Practitioners involved in motor vehicle accident claims will be familiar with the approach that the Insurance Corporation of British Columbia takes to payment for massage therapy under the Part 7 regime. ICBC will only pay for a limited number of massage therapy treatments and only during a restricted period of time following a motor vehicle accident. A recent Court of Appeal decision clarified ICBC’s obligation to pay for massage therapy and provides a basis for lawyers representing individuals injured in motor vehicle accidents to force payment of massage therapy beyond ICBC’s restrictions.

In the decision of Raguin v. Insurance Corporation of British Columbia 2011 BCCA 482 (CanLII) , 2011 BCCA 482 Madame Justice Rowles wrote the decision for the unanimous bench. The case concerned a claim by two infant plaintiffs for the cost of massage therapy under part 7. The total amount claimed was $742. ICBC brought an application to dismiss the plaintiff’s claims and the plaintiffs applied for payment of the treatments. At trial an order for payment of the incurred cost of massage therapy was ordered. ICBC appealed that decisions submitting that massage therapy is a discretionary benefit under the Insurance (Vehicle) Regulation, BC Reg 447/83, Part 7 and that the only mandatory benefits are those enumerated in s. 88(1) . The Court of Appeal disagreed with ICBC’ submission, upholding the decision of the trial judge.

The Court of Appeal characterized the issue before it as being whether “medical services” or “physical therapy” listed in s. 88(1) may properly be interpreted as including massage therapy recommended by a physician and provided by a registered massage therapist. In concluding that “physical therapy” includes massage therapy, the Court considered the dictionary definition of physical therapy, the Health Professions Act and the Massage Therapists Regulation, BC Reg 280/2008. At paragraph 58 of that decision the Court said as follows:

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 of 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: “where 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…”

Although this decision will be welcomed by those representing injured motor vehicle accident clients, it must also be read with caution and with the expectation that the costs of recommended massage therapy will now be claimed as a deduction in the tort claim in claims for future care. Specifically, counsel should be aware of paragraph 24 of the decision which provided:

As the foregoing review of the cases demonstrates, the jurisprudence is inconsistent as to whether massage therapy may be payable as a mandatory benefit under s. 88(1). As a matter of statutory interpretation, the breadth of s. 88(1) should not depend on whether the court is being asked to make a deduction from a tort award or to allow a claim in an action for recovery of mandatory benefits.

The Court of Appeal has now definitively found massage therapy to be a mandatory benefit under s. 88(1). Although this decision will provide counsel with a tool to enforce payment for this form of treatment under Part 7, this decision will also result in deductions from future care awards for the cost of massage therapy.