Addiction and Pain Management Programs Not Mandatory ICBC Benefits

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, finding that an addiction program and a multi-disciplinary pain management program are not mandatory ICBC No Fault benefits.
In today’s case (MacDonald v. ICBC) the Plaintiff was inured in three separate motor vehicle collisions.  She was insured with ICBC.  She suffered a variety of injuries which resulted in chronic pain and addiction issues.  Among the recommended treatments for the Plaintiff were an inpatient residential addiction treatment program along with a multi-disciplinary pain management program.
ICBC refused to fund these under the Plaintiff’s policy of insurance arguing that neither of these programs were ‘mandatory’ benefits covered under section 88(1) of the Insurance (Vehicle) Regulation.  Madam Justice Fitzpatrick agreed finding components of the programs (such as physiotherapy) may be covered individually and further that the programs may be covered as ‘permissive’ ICBC benefits, they could not be compelled under section 88.  In reaching this conclusion the Court reasoned as follows:
[83]         The mandatory provisions in s. 88(1) stand in contrast to those in s. 88(2) where ICBC may provide funds to an insured at its discretion and where ICBC’s medical advisor advises that funded benefits under this section are likely to promote the rehabilitation of the insured who was injured in an accident…

[95]         I am reluctantly driven to the conclusion that Ms. MacDonald’s position is not supportable. As ICBC argues, I think correctly, the Raguin decision has confirmed that the proper interpretation of the section is a more restrictive one in the sense that it is driven by the specific enumerated services that are described in s. 88(1). In accordance with that approach, I see no basis upon which services could be seen to be included as long as they are overseen or supervised by a medical doctor. Services provided by others do not become “medical services” simply because a medical doctor directs them or oversees or supervises them.

[96]         From a public policy perspective, this strict interpretation of the enumerated services presents some difficulties. It is unlikely that the Legislature intended to adopt a rehabilitation-in-pieces approach to legislation that exists to promote reasonable and necessary benefit coverage to injured persons. However, in the absence of clear guidance in the Regulation that s. 88(1) is capable of supporting multi-disciplinary programs, these programs cannot be read-in to include other services not specifically enumerated, such as the court did in Raguin.

[97]         Even accepting Ms. MacDonald’s proposition regarding medical supervision, there is no evidence that in fact, the services at Heartwood and the “other services” at Orion Health either were or would be under the supervision of a medical doctor (although I appreciate that Dr. Mead continued to treat Ms. MacDonald for pain and addiction issues throughout her stay at Heartwood).

[98]         The difficulty is that the argument for both Heartwood and Orion Health is an all or nothing proposition. Both are, as described above, multi-disciplinary treatment programs that bring in various disciplines in order to offer a team approach to dealing with a host of problems, such as Ms. MacDonald has. I have no hesitation in finding that some of the services, such as provided by a medical doctor, were or would be covered under s. 88(1) but it is equally apparent that some are not. In my view, this leads to the conclusion that the treatment programs, as a whole, are not covered under s. 88(1).

The Revival Of ICBC TTD Benefits

Important reasons for judgement were released today by the BC Supreme Court, Nanaimo Registry, addressing the entitlement of a claimant to ‘revive‘ ICBC disability benefits after an attempted return to work.
In today’s case (Symons v. ICBC) the Plaintiff was involved in a serious collision in 2008.  She was rendered initially disabled and ICBC paid her TTD benefits until her ‘creditably stoic and determined‘ return tow work later that year.  The Plaintiff’s return was short lived as progressive symptoms eventually led to a series of surgeries and her symptoms continued to disable her at the time of trial.
The Plaintiff applied for disability benefits under s. 86 of the Insurance (Vehicle) Regulation but ICBC denied these arguing that unless TTD’s were being actively paid at the 104 week mark (a period when this plaintiff was back at work) that the legislation does not allow the ongoing payment of disability benefits.  Mr. Justice Baird rejected this argument and set out the following reasons clarifying when an insured is entitled to revive TTD benefits with ICBC:

[35]         Following Brewer, Halbauer, and Cai, insured persons currently have a right to revive their TTDs (assuming all the other regulatory requirements are met) in three situations:

1.     Entitlement and revival under s. 80: the insured person receives benefits under s. 80, returns to work, and again becomes totally disabled from employment within the 104-week period.

