ICBC was recently taken to task on one of its more commonly cited accident benefit policies, which is: “ICBC is not required to pay for massage therapy.” Not true, said the BC Court of Appeal on November 29, 2011 in a case called Raguin v. Insurance Corporation of British Columbia. In this case, two children ages 11 and 12 years old were injured in a car accident. Their doctor recommended massage therapy and they attended. Despite their doctor’s recommendation, ICBC refused to pay the accounts for massage therapy totalling $742.

In refusing to pay, ICBC took the position that it does not have to pay for massage therapy because it is not a mandatory benefit. Mandatory benefits include all reasonable expenses incurred by an insured for necessary medical, surgical, dental, hospital, ambulance, professional nursing services, physical therapy, chiropractic treatment, occupational therapy, speech therapy, prosthesis (artificial body part) or orthosis (medical brace or appliance) required as a result of injury. Discretionary benefits include any other benefit that ICBC agrees to pay that is likely to promote rehabilitation.

Through their litigation guardian, the children sued ICBC for reimbursement and won. In the trial judge’s reasons he said: “The doctor 'recommended' massage therapy, which in my view is sufficient to trigger an obligation to pay.” ICBC appealed and the Court of Appeal dismissed the Appeal stating that massage therapy falls under the definition of “physical therapy” and is therefore a mandatory benefit.

As a result of this decision, ICBC is now required to pay for reasonable expenses for massage therapy that is considered necessary treatment. You are not limited to a maximum of 12 visits, nor will those visits have to occur within the first 8 weeks from the date of the accident, as is currently stated in the ICBC Payment Guide.

While the amount of money involved in this case may have been small, the principal was not. It helps clarify what treatments ICBC is obliged to pay for under the accident benefits regulations (also known as Part 7 Benefits) and it is also a good reminder that ICBC Policy does not equal the law. If you have been told by an adjuster that a benefit you are seeking is not covered, consider seeking legal advice as the information you are receiving may not be accurate.

*Important Note: The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Photo: Contributed

Our lives are inundated with deadlines and time limits. Some time limits make events more exciting, such as the game show Minute to Win It where contestants have a minute to do silly tasks like balance six dice on a Popsicle stick held in their mouth. However more often than not, time limits are annoying but necessary for getting things accomplished. Even this morning my daughter reminded me that today was the deadline to purchase school photos or there was a penalty. I took her word for it and quickly filled out the forms while rushing out the door. Lawsuits are no exception. There are strict time limits for filing lawsuits, called limitation periods, which must be adhered to or you will give up your right to claim compensation.

Often I will get calls from clients who are considering pursuing legal action, only for them to be told that they are too late and there is nothing I can do. This is always disappointing news to provide and the response I often get is “I had no idea I had a time limit!”

Lawsuits have varying limitation periods depending on the type and specific facts of the case. As a result, it is important to get good advice from a lawyer in the relevant practice area. If you miss the deadline you will give up your right to claim compensation. The good news is that many lawyers will not charge you for this advice, at least in the personal injury context. As a result, you have nothing to lose and everything to gain by making early contact with a lawyer. Even if you’re not sure you want to commence a lawsuit, if you get this small, but vital piece of advice, you will at least know the last date you have to make the choice to sue or not.

One common mistake I see clients make is that they assume that because they notified the insurance company they have done everything they need to do. Unfortunately, that is not the case. Even if you have been negotiating directly with the insurance company or you have appealed a decision of the insurance company using its appeal process (which is common in long term disability claims), those actions do not stop the limitation clock from ticking and you may find yourself out of time. Although there are some exceptions, generally speaking nothing stops the clock except the filing of the lawsuit.

Another mistake I see clients make is deciding not to contact a lawyer because they do not think they have been too badly hurt, they are going to wait and see how they recover, or the insurance adjuster told them they don’t need a lawyer. While the wait and see approach can be a good strategy, this is only after receiving advice about the limitation period. For example, if your claim is against the City or Municipality, s.286 of the Local Government Act requires you to put them on notice of your claim within 2 months from the date in which the damage was sustained. While the Court can overrule this requirement, you do not want to be in a position of adding additional hurdles to your claim.

