Category: Benefits (No-Fault)

Court Of Appeal Rules That Massage Therapy Benefits Are Mandatory, Not Permissive

In Raguin v ICBC, the British Columbia Court of Appeal confirmed that coverage for massage therapy under your ICBC policy accident benefits is mandatory, and not merely permissive. The Plaintiff had sought reimbursement for massage therapy costs, however ICBC had refused. The Plaintiff was successful at trial, and the decision was upheld on appeal. This is an important decision for injured claimants, as, previously, ICBC would not provide massage therapy benefits beyond eight weeks of the accident.

 

[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. 

 

[33]           ICBC has referred to the maxim, expressio unius est exclusio alterius (to express one thing is to exclude another), to support its submissions.  The maxim presumes that the Legislature has not erred in excluding a particular thing; if the Legislature meant to include a particular thing, it would have done so expressly:  Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed (Canada: LexisNexis Canada Inc., 2008) (“Sullivan”) at 244.  ICBC argues that failure to expressly include “massage therapy” alongside the comparable items “physical therapy” and “chiropractic treatment” in s. 88(1) supports that massage therapy was deliberately excluded. 

 

[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.

Nearly $150,000 Award For Lyrica Deducted From Overall Damages Award

In Thomas v Thompson, the Plaintiff received nearly $150,000 as a present day value for future care for the cost of Lyrica, a pain medication. The Court deducted this entire amount from the global award, as the Plaintiff could have received payment for this under the no-fault benefits portion of his ICBC insurance policy, but did not pursue this.

 

[3] The plaintiff called Dr. Latimer, a psychiatrist, who had treated him and prescribed a specific medication for neuropathic pain called Lyrica in October 2006, and considered that the plaintiff might need to continue this medication for his lifetime. In cross-examination he was asked whether alternative (and cheaper) medication might be equally efficacious, and responded that it was not; that Lyrica had a significant qualitative advantage. The cost of Lyrica at the time of trial was $7,355.76 per annum. Counsel for the defendants obtained a calculation from Mr. Robert Carson dated October 6, 2010. He concluded that the present value of $7,355.76 over the plaintiff’s life expectancy was $147,939. This was evidence that the plaintiff should have provided in asserting his claim at the earlier trial. (Mr. Thomas had claimed as a cost of future care for Lyrica $235,361.28.)

 

[4] The defendants say that rather than ordering the payment to the plaintiff of the present value of Lyrica as a cost of future care, the court must apply the provisions of s. 83(5) of the Insurance (Motor Vehicle) Act. This section in its entirety says this:

 

83

 

(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.

 

[5] I am satisfied that the Part 7 benefits available to the plaintiff exceeded the present value of those benefits and judgment may not be entered for them.

Court Only Allows Minimal Deduction For Accident Benefits

In Gignac v Rozylo, the result was more favorable to the Plaintiff. ICBC had argued for a deduction of a portion of the award for cost of future care, claiming that the Plaintiff could obtain payments for this under the “no fault” portion of his insurance coverage with ICBC. The Court disagreed, only allowing a $2,000 deduction, rather than the $25,000 deduction sought by ICBC.

 

[21]           However, as the applicant points out, the Blue Cross plan does not reimburse the plaintiff for 100% of his expense.  For example, according to the evidence at trial, the plaintiff was paying $60 per visit for physiotherapy, and $37.50 per visit for massage therapy.  The Blue Cross plan provides $10 per visit for physiotherapy and, for massage therapy, $10 per visit for 8 visits, with a maximum of $750 per year.  The plaintiff would be entitled to benefits under the plan for the excess of his expenditure over the Blue Cross contribution, up to the maximum allowed under the plan.

 

[22]           I find the plaintiff entitled to those benefits.  There is a risk of double recovery for the future costs of medications, physiotherapy and orthopaedic therapy.  I assess the present day value of the plaintiff’s entitlement for those items at $2,000.  The assessment on costs of future care will be reduced accordingly.

 

[29]           Alternatively, if I am wrong in my interpretation of the legislation, and ICBC policy is a relevant factor, then the applicant has not persuaded me that it is more likely than not that this plaintiff is entitled to the benefits in controversy.  The scales are evenly balanced.  Policy may authorize the benefit or it may not.  According to Ms. Lewko:

 

11.                It is ICBC policy that the exercise of discretion for permissive benefits must be rationally connected to the relevant factors governing an objective assessment of the entitlement to the benefit.

 

That is a level of abstraction which does not allow for a determination of entitlement on a balance of probability.

