Tag: botox

BC Supreme Court Finds Botox Covered Under ICBC's Part 7 Benefits


It is not uncommon for physicians to occasionally prescribe Botox Injections to treat symptoms of pain following motor vehicle collisions.  The Botox itself is not covered by the BC Medical Service Plan and people often turn to ICBC for funding of this expense.  Two recent decisions have addressed whether ICBC is obliged to fund Botox therapy when prescribed by a physician.
In 2008 Mr. Justice Macaulay provided reasons for judgement (Tiessen v. ICBC) finding that Botox is indeed a covered benefit under ICBC’s No-Fault Plan. The Court provided the following reasons:

[]           Counsel for ICBC seeks to impose too high a standard for proving that a recommended treatment is necessary.  I am satisfied that the treatment is necessary in the sense that the plaintiff needs short and long term pain relief for his lower back.  While it is impossible to predict that this particular treatment will succeed, it is nonetheless, on the evidence before me, a necessary physical treatment within the meaning of the section.

[]           There is no evidence to suggest that the proposed cost of the staged treatment is unreasonable.  The fact that the particular treatment is not covered by MSP does not establish that the cost is unreasonable.

[]           I am persuaded that the plaintiff is entitled to a declaration that he is an insured person to be benefited pursuant to Part 7 of the Regulations and a further declaration that he is entitled to receive medical rehabilitative benefits pursuant to the contract of insurance with the defendant under Policy Number 639 DER for the cost of Botox injections as recommended by Dr. Quartly.

Further reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, confirming that Botox is a benefit covered under Part 7.
In today’s case (Plensky v. Di Biase) the Plaintiff was injured in a 2004 motor vehicle collision.  A jury awarded the Plaintiff damages including just over $60,000 for the cost of her future medical care.   The court was then asked to reduce the award to take into account the future expenses that were covered directly by the Plaintiff’s Part 7 Benefits to avoid “double recovery”  (You can click here to read more about this topic).  Madam Justice Ross ultimately made a modest deduction to the Jury’s award.  Part of the deduction reflected the cost of future Botox injections which the Court accepted was a responsibility of ICBC’s under the Plaintiff’s Part 7 Benefits.
Today’s case coupled with Mr. Justice Macaulay’s 2008 decision make it clear that Botox can be covered under people’s own policies of ICBC Insurance.

Botox Injections for Rehabilitation and ICBC No-Fault Benefits

You are insured with ICBC and are injured in a BC Car Accident.  You experience chronic pain and your doctor tells you that you will likely benefit from Botox Injections to aid in your rehabilitation.  Botox treatment is expensive, so you apply to ICBC to have this covered under your No-Fault Benefits (sometimes referred to as Part 7 benefits).  ICBC tells you, “sorry, Botox treatment for injury is not covered under Part 7.” Are they right?  Wrong.
Reasons for judgment were released today by the BC Supreme Court ordering that ICBC cover the expenses associated with a Plaintiff receiving Botox treatment.
The Plaintiff was injured in a 2005 BC car crash.  The Plaintiff applied for and received previous funding for various treatments of injuries from ICBC.  The Plaintiff then saw a rehabilitation specialist who recommended Botox injections.  The cost of these was expected to be $3,500.  ICBC, without a contrary medical opinion as to the reasonableness of this treatment, failed to fund it and took the position that this expense did not have to be covered.
Section 88 (1) of the Insurance (Vehicle) Regulation deals with ICBC’s no-fault medical and rehabilitation benefits and requires that ICBC cover all reasonable expenses incurred by the insured as a result of the injury for necessary services, therapy or treatment as set out in the Regulation.
Justice Macaulay, in very well thought out reasons for judgment, ordered that ICBC had to pay for the Botox injections in the circumstances of this case.  The key reasoning in the judgment can be found at paragraphs 33 – 40 which I will publish as soon as the judgement is released on the BC Court’s website.
This case is also very interesting to me from a procedural point of view.  The Plaintiff brought this application by way of summary trial under Rule 18-A.  The Plaintiff relied on his affidavit and a medico-legal report.  ICBC did not have the opportunity to cross examine the Plaintiff or the treating doctor and typically litigants are entitled to do so.  ICBC took the position that this application should not be heard until they had the chance to cross-examine.
Mr. Justice Macaulay disagreed with ICBC and allowed the application to proceed.  He ruled that “There is nothing to be gained by directing cross examination of either the doctor or the Plaintiff.  The doctor makes it clear that she recommends this treatment as one of several options because the plaintiff’s lower back problems have been intractable.  It is primarily a legal issue whether that is sufficient to trigger an obligation on ICBC under s. 88(1).  There is also no reason to expect that the cross examination of the plaintiff will result in any alteration of the evidence…cross examination will not be ordered [in Rule 18A summary trials] absent some likelihood that the procedure will produce evidence in support of the other side…I am satisfied that the proposed cross-examination of the plaintiff and his doctor are speculative and not likely to produce evidence in support of ICBC.

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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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