IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140327

Docket: M48153

Registry:
Vernon

Between:

Oralie Cynthia
Bourelle

Plaintiff

And

Kostantinos
Loukopoulos and Sicamous Marina Inc.

Defendants

Before:
Mr. Justice Barrow

On
appeal from:  An order of the Supreme Court of British Columbia, dated December
10, 2013

Oral Reasons for Judgment

In
Chambers

[1]            
THE COURT: The plaintiff seeks a review of a decision of the
master sitting as registrar in which he disallowed disbursements relating to
two functional capacity evaluations and a cost of future care report. The
review is brought pursuant to Rule 14-1(29). The parties do not disagree on the
applicable law. They agree the master was obliged to determine whether the
particular costs "were proper or reasonably necessary to the conduct of
the proceeding" (Rule 14-1(2)). Further, they agree on the standard of
review to be applied by this court in reviewing a registrar’s order as to costs.
The standard of review limits the court’s intervention to circumstances in
which the registrar was "clearly wrong" or has, "gone wrong on a
matter of principle" (see generally Frost v. Frost, 56 B.C.R. 30
(C.A.)). The standard of review is necessarily deferential and it is so for the
reasons expressed by Legg J. in Bell v. Fantini (1981), 32 B.C.L.R.
322.

The Facts

[2]            
The plaintiff was injured in a motor vehicle accident in July 2009. At
the time of the accident, she was working as an industrial seamstress. Her job
was reasonably physically demanding. Whether as a result of the physical
demands of her job or for other reasons, she had developed chronic pain in her
left shoulder, osteoarthritis in both of her knees, and mild mechanical pain in
her low back. None of these injuries were the result of the motor vehicle
accident. All of them predated the accident and continued afterwards. The most
significant injury in the accident was described by Dr. Apel, a specialist
in physical medicine or rehabilitation, in her January 27, 2011, report as "[m]echanical
pain localized to T9 with mild myalgia of paraspinal region."

[3]            
The plaintiff had missed a month of work several months before the
accident as a result of an injury she sustained at work. Whether that injury
related to her left shoulder is unclear, but in November 2010, she reinjured or
injured her shoulder at work. She was off work briefly as a result and then, in
November 2011, she underwent surgery on that shoulder. Following the surgery,
she returned to her position as a seamstress, but lasted only four or five
months before her shoulder difficulties forced her to forego her job. Dr. Apel,
in her January 2011 report, made only passing reference to the extent to which
the plaintiff’s functional ability was affected by her mid-back pain. She
wrote:

Mid back pain plays some role in
functional disability because of pain and tightness in the area. Please note
that neither left shoulder issues nor ongoing lower back discomfort, problem
with the left knee or the patient’s balance issues are attributed or were
significantly consistently aggravated by the collision in question.

Dr. Apel concluded the plaintiff’s mid-back injury
difficulties would likely continue for the long term. She recommended a number
of non-invasive therapies to assist the plaintiff in coping with the sequelae
of that injury.

[4]            
Counsel for the plaintiff commissioned the functional capacity
evaluation and ordered a cost of future care report from an occupational
therapist in February 2011. He deposed that he sought these reports to identify
the functional limitations of the plaintiff flowing from the mid-back injury
together with a determination of the cost of care necessary to address the
symptoms from that injury. More specifically, counsel wanted to determine
whether the plaintiff’s mid-back problems would prevent her from or limit her
ability to continue with her employment as an industrial seamstress.

[5]            
Diana Robertson carried out the first evaluation on February 18, 2011. She
reported the results in her May 15, 2011, report. She concluded the plaintiff
was then capable of working full time and her functional limitations were not
due to any lack of strength. She concluded, however, that the plaintiff
experienced:

…increased symptoms when
completing tasks involving sustained forward reaching, sustained overhead
reaching, and sustained sitting.

[6]            
Given the foregoing, Ms. Robertson concluded that the plaintiff was
capable of working in the industrial sewing industry, but not in any jobs that
required significant forward lifting or sitting. Those postures would aggravate
her symptoms. She recommended that the plaintiff not continue in her current
job given that it involved those postures. She then prepared a cost of future
care report reflecting the plaintiff’s functional capacity as it stood in
February 2011. After the orthoscopic surgery that was performed on the
plaintiff’s left shoulder in November 2011 and following a lengthy period of
rehabilitation, WorkSafeBC concluded that the plaintiff was unsuitable to
return to her work as a seamstress. That organization funded her retraining as
a heavy equipment operator.

[7]            
Counsel for the plaintiff commissioned a second functional capacity
evaluation for, as he put it in his affidavit, the purpose of determining:

… what changes had occurred
with respect to the plaintiff as a consequence of her left shoulder injury
whether positive or negative and to reassess the plaintiff with respect to her
functional capacity to perform in various occupations as she was unemployed.

