IN THE SUPREME COURT OF BRITISH
COLUMBIA

Date: 20130917

Docket: M141687

Registry:
New Westminster

Between:

Janicirani Kumanan

Plaintiff

And

Jean Claude Achim

Defendant

Before:
District Registrar Cameron

Oral Reasons for Decision

In
Chambers

[1]            
This is an assessment of the costs of the Plaintiff, Janicirani Kumanan,
following the settlement of personal injury litigation.  The only issue still
contested on this assessment is her entitlement to recover the costs of an MRI
examination done by Access MRI on November 2, 2011 at a cost of $2,015.

[2]            
Ms. Kumanan was involved in a motor vehicle accident on October 6, 2010
and she sustained soft tissue injuries.  She sought to ameliorate her injuries
by attending physiotherapy, an aquafit program, acupuncture, chiropractic
treatment, and other active rehabilitation under the supervision of her general
practitioner, Dr. Nolan.  Shortly after the accident she also underwent
x-rays and CT scans of her lumbar spine which revealed a moderate diffuse disc
bulge.

[3]            
Her injuries persisted and in July 2011 she began to see a new family
physician, Dr. Harji.  She continued to attend chiropractic treatment, the
aquafit program, yoga, and she also received trigger point injections for the
discomfort and limitation in her cervical and lumbar spine.  On July 16, 2011, Dr.
Harji advised Ms. Kumanan to undergo an MRI examination of her cervical
and lumbar spine for diagnostic clarification.

[4]            
In evidence was a note from Dr. Harji dated July 16, 2011that read:

For diagnostic clarification in
regards to this individual’s MVA related injuries, I would advise MRI of
cervical and lumbar spine.  I would avoid radiation based imaging, i.e. x-rays
and CT as well as bone scans.

[5]            
On July 17, 2011, Dr. Suddall who was a physiatrist scheduled to examine
Ms. Kumanan also requested an MRI examination of her cervical and lumbar spine. 
His note read:

Persistent neck and back pain
with minor right sided hand and leg symptoms.  Difficulty functioning and
remains unable to resume working.  X-ray report, CT report pending from Mount
St. Joseph Hospital.  I have asked patient to proceed with MRI of cervical and
lumbar spine privately via lawyer and ICBC.

[6]            
Importantly, Dr. Harji describes the Plaintiff’s status for this purpose
as non-urgent.

[7]            
Ms. Ho submitted that this was a necessary or proper disbursement incurred
on behalf of the Plaintiff and that the cost was reasonable.

[8]            
Mr. Ross conceded that this was a necessary and proper examination but
submitted that it was not reasonable to incur this cost for the MRI
examination, in light of the fact that the examination was considered to be of
a non-urgent nature, and that there was no evidence tendered to justify
bypassing our publicly funded health care system to have the examination done
at a private clinic.

[9]            
I was referred to Repnicki v. 0616696 B.C. Ltd., 2013 BCSC 1421. 
In that case, I said:

[3]        In support of the claim for that disbursement,
Plaintiff’s counsel relies on Affidavit evidence filed by a case manager at the
Plaintiff’s counsel’s law firm .The history delineated from that Affidavit is
that the motor vehicle accident occurred on March 18, 2008. The Plaintiff
initially complained of some discomfort in her back and neck and was followed
by her family physician, Dr. Duchowska, over a period of time. Some two years
later, in May 2010, and the evidence is not entirely clear on this point, but
either based on a request from Plaintiff’s counsel or the Plaintiff herself,
Dr. Duchowska was asked to confirm that an MRI examination be done. Dr. Duchowska
agreed to do so and signed a requisition for a medical resonance imaging
examination to be done in the public healthcare system on or about May 12,
2010.

[4]        Before that examination could take place, the
Plaintiff and her counsel asked Dr. Duchowska to help accelerate the obtaining
of the MRI and, in July of 2010, Dr. Duchowska signed a requisition for an MRI
with a private healthcare provider, CMI. That examination was done on July 17,
2010. At that time, there was not yet a trial date in the action. I am advised
by counsel that a trial date was obtained in August of 2011 for February 4,
2013.

[5]        While the medical
evidence that I was referred to satisfies me that obtaining an MRI examination
in this case was a reasonable step to take in the Plaintiff’s interest and to
assist with a determination of whether or not there was a causal link to her
neck, upper back, and lower back injuries and the motor vehicle accident, I am
not satisfied that it was reasonable to incur the additional expense to have
the MRI examination done in the private healthcare system. I may have been
persuaded it was reasonable to do so if, in fact, there was evidence that there
was going to be an ongoing and significant delay in having the MRI examination
done in the public healthcare system, but that evidence was not before me.

[10]        
This matter bears some significant similarities.  In this case, there
was no trial date pending when the MRI examination was requested by the two
physicians.  Rather, a notice of trial was not filed until August 2012
reserving a trial date for March 2013.  As matters transpired, this case
settled in February of 2013.

[11]        
I was not provided with any evidence as to what the wait time may have
been to have the MRI examination done in the public health care system.  It is
also noteworthy that while the recommendation for the MRI examination was made
in mid July 2011 it was not acted upon until after some other x-rays were done in
October 2011 and only after that, on November 2^nd, 2011, was the MRI
examination done.

[12]        
I am left to wonder whether that if a place had been reserved in the public
health care system in July 2011, the Plaintiff might not have had the MRI
examination done if not by November of 2011, not too much longer thereafter.

[13]        
Accordingly, I am not satisfied that it was reasonable to incur this
expense when it was incurred and it is disallowed.

[14]        
Costs of today’s assessment then?

[SUBMISSIONS ON COSTS]

[15]        
THE COURT: I am going to award costs to the
defendant and Tariff Items 29 and 30 apply amounting to $330.00.

[16]        
I am declining to award the defendant double costs although there was a
formal offer to settle made on September 11, 2013 in the sum of $1.00.  This offer
is effectively saying to the Plaintiff "you have absolutely no prospect of
success" and while I ruled against the Plaintiff on this disbursement, I
would not, with respect, have viewed her chances today as having been
hopeless.  There was medical evidence justifying that the MRI be undertaken and
it was really a question of when it should be done and how it should be done.  The
Plaintiff was genuinely following her doctor’s advice.

[17]        
Costs are payable by the claimant to the defendant in the total sum of
$330.00 as no taxes or disbursements were claimed.

“District Registrar Cameron”