Tag: Section 88(1) Insurance Vehicle Regulation

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).

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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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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