In New Brunswick, first party automobile benefits must be incurred within four years of the accident. A benefit is incurred if reasonable necessity for the item or service was determined with certainty within four years of the accident.

Chestnut v. State Farm Mutual Mobile Insurance Co., [2005] N.B.J. No. 237, New Brunswick Court of Queen’s Bench

Ms. Chestnut was involved in a motor vehicle accident on August 24, 1999. The automobile was insured by State Farm Mutual Automobile Insurance Company (“State Farm”). The legislated, standard New Brunswick automobile policy limits payments for medical and rehabilitation expenses to those expenses or services incurred within four years from the date of the accident. This legislation was incorporated into the policy issued by State Farm.

Ms. Chestnut described the injuries she sustained in the accident as pain in her head centred at the base of her neck, pain in her lower back, and ongoing stiffness in her back and neck. In a report dated July 25, 2001, Dr. Fletcher recommended that Ms. Chestnut undergo a treatment at the pain clinic, and that after that treatment massage therapy should be considered. In addition, on August 18, 2003, Ms. Chestnut received a report from Dr. Symington who noted as follows:

Her present medications are Elavil 200 mg at night, Vioxx 25mg once a day, Flexeril 10mg three times a day as needed and MS Contin 30 mg every 12 hours. She has side effects with the Morphine and may need to switch to an alternative long-acting narcotic.

…

She may require further care depending on the above opinions. At present she is not attending physiotherapy, occupational therapy, chiropractor or massage therapist, but may need to in the future.

Ms. Chestnut commenced an application to compel State Farm to pay her for certain medical and rehabilitation benefits pursuant to her automobile insurance policy. In determining what benefits had been incurred within the four-year limitation period, Glennie J. relied upon Wawanesa Mutual Insurance Co. v. Smith (Committee of), [1998] O.J. No. 5058, where the Ontario Divisional Court determined that a similar statutory benefit provision should be interpreted literally, but in favour of the insured. The Ontario Divisional Court concluded that a remedial and purposive interpretation required that the word “incurred” be given a wide, but “determined with certainty” meaning. The Ontario Divisional Court concluded that the insured need not receive the item or service, pay money, or become legally obligated to do so within the four-year period, it is sufficient if reasonable necessity for the item or service in the amount of the expenditures was determined with certainty within that time.

In assessing Ms. Chestnut’s application Mr. Justice Glennie determined that interpretation of the word “incurred” must be given a wide interpretation, but must be determined with certainty. Mr. Justice Glennie determined that it would be sufficient for an insured to establish that the program or plan of treatment was determined and required prior to the limitation date. Mr. Justice Glennie declared that the massage therapy treatments which had been mentioned prior to the limitation date but not recommended until after the limitation date were not covered by the plan because the course of action was only optional and a possibility prior to the expiration of the limitation date. However, Mr. Justice Glennie determined that Ms. Chestnut was entitled to the cost of medications referred to in Dr. Symington’s August 18, 2003 report, and the cost of attendance at the pain clinic as they were both determined and required prior to the limitation date.

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