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:
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”.
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. ..
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.
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.
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 … .”
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.
(UPDATE: November 29, 2011 – the below case was upheld today by the BC Court of Appeal. Reasons can be found here)
Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, dealing with the scope of ICBC’s obligations under Part 7 of the Insurance (Vehicle) Regulation. These benefits are commonly referred to as Part 7 Benefits (Click here for some background on these).
In today’s case (Raguin v. ICBC) the Plaintiff was insured with ICBC and incurred several hundred dollars in massage therapy expenses. ICBC refused to pay for these and the Plaintiff sued.
At trial ICBC’s lawyer argued that “Massage therapy is not a ‘treatment’ contemplated under section 88 of the regulations“.
Mr. Justice McKinnon disagreed with ICBC’s position and called it ‘without merit‘. The court went on to hold that “Section 88 is not a section that restricts Section 7 benefits to a prescribed list of treatments. Rather it is a general section that simply sets out an obligation to provide treatments that are recommended by a physician. The treatments that are set out in section 88 are merely a general list subject to expansion, as indeed various cases that have been cited have expanded…The doctor ‘recommended’ massage therapy, which in my view is sufficient to trigger an obligation to pay.”
Unless this case is overturned on appeal it is beneficial for BC Injury Victims to have clarity that Part 7 of the Regulations covers massage therapy expenses even though these are not specifically mentioned in the regulation.
If you would like further information or require assistance, please get in touch.
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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