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.
If a person insured with ICBC is disabled as a result of a motor vehicle collision they may qualify for disability benefits from ICBC under their own policy of insurance. These are often referred to as Part 7 TTD benefits or Part 7 Wage Loss Benefits.
One necessary condition for these benefits is that the injured person needs to be an “employed person“. If a person is not employed at the time of the accident they may still qualify for disability benefits from ICBC if they were ‘employed or actively engaged in an occupation for wages or profit for any 6 months during the period of 12 months immediately preceding the date of the accident.’ Reasons for judgement were released today discussing this definition of ‘employed person‘.
In today’s case (Pavlovich v. ICBC) the Plaintiff was injured in a rollover accident. The medical evidence was uncontradicted that his accident related injuries “temporarily totally disabled him from his regular employment as a journeyman carpenter (for about 6 months) from the date of the accident“.
The Plaintiff was not actively working at the time of the crash but had worked about 1,100 hours in the year before the accident. He argued that in these circumstances he is an ’employed person’ entitled to disability benefits from ICBC. ICBC refused to pay the wage loss benefit arguing the Plaintiff did not meet the definition of employed person under Part 7 of the Insurance (Vehicle) Regulation.
Mr. Justice Rogers was asked to resolve this dispute. The Court agreed with ICBC and in doing so made the following useful comments about the definition of ‘employed person‘ for the purpose of receiving ICBC Part 7 disability benefits:
 For the purpose of entitlement to temporary total disability benefits under Part 7 of the Insurance (Vehicle) Regulation of the Insurance (Vehicle) Act, the claimant must be an “employed person”. An “employed person” is defined by s. 78 of the Regulation and means a person:
(a) who, on the date of an accident for which a claim is made, is employed or actively engaged in an occupation for wages or profit, or
(ii) for any 6 months during the period of 12 months immediately preceding the date of an accident for which a claim is made is employed or actively engaged in an occupation for wages or profit.
 As noted, the parties agreed that the plaintiff was not employed on the date of the accident. Accordingly, if the plaintiff is to qualify for temporary total disability benefits, it must be on the basis of his being an “employed person” within the meaning of subsection (b) of the definition….
 The plaintiff’s interpretation of the Regulation suffers several flaws. One such is the fact that in practice it would result in absurdities of its own. For example, if the plaintiff has it right that under subsection (b) “employed person” status may be achieved by working more than 1,000 hours in the 12 months preceding an injury, one person might accumulate all the necessary hours by working intensely for only 2 or 3 months, while another person might never qualify because of his part?time employment and work for only a few hours every week. The part?timer might work for, say, 11.9 months immediately before his injury and be laid off the day before his accident; yet, because of his part?time status, he may not have accumulated the 1,000 hours the plaintiff’s interpretation would require of him before he could be an “employed person” under subsection (b). This would lead to the absurd result of a part?time person working up to the day before an accident not being employed for the purposes of the Regulation, while a person who worked like the devil over only 2 months would qualify for benefits. This result would be directly contrary to the plain meaning of the words of the Regulation.
 Another flaw in the plaintiff’s interpretation is its reliance on counting hours to qualify as an employed person. This might theoretically work if everyone toiled, as the plaintiff did, for an hourly wage. That is not, however, the way things are. Some people are paid by the task, as in a seamstress’s piece?work, some are paid a salary and no account is kept of the hours they work, some are paid on pure commission and the hours they work may bear no relation at all to their income and so the number of hours they work are irrelevant. Counting hours of work is simply not a practical way to fashion the broad?based and universal test for qualification for disability benefits under the Regulation.
 A much more sensible and practical interpretation, and the interpretation that is consistent with the Regulation’s plain language, is the interpretation that the defendant propounds. The Regulation stipulates that to be an employed person the claimant must have been employed for 6 of the 12 months immediately preceding the injury. It is the being employed, not the amount of work done, during those 6 months that counts. Put another way, a person who works part?time for 6 months is, for the purposes of the Regulation, no less employed that the person who works 18 hours a day for the same period.
 I find that whether one excludes or includes the plaintiff’s house renovation work, the arithmetic of the plaintiff’s situation does not yield enough weeks of work for him to be said to have been employed for 6 of the 12 months before the accident.
(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.
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.”
Reasons for judgement were released today addressing the deductibility of Part 7 Benefits from a tort award claim for damages:
I have previously discussed the deductibility of Part 7 benefits from a BC tort award here, here, and here and you can read these previous posts / articles for background information.
In the case at bar the Plaintiff was a paraplegic. He was confined to a wheelchair since being 29 years of age. When he was 43 he suffered injuries in a car accident. He sued for those injuries and was awarded damages of $210,000. The Defendant at the trial level argued that $137,223.90 of that award should have been deducted because payment for the needs that portion of the tort award was addressing was available directly from ICBC pursuant to ICBC’s no-fault Part 7 benefits.
The trial judge allowed only a nominal deduction of $1,000.
The defendant appealed arguing that the trial judge was in error for failing to allow a meaningful deduction for future Part 7 benefits.