2.     Entitlement and revival under s. 86: the insured person receives 104 weeks of benefits under s. 80, transitions to benefits under s. 86, then returns to work for a period before again returning to total disability.

3.     Entitlement under s. 80 and revival under s. 86 (intervening alternate insurance benefits): the insured person receives TTDs under s. 80, then receives private insurance benefits for more than 104 weeks, before reviving Part 7 benefits under s. 86.

[41]         Part 7 is also designed to promote the injured person’s rehabilitation, defined in s. 78 as “the restoration, in the shortest practical time, of an injured person to the highest level of gainful employment or self-sufficiency that … is … reasonably achievable”. To this end, Part 7 also includes rehabilitation benefits under s. 88, including the provision of funds for various one-time expenses that are likely to promote the person’s recovery (for vocational training, for example, or alterations to the insured’s residence to improve accessibility), and funds for medical treatments and rehabilitative therapies.

[42]         In other words, Part 7 (at least so far as it is concerned with benefits following injury, rather than death benefits) has two related objects: to compensate an insured person for a portion of the financial loss accrued from temporary total disability caused by a motor vehicle accident; and, where possible, to do so in a manner that brings about the end of the total disability by returning the injured person to employment or self-sufficiency. (For some discussion of these purposes, see Halbauer at para. 41.)…

[49]         I therefore conclude that an insured person is eligible to apply for the revival of TTDs under s. 86 so long as a) they have previously established eligibility and received TTDs under s. 80; b) they can demonstrate that they are totally disabled as defined in s. 80; and c) they can show that the total disability is due to injury sustained in the original accident.

ICBC Wrong In Denying Part 7 Benefits Absent Timely Evidence Justifying Their Position

Update – an appeal of this decision was dismissed however the BC Court of Appeal noted that the trial judge erred in his interpretation of s. 101 of the Regulation in concluding that if ICBC is to rely on s. 96(f) to reject a claim for benefits, it must do so on the basis of evidence obtained before the expiry of the 60-day deadline.
 
 
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Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, holding that ICBC cannot deny Part 7 benefits based on speculation that a pre-existing condition is causing the injury in question absent evidence justifying this position obtained within 60 days.
In today’s case (Kozhikhov v. ICBC) the Plaintiff submitted over $10,000 in medical treatment expenses which ICBC refused to pay.  ICBC relied on s. 96(f) of the Regulations which excludes treatments for conditions caused by “sickness and disease” unrelated to the collision.  ICBC did not have evidence justifying this position, at least not in the 60 days following the submitted claim.  In holding that ICBC is obliged to pay the Part 7 benefits in these circumstances Mr. Justice Smith provided the following reasons:
[19]         The benefits claimed in this case are subject to s. 101(b). The 60 day period for payment allows ICBC the opportunity to review and investigate the claim. Obviously, it does not give sufficient time for the extensive investigation the corporation may undertake when defending its other insured–the allegedly at fault motorist–in the tort claim, but that is consistent with summary nature of the claim and the relaxed standard of proof required of the plaintiff.
[20]         ICBC relies on s. 96(f) of the Regulation, which reads:
The corporation is not liable to pay benefits under this Part in respect of the injury or death of a person
(f) whose injury or death is caused, directly or indirectly, by sickness or disease, unless the sickness or disease was contracted as a direct result of an accident for which benefits are provided under this Part.
[am. B.C. Regs. 379/85, ss. 36, 37; 449/88, s. 17.]
[21]         Section 96(f) must be read in conjunction with s. 101. If the plaintiff’s injury is caused by the sickness or disease referred to in s. 101, benefits are not payable. But in the absence of evidence that s. 96(f) applies, ICBC must pay benefits within 60 days after it receives proof of the claim.
[22]         In other words, if ICBC is to reject a claim for specific benefits under s. 96(f), it must do so on the basis of evidence obtained before the expiry of the 60 day deadline. In cannot use evidence obtained long after the fact to justify a failure to comply with s. 101.
 