Most personal injury cases have a 2 year limitation period (long term disability claims a 1 year limitation period), but do not assume that is the limitation period in your case. As mentioned in the example above, the limitation period can be significantly shorter or in some cases longer. In addition, if you are in a car accident, there are certain forms and information that needs to be provided to ICBC within set time limits or you may also give up your right to accident benefits.

In conclusion, don’t wait to find out the deadline to file your lawsuit or you may miss it. If there is even a remote possibility that you may want to commence an action, you need to find out your limitation period and if there is anything else you need to do to protect yourself. Even if you think you have missed your limitation period, be sure to talk to a lawyer as sometimes there are exceptions.

*Important Note: The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

As a personal injury lawyer, it may come as no surprise that my friends and family joke about whether they need to sign a waiver form before entering my home. For those of you who are thinking, “Does she actually make them sign a waiver?” the answer of course is “no”, although for some family members (who shall remain nameless) it might not be a bad idea! All kidding aside, most of us have to sign waiver forms (also known as release forms or consent forms) from time to time. The main purpose of these forms is to protect the service provider from legal action. A waiver form typically states that by signing the form you are agreeing to give up your right to sue for any injuries or damages that you may suffer as a result of participating in the activity. Despite the significance of the right you are giving up, in my experience, no one ever reads these forms or is concerned that they should be reading them before signing. So, given this nonchalant attitude towards waivers, you might wonder “do waiver forms actually mean anything?”

The law with respect to children is that parents or guardians cannot waive their child’s right to pursue legal action for a claim in negligence relating to recreational activities. In other words, waiver forms in relation to children’s activities are essentially useless. This was confirmed in a case called Wong v. Lok’s Martial Arts Centre Inc., 2009 BCSC 1385. In this case, the plaintiff’s mother signed a waiver form when enrolling her son in the martial arts school which essentially stated that she was releasing the school from liability for injury to her son. She admitted that she did not read it carefully. The plaintiff was injured when he was violently thrown to the ground in the course of a sparring match. His mother commenced legal action against the school on his behalf. The court held that the Infants Act does not permit a parent or guardian to bind a child to an agreement waiving the child’s right to bring legal action for injury.

As for adults, waiver forms are often enforceable. The court will give effect to a clearly worded waiver form that is signed prior to enrolment in the activity. In other words, if the waiver form is clear and you sign it before you start the activity, you will be bound by the terms of the form. Contrary to popular belief, there is no need for the organization to ensure that you understand or even read the document unless a reasonable person should have known that you would not consent to the terms contained in the form. Factors that impact whether certain information should have been brought to your attention include the length and format of the document, the time available for reading and understanding the document, and whether the clause in issue is contrary to your normal expectations (see Karroll v. Silver Star Mountain Resorts 1988 CarswellBC 439).

If you are involved in an accident where you have signed a waiver form, it is always a good idea to seek legal advice before deciding the fate of your case. The specific wording of the document and the particular circumstances of your case may be one where the waiver is not enforceable.

If you are the provider of a recreational activity, it is always a good idea to have a waiver form. You should make the form simple and easy to understand and wherever possible have the form reviewed by a lawyer to help ensure its enforceability. Also, despite my earlier comments, it is still in your best interest to bring the contents of the waiver form to each participant’s attention and make sure they understand what they are signing. With respect to children’s activities, although the forms are currently unenforceable, they are still useful for bringing the risks of the activity to the attention of the parents or guardian of the child and it is possible that at some point there may be a change in the law.

In conclusion, next time you are asked to sign a waiver form, understand that, at least for adults, waiver forms will often be enforceable regardless of whether you read the form. As a result, it may be worth your time to read and understand the rights you are giving up before you sign the form.

