More than eight years after two young girls were injured in a motor-vehicle accident, their family can now finally claim the cost of $742 for their massage therapy from ICBC.
The provincial auto insurer had refused to cover their treatment, leading to a legal battle that went all the way up to the B.C. Court of Appeal.
On November 29, a three-judge panel of the B.C. Court of Appeal ruled that ICBC needs to pay up.
For Emmanuel Raguin, a Vancouver car salesman, it’s an outrage that the insurer even went this far.
“It’s a waste of time and money for that amount,” Raguin told the Georgia Straight in a phone interview.
Raguin’s daughters were 11 and 12 years old when the accident happened in August 2003. They completed their doctor-recommended treatment by a registered massage therapist before the end of that year.
The B.C. Court of Appeal released the decision on the same day that ICBC announced that it wants to increase rates by about $30 per year.
According to the corporation’s CEO, Jon Schubert, insurance costs need to go up because claims covering mostly body injuries have risen by $200 million so far in this year. He also said that ICBC’s investment income had gone down by $38 million.
ICBC and the Massage Therapists’ Association of B.C. did not comment by the Straight’s deadline.
In 1998, the Straight reported that ICBC quietly created a medical advisory committee to examine alternative therapies like massage therapy, reflexology, homeopathic therapy, acupuncture, and other nontraditional western methods. The group suggested that the auto insurer could save $5 million a per by not paying for these treatments.
Erik Magraken, a lawyer who specializes in personal injury claims, and he welcomes the appeal court’s decision on the case that involved Raguin’s daughters.
“ICBC has historically treated massage as a discretionary benefit, and they came up with internal policies of when they would and would not allow it,” Magraken told the Straight in a phone interview. “The clarity from the Court of Appeal is very welcome. It says massage therapy is not discretionary. It has to be paid. It’s a good development for everybody, be it service providers, patients, or ICBC claimants, because now they know what should and shouldn’t be covered, and ICBC’s internal policies aren’t binding.”
Magraken explained that, as a result of the ruling, ICBC is now obligated to pay for massage therapy “so long as people have medical prescriptions saying the therapy is reasonable and necessary as a result of vehicular-related injuries”.
The case involving Raguin’s daughters revolved around the issue of whether or not massage therapy recommended by an insured person’s physician and performed by a registered massage therapist is a benefit that the public insurer is obligated to pay.
In December 2009, the B.C. Supreme Court ruled in favour of Raguin’s children. ICBC appealed the ruling before the province’s highest court.
ICBC argued that claims for massage therapy are payable only in ICBC’s sole discretion. In the B.C. Court of Appeal decision, judge Anne Rowles wrote physical therapy is a “mandatory benefit” under regulations relating to the motor-vehicle insurance law.
Rowles explained that if the regulations are taken as a whole, “physical therapy may properly be interpreted as including massage therapy”.
“In this case, the respondents’ doctor recommended massage therapy as part of the infant plaintiffs’ recovery,” Rowles wrote. “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.”
Rowles also dismissed as “unsupportable” ICBC’s claim that including massage therapy as a mandatory payable benefit would “open the floodgates to all manner of questionable procedures”.