Massage therapy may be a mandatory first party benefit under an ICBC policy of automobile insurance

An application seeking payment for the cost of massage therapy under the mandatory no-fault benefits provisions of the Insurance (Motor Vehicle) Act Regulation was allowed on the basis the term "physical therapy" may include massage therapy, provided the other requirements to receive no-fault benefits are met.

Raguin v. Insurance Corp. of British Columbia, [2011] B.C.J. No. 2262, November 29, 2011, British Columbia Court of Appeal, M.A. Rowles, M.E. Saunders and D.F. Tysoe JJ.A.

The two infant plaintiffs had been involved in a motor vehicle accident and both suffered soft tissue injuries. On the recommendation of their family physician, they had each received massage therapy treatment at a total cost of $742. An action on their behalf was brought against the defendant Insurance Corporation of British Columbia ("ICBC") seeking payment of no-fault benefits under Part 7 of the Insurance (Motor Vehicle) Act Regulation. The plaintiffs applied for an order for payment of the massage therapy expenses and ICBC brought a cross-application seeking dismissal of the action on the basis that the massage therapy expenses were not covered under the Regulation. The plaintiffs' application was allowed and ICBC's application was dismissed. This was the appeal from the order allowing the plaintiffs' application for payment of the massage therapy expenses.

At issue were the following two sections of the Regulation:

88(1) Where an insured is injured in an accident for which benefits are provided under this Part, the corporation shall, subject to subsections (5) and (6), pay as benefits all reasonable expenses incurred by the insured as a result of the injury for necessary medical, surgical, dental, hospital, ambulance or professional nursing services, or for necessary physical therapy, chiropractic treatment, occupational therapy or speech therapy or for prosthesis or orthosis.

88(2)(f) Where, in the opinion of the corporation's medical adviser, provision of any one or more of the following is likely to promote the rehabilitation of an insured who is injured in an accident for which benefits are provided under this Part, the corporation may provide any one or more of the following:

(f) funds for any other costs the corporation in its sole discretion agrees to pay.

The Court noted that the payments under s. 88(1) were mandatory whereas payments under s. 88(2) were at ICBC's discretion. Although the s. 88(1) benefits were mandatory, ICBC did have a limited power to challenge a claim under that section by requiring a medical examination to determine whether the expenses incurred were both necessary and reasonable.

The Court reviewed prior versions of the provisions. The earlier wording of s. 88(1) had originally required ICBC to pay for specifically enumerated services and also permitted for coverage of additional services and supplies. Following that, the "catch-all" was removed from the mandatory coverage provisions along with reference to the attending physician's opinion as to what was essential. Later on, prosthesis and orthosis were added to the list of mandatory benefits and the term "physiotherapy" in that section was renamed as "physical therapy". The Court concluded that it appeared that the trend in the legislation was toward specific enumeration of the type of mandatory benefits that could be covered and limitation of the role of the insured's physician regarding what type of service may be necessary.

One of the arguments made by ICBC was that by including massage therapy as a benefit payable under s. 88(1), it would open the floodgates to all manner of questionable procedures. The Court reviewed the relevant sections of the Regulation and the Health Professions Act and its related regulations which governed physiotherapists and massage therapists. Because the regulation of health professions pursuant to the Health Professions Act and the related regulations restrict the provision of designated services to registered practitioners of the designated health profession, to include massage therapy as a benefit payable under s. 88(1) would not open the floodgates to allowing claims for any type of procedure. The Court concluded that physical therapy is a mandatory benefit under s. 88(1) and that the dictionary definition and related regulatory definitions defined physical therapy as including massage. Though the Regulation did not specifically refer to massage therapy in s. 88(1), the Court concluded that physical therapy may properly be interpreted as including massage therapy. Provided that the other requirements stated in the section were met, massage therapy was payable under s. 88(1).

This case was digested by Emily M. Williamson and edited by David W. Pilley of Harper Grey LLP.

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