"Uncertainty" About Payment of ICBC Benefits Undermines Defendant's s. 83 Application

I have previously discussed Part 7 benefits deductions following BC motor vehicle collision injury trials.  In short, a Plaintiff’s damages are to be reduced by the Part 7 benefits (past and future) that they are entitled to.
Reasons for judgement were recently released by the BC Supreme Court, Vancouver Registry, addressing this deduction finding that if there was uncertainty as to whether Part 7 payments will be made there should be no deduction of damages.
In the recent case (Tsang v. Borg) the Plaintiff had damages for future care of $5,000 assessed at trial.  The Defendant asked the Court to largely discount this award pursuant to s. 83 of the Insurance (Vehicle) Act on the basis that many of the Plaintiff’s future treatments will covered by ICBC under the no fault benefits plan.  Mr. Justice McKinnon noted this argument was “inconsistent” with the Defendant’s trial position and in any event the evidence required for the deduction fell short of the mark.  In dismissing the application the Court provided the following reasons:
[9]             At trial the defendants claimed that the plaintiff’s injuries for the most part were not caused by the accident. In Paskall v. Schelthauer, 2012 BCSC 1859, the court held that the regulations limit the benefits to injuries that the corporation views flow from the accident. It strikes me as inconsistent for the defendants to now argue that the plaintiff is entitled to benefits payable under part 7 and more to the point, raises the distinct possibility that in future, the corporation will deny claimed benefits as “not flowing from the accident”.
[10]         In her affidavit, Shelley Ruggles, the insurance adjuster assigned to administer the plaintiff’s entitlement, indicates some uncertainty about whether future treatments are recoverable. She writes, “Further requests for treatment could be covered under s. 88 of the Regulations”. This suggests some uncertainty.
[11]         It is only where there is no uncertainty as to whether the insurer will accept the treatment and pay the cost that deductions can be made, see Ayles (Guardian ad litem of) v. Talastasin, 2000 BCCA 87. At bar there is no such certainty and I therefore resolve the issue in favor of the plaintiff.
[12]         The award of $5,000 stands.

PAU Strips Ontario Insurer of Defense for Payment of BC No Fault Benefits

As previously discussed, BC’s Financial Institutions Act requires out of Province vehicle insurers to sign a “Power of Attorney Undertaking” in essence promising to provide the minimum insurance coverage available in BC when their insured vehicles are travelling in this Province and further not to raise any defences which are not available to BC insurers.  As many North American jurisdictions have insurance limits well below those required in BC this often creates excess exposure for foreign insurers.  Reasons for judgement were released recently by the BC Supreme Court, New Westminster Registry, stripping a PAU signatory of a defence they otherwise would be entitled to.
In the recent case (McCord v. Insurance Corporation of British Columbia) the Plaintiff was injured as a pedestrian in a BC collision.  He was insured for no-fault benefits both with ICBC  and a private insurer from Ontario.  He received benefits from ICBC and subsequently sought coverage with the Ontario provider.  The Ontario insurer denied payment relying on an Ontario regulation which limited payments “if the person receives benefits under the law of the jurisdiction in which the accident occurred“.
The Plaintiff sued arguing the Ontario insurer could not rely on this section as they signed the PAU.   Mr. Justice Saunders agreed and provided the following reasons:
[9]             Western Assurance says that there has been no violation on its part of the PAU; it has not set up a defence as to coverage, but has simply taken a position as to the amount of coverage available….
[10]         The PAU sets out two provisions. One is an undertaking not to raise defences. The other is an undertaking to pay limits as set out in (a) and (b) of the PAU. A “position” taken by a foreign insurer that only the minimum amount is payable, and not the full amounts otherwise payable under the foreign insurer’s policy, is, in every sense of the word, a defence. The position being taken here by Western Assurance is one of the types of conduct which the PAU is designed to prevent…
[12]         In my view, the raising of the provisions of the Regulation by Western Assurance is a defence within the meaning of the PAU, and reliance on those provisions as a defence would constitute a breach of the undertaking under the PAU.
[13]         The application is therefore allowed, and s. 57(1.1) of the Regulation will have no application to Mr. McCord’s claim for benefits.
 