The Court of Appeal dismissed this appeal. In doing so the Court referenced a well known previously decided case from the Court of Appeal addressing the issue of deductibility of ICBC Part 7 Benefits in a tort trial and restated that case as good law. Particularly the Court noted that:
Although I do not subscribe to all of the learned trial judge’s reasoning on the issue, I have not been persuaded that he reached the wrong conclusion. The defendant bears the onus of proving that the plaintiff is, or will be, entitled to the benefits which it claims to have deducted from the award for the cost of future care. Strict compliance with the requirements of the statute is called for. Uncertainty as to whether Part VII benefits will be paid or whether they would “match” elements of the tort award must be resolved in the plaintiff’s favour.
While the Plaintiff was successful in this action in avoiding a potentially financially devastating ‘deduction’ this case yet again illustrates the importance of properly applying for your No-Fault Benefits from ICBC if you are injured in a BC car accident. Failure to do so could result in a significant deduction of damages in a tort claim.
Interesting reasons for judgement were released today concerning traumatic injuries and pre-existing degenerative disc disease.
The Plaintiff was a building siding installer. He had a pre-existing degenerative lumbar spine condition which was largely asymptomatic, that is it caused occasional pain but did not disable him from work. He was injured in a BC car accident on November 22, 2005. He became totally disabled from his work after this collision. He applied to ICBC, and received, Part 7 wage loss benefits.
ICBC obtained a report from Dr. Dommisse in June 2006. He stated that ‘(the Plaintiff’s) complaints have been caused by this motor vehicle accident in part. His pre-existing condition is likely contributing to his ongoing symptoms….His continued symptoms, in my opinion, are related to the degenerative changes at L4/5 at this time.’
As a result of this opinion ICBC cut off the Plaintiff’s wage loss benefits on August 31, 2006. ICBC did so because they took the position that the Plaintiff’s ongoing disability was ‘caused directly or indirectly by sickness or disease.’
Can ICBC do that? The answer is yes. Section 96 of the Insurance Vehicle Regulation places some limits on benefits ICBC has to pay their insured including those ‘whose injury was 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’
The Plaintiff sued ICBC asking the court to reinstate the Plaintiff’s no-fault wage loss benefits. In support of the Plaintiff’s case, Dr. Hirsch, a Physical Medicine and Rehabilitation Specialist, gave evidence that
Based on today’s obtained history and review of the forwarded clinical documents, it is my opinion that the acute onset of low back pain and resultant decline in function is causally related to the November 2005 motor vehicle accident
(the Plaintiff) reported that he has made a 20 to 30% symptomatic recovery regarding his low back injuries. He reported that for the past four months he has not noticed any further symptomatic gains. Accordingly, I would view the prognosis for a good recovery as guarded at this juncture.
At present and in the foreseeable future, I do not foresee that (the Plaintiff) will improve sufficiently to get back to his pre-motor vehicle accident line of work. Furthermore, at present I would question whether he is gainfully employable as a locksmith.
Mr. Justice Meiklem of the BC Supreme Court dismissed the Plaintiff’s claim finding as follows:
 In my view, the medical evidence in this case, notwithstanding the differences of opinion on the relative significance of the concurrent causes of (the Plaintiff’s) continuing disability and whether the injuries suffered in the accident had resolved by August 31, 2006, clearly establishes that the degenerative lumbar spine, specifically at the L4/5 facet joints was a contributing cause of his disability after that date. While I do not find it proven that the effects of the accidental injury were fully resolved by that time, the defendant has established that, but for his degenerative disease, Mr. Wafler would not be totally disabled within the meaning of the covering provisions after August 31, 2006.
 Consequently, I find that the defendant has established that the s. 96(f) exclusion applies and I decline to make the declaration sought by the plaintiff.
If you are in a dispute with ICBC regarding the payment of no-fault wage loss benefits it is important to canvass decisions such as this one addressing the potential consequences of pre-existing conditions on your ICBC insurance claim. Ensure that your physicians carefully canvass the relationship between any ‘sickness or disease’ and traumatic injury when applying for ICBC no fault benefits.
As an ICBC claims lawyer I find myself frequently traveling throughout BC representing clients involved in ICBC claims. This week I’m back in one of my favourite destinations (particularly this time of year), sunny Kelowna, BC. The lake, the heat, what’s not to love?
I try to minimize the amount that travel interferes with business as usual, but despite my best efforts the responsibilities of life on the road do get in the way, so here is the ‘travel version’ of my reporting on recent ICBC claims…
Litigation Privilege. An ICBC claims lawyer representing his/her clients may come into the possession of privileged information. One of the most common types of privilege claimed over evidence by ICBC claims lawyers is the medico-legal report.
When a lawyer obtains a report providing an opinion as to the extent of injury caused in a BC car accident that report may very well be privileged and not disclosed to ICBC. The problem is, oftentimes a privately paid report authored by an independent physician or other hired expert may provide useful rehabilitation advice for a client. So the question is, can such a report be disclosed to the client’s treating physician to better aid in rehabilitation without waiving legal privilege and forcing disclosure to ICBC? A judgement released today seems to say that this can in fact be done.
