IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130429

Docket: M113099

Registry:
Vancouver

Between:

Zarina Sawyer

Plaintiff

And

Dan R. Recuenco

Defendant

Before:
District Registrar Cameron

Oral Reasons for Decision

[1]            
This appointment to assess the costs due to the Plaintiff follows upon the
settlement of a personal injury claim resulting from a motor vehicle accident.

[2]            
The plaintiff suffered a number of soft tissue injuries in the accident
which occurred on August 24^th, 2009 and over the course of the
ensuing three plus years she has received treatment and therapy from a number
of physicians and therapists.

[3]            
The parties settled the tariff items and most of the claimed
disbursements but they were unable to resolve a disbursement incurred in
respect of a cost of future care report prepared by an occupational therapist,
Ms. Theresa Wong, from Viewpoint Medical Assessment Services Inc.

[4]            
Ms. Wong’s report is dated October 22, 2012 and it follows her meeting
with the Plaintiff on October 10, 2012 at her home to assess her circumstances.

[5]            
The report was relied upon by Plaintiff’s counsel in the litigation in
support of a claim for cost of future care and the invoice for the report
totals $4,050.

[6]            
In addressing the entitlement to this disbursement, I begin with reference
to Rule 14-1(5) of the Supreme Court Rules which reads:

When assessing costs under subrule (2) or (3) of this rule, a
registrar must

(a) determine which disbursements have been necessarily or
properly incurred in the conduct of the proceeding, and

(b) allow a reasonable amount for
those disbursements.

[7]            
In Zaenker v. Kirk, 2008 BCSC 1460, the court noted at paragraph
24:

…. “necessary” disbursements are
essential disbursements, which means that they are outlays that could not be
avoided in the conduct of the proceeding, whereas “proper” disbursements are those
reasonably incurred in the conduct of the proceeding but are, strictly speaking,
avoidable.

[8]            
In Van Daele v. Van Daele, 56 BCLR 178, our Court of Appeal
established that to determine whether a disbursement will be allowed it must be
judged by the situation at the time the expense was incurred.

[9]            
In support of this disbursement, Plaintiff’s counsel, Mr. Howard, in
paragraph 21 of his Affidavit testifies:

Part of the plaintiff’s case
involved the need to exercise and the need to lose weight and the need for
follow-up physical therapy to quantify the needs and evaluate the costs of such
programs.  Accordingly, I engaged Teresa Wong through Viewpoint Medical
Assessment Services Inc. to prepare a report pertaining to the cost of future
care involving the plaintiff.  In my opinion, it was necessary to request a
report from Ms. Wong for those reasons.  In my opinion, the cost of Ms. Wong’s
report, $4,050, is relatively inexpensive compared to the average cost of these
reports which in my experience frequently exceeds $5,000.

[10]        
Mr. Howard, in his submissions before me, said it was difficult to
determine what level of exercise the Plaintiff had been doing and that it was
reasonable for him to obtain a report assessing her daily living needs and to tailor
her activities to insure that she made the progress that she should make in her
own best interest through a carefully structured exercise program.

[11]        
Ms. De Baie stressed that proportionality should be a primary consideration
in whether or not this disbursement should be allowed. She noted that prior to
the involvement of Ms. Wong, the Plaintiff had already been assessed twice by
an experienced physiatrist, Dr. O’Connor, and that Dr. O’Connor had given her a
detailed list of exercises, in fact, being very helpful and specific in his
advice to her. Dr. O’Connor provided that advice in July or August 2011.

[12]        
Unfortunately, as matters transpired, for whatever reason, the Plaintiff
was not able to adjust herself to doing what was necessary to engage in the
recommended regular exercise program and when she was seen in a follow-up visit
by Dr. O’Connor on June 12, 2012 he subsequently reported on her failure to
take all the necessary steps to improve her physical well being.

[13]        
Referring specifically to the medical evidence that was available to Plaintiff’s
counsel, at the time he made the decision to retain Ms. Wong, I refer to the first
report of Dr. O’Connor dated August 3, 2011. At the bottom of page 2 of his
report :

After the motor vehicle accident on August 24^th,
2009 she complained of neck, mid-back, and low back pain, dizziness and
nausea.  It is my impression that she suffered the following problems:

(1)            
Benign positional vertigo and intermittent nausea with change in head
position.  This is outlined by Dr. Mahoney.  This has since resolved.

(2)            
Neck Pain.  Her neck pain in my opinion is due to a musculoligamentous
strain to the neck and whiplash type acceleration deceleration forces to the
neck and soft tissues;

(3)            
Mid-back and low back pain.  The mid-back pain is primarily myofascial
in nature.  The low back pain is a mix of myofascial pain and axial or
mechanical low back pain related to her deconditioning.

(4)            
Deconditioning.  She is profoundly deconditioned and is obese. Her
weight and her deconditioning are significantly affecting her low back,
mid-back, and neck pain and her more widespread soft tissue pain.  With a 30 to
40-pound weight loss combined with a strength and conditioning program a lot of
her neck and mid-back symptoms should improve significantly.  It is important
to note that this is going to take six months for some reconditioning and more
likely over a year of regular exercise to work on a significant weight loss to
get her back into her pre-pregnancy and pre-motor vehicle act state.

(5)            
Prognosis.  She has not reached maximum medical improvement and should
improve further with further strength and conditioning.  Once she is able to
build up her core strength and physical conditioning it is more likely than not
that her symptoms will improve significantly.