Medical Advisor Opinion a Prerequisite For Post Trial Discretionary Benefit Deduction

I have previously discussed Part 7 benefits deductions following BC motor vehicle collision injury trials.  In short, a Plaintiff’s damages are to be reduced by the Part 7 benefits (past and future) that they are entitled to.
Two sets of reasons for judgement were recently released by the BC Supreme Court, Vancouver Registry, addressing this deduction finding that before a Court can deduct damages for ‘discretionary’ Part 7 benefits there must be evidence of the corporation’s medical advisor.
In the first case (Paskall v. Scheithauer) the Plaintiff was awarded just over $65,000 by a jury for her injuries.  ICBC sought to deduct mandatory and discretionary Part 7 benefits from this amount.  In discussing the burden required for these deductions and in denying the application Mr. Justice Smith provided the following reasons:
3]         The replacement hearing aids and related expenses are a discretionary benefit under s. 88(2). The defendant has provided an affidavit from an ICBC claims examiner who says that the corporation paid for a hearing aid on one occasion, in January 2007, and who says: “I expect ICBC will continue to re-imburse reasonable incurred hearing aid expenses”.
[14]         The examiner’s stated expectation falls far short of the evidence required. Before discretionary benefits can be paid, s. 88(2) requires an opinion from “the corporation’s medical advisor”. No evidence from any such person has been put forward. The expert who provided a care opinion for the defendant at trial is an occupational therapist. There is no evidence that ICBC accepts her in the capacity of its “medical advisor” for purposes of s. 88.
[15]         Although the opinion of a medical advisor is a precondition to the payment of discretionary benefits, the corporation is still not bound to pay them. The examiner’s expectation is no more than an opinion about what his employer will do in the future. There is no evidence that he has the authority to make that decision and no explanation of the basis on which he feels able to express an opinion on what the corporation will do for the remainder of the plaintiff’s life…
[18]         At this stage of the proceeding, I believe it is appropriate to acknowledge the fact that in cases such as this the corporation has conduct of the defence on behalf of its insured. There is certainly no evidence that the corporation now disavows the position it instructed counsel to take at trial.
[19]         Accordingly, I find that the defendant has failed to meet the onus of proving the plaintiff is entitled to the benefits for which deduction has been sought.
In the second case (Stanikzai v. Bola) the Plaintiff was awarded just over $189,000 following trial.  ICBC sought to deduct some $16,000 in Part  7 items.  In disallowing the majority of these Mr. Justice Smith echoed his earlier comments stating as follows:
[24]         In her affidavit, the adjuster says that such a fitness program is “similar to physiotherapy” and therefore a mandatory benefit under s. 88(1). I cannot accept that assertion. Section 88(1) refers to “physical therapy”, which presumably means therapy by a licensed physiotherapist. It also refers to certain other specific forms of therapy. It does not refer to services by other professionals that may be “similar” to the named therapies.
[25]         Having regard to the requirement for strict compliance with the Act and its Regulations, the training program is not a mandatory benefit under s. 88(1). I accept that it could qualify as a discretionary benefit under s. 88(2), but under that section an opinion from “the corporation’s medical advisor” is a precondition to payment. There is no evidence of any such opinion. The defendants have failed to prove a basis for that deduction.
 

