Tag: massage therapy

Court Criticizes ICBC “Failure” To Pay For Necessary Treatments Highlighting Shortcomings of their so called “Care Based” Model

ICBC and the Provincial government have been working overtime trying to persuade British Columbians that stripping collision victims of the right to go to court to be fairly paid for their injuries is a good idea.  They claim that by taking away these rights ICBC will treat victims fairly under a so-called ‘care based’ model.

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, demonstrating that ICBC can be anything but fair when it comes to meeting their obligations to pay for long term injury treatments.

In today’s case (Del Bianco v. Yang) the Plaintiff sustained life long injuries in a collision.  At trial he was awarded damages which included payment for future care for massage therapy and kinesiology.  Despite being ordered to pay this money ICBC refused saying they will pay that portion of the judgement from the Plaintiff’s ‘no fault’ insurance with them over the years as the treatments are incurred.  An ICBC adjuster swore an affidavit declaring payments would be made.

The Court did not accept that ICBC would make payments, however, noting that they refused to pay the mandated no-fault benefits in the years prior to trial leaving little confidence that they would fairly meet their future obligations.  In refusing to deduct the vast majority of the awarded future care costs Mr. Justice Groves provided the following criticism of ICBC’s handling of the claim and their unexplained “failure” to pay past benefits they were obliged to:

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"Plaintiffs are not Given Carte Blanche to Undertake any and all Therapies Which They Believe Will Make Them Feel Good"


Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, underlying the importance of having medical opinion evidence in support of claimed special damages in an injury claim.
In this week’s case (Redl v. Sellin) the Plaintiff was injured in a 2009 collision.  Fault was admitted by the Defendant and there was no disagreement that the Plaintiff suffered from a chronic pain disorder as a result of her collision related injuries.  What was disputed was the significant treatment related expenses the Plaintiff advanced at trial.
The Plaintiff advanced special damages of over $46,000.  The Court disallowed many of these noting there was no medical evidence to justify many of these expenses.  In rejecting much of the sought special damages claim Mr. Justice Saunders provided the following reasons:
[44]         Ms. Redl is advancing a claim for special damages which is remarkable in its size and scope. The total amount sought is $46,501.22…
[55]         Generally speaking, claims for special damages are subject only to the standard of reasonableness. However, as with claims for the cost of future care (see Juraski v. Beek, 2011 BCSC 982; Milina v. Bartsch(1985), 49 BCLR (2d) 33 (BCSC)), when a claimed expense has been incurred in relation to treatment aimed at promotion of a plaintiff’s physical or mental well-being, evidence of the medical justification for the expense is a factor in determining reasonableness. I accept the argument expressed through Dr. Frobb, that a patient may be in the best position to assess her or his subjective need for palliative therapy. I also accept the plaintiff’s counsel’s argument that in the circumstances of any particular case, it may be possible for a plaintiff to establish that reasonable care equates with a very high standard of care. In the words of Prof. K. Cooper-Stephenson inPersonal Injury Damages in Canada, (2d ed., 1996) at p. 166:
Even prior to the Supreme Court’s endorsement of the restitution principle [in Andrews v. Grand & Toy Alberta Ltd. and Arnold v. Teno], in the area of special damages the courts had been prepared to allow optimum care, and damages were awarded for expenses of a character that stretched far beyond the resources of even an affluent Canadian.
That being said, and while Dr. Frobb’s paradigm of the patient becoming their own physician may have at least a superficial appeal, plaintiffs are not given carte blanche to undertake any and all therapies which they believe will make them feel good.
[56]         In the present case, Ms. Redl undertook an extraordinarily wide variety of therapies, some without advice, and some less conventional than others. She did so at considerable expense. It is probable, in my view, that she undertook this course of action in part through a desire to recover quickly and in part on the basis of her positive past experience, pre-accident, with massage therapy and chiropractic. However, her firm beliefs notwithstanding, there is no medical evidence that the therapies she undertook accelerated her return to work or have otherwise improved her physical condition. With regard to the palliative effect of the therapies, Ms. Redl did not experiment with trying one modality at a time. She did not experiment with lengthening the time between appointments. There is no evidence that the palliative effect of these therapies was any greater than what may have resulted from the use of over-the-counter medications. Ultimately, the evidence does not persuade me on a balance of probabilities that Ms. Redl’s physical or mental well-being is or could reasonably have been expected to be any greater as a result of undertaking these frequent therapies, than it would be if she had stuck to her pre-accident pattern of weekly or bi-weekly massage and monthly chiropractic treatments.
[57]         I am allowing, as special damages, the cost of her first 12 massage therapy sessions ($936.50), and her first 12 chiropractic treatments ($930), as such would have been reasonable during the acute phase of Ms. Redl’s recovery. Beyond that, I find that had the accident not occurred, the pre-accident pattern of these treatments likely would have continued up to the present date, even had the accident not occurred, and no greater frequency of treatment has been demonstrated to have been reasonable.
[58]         I am further allowing the cost of massage therapy sessions she underwent when on cruise vacations in September 2010 and March 2012, when she experienced flare-ups ($650). I am also allowing the physiotherapy ($210) and kinesiology ($453) expenses, as they were incurred on medical advice, and the 14 acupuncture treatments rendered at Dr. Frobb’s clinic ($2,100). The expense of the Pilates course is also allowed ($3,974.92), as being in furtherance of core strengthening, which Dr. Frobb referred to as a priority. I am disallowing the balance of the massage therapy, acupuncture and chiropractic expenses, and the claims for naturopathic and reflexology treatments, as not having been demonstrated as reasonable.

