Court of Appeal Finds Massage Therapy a Mandatory Part VII Benefit

Towels and Essential Oils for a massage is found to be a mandatory benefit

In the important decision RAGUIN V. INSURANCE CORPORATION OF BRITISH COLUMBIA, 2011 BCCA 482(“RAGUIN”), released November 29, 2011, the Court of Appeal considered the Plaintiffs’ claim that  ICBC had an obligation to pay for massage therapy benefits under Part 7 of the INSURANCE (VEHICLE) REGULATION(the “REGULATION”).

The Plaintiffs in RAGUIN argued that because their family physician had recommended massage therapy treatment, s. 88(1) of Part 7 required ICBC to pay for benefits for the treatment. Section 88(1) reads as follows:

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.

ICBC argued that massage therapy is a treatment that is only payable under s. 88(2)(f) of theREGULATION, a provision which gives ICBC the sole discretion to choose whether to provide benefits for certain treatments. However, the Plaintiffs argued that the terms “medical services” or “physical therapy” listed in s. 88(1) can include massage therapy.

The Court in RAGUIN began its analysis by observing that case law is conflicts over whether the list of treatments ICBC must provide under s. 88(1) is exhaustive, or whether it is just a general outline that can be expanded. The Court pointed out that “greater clarity in drafting might be helpful” in s. 88(1) in light of the confusion this provision has caused.

The Court provided a concise summary of how the various provisions in Part 7 operate:

[31]         The following observations about ss. 88(1) and (2) are uncontentious.  The imperative word “shall” is used in relation to ICBC’s obligation to pay for the benefits described in s. 88(1), making such payments mandatory.  Under s. 88(2), ICBC is given discretion, as indicated by the permissive word “may”, to pay for additional benefits that are “likely to promote the rehabilitation of an insured who is injured in an accident”.

[32]         Although the benefits listed in s. 88(1) are mandatory, ICBC has a limited power to challenge an insured’s claim made under that subsection.  This power is derived from the requirements that the expenses incurred must be both necessary and reasonable.  In determining whether a particular treatment is necessary and reasonable, ICBC may require a medical examination of the insured under s. 99(1) of the REGULATION.  ICBC may also demand a medical certificate under s. 98(1) of the REGULATION or a medical report under s. 28 of theACT.

Because of the many conflicting judgments which have interpreted the above provisions, it was necessary for the Court to go back to the precise language of the REGULATION and the principles of statutory interpretation. ICBC argued that the maxim “EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS (to express one thing is to exclude another)” supported its view that massage therapy is not included as a mandatory benefit under s. 88(1) given that it is not listed alongside other similar terms like “physical therapy” and “chiropractic treatment”.

However, the Court in RAGUIN was not content to limit itself to this analysis, and instead engaged in a broad history of s. 88(1):

[36]         A court may look to prior versions of an enactment to assist with interpretation of the version which is applicable in a particular case.  As stated by the Supreme Court of Canada, “prior enactments may throw some light on the intention of the legislature in repealing, amending, replacing or adding to it”: GRAVEL V. ST-LÉONARD, [1978] 1 S.C.R. 660 at 667.  As explained by Sullivan at 579, it is presumed that amendments are made for an intelligible purpose:  to clarify meaning, to correct a mistake, or to change the law.

[37]         Section 88(1) has undergone several changes.  Prior to 1983, the section provided (as appears in B.C. Reg. 428/73 s. 7.09):

7.09     MEDICAL, REHABILITATION AND FUNERAL EXPENSE – (a)  Where bodily injury is sustained by an insured as the result of an accident for which indemnity is provided under this Part, the corporation shall pay as benefits all reasonable expenses incurred, as the result of that injury, for necessary medical, surgical, dental, hospital, professional nursing, physiotherapy, chiropractic, and ambulance services, and, in addition, for such other services and supplies as are, in the opinion of the insured’s attending physician as approved by the corporation’s medical adviser, essential for the physical or psychological treatment or rehabilitation of the insured.