Litigation Privilege Claim Fails Due to the 'Two Hats' of ICBC

(Update February 12, 2015the below decision was overturned in reasons for judgement released today by the BC Court of Appeal)
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I previously discussed the Two Hats of ICBC and suggested fixing the conflict of interest this creates.  Reasons for judgement were released earlier this year by the BC Supreme Court, Vancouver Registry, demonstrating this conflict of interest in action in the context of a litigation privilege claim.
In the recent case (Raj v. Khosravi) the Plaintiff was involved in a motor vehicle collision.  He was insured with ICBC and met with an adjuster to advance his claim.  After the initial meeting the ICBC adjuster commissioned the services of a private investigator who produced a report.
In the course of his lawsuit the Plaintiff requested a copy of this report but ICBC refused to provide it arguing it was subject to litigation privilege.  The plaintiff argued that the report was commissioned in the ‘investigative stage’ following the collision and further that even if the report was in part prepared for the purpose of defending subsequent litigation, it was also commissioned in the context of his claim for Part 7 benefits.  Mr. Justice Groves agreed and ordered the report to be disclosed.  The Court provided the following reasons:
[29] It is clear there were two distinct purposes for this investigative report.  That is conceded by the Defendant.  The question then becomes, was the dominant purpose litigation?  And has the defendant met the onus of satisfying the court that in fact the dominant purpose was litigation?…
[49]  I am also of the view that the defendant’s claim for privilege must fail, in regards to a dominant purpose analysis.  Again, assuming that we’ve gotten over the litigation privilege hurdle, here this investigation, by the adjuster’s own admission, had more than one purpose.  As such, the onus of claiming and eliminating the competing purpose rests on the defendant.
[50]  I agree with the submission of the plaintiff that, during the entirety of the evidence of the adjuster, both in affidavit and during his cross-examination on his affidavit, there is a strong suggestion, a clear suggestion, that the purpsoe of this investigative report was a true dual purpose report.
[51]  Again, the information obtained by the adjuster, at his interview with the plaintiff on November 14, 2006 was information necessary to potentially adjudicate a tort claim, and potentially adjudicate a Part 7 claim.  In discovery, the adjuster confirmed that he had retained the investigator during the meeting with the plaintiff, that “the intention is to get information that is going to contradict what I was told in the initial appointment”.
[52]  What he was told in his initial appointment related to both Part 7 claims as well as tort claims.  The adjuster seemed to draw no distinction in the investigation, as to which of those two claims is to be covered or emphasized.  As such, the onus of showing that the dominant purpose of the report was litigation cannot be met, on the evidence.
[53]  Based on what I have said, I will allow the appeal of the master in regards to the report of the investigator, dated December 15, 2006 and order that it be disclosed.
To my understanding this decision is not publicly available but, as always, I’m happy to provide a copy to anyone who contacts me and requests one.

Court Should Avoid "Unduly Punitive" Costs Awards in Face of Formal Settlement Offers

In a good demonstration of the Court’s discretion following a trial where a Plaintiff does not beat a pre-trial defence formal settlement offer, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, taking a Plaintiff’s post offer costs and disbursements away but not requiring the Plaintiff to pay the Defendant’s costs and disbursements.
In this week’s case (Tompkins v. Bruce) the Plaintiff turned down a pre-trial formal settlement offer of $950,000.  Following trial the Plaintiff was awarded net damages of $851,437.  ICBC applied for post offer costs.  Mr. Justice Curtis found such a result would not be appropriate and instead took away the Plaintiff’s post offer costs and disbursements.  In doing so the Court provided the following reasons:

[28] When the offer in this case was received on October 6, 2011, the plaintiff and his counsel were in possession of the information necessary to make a realistic assessment of the potential recovery.  Naturally, there is no mathematical certainty in those matters and differing courts may give differing amounts.  The plaintiff and his counsel would clearly have contemplated a range of possible recoveryies.  The plaintiff, of course, hopes for the high end of the range and the paying party the low ? settlements are often made somewhere in between.

[29] The offer in this case was reasonable on the facts of the case as they were known to the parties.  It could reasonably have been accepted as being within the range of possible recovery, although likely it would not have been thought by either party at the high end of the range.  The amount of the Offer was reasonable as was its timing: the information necessary to assess the claim was in the possession of the parties, yet there was plenty of time to give careful consideration to the matter before the November trial date.  On the other hand, Mr. Tompkins was seriously injured.  He and his counsel’s view of the matter was that it was worthwhile going to court in the hope of getting a significantly higher award.  It cannot be said that such a decision was unreasonable at the time.

[30] The purpose of cost consequences of reasonable offers is to encourage settlement.  On the other hand, onerous cost penalties should not discourage the seriously injured from a proper hearing and a chance to obtain a higher award, nor should they seriously subtract from what the court has found is appropriate compensation for the injury.

[31] Considering the factors set out in the Rules, it is my opinion that the interests of justice are best served in this case by awarding Mr. Tompkins his costs and disbursements up to and including October 31, 2011, but disallowing them after that date, with the Third Party to bear its own costs.  There is then a consequence for not accepting a reasonable Offer, but the consequence is not unduly punitive in the circumstances.