Ms. Robertson prepared a second assessment and reported
her finding in August 2012.

[8]            
The last factual matter of significance relates to a vocational
assessment completed by Dr. Gordon Wallace. His report is dated August 20,
2012. Counsel for the plaintiff sent Dr. Wallace Dr. Apel’s report,
the two functional capacity evaluation reports, and Ms. Robertson’s cost
of future care report. Dr. Wallace considered Ms. Robertson’s report
in assessing the plaintiff’s residual employability. In doing so, he wrote that
he was unable to "tease out the effect of each one of the plaintiff’s
injuries."  In the result, he considered only "the effect of the
reduced sustained forward reaching on her residual occupational options."

[9]            
The trial of the plaintiff’s claim was initially set for December 2012. It
was later adjourned to November 2013. It was settled before trial for about
$30,000 plus costs. When the parties were unable to agree on the recoverable
costs, an appointment was taken out to have those costs assessed. The assessment
took place December 10, 2013.

The Master’s Decision

[10]        
At issue in the proceeding before the master was whether the
disbursements claimed in relation to the two functional capacity evaluations
and the cost of future care report prepared by Ms. Robertson were
recoverable. In addition, the defendant took the position that the cost
associated with Dr. Wallace’s vocational assessment was not properly
recoverable. The master allowed the disbursement relating to Dr. Wallace’s
report, but disallowed the claims relating to the functional capacity evaluations
and the cost of future care reports.

[11]        
I digress to note that the cost of future care recommended by Ms. Robertson
included physiotherapy, exercise, weight loss, smoking cessation aids,
medications, massage therapy, and vocational assistance. Robert Carson valued
these costs over their anticipated duration at just over $29,000.

[12]        
As noted, the master allowed the disbursement for Dr. Wallace’s
vocational assessment, but disallowed the costs associated with the functional
capacity evaluations. As to the latter conclusion, the master wrote:

It seems to me that a functional
capacity evaluation being ordered at any time, given the problems that the
plaintiff was having, were of limited use, and so a functional capacity
evaluation, in my view, is not necessary and is not something that is proper
either.

[13]        
He recognized that the plaintiff faced the difficulty of attempting to
isolate the effects of the injuries she sustained in the motor vehicle accident
from those she sustained through her employment. In spite of that, he concluded
that a reasonable lawyer assessing the matter at the time the decision to
commission the evaluations was made would realize that the results would be of
limited assistance in the prosecution of the plaintiff’s case. As to Dr. Wallace’s
report, the master held that:

…the difficulty that the
plaintiff’s counsel faced with respect to assessing [residual employability] is
that a person who relies on her physical abilities and then suffers a
diminution in those physical abilities by the motor vehicle accident, needs to
know what the potential effect of that diminution is in order for her to be
able to advance a claim for loss of capacity.

He concluded that this question needed an answer and, thus,
it was reasonable for the plaintiff’s counsel to commission the vocational
report.

The Position of the Parties

[14]        
The plaintiff argues that the master’s analysis was internally
inconsistent and, to the extent that is so, his conclusions relating to the
functional capacity evaluations were clearly wrong. More particularly, if for
the reasons indicated by the master it was reasonable to obtain a vocational
assessment, it must necessarily have been reasonable to obtain functional
capacity assessments because it was on the basis of those assessments that the
plaintiff’s residual employability was predicated.

[15]        
The defendant argues that simply because they chose not to appeal the
master’s conclusion regarding the recoverability of the vocational report, it
does not follow that the vocational report was properly recoverable. Moreover
and more generally, the defendant argues that while one may disagree with the
master’s decision, that is not the test. The defendant argues that it cannot be
said the master was clearly wrong. Finally, the defendant points to the need, particularly
in view of the revision to the Rules in 2010, to consider
proportionality. As presented, the bill of costs came to just over $34,000 on a
claim that was settled for just over $30,000.

Decision

[16]        
Functional capacity evaluations are, as the master pointed out, expensive.
They are not always necessary or proper in the context of personal injury
litigation. Even in cases where there are clear functional limitations flowing
from the consequences of an injury, a functional capacity evaluation may add little
to nothing to the analysis necessary to quantify the plaintiff’s damages. Such
would be the case if, for example, the plaintiff sustained an injury subsequent
to and unrelated to the accident giving rise to the litigation which rendered
the plaintiff entirely incapable of employment. The master appears to have
likened the plaintiff’s situation to that just posited. He concluded that,
"given the problems that the plaintiff was having," a functional
capacity evaluation was neither necessary nor proper because it would not be
"of much assistance to the plaintiff."  He then noted that the
plaintiff had not lost any time from work as a result of the accident and that
the injuries she sustained in the accident:

…paled in significance to the
other unfortunate problems this hardworking plaintiff was sustaining as a
result of her other work.

