The Insurance Corporation of British Columbia, ICBC, refused to accept the decision of a BC Supreme Court Judge and had to be told the obvious by the Court of Appeal of BC-Massage therapy after a car accident injury is a mandatory ICBC benefit (Raguin v. Insurance Corporation of British Columbia, 2011 BCCA 482).
The infant claimants were in a motor vehicle accident and each suffered soft tissue injuries. At the time of the accident the kids wer eleven years old and twelve. They were treated by their family physician and their doctor recommended that each receive massage therapy treatment. The treatments were provided by a registered massage therapist at a total cost of $742.00.
ICBC took the position that the cost of massage therapy is not covered under s. 88(1) of the Regulation and refused to pay for the treatments. Cross applications were subsequently brought by the litigants in the Part 7 benefit lawsuits. ICBC applied unsuccessfully to dismiss the lawsuits on the basis that expenses incurred for massage therapy treatments were not covered under s. 88(1). The applications brought on behalf of the infant injury claimants for orders for payment of the massage therapy expenses were allowed by the trial judge.
As a personal injury lawyer representing injury claimants against ICBC since 1995 I have always taken the position that, if doctor recommended, ICBC is required to pay for massage therapy, and ICBC has paid for this therapy many times in the past. ICBC has helped injury claimants in this case by asking the Court of Appeal to put to rest any question over whether ICBC must pay for massage therapy. ICBC must pay for massage therapy after a car accident and as the Court of Appeal stated in this personal injury case,starting at paragraph 56, very clearly,
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 … .”
Posted by Mr. Renn A. Holness