*Important Note: The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Photo: Contributed - (Flickr user, charliebrewer)

School’s out for summer, and that only means one thing: summer vacation! Many of us get caught up in the excitement of planning our vacation, including details like where to go, what activities to do, who we’ll see, etc., and let’s face it, when you are getting ready to go on vacation, you’re more likely to think about what bathing suit to pack than what travel insurance you are buying. However, if you are planning on leaving the country, regardless of your age or state of health, you need to be purchasing travel medical insurance. Even the youngest and healthiest among us get injured or sick from time to time. Unfortunately, purchasing travel medical insurance is not a one-size-fits-all purchase, and if you buy the wrong policy you may not be covered. If getting sick or injured on vacation is not bad enough, a hospital bill for $50,000 or more will certainly add salt to your wound and ruin more than just your holiday time.

Purchasing travel insurance is easy. However, purchasing travel insurance that is actually going to provide the coverage you need is not. It is critical that you purchase the right insurance and properly disclose any pre-existing symptoms, treatment or medical conditions. Otherwise, the insurance policy you purchase is not worth the paper it’s written on. If an insurance company can get out of having to pay big medical bills, they will, and denying coverage is an all too common occurrence.

There are many cases where the insurance company can legally deny coverage. For example, insurers will be able to legally deny coverage where:

• you did not meet the criteria required to receive the coverage in the first place, such as not being in “good health” at the time of purchase (*if that was a criteria of the policy you purchased);

• you were injured while participating in activities not covered by the policy purchased, such as rock climbing, parasailing, zip lining, hang-gliding, parachuting, bungee jumping, skydiving, motor sport, scuba diving without certification, or injuries related to drug or alcohol abuse;

• you did not comply with the terms of the policy, such as failing to notify the insurance company or submit the required documentation within the short time limits prescribed; or

• the medical treatment you required was not covered by the policy purchased, such as care related to: childbirth, organ transplants, HIV, sexually transmitted diseases, re-occurring health issues, symptoms you had before your trip that you should have sought treatment for but didn’t, mental or emotional disorders, or expenses in excess of the policy limits.

Most people, including lawyers, rely on the sales agent to tell them what type of insurance they are buying and don’t read the fine print. Unfortunately, the sales agent in many cases has either not read the fine print or has no idea how the clauses are interpreted. As a result, it is a good idea to follow the steps below to help ensure that you have proper coverage in place:

• Pick up or print off a copy of the insurance policy you are planning on buying and read it before you purchase it. Travel medical insurance is available, online, from banks, travel agents, insurance companies and various other places. Reading the policy is important for everyone, but is absolutely essential for anyone with pre-existing health issues, those over the age of 60 or anyone planning to participate in risky activities (i.e. zip lining) while on the trip;

• Compare the policies that are available. The cheapest is often not the best. There are websites that compare policies online;

• Purchase your insurance several weeks in advance of your trip, not the night before you leave. This way if you didn’t read it before you purchased it, at least you have time to read it before you leave;

• Purchase your insurance from a reputable company and sales agent;

• Ask questions of the sales agent, and specifically ask the agent what is not covered by the policy;

• If you have had any health problems, disclose these to the sales agent so that the agent can recommend the appropriate policy or, if necessary, obtain your medical records and submit them to the insurance company prior to purchase;

• If you have to see your doctor or the hospital for anything before you leave, notify your insurance agent and make sure your coverage is still valid;

• Don’t assume your health problems are “minor” and don’t matter for the purposes of obtaining travel insurance. Often times “minor ailments” are defined in the policy and your symptoms or condition may not fit within that policies definition;

• If you or the agent is not sure if you would be covered, call the insurance company that is providing the policy and ask for confirmation from the company that you would be covered.

If you follow the above recommendations, you should be able to enjoy your vacation with peace of mind that you will be covered in the event your vacation is not exactly the excitement you planned for. If you have purchased an insurance policy and have been denied coverage, it is a good idea to seek legal advice on whether the insurance company has properly denied coverage.

*Important Note: The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Author: Keri Grenier p: 250.879.1280 e: grenier@pushormitchell.com