David H. Doig, Lawyer Stephanie Markovich, Lawyer. David H. Doig & Associates March 29, 2012

Transcription

1 David H. Doig, Lawyer Stephanie Markovich, Lawyer David H. Doig & Associates March 29, 2012

2 Overview of Presentation: 1. Introduction to motor vehicle insurance in BC and important definitions 2. Mandatory vs. permissive benefits / ICBC s discretionary power 3. Power to demand medical certificates and Independent Medical Examinations (IMEs) 4. Interaction between Part 7 and tort action / effect on treatment providers 5. Power to terminate benefits for refusal to undergo treatment or training 6. How kinesiology fits into Part 7 / implications of the Raguin decision 7. ICBC policy re: kinesiologists 8. Dual responsibility + interaction between client, therapist and ICBC 9. Conclusion

3 Introduction Motor vehicle insurance in British Columbia governed by Insurance (Vehicle) Act More detailed rules created by Insurance (Vehicle) Regulation Part 7 of Regulation deals with medical and rehabilitation benefits provided by ICBC Medical and rehabilitation benefits are available to individuals who are insured under Part 7

4 Who is insured under Part 7? Owner named in vehicle owner's certificate Member of household of person named in owner's certificate Insured as defined in section 42 of the Act who is not in default of payment of premiums Member of household of insured described above (note: definition of member of household has been subject to extensive judicial interpretation) Occupant of a vehicle that (i) is licensed in the Province and is not exempted under section 43 or 44 of the Act, or (ii) is not required to be licensed in the Province, but is operated by a person named in a driver's certificate Cyclist or pedestrian who collides with vehicle described in an owner's certificate, or BC resident entitled to bring an action for injury or death under the Act, including the personal representative of a deceased insured

5 How to Apply for Part 7 Benefits 1. Promptly notify ICBC of accident (s.97(1)(a)); 2. Give written report to ICBC within 30 days of accident (s.97(1)(b)); and 3. Fill out appropriate form (CL-24) within 90 days of accident (s.97(1)(c)) ICBC must then pay claimant within four weeks (if weekly benefits) or 60 days (if other benefits)

6 Limitation Period Insured must start claim for Part 7 benefits within 2 years of: Date of accident If ICBC has paid Part 7 benefits, date of last payment Date that ICBC receives s.103 notice (must be served on ICBC w/in 2 years of accident) Two year limitation period is not postponed for infants or disabled persons, as it is for tort claim Tort claim governed by Limitation Act

7 Definitions in Part 7 "rehabilitation" means the restoration, in the shortest practical time, of an injured person to the highest level of gainful employment or self sufficiency that, allowing for the permanent effects of his injuries, is, with medical and vocational assistance, reasonably achievable by him "rehabilitation team" means a team of individuals, including representation from the rehabilitation staff of [ICBC], established (a) to determine the appropriate group residence for an insured, (b) to determine the care needs of an insured under section 88 (2), and (c) to evaluate any aspect of the funding, development of treatment, or rehabilitation plan for an insured

8 More Definitions... "medical practitioner" means a person entitled to practise medicine under the Health Professions Act or a similar law of another jurisdiction "health profession is defined under the Health Professions Act as a profession in which a person exercises skill or judgment or provides a service related to (a) the preservation or improvement of the health of individuals, or (b) the treatment or care of individuals who are injured, sick, disabled or infirm

9 Mandatory Benefits (s.88(1) ) If an insured is injured in an accident for which Part 7 benefits are payable, ICBC is required to pay all reasonable expenses the insured incurred as a result of the injury for necessary medical, surgical, dental, hospital, ambulance, professional nursing services, physical therapy, chiropractic treatment, occupational therapy, speech therapy, or prosthesis or orthosis NOT an exhaustive list of mandatory benefits Includes travel expenses if necessary for treatment

10 What if ICBC refuses to pay for a mandatory benefit? ICBC can refuse to pay for a mandatory benefit if they find it is not reasonable and necessary Disputes re: what is reasonable and necessary must be submitted to arbitration under the Commercial Arbitration Act (Reg. s.89) If ICBC does not invoke mandatory arbitration within a reasonable time, claimant has right to ask court to resolve dispute

11 Permissive Benefits (s. 88(2) ) ICBC may provide benefits to an insured who is injured in an accident where, in the opinion of ICBC s medical advisors, those benefits are likely to promote the insured s rehabilitation Expenses such as attendant care and pain management treatment that help claimant cope with pain and daily living, but do not restore function as stated in the definition of rehabilitation, are not covered under Part 7

