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What Can I Spend and What Will They Pay?

Will all of my massage therapy treatments be covered by ICBC at the end of my claim?  What if I was going to some anyways?  What  if I tried a treatment that didn’t work?

In this week’s case, the plaintiff has spent $27,245.00 on treatments as he dealt with symptoms arising from four different motor vehicle collisions (Fedosenko v Zahirfar 2018 BCSC 1297).  He claimed that full amount at trial.  The defendants argued that they should only be responsible for $10,304.00 of that treatment, saying that the plaintiff would have had massage therapy anyways, that no one had recommended chiropractic care to the plaintiff, that massage therapy and physiotherapy did not improve the plaintiff’s condition, and that treatments undertaken more than five years after the accident were more likely related to the plaintiff’s pre-existing condition.

Justice Kelleher disagreed, and awarded the plaintiff $22,000.00 in special damages:

[122]     I will address these matters in turn.

(a)      I accept that the plaintiff was seeing a massage therapist before the accident. The amount claimed will be reduced to reflect the fact that, more likely than not, Mr. Fedosenko would have incurred many of these expenses in any event.

(b)      A plaintiff is entitled to seek treatment from a chiropractor whether a physician has referred him or not. The plaintiff had seen a chiropractor before the accidents. He obviously felt chiropractic treatment had been beneficial before and would likely assist him again.

(c) & (d)        There is no requirement that a plaintiff must prove physiotherapy or massage therapy improved their condition. These treatments were reasonable expenses. Sometimes physiotherapy is not successful in improving the plaintiff’s condition. That does not make it an unreasonable expenditure.

(e)      It is possible that treatment might have been required in any event. That is the hypothesis of Dr. Laidlow. But it is only a possibility. I am satisfied on the balance of probabilities that the symptoms that have been treated to date arise from the accidents.

[123]     Of the special damages claimed, some $14,000 is for massage therapy. I conclude that some portion of these expenses would have been incurred in any event. Special damages of $22,000 are awarded.

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