IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20140425

Docket: M91223

Registry:
Kelowna

Between:

Diane Gray

Plaintiff

And

Otto Kohnert

Defendant

Before:
Master Young

Oral Reasons for Judgment

[1]            
THE COURT: This is an assessment of a bill of costs following
the settlement of a personal injury action. The tariff items are not in
dispute, but there are disbursements of $21,854.06 in dispute. The
disbursements are primarily for medical legal opinions.

[2]            
ICBC has made a recent practice of challenging medical disbursements. I have
heard more disbursement challenges in the last few months than I have in the
past two years. This is not intended to be a criticism. The defendant, more
often than not, is the party who bears the cost of these disbursements, and
their charges have been increasing fairly dramatically over the years,
especially with the increased use of medical expert booking agencies. ICBC has
an obligation to the public to manage its costs, and so it is well within its
rights to challenge disbursements that appear to be unreasonable.

[3]            
On the other hand, or other side of the coin, is the equally compelling
issue of access to justice to the plaintiff. Mr. Einfeld’s general submissions
at the beginning of this assessment were compelling and warrant repeating. I am
paraphrasing them here:

Plaintiff’s counsel does not have
the bargaining power that the Insurance Corporation has in retaining experts to
provide opinion evidence. The Insurance Corporation can set the rate it is
prepared to pay for reports because it commissions so many reports in a year. Not
so for the plaintiff. They have to obtain opinions to build their case. Their
experts must be available for trial and have reports prepared in time. They
often have to wait over a year for medical appointments. Physicians who qualify,
and who are prepared to testify at trial, are few in number and high in demand,
so they charge what the market will bear. If the court routinely discounts the
charges for medical professionals, then either it will be more difficult for
plaintiffs to prove their case or the cost of reports will be taken out of the
plaintiff’s award. Plaintiffs already have their awards reduced by the legal
fees they are required to pay in order to prepare their case and they are
partially, but not completely, compensated for this through the award of costs.

That ends the paraphrasing of Mr. Einfeld’s
submissions.

[4]            
The assessment of disbursements must keep both of these competing
interests in mind. Disbursements must be assessed on a case-by-case basis and
report-by-report basis on the merits of the necessity and the reasonableness of
the work product. There should not be a blanket policy that reports will be
discounted if they exceed a certain dollar amount or a certain hourly rate
amount. In addition to the complexity of the legal assessments and report, other
factors may impact an assessment, including urgency of the request, whether it
is necessary to retain out‑of-province experts, and whether there is a
need to use a referral service. Registrars are frequently shown the BCMA
Guide by defence counsel and asked to rely on it as the standard for
medical charges. At times, it is the only evidence we have to assess reasonableness
against. It is a guide only, it does not bind the court, and it does not bind
experts from out of province.

[5]            
In the case before me, the trial was booked for August 6, 2013, and it
settled on July 25, 2013, which was just short of two weeks in advance of the
trial. The first disbursement that is being challenged is the MRI cost in the
amount of $1,600. Dr. Apel, the physiatrist, has recommended a SPECT scan
as a diagnostic test. I was not familiar with this test, so I have
reviewed the Wikipedia definition, and it is a single proton emission computer
tomography, which is a nuclear medicine imaging technique, and it is able to
provide three-dimensional information and requires the delivery of a
radioisotope into the patient’s bloodstream by injection. This test was not
available privately, and so counsel for the plaintiff inquired as to whether an
MRI could be used as an alternative. Dr. Apel signed the requisition, so
the plaintiff’s counsel assumed that she agreed that the MRI was a reasonable
alternative. When she prepared the report, she said that she had not
recommended an MRI.

[6]            
In Farrokhmanesh v. Sahib, 2010 BCSC 497, Registrar Sainty said:

[44]      …there must be some
medical reason for ordering an MRI. It is not simply enough that counsel seeks
some (potential) objective evidence of an injury

[7]            
In Bodeux v. Tom, 2013 BCSC 2327, Master McDiarmid denied a claim
for a privately funded MRI, where there was no evidence that the publicly
funded MRI was not available.

