Further to my previous post on this topic, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, discussing when an MRI is a reasonable disbursement in a personal injury lawsuit.
In today’s case (Farrokhmanesh v. Sahib) the Plaintiff was injured in two BC collisions. He sued for damages and settled his claims prior to trial. However, the parties could not agree on whether some of the Plaintiff’s disbursements were reasonable. The parties applied to the Court to resolve the issue and Registrar Sainty held that the Plaintiff’s privately retained MRI was not a recoverable disbursement. The Plaintiff appealed this ruling. Mr. Justice Ehrcke dismissed the appeal and in doing so made the following comments about MRI’s in personal injury lawsuits:
 The applicant submits that the Registrar erred in principle by saying that there must be a medical reason for ordering the MRI. In my view, the applicant’s submission seeks to parse the Registrar’s decision too finely. In reviewing the Decision of the Registrar with the appropriate level of deference, it would be wrong to focus on a single word or a phrase taken out of the context in which it occurs.
 When read in context, the Registrar’s reason for disallowing the cost of the MRI is that she found it was not necessarily or properly incurred. In coming to that conclusion, she took into account that no medical professional had advised counsel of the probable utility of an MRI in the particular circumstances of this case. Mr. Fahey had deposed in para. 11 of his affidavit that he was unaware of the plaintiff exhibiting any objective signs of injury when he ordered the MRI scans.
 I am unable to find that the Registrar acted on a wrong principle in disallowing the cost of the MRIs in this case, and I would not interfere with her Decision.
To be on the safe side it is a good idea to have a treating medical practitioner requesting an MRI or other diagnostic test to maximize the chance that these expenses will be recoverable disbursements.
The winning side to a lawsuit in the BC Supreme Court is allowed to recover reasonable disbursements. Some of the greatest costs of advancing injury lawsuits are those associated with expert medical evidence. Today, reasons for judgement were released by the BC Supreme Court, Vancouver Registry, considering two common disbursements of Plaintiff lawyers in ICBC injury lawsuits; Private MRI’s, and medico-legal reports.
In today’s case (Farrokhmanesh v. Sahib) the Plaintiff was injured in two BC car crashes. He settled his claims for $42,000 plus costs and disbursements. The parties could not agree on some of the disbursements and the BC Supreme Court was asked to resolve the dispute. The two biggest items in dispute were private MRI’s ordered by the Plaintiff’s lawyer and a medico-legal report from a psychologist. Both of these items were disallowed as unreasonable expenses.
The Plaintiff’s lawyer sent his client for a private MRI to better investigate a shoulder injury. The two scans cost just over $2,000. The Plaintiff’s lawyer gave the following explanation for incurring this expense in the prosecution of the claim:
The plaintiff claimed damages herein as a result of injuries she sustained to both her neck and trapezius (shoulder area). Her symptoms persisted for years after the accident and were continuing when I made arrangements to have the plaintiff undergo magnetic imaging. I wanted to obtain the best possible imaging in order to ascertain the nature and extent of the plaintiff’s injuries and to uncover objective evidence of injury…
I ordered the scans because in my view presentation of my client’s claim required it. The plaintiff had been off work for a long time and had continuing complaints. These pain symptoms were also causing significant depression. I knew the fact of whether or not there were objective signs of injury as opposed to only subjective complaints was going to be an important issue at trial and thus I ordered the scans to obtain evidence going to this issue.
I knew when I ordered the scans that upon resolution of the subject claims the client would likely be required to sign a release thereby ending her ability to make any further claim for damage, on a permanent basis, to her neck and shoulder. Knowing this and the fact I was responsible for giving advice to the plaintiff regarding her injury and damages and the release, I ordered the scans to ensure there was no latent injury not previously uncovered. This was one of the reasons I ordered the scans. The plaintiff herein was going to forever give up her right to sue in connection with these injuries and thus it was my view that it was important to have the scans undertaken. In fact it was a term of the settlement herein that the plaintiff sign an ICBC form of release.
Registrar Sainty disallowed these disbursements providing the following reasons:
 The test for determining whether a disbursement ought to be allowed is:
…whether at the time the disbursement or expense was incurred it was a proper disbursement in the sense of not being extravagant, negligent, mistaken or a result of excessive caution or excessive zeal, judged by the situation at the time when the disbursement or expense was incurred”. (Van Daele v. Van Daele,  B.C.J. No. 1482; 56 B.C.L.R. 178 (C.A.) (at para. 109))
 The provisions of Rule 57(4) of the Rules of Court relating to the Registrar’s discretion to award disbursements are broad. In general:
The registrar must consider all of the circumstances of each case and determine whether the disbursements were reasonably incurred and justified. He must be careful to balance his duty to disallow expenses incurred due to negligence or mistake, or which are extravagant, with his duty to recognize that a carefully prepared case requires that counsel use care in the choice of expert witnesses and examine all sources of information and possible evidence which may be of advantage to his client. (see Bell v. Fantini(1981), 32 B.C.L.R. 322 (S.C.)) at para. 23.))..
 I am going to disallow the claim for reimbursement for the two MRI scans. I cannot accede to Mr. Fahey’s argument that simply because he, as counsel, thought it was necessary to obtain MRI scans I ought not to question that decision unless I find it to be extravagant or overly zealous. In my view, and I am going to expand on what Registrar Blok held in Ward v. W.S. Leasing Ltd., to be allowed as a necessary and proper disbursement, 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. Nor is it enough that counsel wishes to ensure that there is no latent injury such that his client might sign the standard release required. There is always a risk in personal injury litigation that a new injury or an injury that has not yet been determined might be found following settlement. That is simply a risk of litigation and a risk of settlement.
 I am not satisfied on the evidence before me that costs of the MRI scans were necessarily or properly incurred in the conduct of the proceeding and I will not allow them.
Psychologists Medico-Legal Report:
The other disputed item was a medico-legal report from a psychologist. The Plaintiff retained the services of both a psychologist and a psychiatrist. They both authored reports addressing the Plaintiff’s injuries. The cost of the psychologist’s report was near $4,000. The Defendant argued it was unreasonable for the Plaintiff to retain both experts stating that “(either) one of them could have provided the expert evidence required“. Registrar Sainty agreed and disallowed this disbursement. In doing so the Court reasoned as follows:
 I am not convinced, on the evidence before me, that it was necessary and proper to hire both experts given that their expertise clearly overlaps and each used similar methodology in assessing the plaintiff. The plaintiff saw both Dr. Joy and Dr. Sehon in July 2008. There was no reason, in my view, to have the plaintiff assessed by both, except to some extent, to do some “doctor shopping” (and in saying so I mean no disrespect to Mr. Fahey’s decision to have the plaintiff seen by both Dr. Joy and Dr. Sehon). My view is bolstered by the fact that, at the time that both experts were retained (or at least at the time their reports were ordered), the plaintiff had not yet seen Dr. O’Shaunessy (and certainly his report was not available) and thus Mr. Fahey’s concerns over having an expert who could “match” Dr. O’Shaunessy were unfounded.
 I find that is was not necessary or proper to have two experts engaged in a similar assessment at the time these experts were retained and, accordingly I disallow the claim for the expert report and fees charged by Dr. Joy in the amount of $3,937.50.
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When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.
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