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ICBC’s obligation to pay for “non-essential” treatments

If ICBC is refusing to pay for massage therapy, physiotherapy, pain clinics, or any other treatment that helps to reduce or alleviate the symptoms of your pedestrian, bicycle, truck or car accident related injuries, please call the experienced Surrey Personal Injury Lawyers at MacLean Law. We are here to help. We always offer FREE initial consultations and, with all ICBC claims, you don’t pay anything until after your claim is settled.

What is ICBC’s obligation to pay for so-called “non-essential” therapy or other treatments?

In the recent BC Supreme Court decision of Fedyk v. ICBC 2013 BCSC 1466, MacLean Law Group asked the court to consider the definition of “necessary” medical treatment in the context of Part 7 benefits – the part of your ICBC insurance that deals with the payment of medical expenses; rehabilitation expenses; lost wage benefits; and, in the event of a death, Part 7 provides: payment of funeral expenses and loss of support. However, like any insurance policy, these benefits are often limited and there is an abundance of “small print” which restricts or even precludes coverage in certain circumstances.

The precedent setting Fedyk v. ICBC case required the Court to make a decision regarding ICBC’s obligation to pay certain so-called “non-essential” treatment expenses for our client. The facts of the case are as follows: On August 10, 2009 the Plaintiff, Carrie Fedyk was injured while riding as a passenger in a motor vehicle. After the accident Ms. Fedyk retained MacLean Law to deal with the claim against ICBC on her behalf. She was initially diagnosed with whiplash, which according to her treating specialist Dr. Salvian developed into a disabling thoracic outlet syndrome. Ms. Fedyk was enrolled in a University Transfer music program at Douglas College and found massage therapy to be effective at providing temporary relief from her neck and shoulder stiffness and pain.

ICBC refused to fund the treatment because the massage therapy would provide no long term benefit to the thoracic outlet syndrome and was therefore not “necessary”.

Whenever somebody has been injured in an ICBC related accident, Part 7 of the Insurance Vehicle Regulations determines ICBC’s obligation to fund only what constitutes “necessary” treatment. Section 88(1) of the Insurance Vehicle Regulations, (the law governing these matters), clearly states that ICBC has to pay for “all reasonable expenses incurred by the insured as a result of the injury for ‘necessary‘ physical therapy, chiropractic treatment, occupational therapy or speech therapy,” [emphasis added] , but the law does not define what is “necessary” and what is not.

In the Fedyk case, MacLean Law argued that the massage therapy was “necessary” because it provided the Plaintiff some relief and allowed her to continue her academic pursuits on a full time basis. The lawyers for ICBC strongly disagreed. Ultimately, the Court sided with MacLean Law and ordered ICBC to pay for the massage therapy. In his precedent setting decision, the Honourable Justice Neil Brown provided the following guidance:

“Necessary connotes a need that is essential for some purpose. If the evidence shows the treatment will cure a condition it can be presumed necessary. Where the evidence shows it is an adjunct to other therapies that renders them more effective, or in some way facilitates an insured’s recovery, this should [also] satisfy the test. And as noted in Tiessen (2008 BCSC 1822), if the therapy allows the insured to engage in more activities of work or daily living than otherwise would be the case that may be sufficient. Where the evidence shows that short term pain relief from massage therapy significantly contributes to the insured’s rehabilitation by enabling them to be more active and effectively engaged in it, that should suffice to show it is a necessary therapy“. [Emphasis added]

Thankfully, the Court’s ruling in this case now provides our clients, and all British Columbians, with a much better understanding of which expenses ICBC are required to pay.

To talk to one of our Fort St John, Kelowna, Vancouver and Surrey ICBC Claims and Personal Injury Lawyers right now, simply click on our convenient online form, or call us toll-free from anywhere in British Columbia at 1.877.602.9900.

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