$18,000 Awarded for 2.5 Year Whiplash Injury With Headaches

In brief reasons for judgement released today by the BC Supreme Court, Madam Justice Morrison awarded a 33 year old Plaintiff $18,000 for pain and suffering (non-pecunairy damages) for injuries as a result of a 2005 motor vehicle accident.
The Plaintiff’s vehicle was rear-ended in Delta, BC in August, 2005. There was relatively little vehicle damage.
The Defendant’s lawyer admitted fault for the accident. The Defence ran what can be called ICBC’s Low Velocity Impact Defence, that is the defence lawyer led evidence that this was a ‘low impact’ collision with little damage to the vehicles. The Defence lawyer suggested that an appropriate pain and suffering award was $3,000.
The court made a positive finding with respect to the Plaintiff’s credibility. The court qualified the Plaintiff’s massage therapist as being capable of giving expert evidence with respect to massage therapy.
The court accepted that the Plaintiff suffered from pain and discomfort until 2007 when the soft-tissue injuries healed. In short, the Plaintiff suffered from soft tissue injuries affecting her neck and shoulders. The acute phase of injury lasted several months and gradually improved by the time of trial. The court accepted that the Plaintiff was fully recovered by the time of trial.
The Plaintiff had no lost wages as a result of the accident. $18,000 was awarded for pain and suffering for these injuries.
This case is worth a quick read as it is a great example of an LVI claim going to trial, having all the evidence heard in two days, and receiving timely reasons for judgement. Counsel for the Plaintiff did a great job getting this matter tried and having the client compensated for an amount outside of ICBC’s soft tissue injury settlement guidelines and outside of ICBC’s LVI policy.
Paragraph 37 of Madam Justice Morrison’s reasons for judgement was the highlight for me where she dismissed the LVI defence by stating as follows:
The motor vehicle accident was a minor one, with minor damage to her vehicle, but as Gordon v. Palmer (1993), 78 B.C.L.R. (2d) 236 (S.C.) reminds us, a minor motor vehicle accident does not necessarily mean minor injuries. In Boag v. Berna, 2003 BCSC 779, Mr. Justice Williamson reflected at paragraph 12, “That a piece of steel is not dented does not mean that the human occupant is not injured.”
Cases such as these are certainly key ammunition should you wish to take an LVI case to trial.  If you have questions about this case or potential settlement of a similar ICBC claim feel free to click here to contact the author of this article.

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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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