4]
Although I.C.B.C. does have discretion with respect to payment of permissive benefits, that discretion is not absolute or unfettered. It has been held that an unfettered discretion is not consistent with the concept of public insurance. When I.C.B.C. decides whether or not a treatment is reasonable they must base their decision on relevant factors determined by an objective assessment of entitlement.

(e) DISABILITY BENEFITS

There are numerous cases interpreting whether an insured is an employed person and entitled to disability benefits. To obtain disability benefits as an “employed person” an insured must on the date of the accident for which the claim is made be:

(i) Employed or actively engaged in an occupation for wages or profit;

or

(ii) Employed or actively engaged in an occupation for wages or profit for any six months during the 12 month period immediately preceding the date of the accident.

It has been held that casual employment for several days in each of the six months preceding a motor vehicle accident does not qualify an insured to receive benefits as an employed person. Disability benefits are payable at the rate of the lesser of $300.00 per week or 75% of the insured’s average gross weekly earnings in the 12 month period immediately preceding the accident. This benefit will be paid for the duration of the total disability or for 104 weeks, whichever is shorter. If the disability continues beyond the 104 week period the disability benefits will continue for the duration of the disability. These benefits are reduced by any amount received by the injured party from Canada Pension Plan, Disability Pension.

(f) DEDUCTION OF NO-FAULT BENEFITS

Part VII benefits are deducted from the Plaintiff’s settlement or judgment. The purpose of this deduction is to prevent the Plaintiff from receiving double compensation. Future benefits to which the Plaintiff may be entitled are also deducted from any judgment or settlement. Most settlements are arrived at, however, with either a full amount being paid to the Plaintiff and him releasing all future Part VII benefits or alternatively, the settlement is based upon a smaller amount and Part VII is left open.