Passive Aggression at Court

When people are injured, there are lots of types of treatment:

• do nothing (“tincture of time”);

• rest;

• mindfulness meditation (usually with a recording you listen to);

• lifestyle change (e.g., lose weight, quit driving);

• physical therapy (massage, physiotherapy, acupuncture, needling, TNS, etc.);

• exercise (guided by a trainer at the start);

• medication (usually pain-killers);

• psychotherapy (usually “talk” therapy or EMDR, plus medication);

• injections (e.g., cortisone, prolotherapy); and

• surgery.

Everything except exercise and psychotherapy consists of someone else doing something to you. That’s called “passive” therapy. Insurance companies hate it. Because if a professional (massage therapist, physician, etc.) is providing such services, the insurer can’t blame YOU for not getting completely better in the few weeks they demand. They equate “passive therapy” with “useless treatment” or “unworthy patient”. By the insurer’s definition, heart surgery is “passive”. So is anesthesia. So is shock wave treatment for kidney stones. So is pain medication. So are antidepressants. It’s much cheaper for the insurer to say: “Suck it up” than pay what they owe.

Passive therapies work.  They also are far less dangerous than other things.  That’s why doctors prescribe them: the least dangerous treatment should be used first.  No one ever overdosed on massage – but it can relieve pain as well as drugs do.  No one ever got addicted to physiotherapy.  No one ever had an allergic reaction to meditation.

Some insurance adjuster with a Grade 12 education refuses to pay for your professionally-prescribed treatment. They hire a lawyer who argues you have to stop “passive therapy” and do active stuff. They make you sound lazy, or a whiner. They hire dishonest “experts” who write reports saying “passive therapy” is useless after the first days or weeks. They claim “passive therapy” doesn’t heal anyone.

Many judges buy into this false position.

It would be career-ending for this blog to direct you to specific cases where judges have disparaged passive therapy. But you can look for yourself. Go to: https://www.canlii.org/en/ and type “passive /2 therapy” and see all the hits. We got 437….

It’s offensive. No one will agree to experience pain if they have a choice. People in pain may pray for death. No one dying prays for pain.

Massage, physio, acupuncture, medication — all help reduce pain and disability. Often, it takes a course of these to get you ready to try more physical stuff: If it hurts to walk, it’s pretty hard to exercise until we deal with the pain. What’s especially offensive is that every insurance adjustor, and every defence expert, defence lawyer and judge who says “passive therapy” is useless has medical benefits which pay for their own “passive therapies” — often with no real limits.

How come it’s “useless” if YOU are prescribed physio, massage, pain-killers — but not when it’s used by that defence adjustor, defence lawyer, or judge?

It’s a mystery.

It’s also bullshit.

At Clear Legal, we have been helping people get the help they need since 1990.