Part 7 benefits and pre-existing injuries.

Part 7 benefits, also known as “No Fault” benefits, are benefits owed to parties injured in motor vehicle accidents in British Columbia. These benefits are payable regardless of who is at fault for a car accident, hence the moniker “No Fault” benefits. These benefits will cover a portion or all of various treatment expenses.

ICBC may attempt to use the presence of a pre-existing injuries as a justification for denying Part 7 benefits; the reasoning being that ICBC should only be responsible for injuries actually caused by a motor vehicle accident. However, it should be noted that there is a large difference between a pre-existing condition that contributes to an injury that later requires treatments and a pre-existing condition that is the sole reason for the treatment. Furthermore, the onus lies on ICBC to prove that “but for” the pre-existing condition, the treatments in question would not be required:

As per a recent Court of Appeal decision:

[67]         The judge concluded at para. 42 that ICBC had failed to prove that, but for the pre-existing condition, Mr. Kozhikhov would not have needed the treatments then claimed under Part 7.  He granted Mr. Kozhikhov summary judgment in the amount claimed of $10,863.86.

[68]         The judge was faced with conflicting medical evidence.  He assessed this evidence in his role as the trier of fact.  He then applied a legal standard (the “but for” test of causation) to the facts as he found them.  The judge’s finding cannot be traced to an error in his characterization of the legal standard.  Therefore, his findings are reviewable on the deferential standard of palpable and overriding error.

[69]         In my opinion, the judge’s findings were clearly open to him on application of the “but for” test of causation.  His findings of fact are well supported by the evidence.  ICBC has failed to identify a palpable and overriding error of fact, or any error of law, so it is not for this Court to intervene: Housen v. Nikolaisen, 2002 SCC 33.

This recent decision re-affirms an injured party’s right to Part 7 benefits despite a pre-existing condition. If ICBC wants to deny benefits, they must prove on a balance of probabilities, that the benefits would not be required if the pre-exiting condition did not exist. ICBC must also prove that the pre-existing condition would have resulted in the need for treatments in question regardless of the new accident related injury.

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