Reasons for judgement were released recently 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 the 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.
Paul Mitchell, Q.C.is a BC personal injury lawyer who has extensive experience with severe injury claims, including brain injury claims, spinal injury claims, death claims, ICBC claims, medical malpractice claims, and other catastrophic injury claims.
He acts for injured clients all over BC and Alberta, and will not act for ICBC or any other insurance company.
For more information on this article, or for a confidential discussion of your injury claim, contact Paul Mitchell, Q.C. at 250-869-1115 (direct line), or send him a confidential email at [email protected]