[8]            
There is no evidence before me that a publicly funded MRI could not be
scheduled in time for the trial. This evidence could be attained, I suspect, by
contacting a hospital and other publicly funded clinics and asking how far in
advance they are booking appointments. It would be helpful in assessments to
have that information, and I have denied private MRIs before where this
information was not provided.

[9]            
In this case, I see that the requisition itself was completed by Dr. Apel
sometime in December. It took until January to obtain an appointment for a
private MRI. The MRI report then had to be sent to Dr. Apel, so she could
comment on it and prepare a report. It had to be served 84 days prior to August
6, 2013, which would be the beginning of May, so the scheduling was reasonably
tight. Under those circumstances and in this situation, where the requested
test was not available and the alternative test was ordered by the expert, I
find that it was reasonable to retain a private clinic to perform the MRI to
ensure that the medical opinion could be obtained in time for service
deadlines, so I am allowing the disbursement in the amount of $1,600.

[10]        
I am moving on to Dr. Apel’s several invoices. There are four. The first
invoice was January 16, 2013, and it was for $1,120. The second invoice is
June 11, 2013, for $1,310.40. The third was June 24, 2013, for $1,882.13,
and then her final invoice was for her trial prep and cancellation fees,
$3,700.

[11]        
Dr. Apel is a physiatrist who has an appointment at the University
of Calgary as a clinical neurophysiologist. She has a special interest in
chronic soft tissue pain. I should note here that the plaintiff is residing in
Calgary, and so the experts were retained from Calgary. The costs of Dr. Apel’s
first report, dated June 2012, are not being challenged. It was in that 2012
report that she recommended the SPECT scan. She was then retained to prepare a
second report a year later, after the results of the MRI were in. It appears
that Dr. Apel did not recall the exchange about the availability of the
SPECT scan and the fact that she had authorized the MRI and filled in the
requisition.

[12]        
I have found the MRI expense in these circumstances to be reasonable,
and correspondingly I do find the report to review the MRI to be a reasonable
and necessary expense. The fact that an MRI did not change the diagnosis does
not affect my decision because I must assess whether it was necessary and
reasonable to commission the report at the time it was commissioned and not
after the report was produced.

[13]        
Dr. Apel was asked to review two reports of Dr. Laidlow and
prepare rebuttal reports. For this she charged $1,310.40 for the first review
and $1,882.13 for the second. Dr. Laidlow gave a diagnosis of
musculoligamentous strain and myofascial tightness in neck and shoulder. This
was different from Dr. Apel’s diagnosis of fibromyalgia.

[14]        
I find that it was reasonable for counsel to request the rebuttal
reports. There were comments in the rebuttal report of Dr. Apel that too
much weight was being made of a relatively insignificant reduction of a triceps
reflex. That opinion does not negate the value of the overall opinion. Who else
could have evaluated the importance of that clinical finding other than a
medical expert? It was reasonable to ask Dr. Apel whether Dr. Laidlow’s
findings changed her opinion in any way and to request Dr. Apel’s opinion
in writing. The costs of the two rebuttal reports are also reasonable.

[15]        
I will allow the cost for the actual report. So for the January 16th
report, I am allowing $1,120. For the June 11, 2013 report, I am allowing
$1,090 but there was also $158 for an administrative fee attached, and I am
going to disallow that. There is some issue with administrative fees. I do not
know whether they are for booking or if they are for typing or what, and that
evidence has never been provided to me, and so it is my view that this is
likely an overhead expense and should be part of the hourly rate that is being
charged. So, on the June 11th report and the June 24th report, I am disallowing
those charges. So the disallowed amount for June 11th is $158, plus any
reduction in tax; and for the June 24th account, I am disallowing $157.50 and
whatever the corresponding tax would be on that amount.

[16]        
Now on to Dr. Apel’s August 7, 2013 bill for cancelled appointment
and court attendance.

