IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130624

Docket: S115600

Registry:
Vancouver

Between:

Mona Jalili

Plaintiff

And

Shuk Wah Sarah Ma

Defendant

Before:
District Registrar Cameron

Oral Reasons for Decision

[1]            
This is an assessment of some of the Plaintiff’s claims for
disbursements in respect of a personal injury claim that settled at a mediation
on June 4, 2013.

[2]            
The Plaintiff, Ms. Jalili, was involved in a rear end motor vehicle
accident on August 29, 2009.  The subsequent course of events as disclosed in
the medical evidence before me confirms that she continued to suffer ongoing
pain and discomfort and limitation in her activities as a result of soft tissue
injuries in her lumbar and cervical spine.  Dr. Gurdeep Parhar, who is a
general practitioner but who has significant additional qualifications in
disability medicine, was her treating physician.

[3]            
During the course of his treatment and assessment of the Plaintiff, he
was in contact with her counsel, Mr. Kancs, and, in the summer of 2010, he
recommended that some further examination be done of her spine.  Specifically
he said in a letter dated August 3, 2010:

She is still in the midst of
recovering from her injuries.  We are attempting to coordinate her medical
care.  I have initiated some further tests to better understand Mona’s
injuries, X-rays of cervical spine and lumber spine.

[4]            
In a follow-up letter on August 27, 2010, Dr. Parhar who by then had the
opportunity to review the X-rays said:

She is suffering from fairly
significant injuries to her neck and back caused by the motor vehicle collision
of August 29th, 2009.  I would like to organize an MRI for her neck and back
pain.  I would appreciate if you could help with asking the Insurance Company
or accessing other resources to cover a private MRI.  If this meets with your
approval, please forward the attached MRI requisition to the MRI centre of your
choice.

[5]            
A private appointment for the MRI examination was obtained shortly
thereafter and the MRI scans were done on October 12, 2010, at a total cost of
$1,990, that is, $995 for each of the cervical and lumbar spine.  On this
assessment, Ms. Meade, counsel for the Defendant, challenged the MRI expense. 
She submitted that because the MRI was commissioned on the specific advice of Dr.
Parhar that it should be treated as a special damage claim and not as being an
aid in the assessment of the Plaintiff’s injuries as it related to her claim
for compensation in this action.  If it was the latter, then it would properly
be claimed for as a disbursement.

[6]            
I am satisfied on the evidence before me that the MRI served two
purposes.  It assisted Dr. Parhar in determining what was an appropriate treatment
plan going forward for the Plaintiff and it also served as an aid to Mr. Kancs
in advising her on the nature and extent of her disability and what
compensation she might expect to be entitled to.  It is noteworthy that Dr.
Parhar involved counsel in arranging for an MRI.  The fact that both physician
and counsel worked together in arranging for the MRI further satisfies me that
in this case there was a dual purpose.  I am satisfied that the MRI cost is
properly sought to be recovered as a disbursement.

[7]            
The next question is whether or not the expense is reasonable.  Having
found that it was a proper disbursement, I must also be satisfied that the
amount claimed is reasonable in the circumstances.  Dr. Parhar did not testify
in respect of any urgency in obtaining the MRI when he recommended it in August
of 2010.  He does not say what the anticipated wait time would be to have the
MRI done in our government funded medical system.  Mr. Kancs submitted that I
could infer from the fact that, as Dr. Parhar was concerned that the Plaintiff
had ongoing discomfort and that he was still in somewhat of a medical quandary
after reviewing the X-rays, that a more prompt referral for an MRI through the
private system was reasonable and the cost for it was then properly claimed.

[8]            
The onus is on the plaintiff to establish that the disbursement claimed
for is proper or necessary and reasonable as to amount.  I am left to speculate
whether or not an MRI could have been obtained at no cost through the publicly
funded system if Dr. Parhar had been willing to wait some additional time for
the scans to be done.  Because the onus is on the Plaintiff and I am left to
wonder whether it was necessary to incur this expense at the time it was incurred,
I disallow this disbursement.

[9]            
As to the medical report of Dr. Parhar, the only issue that the defence
takes in respect of that report is the cost claimed for the report of $2,100
which exceeds the BCMA fee guide for a medical opinion, which currently is
$1,634.04.  The law is well established that the fee guide is only that, a
guide.  It is not determinative of what allowance should be made for a medical
opinion.  In my experience, opinions from experts in various medical
specialties often are in the range of $3,000 to $5,000 and are often allowed in
full taking into account the expertise of the author of the report.  In this
case, Dr. Parhar has a demonstrated expertise in disability medicine and is an
instructor at a number of clinics and institutions in the Lower Mainland.  I am
satisfied that the charge of $2,100 for the medical-legal opinion is reasonable
and it will be allowed.

[10]        
In respect of Mr. Carson, this was a disbursement incurred for a report
he provided in respect of the anticipated earnings for a female pharmacist. 
The Plaintiff had a long standing interest in qualifying as a pharmacist and,
during the course of the litigation, held true to that; that is, she completed her
undergraduate qualifications or prerequisites and then enrolled in a pharmacy
college in the State of Oregon.  Mr. Kancs was advancing a claim for economic
loss consequent on the delay in the Plaintiff being able to qualify for employment
as a pharmacist due to her injuries and he was seeking some independent
objective support for what a pharmacist might earn and turned to Associated
Economic Consultants and Mr. Carson for assistance.  Mr. Carson produced a
report and his invoice was for $714.

[11]        
Ms. Meade submitted that some of the supporting information that Mr.
Carson obtained for his report was readily available to counsel. I do not
disagree with that. However, from reading the report, I am satisfied that Mr.
Carson provided additional value, perspective, and opinion beyond simply
reciting the statistics or the Census data.  At page 3 of his report, he says:

With regard to the work
opportunities for women in pharmacy, I note that employment in pharmacy grew rapidly
in the period 1991 to 2001 and, in that timeframe, most of the growth in
employment consisted of female pharmacists.  Female pharmacists outnumber male
pharmacists.  They were about 55 percent of the labour in 2006.  Although there
has not been much employment growth among pharmacists since 2001, employment
rates have continued to be very low.  Extremely low unemployment rates
represent frictional unemployment which economists attribute to time taken by
job seekers to change jobs.  It is not unemployment that reflects an excess
supply of labour.  In occupations in which many or most incumbents are women,
there tend to be relatively large numbers of job vacancies which present
opportunities for new entrants as women of child-bearing age move out of and
back into paid work.

[12]        
That opinion, if accepted by the court, would have been buttressed the
Plaintiff’s claim for loss of earning capacity due to a delay in her
qualification as a pharmacist.  Ms. Meade did not take issue with the amount of
the report.  I find it was reasonable to obtain it and it is allowed.

[13]        
In terms of the last disbursement in issue which is for two courier
charges to Dr. Paramonoff and Dr. Parhar in the sum of $20.13, Mr. Kancs has
said that because of the volume of material that was sent to these physicians
to obtain reports, over 100 pages, and because of a concern for patient confidentiality,
he incurred courier charges in respect of these two deliveries.

[14]        
Reap v. Insurance Corporation of British Columbia, 2000 BCSC 1558,
is one of a number of cases that have dealt with couriers. The law is well
established that the cost of a courier will be allowed if the courier was used
for reasons of security or economy.  This was not a case where a courier was
used for routine convenience which would not result in the disbursement being
recoverable.  I am satisfied that the courier expense was justified for the
reasons given by counsel and it is allowed.

[15]        
The Plaintiff is entitled to the costs of this assessment which I fix at
$425 inclusive of disbursements.

“District Registrar Cameron”