[Emphasis added.]

[38]         As may be seen from the underlined portion, the earlier wording of the current s. 88(2) was part of a catch-all in the provision predating the current s. 88(1).  The catch-all was limited by two requirements:  the insured’s attending physician had to believe that the treatment was essential and ICBC’s medical advisor had to give approval.  If the requirements were met, ICBC was obliged to indemnify the insured.

[39]         On 1 January 1983, “occupational therapy” and “speech therapy” were added to the list of mandatory benefits and the current scheme was enacted (B.C. Reg. 543/82 s. 21).  The language “in the opinion of the insured’s attending physician” was removed and the permissive term “may” was added to give ICBC’s medical advisor discretion as to whether to provide funds or services “likely to promote the rehabilitation” of the insured.

[40]         Revised regulations were enacted by B.C. Reg. 447/83 (effective 1 January 1984) and s. 7.09 became s. 88 of the REGULATION.

[41]         In 1985, “prosthesis and orthosis” were added to the list of mandatory benefits by B.C. Reg 379/85 s. 33.

[42]         In 1995, “physiotherapy” was changed to “physical therapy” by B.C. Reg. 491/95 s. 15.

[43]         In summary, the earlier wording of what is now s. 88(1) originally required ICBC to pay for specifically enumerated services and permitted for coverage of additional services and supplies.  The catch-all was removed from the mandatory coverage provisions along with reference to the attending physician’s opinion as to what was essential.  Over time, additions and variations were made to the benefits covered by s. 88(1):  prosthesis and orthosis were added and physiotherapy was renamed as physical therapy.

[44]         While not determinative of the issue before us, it appears that the trend in the legislation is toward specific enumeration of the type of mandatory benefits that can be covered and limitation of the role of the insured’s physician regarding what type of service may be necessary…

After noting that s. 88(1) has trended towards the “specific enumeration” of benefits, the Court observed that as the term “physical therapy” is not defined in the REGULATION, the current state of the legislation required it to look outside the precise terms of the provision to establish a workable meaning.  As a result, the Court considered both the Oxford Dictionary definition as well as the constellation of statutes in BC which regulate massage therapy treatment.

The Court’s wide-ranging overview of the legislation relating to the controversial term “physical therapy” led it to make the following observations:

[53]         Pursuant to the HEALTH PROFESSIONS ACT, a health profession involves the exercise of skill or judgment to preserve or improve health or to treat or care for those who are injured, sick, disabled or infirm.  Designation under the HEALTH PROFESSIONS ACT may be accompanied by regulation of how the profession operates.

[54]         Physical therapy, as defined in the PHYSICAL THERAPISTS REGULATION, concerns services aimed at treating the human body for the therapeutic purpose of maintaining or restoring function impaired by injury or disease.  These services include massage for the stated therapeutic purpose.  Physical therapy is a designated health profession and the practice is reserved exclusively for registrants.

[55]         Massage therapy is also a designated health profession.  As per the MASSAGE THERAPISTS REGULATION, massage therapy involves “kneading, rubbing or massaging the human body”.  Only registrants may practise massage therapy.

While ICBC argued that allowing massage therapy to be included under s. 88(1) would “open the floodgates” to allow certain questionable treatments to be considered mandatory Part 7 benefits, the Court in RAGUIN disagreed due to the extensive statutory regulation that applies to massage therapists.

The Court of Appeal concluded that even though s. 88(1) does not mention massage therapy by name, it can be included as a form of “physical therapy”, meaning that where massage therapy treatment is necessary and recommended by a physician ICBC will be obliged to pay the associated reasonable expenses:

[58]         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 in 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:  “[w]here 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 … .”

[59]         In this case, the respondents’ doctor recommended massage therapy as part of the infant plaintiffs’ recovery.  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.

[60]         I would dismiss the appeal.

It will be interesting to see what effect this decision has on the availability of Part 7 benefits and whether other forms of treatment will be found to fall within s. 88(1)’s enumeration of mandatory benefits.

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