[17]        
Dr. Apel charged a cancellation fee when her attendance at trial
was cancelled. She was scheduled to testify at trial on August 7, 2013. An
appointment to review her testimony had been scheduled for August 2, 2013. She
was notified on July 26th that the case had settled. She charged a cancellation
fee and then was asked to justify it by proving that she could not mitigate the
lost time. Her response is quite crisp. Her assistant, she said, was away on
vacation, so she was not able to fill the spot with another appointment. It is
not reasonable to expect that an expert would call patients herself and
schedule appointments to fill the cancellation spot. She had cleared her
schedule to be available on August 2nd and August 7th, and her evidence was
that she was unable to mitigate that lost booking time.

[18]        
I have no retainer agreement to determine what her cancellation policy
is. She charged half-time for the cancellation of the two-hour appointment
scheduled for August 2nd. I accept her evidence that she was unable to fill
this time. She then charged what appears to be a flat rate for the full day of
court that she was not able to mitigate, and I will allow that charge.

[19]        
It appears from this final bill of Dr. Apel that she waived a
$1,200 chart review preparation and communication fee, and she did not charge a
booking fee, so the only other charge I want to review is the airfare.

[20]        
She charged $517.91 for a cancelled flight. I am assuming, I do not know
this, that it was WestJet because they have direct flights from Calgary to
Kelowna. The policy of that airline, I am aware from other assessments, is to
charge a cancellation fee and put the balance of the cancelled flight costs
into a credit account. I do not have any evidence of whether that occurred in
this case, but I believe that Dr. Apel should only be allowed to charge
the cancellation fee and not for the full flight costs. I reduced her fee by
$350 for the airfare that I have disallowed, so I am allowing the balance of
that account in full, noting that she has already made a reduction of $1,200
prior to billing it.

[21]        
This brings us to the invoice of Dr. Morris, dated March 31, 2013,
for $9,047.50.

[22]        
Dr. Morris is a rheumatologist who practices in Calgary, and as I
indicated, the plaintiff lives in Calgary. He was asked to assess the
plaintiff’s condition and to comment on whether the accident was the cause of
her condition. This question had been put to Dr. Apel, who said at
p. 15 of her August 20, 2012 report (as read in):

Further information to ascertain
the motor vehicle accident in 2009 being the full cause of fibromyalgia requires
greater extensive medical records for writer to review.

[23]        
Plaintiff’s counsel retained a rheumatologist to do that review and
explained that rheumatologists generally diagnose and treat fibromyalgia. Dr. Morris
provided an extensive review of the medical records and an opinion of the cause
of the plaintiff’s complaint. The report was not served, but this is not
determinative of whether the disbursement should be allowed or not. Again, a
relative time to evaluate whether the report was necessary was done at the time
the report was ordered.

[24]        
Counsel for the defendant submits that because there was no reference to
a rheumatologist in the case plan, the claimant was prohibited from providing
this evidence at trial without leave of the court. I think defence counsel will
find that Rule 11-1 of 2 is not being applied to prohibit use of reports
that are not specified in the case plan.

[25]        
I find it was reasonable to request an opinion about fibromyalgia from a
rheumatologist, since the physiatrist required further information and a more
extensive review of medical information in any event. The choice was whether to
provide Dr. Apel the background medical information or to retain a
rheumatologist. I find no fault in the choice of counsel to retain a
rheumatologist.

[26]        
When it was determined that the report would not be served, those
records were then sent to Dr. Apel to review. The real issue with Dr. Morris’s
report is the cost ‑ $9,047.50 is excessive, even for a 25-page report. The
interview of the claimant took 2.75 hours, but she was one hour late in
attending at the interview and was charged $770 for that one hour. This amount
should not be passed on to the defendant.

[27]        
I do not find fault with the amount of time Dr. Morris spent in
preparing this large report. With this $770 reduction, that brings the report
cost down to $8,277. I am reducing it by a further $1,000 to $7,277. That
is based on my assessment that it is a reasonably complex analysis of all the
competing factors of pre-existing degeneration and the impact of the MVA. I
also expect that there has been some gross-up of their rate because the
plaintiff did use the services of a booking agent, and those services do not
come for free. In all the circumstances, I find that $7,277 is a reasonable
charge for this examination, review, and evaluation in the report.