12 Permissive benefits provided only once during a claimant s lifetime: Funds to purchase one motor vehicle equipped as necessary and appropriate for use and operation by the insured (s.88(2)(a)) Funds to alter an insured s residence to make it accessible limited to necessary lifts, ramps, bathroom alterations and kitchen alterations (88(2)(b))

13 Permissive benefits provided on a monthly basis: Attendant care that allows an insured to live in the community semi-independently, subject to restrictions (s.88(2)(c)) Periodic funding for a wheelchair, medicallyprescribed bed, bowel and bladder equipment, communication, dressing, eating grooming and hygiene aids, transfer equipment and a ventilator (s.88(2)(d)) Funds to undergo vocational training (s.88(2)(e))

14 ICBC s Discretionary Power ICBC has discretion when it comes to permissive benefits, BUT... Decision to fund particular treatment or equipment must be based on criteria that is specifically described or rationally connected to relevant factors governing an objective assessment Insured must obtain written approval from ICBC before incurring an expense for a permissive benefit (88(3) ) ICBC may require insured to submit necessary info to assist in determining entitlement before making a decision

15 Medical certificates (s.98) If ICBC requests, claimant must provide a certificate or report of a treating medical practitioner, dentist, physiotherapist or chiropractor as to the nature and extent of the insured's injury, and the treatment, current condition and prognosis of the injury Certificate or report can be in any form specified by ICBC, including verbal, written and electronic formats

16 Independent Medical Examinations (s.99) Claimant seeking Part 7 benefits must allow a medical practitioner, dentist, physiotherapist or chiropractor selected by ICBC to examine the insured as often as ICBC requires, at ICBC s expense Known as independent medical examination (IME) General rule = max. one IME per speciality, per claimant Medical practitioner will prepare a report following the IME If ICBC abuses its right by demanding too many IMEs, court can rule that ICBC cannot compel an insured to attend a particular IME

17 IMEs and the tort / Part 7 separation Usually separation between rehab benefits provided and tort claim Courts have said that reports obtained under s.99 can be used in the tort action If s.99 report is only relevant to an issue in the tort action, ICBCinsured defendant may be limited to using the same physician for a second exam under the Supreme Court Civil Rules If s.99 exam goes beyond scope necessary for Part 7, court may consider it to be done for purposes of tort claim, and defendant may be precluded from compelling plaintiff to attend further IMEs No automatic one for one matching between plaintiff and defence experts

18 Deductions Section 25 (Act): ICBC can deduct from cost of future care award estimated amount of Part 7 benefits authorized or required to be paid Section 83 (Act): Part 7 benefits integrated with tort damage awards Purpose is to prevent double recovery by claimant Also meant to protect driver responsible for MVA from claimant Could be significant if defendant is personally exposed /over policy limits Deduction = mandatory even if plaintiff did not apply for Part 7, unless ICBC gave claimant clear indication that Part 7 benefits would be refused No longer obligation for defendant to establish exact match between head of damage in tort award and expense to be paid under Part 7

19 Disability and Homemaker Benefits Available to employed person actively engaged in an occupation for wages or profit in six of the twelve months immediately preceding the accident Must be totally disabled from work 75% of pre-accident income, up to max. $300/week Benefits payable for duration of disability, up to 2 years Also homemaker, death and supplemental survivor benefits available similar scheme(max. 2 years)

20 Power to terminate benefits for refusal to undergo treatment or training (s.90(1) ) If ICBC s medical or vocational advisers are of the opinion that (a) any medical, surgical or other similar treatment is likely to relieve in whole or part the disability of the insured, or (b) a retraining or educational program is likely to assist in the rehabilitation of the insured, ICBC may require the insured, at ICBC s expense, to undergo treatment or complete the program If insured refuses to comply with requirement, ICBC may terminate payment of benefits under section 80, 84, 86 or 88 ICBC must give at least 60 days written notice before terminating

21 How does kinesiology fit in? Kinesiology has been accepted and paid for as permissive benefit Physical therapy is a mandatory benefit under s. 88(1) but not defined in the Regulation Arguably, physical therapy could include kinesiology (see next slides) Members of health professions listed in the Health Professions Act, including physical therapy, must meet the requirements of their governing bodies in order to practice