 

[30]           In result, the cost of future care assessment is reduced by $2,000.

 

In other words, there is no guarantee that ICBC would make the payments anyways, so the Court would not agree to the deduction that they sought.

Court Deducts Nearly $200,000 In Benefits From Plaintiff Who Disentitled Himself To Coverage

In Kirk v Kloosterman, the Plaintiff did not have a proper motorcycle licence when he was struck by another vehicle, so ICBC was of the position that he had breached his insurance policy, and was consequently not entitled to any “no-fault” benefits. The Court held that a Plaintiff who disentitles himself to his own insurance policy can be faced with a statutory deduction in a tort claim, in this case nearly $200,000.

 

[10]           Ms. Kloosterman says the law is clear and settled: if the plaintiff acts so as to disentitle himself, then the Court must calculate and apply the deduction. She argues that Mr. Kirk would have been entitled to benefits under Part 7, had he possessed a valid driver’s licence.

 

[11]           It is plain that the legislative intention is to prevent double recovery, that is, to prevent a plaintiff from recovering the same amount of monies both by way of the defendant through a tort action and by way of no-fault insurance coverage. Given the legislative intention, it seems harsh and even punitive to not only deny a plaintiff, who has been found substantially not at fault in a motor vehicle collision and awarded damages for losses sustained, no-fault benefits but also to deduct the amount of his or her potential entitlement to Part 7 from the tort award. However, the case law is binding on me, and can only be construed differently by the Court of Appeal:  see Baart v. Kumar 1985 CanLII 146 (BC CA), (1985), 66 B.C.L.R. 1 (C.A.); Si v. Enns, 2001 BCSC 1120 (CanLII), 2001 BCSC 1120.

 

[12]           Accordingly, I accept the defendant’s submissions on this issue and find that there must be a deduction.

Court Of Appeal Confirms Minimal Deduction For Accident Benefits

In Boota v Dhaliwal, the Plaintiff was awarded $28,205 for cost of future care. The trial judge deducted the nominal amount of $1,000 from this amount, believing that the Plaintiff would likely not be paid the full amount for future care in the future by ICBC. The lawyer for ICBC had argued that it should have been a far greater amount than this. The British Columbia Court of Appeal dismissed ICBC’S lawyer’s appeal.

 

[82] That leaves for consideration the question of the award of $28,205 for future cost of care and whether the trial judge erred in making only a nominal estimate under s. 25.

 

[83] The s. 25 estimate should be, as it was here, based upon the evidence and arguments advanced at the trial:  Coates v. Marioni, 2009 BCSC 686 at para 35; Schmitt v. Thomson (1996), 132 D.L.R. (4th) 310, 70 B.C.A.C. 290 at para. 19.

 

[84] Section 25(5) says that the “court must estimate” the amount of benefits to which the claimant is entitled.  That necessarily involves some kind of itemized examination of benefits that the appellant may claim in the future under Part 7.  After all, how else is the court to perform the estimate?  Gurniak has been interpreted to mean that this s. 25 assessment or estimate is not to be matched with heads of damage claimed in the tort action for deductibility purposes, but that interpretation does not preclude the court from taking into account the itemized amounts claimed in the tort claim when making its estimate under s. 25.  I recognize that in advancing its s. 25 claim the respondent is not limited to specific items claimed by the appellant in the tort action, although usually one would expect some overlap between the future cost of care and the estimate of items to be deducted under s. 25.

 

[85] The trial judge may exercise caution in her findings about the likelihood that ICBC would in the future pay any benefits under s. 88 of the Regulations:  Schmitt at para. 19.  The trial judge may have regard to the position taken at trial.  (Uhrovic v. Masjhuri, 2008 BCCA 462, 86 B.C.L.R. (4th) 15 at paras. 37–42).  Should the trial judge take into account the verdict in her assessment of the likelihood of payment?  In my view that is one of the considerations that may be taken into account in adopting a cautious approach.  In my view, the trial judge may properly infer that the same considerations propounded by ICBC at trial, and which appear to have been reflected in the damage award, may determine ICBC’s position on an application for payment of future benefits.

 

[86] In summary, the Court may take into account the evidence and submission on necessity and causation in assessing the likelihood of ICBC paying the Part 7 expenses.  This is so because those same factors are pre-conditions for payment under Part 7.  It was implicit in the comments of the trial judge at paras. 51 and 53 of her reasons for judgment that she considered the appellant was unlikely to be entitled to receive payment under Part 7.  I cannot say that she erred in her conclusion.  I would not accede to this argument.