Termination of benefits for failure to attend treatment or training
Under s. 90 of the Insurance (Vehicle) Regulation ICBC may request the claimant to attend for medical treatment or vocational training where it is expected that such treatment or training will reduce the claimant’s disability or assist in rehabilitation of the claimant.
Consensus between ICBC and claimant’s medical professionals is required
Note that, according to opening words of s. 90 of the Insurance (Vehicle) Regulation, before ICBC can issue notice to the claimant to attend treatment or training both:
- ICBC’s medical advisor; and
- the claimant’s medical practitioner,
must agree that the treatment or training will reduce the claimant’s disability or assist in rehabilitation of the claimant.
In my opinion the Corporation is not entitled to terminate Charm’s benefits for refusal to undergo training unless and until it establishes that it is the opinion of both its medical advisor and the medical practitioner attending on Charm, that the program is likely to assist in the rehabilitation of the insured.
(Morrison v. ICBC, 1994 CanLII 1610 (BCSC)).
ICBC’s advisor and claimant’s practitioner cannot be the same person
ICBC’s medical advisor cannot be the same person as the claimant’s medical practitioner:
While the matter is not entirely free from doubt, it is my opinion that in a sense the medical practitioner does represent the insured, and has obligations and considerations distinct from those of the medical advisor, who represents the Corporation. Hence, I am of the view that the medical advisor and the medical practitioner cannot be one and the same person, if the consensus requirements of section 90(1) are to be met.
(Morrison v. ICBC, 1994 CanLII 1610 (BCSC)).
Benefits may be terminated for failure to attend
The treatment or training will be paid for by ICBC, and if the claimant fails to attend ICBC may give the claimant notice that it will be terminating the claimant’s benefits.
If the failure by the claimant to attend the treatment or training is caused by lack of insight due to cognitive deficits or depression arising from the injury itself, benefits may be restored:
I am of the view that the Insurance Corporation has not established that Mr. Patterson’s behaviour was a purposeful refusal to comply with the requirements of the vocational program. He did not refuse to attempt the work placement--work experience placements and his behaviour when accompanied by the therapist was satisfactory. His behaviour when she left deteriorated badly, however, this lack of appropriate behaviour appears to be at least equally consistant with emotional disturbance and lack of insight, and on the last occasion, discontinuance of medication.
Accordingly, the plaintiff should be declared entitled to continue with a retraining or educational program to assist in his vocational rehabilitation.
(Patterson v. ICBC, 1997 CanLII 1983 at para. 18 – 19 (BCSC)).
If benefits are terminated for failure to attend treatment or training ICBC may take the position that that disentitles the claimant to any further Part 7 benefits at any time:
In mid-1998, a few months after the accident, the Corporation referred the plaintiff to a rehabilitation specialist, who in turn referred him for counseling and physiotherapy, under Part 7 of the Regulation. The plaintiff failed to keep his appointments, however, so the Corporation discontinued these treatments. Since then, it has refused to provide further Part 7 benefits to the plaintiff, and takes the position that he forfeited his right to such benefits under s. 90(2) of the Regulation.
(Sovani v. Jin et al, 2005 BCSC 1285 at para. 24).
Claimant may apply for relief from the obligation to attend
Section 90(3) of the Insurance (Vehicle) Regulation provides that the claimant may apply to a judge for a ruling that the treatments or training is unlikely to be of benefit and that ICBC must continue to provide benefits even though the insured will not attend the treatment or program.
Note that such application must be made within 60 days of being given notice that the benefits will be terminated.
The claimant need not apply for such ruling unless there has been consensus between ICBC’s medical advisor and the claimant’s medical practitioner:
In my opinion the Corporation is not entitled to terminate Charm’s benefits for refusal to undergo training unless and until it establishes that it is the opinion of both its medical advisor and the medical practitioner attending on Charm, that the program is likely to assist in the rehabilitation of the insured. Since the Corporation has not established the consensus, the plaintiff need not apply for, and is not entitled to, the injunction sought.
(Morrison v. ICBC, 1994 CanLII 1610 (BCSC), emphasis added).
Determination of whether treatment is appropriate may not be suitable for summary trial
In Koskinen v. ICBC, 1995 CanLII 3015 (BCSC) the court held that the question of appropriate treatment was too complex to be determined by summary trial and held that if the parties could not agree on a medical expert to settle the question of appropriate treatment the issue of whether the plaintiff would be required to attend the treatment in dispute would be decided at the same time as assessment of quantum in the tort action.
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