'Unfair and flawed': Tribunal orders ICBC to pay after it cancels victim's treatment
A BC woman left in chronic pain following a car crash has had to resort to taking ICBC to a Tribunal to get the provincially-owned insurance company to cover $4,700 of chiropractic and massage therapy bills.
According to a July 17 BC Civil Resolution Tribunal decision, ICBC had refused to cover Kaylene Tooby’s bills, saying the medical evidence was insufficient.
However, the Tribunal disagreed.
"ICBC has repeatedly been found to interpret (the law) too restrictively," the Tribunal ruled, adding that Tooby’s doctors had recommended chiropractic and massage treatments to alleviate their pain symptoms.
The decision said Tooby was in a head-on high-speed crash in 2021 and now suffered from a whiplash associated disorder.
While ICBC had covered some chiropractic and massage treatments it then stopped.
In the decision, Tooby argued that BC's new enhanced care model was "unfair and flawed."
"They say that it is an uphill battle to navigate the system and that the legislation is not providing motor vehicle accident victims the aid they need," the decision read.
Tooby made multiple allegations about their treatment from ICBC's adjusters as many others have before.
ICBC pre-emptively told Tooby they were not entitled to further chiropractic and massage treatments, a move the Tribunal ruled had no legal bearing.
In defending its decision to cut the benefits, ICBC said the medical evidence wasn’t good enough, even though a doctor's report said chiropractic treatment would be "most helpful to alleviate (their) symptoms."
The insurer argued that "most helpful" doesn't indicate that treatment would help with recovery.
"I find ICBC’s interpretation of the medical evidence to be unduly narrow," the Tribunal ruled. "Tooby remained unable to do any of their pre-accident activities and that the condition of their neck was worsening rather than improving."
Tooby also argued that ICBC should reinstate her income replacement benefits after ICBC cut them off.
They had been on a graduated return to work but quit due to a "toxic work environment," and ICBC then cancelled the benefits saying that wasn't a "reasonable excuse" for stopping work.
However, the Tribunal said ICBC hadn't considered what a "reasonable excuse" to leave their job was.
"Depending on what made their work environment 'toxic,' I find that this could provide a reasonable excuse for Mx. Tooby to quit their job, despite being physically able to work through their injuries on a graduated return to work basis," the Tribunal ruled.
The Tribunal ordered ICBC to reinstate the benefits, but stopped short of saying when the insurer should pay them until. The Tribunal said if Tooby has an issue with ICBC's decision they can file another case with the Tribunal.
The Tribunal also dismissed Tooby's claim for permanent impairment compensation as the law doesn't acknowledge whiplash as an injury that qualifies for the compensation, even if it results in chronic pain.
"Nothing in this decision prevents Mx. Tooby from reapplying for permanent impairment compensation at a later date, once there is medical evidence that their impairments have become permanent," the Tribunal said.
Ultimately, the Tribunal ruled ICBC had to reimburse $4,700 for chiropractic and massage therapy bills.
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