Today’s case is also worth reviewing for the Court’s discussion of various Part 7 Deductions following a tort action.

More on ICBC Part 7 Benefits Deductions in Personal Injury Lawsuits


As previously discussed, if you are insured with ICBC the amount of Part 7 Benefits that you are entitled to must be deducted from tort trial damages due to the operation of section 83 of BC’s Insurance (Vehicle) Act.   This deduction can be made even if you don’t apply/receive your Part 7 benefits.
Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, discussing this deduction with respect to various damage awards made at trial.  In this week’s case (Cikojevic v. Timm) the Plaintiff was awarded significant damages at trial after sustaining a permanent brain injury in a collision.  This week’s supplemental reasons for judgement are worth reviewing for the Court’s discussion of deductibility of the following items:

  • massage therapy
  • chiropractic treatments
  • medications
  • occupational therapy
  • psychological counselling
  • speech therapy
  • vocational counselling
  • transportation costs

Massage Therapy is a Mandatory ICBC No-Fault Benefit


Reasons for judgement were released today by the BC Court of Appeal confirming that ICBC’s No-Fault Benefits Scheme (aka Part 7 Benefits) requires mandatory coverage of massage therapy benefits.  These reasons are useful as they contradict ICBC’s internal policy limiting the availability of coverage for massage therapy.
In today’s case (Raguin v. ICBC) the infant plaintiff incurred several hundred dollars of massage therapy expenses following collision related injuries.  ICBC refused to reimburse these arguing massage therapy is a “permissive benefit” and these expenses need not be covered.  The Plaintiff sued and at trial ICBC was ordered to pay.  ICBC appealed but the BC Court of Appeal dismissed the matter and upheld the trial judgement.
In finding that massage therapy is included as a mandatory part 7 benefit the BC Court of Appeal provided the following reasons:

[31] The following observations about ss. 88(1) and (2) are uncontentious.  The imperative word “shall” is used in relation to ICBC’s obligation to pay for the benefits described in s. 88(1), making such payments mandatory.  Under s. 88(2), ICBC is given discretion, as indicated by the permissive word “may”, to pay for additional benefits that are “likely to promote the rehabilitation of an insured who is injured in an accident”.

[32] Although the benefits listed in s. 88(1) are mandatory, ICBC has a limited power to challenge an insured’s claim made under that subsection.  This power is derived from the requirements that the expenses incurred must be both necessary and reasonable.  In determining whether a particular treatment is necessary and reasonable, ICBC may require a medical examination of the insured under s. 99(1) of the Regulation.  ICBC may also demand a medical certificate under s. 98(1) of the Regulation or a medical report under s. 28 of the Act. ..

[56] Physical therapy is a mandatory benefit under s. 88(1) but it is not defined in the Regulation.  The dictionary definition and the definition in the related regulatory scheme define physical therapy as including massage.  The Health Professions Act defines “health profession”.  Regulation of health professions, such as physical therapy, includes the restriction of the provision of a designated service to a person registered to practise that specific designated health profession.  Massage therapy is designated as a health profession and is governed by the Massage Therapists Regulation.  Registration with the College of Massage Therapists is required and no person other than a registrant may practise massage therapy.

[57] In light of the provisions to which I have referred, ICBC’s submission that including massage therapy as a benefit payable under s. 88(1) would open the floodgates to all manner of questionable procedures is unsupportable.

[58] While the Regulation does not refer specifically to massage therapy in s. 88(1), I am of the view that, when all of the relevant provisions in the Regulation are read together with the Health Professions Act and its related Regulations, physical therapy may properly be interpreted as including massage therapy.  To be payable under s. 88(1), the other requirements must be met as stated in the section; that is:  “[w]here an insured is injured in an accident for which benefits are provided under this Part, the corporation shall … pay as benefits all reasonable expenses incurred by the insured as a result of the injury for … necessary physical therapy … .”

[59] In this case, the respondents’ doctor recommended massage therapy as part of the infant plaintiffs’ recovery.  There is no suggestion that the recommended treatment was unnecessary or provided by someone other than a registered massage therapist, or that the expense was unreasonable.

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If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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