No-Fault Benefits (Part VII Benefits)
British Columbia has a partial "nofault system" which means that an insured 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 "nofault 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.
Nofault 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 selfsufficiency that, allowing for the permanent effects of his injuries is, with medical and vocational assistance, reasonably achievable by him" (Regs. 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 Corporations 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:
Funds to purchase one motor vehicle equipped as necessary and appropriate for use and operation by the insured (Regs. S.88(2)(a)).
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:
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)).
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.
Funds for the insured to undergo vocational training.
S.88(2) is reproduced below:
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:
funds to the insured once during the lifetime of the injured 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;
funds to the insured once during the lifetime of the insured for alteration 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;
reimbursement to the insured for the costs of attendant care, other than care provided by a member of the insured is family, where the insured has returned to and is residing in the community but is not capable of performing some or all of the tasks necessary to sustain an independent lifestyle, the amount of the reimbursement to be limited to the lessor of the monthly cost of a group reaidence that would be appropriate to the needs and lifestyle of the insured, or the monthly cost of attendant care not exceeding 12 hours per day;
-reimbursement to the insured for costs incurred from time to time by the insured for one or more of the following items:
a wheelchair with required attachments;
a medically prescribed bed with required equipment;
bowel and bladder equipment;
grooming and hygiene aids;
transfer boards or lift;
eating aids;
communication aide;
dressing aids;
respirator equipment;
funds to the insured for vocational or other training that
is consistent with the insured's preinjury occupation and his postinjury skills and abilities and may return the insured as nearly as practicable to his preinjury status or improve the postinjury earning capacity and level of independence of the insured;
funds for any other costs the corporation in its sole discretion agrees to pay.
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.
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 loss or damage to the vehicle.
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.
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 insurer.
The maximum amount payable by the corporation under this section 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 were an insured service under section 4.09 of the Medical Service Act Regulations B.C. Reg. 144/68.
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 is necessary for the insured
[am, B.C. Regs. 335/84, s.21; 379/85, s.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 NOFAULT 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.
This article is not legal advice and a lawyer should be consulted on any specific case.
