B.C. Court of Appeal rules ICBC must cover massage-therapy costs

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      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”.


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      glen p robbins

      Dec 1, 2011 at 2:20pm

      The Court of Appeal is correct in my opinion. Too often ICBC (and other insurers) refuse to pay for these costs, and when an accident victim is not able to work, and ICBC is not or has stopped paying interim income benefits, not only is the victim forced to scrounge to live - but is not able to pay for treatments which are expensive. For the money ICBC charges for premiums when people are injured and their doctor says they require treatment - these treatments should be paid to a point of reason.

      Obviously the amount considered in this case was reasonable.


      Dec 1, 2011 at 3:24pm

      "A MEDICAL advisory committee... suggested that the auto insurer could save $5 million by not paying for these treatments. Read: The doctors are entrepreneurs wearing white cloaks.

      "ICBC appealed the ruling before the province’s highest court." READ: ICBC's goal is profit - not insurance.

      glen p robbins

      Dec 2, 2011 at 2:30pm

      Choc - I agree that some doctors including GP's have become quasi arbiters of client's injuries, when their only objective should be to treat their patient, based on what the patient says. Years ago, I wrote extensively on ICBC including a policy of no crash no cash introduced by then President Bill McCourt. This policy suggested that if there was little or not damage to your vehicle following an MVA - then you were not therefore injured. Of course this is ridiculous and retrogressive. For instance if you own an older vehicle with a steel bumper and are rear ended in an MVA you will have little damage while a newer Japanese model vehicle will have extensive damage.

      The policy was, and remains very tough without any scientific logic to it. Lawyers are reluctant to expend as much time on these cases pushing settlements for injury victims downward, while engineers, doctors and other professionals fall in line.

      I realized that ICBC policy had gone too far when I discovered that jury trials were producing on average lower awards then Judge trials were -- when historically in BC and every other democratic nation in the world it is the opposite. Anecdotal evidence suggested that jury pools were being drawn from areas of low income housing - meaning the potential concept of 'what was a fair award' might be construed differently from folks with lower incomes.

      My publishing company in 1997 knocked out Glen Clark's proposed ICBC no fault insurance - after the Trial lawyers had thrown in the towel. I argued before the Lay Benchers (Law Society) in 1993 that lawyers who were earning globally about 50% of incomes from personal injury were not fighting for their client's which for me was further evidenced after watching them basically - cave in on the no fault fight knowing that their contingency fees of 25-35 per cent were paid more quickly in no fault cases (smaller amounts) and the costs to the system were decreased (expense of trial - medical reports -- expert testimony etc. These trial lawyers could maintain their 'status' as trial lawyers in matters unrelated to personal injury claims. Having said that - I believe it is important to try to mediate these matters wherever possible and have both sides give a little to get a result. (Could be I'm just getting older).

      I expect the reasons that ICBC has survived in part is that because it is held in higher regard (for fairness) than say Workers Compensation - which remains no fault.

      I remain concerned as well about the type of optional insurance which is sold to drivers - under a false pretense. This includes optional insurance purported to cover drivers whose cars are broken into on the premise that they are fully covered - say if they are parked on the street outside their home etc. Insurance buyers (drivers) need to be very careful when shopping for optional insurance from their broker.