(6)            
Recommendations.  Strength and conditioning program that should address
both cardiovascular conditioning and endurance and strengthening of her back. 
The cardiovascular conditioning should include 150 minutes a week of sufficient
enough intensity that she is huffing and puffing.  The strength and
conditioning should start with the following exercises four times a week:  Four
sets of 12 to 15 repetitions:

(a) shoulder shrug starting with no
weight and slowly building up to 20 pounds in each hand;

(b) bent over row starting with no
weight and building up to 20 pounds in each hand;

(c) push-ups starting on the wall
and progressing to the level of a counter, bend to the level of a couch, and
then down onto the ground;

 (d) planks front and side building
up to the ability to do this for a minute at a time.  Her family doctor can
continue to check this and test how long she is able to hold a plank for to gauge
her progress.  Once she is able to do a plank for a minute she can start with
neck flexion, side flexion, and extension exercises using the weight of the
head as a weight;

(e) work out on the ball trying to do back flexion, side
flexion, and extension.

Once she is able to do these appropriately she should be
able to progress with more regular routine activities in the gym.  Until that
time I would try to get her to pick an activity in the gym that does not bother
her such as the elliptical machine or bike to try to get her cardiovascular conditioning
in as best as she can.

[14]        
Dr. O’Connor also notes:

She did go to physiotherapy but
this was fairly intermittent as she only had a few visits that were paid for
ICBC.  Her physiotherapy intake report on July 12^th, 2012 outlined
predominantly low back pain.  She was complaining of some low back pain and
numbness in her feet when she walks.  She was seen through August and September
2010 and then tried to do some of the home exercise program on her own.  She
has not gotten back to the gym or done any other regular physical conditioning
since.  She failed to lose the weight that she had gained during her pregnancy
and is still approximately 30 to 40 pounds heavier now than she had been prior
to her pregnancy.

[15]        
Under functional history Dr. O’Connor notes:

She shares the cooking and cleaning
duties with her husband and her husband does most of the cooking and cleaning. 
She feels tired and fatigued by the time she gets home.  Prior to the accident
she was going to the gym daily five days a week.  When she became pregnant she
started doing a prenatal exercise class.  She has not gotten back to the gym at
all.  It has been recommended by her physiotherapist but she has found it
difficult given her fatigue.

[16]        
In a follow-up report dated June 12, 2012 Dr. O’Connor said:

Zarina has had no interval injury since I last saw her.  My opinion
with regards to her list of problems remained unchanged and is outlined in my
August 2^nd report.  My opinion in regards to causation remains
unchanged.

Prognosis:  She has still not
reached maximal medical improvement.  She has just started doing some basic
strengthening conditioning but at a very low level.  Her body mass index is
32.1 which is still in the obese range and her weight has actually increased
and her core strength has not improved at all.  This indicates that she has not
been doing any strengthening that is of sufficient enough intensity or
cardiovascular conditioning sufficiently frequently or intense enough that she
has gained any ground in these regards.  She has started exercising, which is a
step in the right direction, but has not done this to a sufficient enough
intensity or fitness level that she has actually made any improvement as of yet.

The only thing that is going to
lead to any significant improvement at this point is getting the muscles strong,
as I outlined last time.  The best case scenario is that over the next year she
actually gets these muscles strong and decreases her body mass index and gets
to the point where she is able to hold a plank for closer to 60 seconds and
works on more regular conditioning would be that her back pain improves.

[17]        
In this context the decision was made by Plaintiff’s counsel to obtain
the cost of future care report of Ms. Theresa Wong.

[18]        
In her report, Ms. Wong refers to the considerable medical information
that she reviewed, including the two reports of Dr. O’Connor that I have
referred to.

[19]        
In respect of Ms. Wong’s report, I have determined that she does not materially
add to the understanding of the Plaintiff’s condition or what should be done to
ameliorate it following the motor vehicle accident. Rather, she has provided
some basic information to determine the cost of recommended continued care with
a physiotherapist and a kinesiologist. In my view, this information could have
been readily obtained from the Plaintiff’s own physician or from her
physiotherapist.

[20]        
I agree that there must be a consideration of proportionality and I have
taken into account the provisions of Rule 1-3 and Rule 14-1(2) (b) of the Supreme
Court Rules.

[21]        
The specific recommendations made by Ms. Wong in her report just confirm
the earlier medical advice of Dr. O’Connor. She confirms that a range of
rehabilitation and support services, supplies, and equipment are required to
insure optimal functional capacity in future for the Plaintiff. Ms. Wong also
opines that some additional physiotherapy would be of assistance, that a
consultation with a kinesiologist who could follow up on the recommendations of
physical activation recommended by Dr. O’Connor would be helpful, and that an
ergonomic assessment for her office where she works a full-time job doing data
entry and data input would likely be of assistance.

[22]        
There are also some recommendations provided for some modest home
support and, if necessary, some medical supplies, primarily medication and some
pain management.

[23]        
In all of the circumstances, I have concluded that commissioning the
report from Ms. Wong when there was already a well developed medical and
rehabilitation plan in place for the Plaintiff that covered the same ground was
borne out of a sense of excessive caution and it was not reasonably incurred. The
disbursement is disallowed.

[24]        
Taking into account that the result of this assessment including my
ruling on other challenged disbursements was more favourable to the defence
than their offer to settle I award the Defendant costs of $660 inclusive of
disbursements.

“District Registrar Cameron”