[28]        
Now onto Rashid Kashani’s invoice for cancellation of trial time.

[29]        
Mr. Kashani provided a functional capacity evaluation and a 15-page
report. He was scheduled to give evidence at trial and to meet with plaintiff’s
counsel. He charged a cancellation fee of four hours, which was likely
half-time for cancellation of court attendance. Viewpoint Medical said that he
was not able to fill this time, and I accept that evidence. The flight
cancellation he charged was $116.45 per flight, for a cost of $232.90. I find
that to be reasonable. I do not know why the defendant would have to pay to
license Mr. Kashani, and so I deny that claim. It appears to be overhead
and I do not have any other evidence to clarify that amount, so I am
disallowing $135.

[30]        
Now we come to disbursement interest.

[31]        
The plaintiff claims reimbursement of the interest she agreed to pay the
law firm to cover her disbursements. The law firm charges the client 15 percent,
and they do so even though they pay a lower interest rate on their credit line.
In order to obtain the preferred credit rate, plaintiff counsel was required to
provide security against his personal assets to the bank. Accordingly, the law
firm passes on some of the costs of that inconvenience to the client, who could
not obtain such a favourable rate if she, with her $30,000 income per year, had
applied for credit. Private disbursement lenders, I am told, charge significantly
higher rates than 15 percent per annum.

[32]        
These are relevant factors to consider in setting interest rates. Nonetheless,
in order to settle this issue, plaintiff’s counsel reduced his charge for
interest to 6 percent, in keeping with recent authorities. He has provided
a detailed calculation of interest. I will allow interest on any third-party
expense where the money was paid out by the firm for expert reports, court
filing fees, examination for discovery transcripts, et cetera. I will disallow
interest on all the unbilled in-house disbursements for photocopying, faxes and
printing. The rate charged the client for copying is different than the
registry rate, and there was no outlay of money by the firm to cover those
in-house disbursements. I have no difficulty in accepting that this claimant
could not afford to fund disbursements on her income, which is in the range of $30,000
per year.

[33]        
That concludes my reasons, with the exception of costs. Do you want to
make any submissions as to costs for this assessment?

[34]        
MR. SPINKS:  None for the defendant, Your Honour.

[35]        
THE COURT:  Okay. Thank you.

[36]        
MR. LENCOVIC:  And none for the plaintiff, Your Honour.

[37]        
THE COURT:  All right. So I will summarize what reductions I have made.

[38]        
First of all, the amounts in issue were $21,854.06. I have not done the
GST calculations, but I disallowed $158 from one of Dr. Apel’s reports,
and then a further $157.50. There will be a tax reduction on both of those
amounts. I disallowed $350 for the airfare cost. I have reduced Dr. Morris’s
account by $1,770, and there may be a tax reduction on that as well. I have
denied the disbursements from Mr. Kashani’s account of $135. So without
any assessment of tax, that is the reduction of $2,570.50, and so it is my view
that the plaintiff has been substantially successful in proving these
disbursements and should be entitled to costs of the assessment, which I am
going to allow at six units at $110. That was for two attendances, today and the
previous day in court, and then I will allow disbursements of an $80 filing fee
for the appointment, a $40 fee for a certificate, and I am going to allow $250
of other disbursements. I note that there were a significant number of
photocopies for three books of authority and a brief, and so the total costs
are $1,109.20. I will fix it at that amount now, and that was for the
assessment.

[39]        
MR. SPINKS:  I am sorry, Your Honour, could you please repeat that
last number?

[40]        
THE COURT:  One thousand one hundred nine dollars —

[41]        
MR. SPINKS:  Yes. Yes.

[42]        
THE COURT:  — and twenty cents.

[43]        
MR. SPINKS:  Thank you.

[44]        
THE COURT:  Okay. All right, so that concludes my reasons.

“Barbara
M. Young”