In this case the Plaintiff had 2 claims, the first being the ‘tort claim’ meaning the claim against the motorist who injured the Plaintiff (who happens to be insured by ICBC) and a ‘part 7 claim’ meaning a claim against ICBC directly for the enforcement of any ‘no fault benefits’ that may be owing as a result of the same BC car accident.
The Plaintiff’s lawyer obtained a report that made some rehabilitation recommendations. This report was shared with the Plaintiff’s treating physician who adopted some of the recommended treatments. The ICBC defence lawyer argued that this disclosure ‘waived’ the claim for privilege. The Plaintiff lawyer disagreed. The ICBC defence lawyer made a motion asking the BC Supreme Court to order that the privately hired report be handed over to ICBC. Master Caldwell of the BC Supreme Court dismissed the motion stating that:
I am unaware of any authority which would dictate that reports which are prepared for purposes of litigation but which are provided to an individuals GP for treatment purposes lose the protection of privilege. No such authority was provided to me.
This is a great result for Plaintiff’s involved in ICBC claims and is certainly must reading for an ICBC claims Plaintiff lawyer who wishes to share a private report with a client’s treating doctor for treatment purposes.
OK, imagine this:
You are injured in a car accident that is not your fault. You incur medical expenses and send ICBC (your own insurer) the bill. Your ICBC adjuster does not to pay.
You sue the driver that injured you (who also happens to be insured by ICBC). The same ICBC adjuster hires the lawyer to defend the driver and tells that lawyer what to do (that’s the way it often works).
At trial you claim the medical expenses as special damages (special damages are expenses related to the other person’s wrong-doing). The Judge agrees these are reasonable special damages and awards you compensation.
(Thanks for bearing with me, here’s where it gets interesting)….The ICBC hired lawyer then says, “Your Honour, the Plaintiff should have been reimbursed this expense by ICBC so you should not award this money to the Plaintiff” The Judge, in his most eloquant voice responds, “you’re right counsel, I have no choice but to make this deduction”.
That’s exactly what can happen! ICBC can refuse to pay for an expense then the lawyer hired by ICBC in the ‘tort trial’ can argue that the court should not award reimbursement of the expense because you should have had ICBC pay for the expense.
When you sue someone for car accident related injuries in BC, the defendant (most often times insured by ICBC) can argue that due to the operation of s. 83 of the Insurance (Vehicle) Act,he should not have to pay any money covering benefits you could have received from ICBC as your own insurer. (Whether or not you received the benefits is an entirely irrelevant consideration… the deduction can be used even if you applied for these benefits and ICBC refused to pay…click here to read Sovani v. Jin, a case where almost $100,000 in damages were deducted from the jury’s verdict).
Section 83 reads as follows:
83 (1) In this section and in section 84, ‘benefits” means benefits
(a) within the definition of section 1.1, or
(b) that are similar to those within the definition of section 1.1, provided under vehicle insurance wherever issued and in effect,
but does not include a payment made pursuant to third party liability insurance coverage.
(2) A person who has a claim for damages and who receives or is entitled to receive benefits respecting the loss on which the claim is based, is deemed to have released the claim to the extent of the benefits.
(3) Nothing in this section precludes the insurer from demanding from the person referred to in subsection (2), as a condition precedent to payment, a release to the extent of the payment.
(4) In an action in respect of bodily injury or death caused by a vehicle or the use or operation of a vehicle, the amount of benefits paid, or to which the person referred to in subsection (2) is or would have been entitled, must not be referred to or disclosed to the court or jury until the court has assessed the award of damages.
(5) After assessing the award of damages under subsection (4), the amount of benefits referred to in that subsection must be disclosed to the court, and taken into account, or, if the amount of benefits has not been ascertained, the court must estimate it and take the estimate into account, and the person referred to in subsection (2) is entitled to enter judgment for the balance only.
(6) If, for the purpose of this section or section 84, it is necessary to estimate the value of future payments that the corporation or the insurer is authorized or required to make under the plan or an optional insurance contract, the value must be estimated according to the value on the date of the estimate of a deferred benefit, calculated for the period for which the future payments are authorized or required to be made.
This may seem like boring stuff but it could cost you well over $100,000 in your ICBC claim.
In another example of the s. 83 argument in action, reasons for judgment were released today that are well worth reading for anyone advancing an ICBC claim. After trial the Jury awarded damages including $32,000 for cost of future medical care. The defence lawyer then argued that a portion of the $32,000 should be reduced because of section 83. This argument is often made by ICBC defence lawyers after trial. In this case the deduction was not made but depending on the facts of any given ICBC claim such a deduction very well could be made.
The bottom line is that if you are advancing an ICBC ‘tort’ claim you must apply and follow up for all of the ‘no-fault’ benefits you may be entitled to. Failure to do so can result in a significant reduction of your award of damages.