Kamloops woman wins legal fight after Tribunal rules ICBC decision 'unreasonable'
A BC Tribunal has ruled an ICBC decision was "unreasonable" after the insurer cut off the driver's income replacement benefits, saying she should return to work.
The BC Civil Resolution Tribunal said much of the medical evidence put forward contradicted what ICBC's doctor had found.
The Tribunal ruled that the conclusions reached from reviewing the medical records were "insufficiently supported" by the medical records themselves.
The details are laid out in a May 13 BC Civil Resolution Tribunal decision, whereby Southern Interior resident Sandra Ann Daly appealed ICBC's decision to cut off her income replacement benefits.
In 2021, the BC government changed the law so people can't sue the person responsible for an accident, and instead have to go through ICBC for repairs and medical coverage beyond MSP. If a person doesn't agree with ICBC's decision, they have to take legal action through the online BC Civil Resolution Tribunal.
In another recent case, a Kelowna man had to head to the Tribunal to get ICBC to accept he worked full time prior to his accident.
The decision says Daly was injured in a car crash in 2021 and was not able to return to her job as a paralegal afterwards.
ICBC paid her $36,494 from June 2021 to April 2024 – about $12,100 a year – before it ended her benefits, saying she could return to work.
The insurer decided that any medical issues preexisted the current accident. Daly was in a car crash in 1992 and had had several surgeries in the years since.
Daly's doctor, along with her physiotherapist, occupational therapist, and kinesiologist, all noted that she reported pain in her back, neck, and left hip that limited her sitting and was, at times, debilitating.
The kinesiologist said she had not "adequately" demonstrated she could return to work, although Daly did try on two occasions but it didn't work out.
Her employer said that unless she was medically cleared to return to work, she couldn't.
The decision goes through an extensive medical history and gives details from multiple medical specialists Daly saw since the accident.
In late 2023, ICBC organized an occupational therapist, Dana Hornibrook, who concluded that lower back and hip issues were affecting Daly's ability to return to work, and it "may be advantageous to pursue alternate employment."
However, ICBC didn't act on this.
"It is unclear why ICBC did not take steps to determine alternate employment for (Daly)... having engaged Dana Hornibrook to perform a job match assessment," the Tribunal said.
Instead, ICBC gave the medical records to orthopedic surgeon Dr. Mark McConkey to review them.
"Dr. McConkey noted (Daly's) 'extensive degenerative spine history pre-dating the accident… and extensive chronic pain," the decision reads.
After reviewing the records, Dr. McConkey concluded the pain condition was chronic and likely related to her pre-existing condition.
"Based on Dr. McConkey’s records review, ICBC terminated the... income replacement benefits," the decision reads. "ICBC concluded that there had been a shift away from the accident being the cause of (her) injuries, so (she is) no longer entitled to income replacement benefits."
However, the Tribunal didn't agree.
"While I accept that Dr. McConkey is an expert in orthopedics, I find the conclusions reached in the records review are insufficiently supported by the medical records relied on," the Tribunal ruled.
The Tribunal parsed through the medical records.
The decision says Dr. McConkey found that Daly hadn't reported hip pain in the months following the accident.
However, a comprehensive medical assessment by another doctor found that she had.
"It was incorrect to say (she) experienced delayed hip pain, and so the accident could not have caused it," the Tribunal said.
The Tribunal also found that while Daly hadn't told another doctor about hip pain until well after the accident, that didn't necessarily mean that no symptoms existed.
The Tribunal found that other medical records contradicted ICBC's conclusion.
"I find these comments weaken the conclusion that (her) hip pain was the result of degeneration of a pre-existing condition," the Tribunal said.
Dr. Charles Secretan had examined Daly in person numerous times and found her hip issues "could be" post-traumatic.
"While 'could be' does not mean 'is likely to be,' I find that in the context of the evidence as a whole, Dr. Secretan’s opinion supports my conclusion about ICBC’s wholesale reliance on Dr. McConkey’s report. I note Dr. Secretan examined the applicant in person several times, whereas Dr. McConkey did not," the Tribunal ruled.
Ultimately, the Tribunal ruled it was "unreasonable" for ICBC to decide to cut off benefits and ordered the insurer to reinstate them.
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