22 Raguin v. ICBC, 2011 BCCA 482 Two infant (under age 19) plaintiffs Plaintiffs challenged ICBC s refusal to pay for $742 worth of massage therapy Issue was line between mandatory and permissive benefits Judge reiterated that mandatory benefits listed in 88(1) are not exhaustive ICBC obliged to pay for massage therapy as mandatory benefit ICBC appealed case unsuccessfully

23 How does Raguin affect kinesiologists? Stands for general principle that a benefit could be mandatory, even if not provided by a practitioner listed in s.88(1) Courts are sometimes willing to expand breadth of mandatory benefits covered under Part 7 Could potentially include treatments provided by a kinesiologist Even mandatory benefits must still be reasonable and necessary

24 ICBC Policy re: Kinesiologists Must have a B. Kin. ICBC rate = $50/hour Considered a permissive benefit Usually hired following a doctor s recommendation Why does ICBC value kinesiologists? One on one work with client Focus on active programming Goal-oriented Can provide creative/alternative programs for clients Can provide detailed reports as to why some strategies are working and some are not

25 Dual Responsibility Client (insured) has a responsibility to follow his or her treatment providers recommendations for treatment, subject to reasonable limits Client is not obliged to follow overly risky or unproven treatments Practitioner has duty to treat the client in accordance with his/her professional obligations, and to provide an objective assessment and prognosis ICBC has obligation to pay for reasonable and necessary treatment

26 Conclusion Part 7 benefits are mandatory or permissive see also definition of rehabilitation ICBC considers kinesiology to be a permissive benefit, but recent case law may open the door for a new interpretation ICBC can order reports or IMEs re: the insured, within limits ICBC may require an insured to attend treatment they believe will be beneficial, and can terminate benefits if the claimant refuses ICBC values kinesiologists for providing treatment that is oneon-one, goal-oriented, active and creative ( think outside the gym )

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28 Final report released in June 2002 Authored by: Susan Forwell & Lyn Jongbloed Reviewed by Daryl Reynolds-Kinesiologist

29 ICBC Injury Service Provider Credentialing Project Executive Summary A wide range of health care services are provided to people who have been injured in motor vehicle accidents in BC and are insured by ICBC. These services are provided by numerous health care practitioners. It is not clear what is, or should be, involved in provision of each service nor the group(s) of professionals who possess the expertise to deliver that service.

30 ICBC Injury Service Provider Credentialing Project Purpose: To identify the competencies, qualifications and type of professional background required to provide 8 health care services. 10 health care provider groups whose members may provider services to ICBC were utilized to help identify these issues, with the following specific objectives;

31 ICBC Injury Service Provider Credentialing Project Objectives 1. Define the expectations and competencies for each of the following (8) health care services; Functional (physical) Capacity Evaluations Ergonomic assessment Worksite evaluation Therapeutic (rehabilitation life skills coaching) program implementation Vocational rehabilitation services Physical conditioning Case Management Disability Management

32 ICBC Injury Service Provider Credentialing Project Objectives (continued) 2. For each healthcare service, describe the expected outcomes and determine the professional group(s) whose members are considered to possess the competency/expertise to carry out the services, or who consider the competency/expertise required to complete the service falls within their domain.

33 ICBC Injury Service Provider Credentialing Project Objectives (continued) 3. For each of the health care services, determine the appropriate training, qualifications and/or experience required to offer each service

34 ICBC Injury Service Provider Credentialing Project Health care provider groups included in the project: Fitness/weight trainers (BCFACA) Kinesiologists (BCAK) Rehabilitations assistant (aid) (various service providers) Occupational therapists (COTBC) Physical therapists (CPTBC) Recreational therapists (BCTRA) Speech and language pathologists (BCASLPA) Audiologists (BCASLPA) Vocational rehabilitation practitioners (CARP-BC) Social workers (BCCSW)

35 ICBC Injury Service Provider Credentialing Project Curriculum review: Training/qualifications review conducted Qualifications of health care providers by program in BC (Table 1) Services provided by each Health Service Provider Group (as declared by each group) (see next page)

36 ICBC Injury Service Provider Credentialing Project

37 ICBC Injury Service Provider Credentialing Project Analysis and interpretation: Each of the (8) Health care services has a: Description Expectations and Competencies for Completing Service Referral Assessment Report Outcomes Qualifications

38 ICBC Injury Service Provider Credentialing Project Final review: The project acts inform Health Service Providers: If they are accepted to perform the service based on education and experience. What the expectations are in providing each type of service.

39 ICBC Injury Service Provider Credentialing Project Closing comment Unable to obtain confirmation that the Project findings and recommendations have ever been implemented. Thank you