Will a court compensate me for items recommended by a medical specialist if I have not purchased the recommended item for some period of time after the recommendation was made? What if I was likely to incur the expense regardless of whether the crash occurred? What if I have already followed through with the recommendation, but want to continue with the treatment?
In the case of Park v. Donnelly (2017 BCSC 778), the plaintiff had attended an independant medical examination to address the injuries that he had sustained in a motor vehicle collision. As a result of that examination, the medical specialist made a number of recommendations, including a memory foam mattress and pillow, custom made arch supports, a lumbosacral belt, a gym pass, active rehabilitation, and others. At trial, the plaintiff sought an award (funding) for a number of these recommendations, some of which he had failed to follow through with for over two and half years leading up to trial.
In assessing the appropriate award for future costs of care (an award the court makes to provide funding for reasonable future care/treatment), Mr. Justice Voith laid out the test for these awards, which is an objective assessment requiring there be medical justification for the items claimed, and that the claims be reasonable. Further, Mr. Justice Voith pointed out that if the evidence suggests the plaintiff is unlikley to use the recommended services, then awards for those services should not be made.
After laying out these principles, Mr. Justice Voith addressed each of the items the plaintiff sought funding for:
131 This would include, for example, such items as a memory foam mattress and pillow, custom made arch supports and a lumbosacral belt. Though Mr. Park said he believed he would purchase these items, I do not accept this. Mr. Park was injured three and a half years ago. Dr. Apel’s report, which Mr. Park accepts he likely saw, was delivered more than two and a half years ago. Though Mr. Park made a reasonable income in these years, when his symptoms were more acute than they are now, he chose not to follow any of these recommendations. He also admitted, for example, that his mother had recently purchased a new memory foam mattress for him. In such circumstances I do not consider that there is any basis to make an award for such care items.
132 Other items such as a gym pass are expenses that Mr. Park may well have incurred in any event. Fitness has always been important to him. At the same time such facilities, and the expenses associated with them have, by virtue of the Accident, become more pressing. I would award Mr. Park approximately one half of this expense in an amount of $5,000.
133 Dr. Apel, in her report, recommended an active rehabilitation program. The Third Party has paid to have Mr. Park attend at such a program. The plaintiff seeks, however, the cost of attending such a program on an annual basis for the foreseeable future. That expense or that care requirement is not, however, supported by either Dr. Apel’s report or her evidence.
134 Dr. Apel, in her first report, indicated that Mr. Park would benefit from some “manipulation/active release therapy”. That recommendation was not repeated in her second report. The plaintiff seeks an award that would provide him with bi-weekly treatments into the foreseeable future. Such treatments would be excessive. Mr. Park’s neck and back pain has largely resolved and he is only troubled on an episodic basis. I consider that an award of $5,000 would fully and fairly provide for such care.
136 In the result I would award Mr. Park a total of $10,000 on account of his costs of future care.