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Passive therapy and future care

I find that massage and physiotherapy are crucial to managing my symptoms, and maintaining my functioning. What evidence will satisfy a judge that this care is reasonably necessary for my future?

I recently summarized the income loss analysis in Bains v. Gret’s Projects Inc. (2017 BCSC 1530) – my summary here. Today’s summary looks at the cost of future care award for passive therapies such as massage and physiotherapy. It can be tempting for claimants to continue getting this care despite a lack of medical justification – but medical justification is required to compel ICBC to cover this future care. In considering the plaintiff’s sought future care award, Madam Justice Young first summarized the applicable law:

[128]     The plaintiff is entitled to compensation for cost of future care based on what is reasonably necessary to restore her to her pre‑accident condition insofar as that is possible. The award is based on what is reasonably necessary on the medical evidence to promote the plaintiff’s mental and physical health: Milina v. Bartsch, (1985), 49 B.C.L.R. (2d) 33 (B.C.S.C.); Peters v. Ortner, 2013 BCSC 1861 at paras. 141-145.

[129]     There must be medical justification for the claim for cost of future care and those claims must be reasonable and fair to both parties. The Court must determine the services, medications, and aids that are reasonably necessary to promote the health of the plaintiff and assess the likelihood that she will use in the future: Bouchard v. Brown Bros. Motor Lease Canada Ltd., 2011 BCSC 762.

[130]     The test for determining the appropriate award is an objective one based on medical evidence. There must be medical justification for claims of cost of future care and the claims must be reasonable.

[131]     The plaintiff is not entitled to an award for the portion of the cost of future care that will be publicly funded.

One issue was whether she should be awarded for future supportive therapies including massage and physiotherapy – which the ICBC lawyer opposed. Madam Justice Young confirmed that she was satisfied on the medical evidence that the plaintiff would require these therapies on an occasional basis for the rest of her life (para 136):

[133]     Dr. Gatha agrees with Dr. Chow’s recommendations. In addition, he recommended physiotherapy treatment with ongoing lifelong gym management for her patellofemoral syndrome….

4.       I make an award for supportive therapies and pain program for the first two years in the amount claimed which is $2,352. I make a further award from years three until the plaintiff is 80 years of age. This is opposed by the defendant. On the medical evidence I have reviewed, I conclude that the plaintiff will require massage therapy and physiotherapy on an occasional basis for the rest of her life in order to keep mobile and relatively pain-free. I accept the claim for $1,000 per year. Using a multiplier of 30,164, I make an award in the amount of $30,164.

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