[17]        
In early 2011, counsel was faced with a client who unquestionably had
physical limitations. The degree to which the injuries the plaintiff sustained
in the motor vehicle accident and the injuries sustained over time at her job
contributed to those limitations was unclear. It was in an effort to clarify
that conundrum, that the functional capacity evaluation was commissioned. The
result of the evaluation was that the plaintiff had functional limitations
unrelated to her strength, but rather due to her inability to assume various
kinds of postures, some of which were associated with the injuries she
sustained in the accident. Ms. Robertson concluded, for example, that:

…sustained forward reaching
should be limited to occasional frequency due to shoulder and thoracic symptoms,
sitting limited to occasional frequency due to lumbar symptoms.

[18]        
The plaintiff’s thoracic symptoms were the result of the accident. The
plaintiff’s shoulder and lumbar symptoms were due to causes unrelated to the
accident. If I were to consider the matter afresh, I may well have concluded
that commissioning the first functional capacity evaluation was reasonable and
proper. That would, however, merely amount to a difference of opinion with the
conclusion reached by the master and that it is not a basis on which to allow
an appeal. The matter, however, does not end there. The master noted in
assessing the plaintiff’s claim for the vocational assessment that:

…[t]he difficulty that the
plaintiff’s counsel faced … is … a person who relies on her physical abilities
and … suffers a diminution [of] those physical abilities … needs to know … the
potential effect of that diminution … in order … to be able to advance a claim
for loss of capacity.

[19]        
I agree with that observation, but note that it is predicated on the
notion that the plaintiff suffered a diminution of her physical abilities
"by the motor vehicle accident."  It was the precise dimensions of
those reduced physical abilities and the relationship between them and the
motor vehicle accident that the plaintiff sought to clarify through the
functional capacity evaluation. Dr. Wallace specifically relied on that
evaluation in forming the opinions he did regarding the plaintiff’s vocational
prospects. In short, it seems to be that if the vocational report was proper
and reasonable, the first functional capacity evaluation must also necessarily
have been proper and reasonable.

[20]        
I recognize that the fact that the defendant has not appealed the
master’s conclusions regarding the vocational assessment does not mean that the
analysis concerning whether it was proper and reasonable is valid. Having taken
that position, however, the defendant has not pointed to any flaw in the
master’s approach to that disbursement.

[21]        
In all the circumstances, there is no basis to conclude that the master
was wrong, never mind clearly wrong in principle in allowing the vocational
assessment claim. It seems to me, however, that it necessarily follows that he
was clearly wrong in disallowing the claim for the first functional capacity
evaluation. It does not follow, however, that the second functional capacity
evaluation was reasonable or necessary. As I understand the purpose for
commissioning the second report, it was the fact that the plaintiff had had
surgery on her shoulder subsequent to the first report. The surgery on her
shoulder was entirely unrelated to the accident. Whether it contributed to a
further diminution of the plaintiff’s functional capacity was, therefore,
irrelevant to the assessment that needed to be made. I am not persuaded that
the master was clearly wrong in concluding that the cost of the second
functional capacity evaluation was not properly recoverable.

[22]        
In the course of commenting on the second capacity evaluation, the
master noted that the evaluator travelled from Vancouver to Vernon for the
purpose of carrying out the evaluation. She billed her time for that travel at
$150 an hour. The total bill for travel time was $1,575. The master concluded
that that was, "without question, an extravagance."  He made the
sensible observation that the simpler and more cost-effective course would have
been to have the plaintiff travel to the therapist. I agree with those
observations. The cost of the first functional capacity evaluation was $6,573. What
the constituent elements of that amount are is not revealed in the materials,
that is to say, whether there were travel costs associated with Ms. Robertson
coming from Vancouver to Vernon is not clear. In allowing the appeal of this
aspect of the claim, I am only allowing it to the extent of the cost associated
with the actual evaluation and, if Ms. Robertson travelled to Vernon, her
mileage, accommodation, and meal costs. Such costs would have been incurred by
the plaintiff had she travelled to Vancouver. If counsel are unable to agree on
the amount, they have liberty to apply.

[23]        
In the result, I would allow the appeal or review to the extent of
allowing the disbursement for the first functional capacity evaluation and the
cost of care report. I dismiss the appeal as it relates to costs associated
with the second functional capacity evaluation.

[24]        
Given that the success on this application has been divided, each party
should bear their own costs.

“G.M.
Barrow J.”