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Court Emphasizes Limitations on Future Care Awards

How will the court decide how much to award me for future care?  Do I need to have a doctor approve or recommend the care for it to be funded?  What about items that my work will probably pay for anyhow?

In a decision released this week by the British Columbia Supreme Court, Justice Jenkins considered the future care expenses for a woman injured in two car crashes (Downer v O’Connor 2017 BCSC 1459).  While a summary of this case posted by my colleague earlier this week focuses on the plaintiff’s alleged failure to mitigate, we’re moving today from the issue of access to past care to access to future care.

The plaintiff in this case had submitted a future care claim of some unstated amount that the defendant referred to as “grossly inflated.”  The defendant, for his part, submitted that a “more modest amount” of $20,000.00 – $25,000.00 was reasonable.  The court awarded just $13,805.00 – much less than even the defendant’s sense of what was reasonable.  That relatively small award was possible because of the court’s stringent view of future care expenses.  Justice Jenkins summarized the law as follows:

[143]     Again, a claim for the cost of future care is often a matter of prediction and must take into consideration the care that is reasonably necessary to promote the mental and physical health of the plaintiff: Milina v. Bartsch, [1985] 49 B.C.L.R. (2d) 33 (S.C.). There must be medical justification for the expense in that “there must be some evidentiary link drawn between the physician’s assessment of pain, disability, and recommended treatment and the care recommended by a qualified health care professional”: Gregory v. Insurance Corporation of British Columbia, 2011 BCCA 144 at para. 39.

As for the piece-by-piece summary of Justice Jenkins’ award, in which he significantly limits the plaintiff’s access to passive therapies and declines to make an award for a gym pass or workplace ergonomic equipment:

[146]     Upon reviewing the claims made by the plaintiff for the cost of future care, and summarized by plaintiff’s counsel at p. 70 of the written submissions, I find the following amounts to be medically justified:

·       Psychology assessment and sessions were recommended by Dr. Salvian and Dr. Adrian and are allowed as claimed at $185 for assessment and $2,050 for psychology sessions.

·       Feldenkrais physiotherapy to be assessed and sessions at $44 and $697 as recommended by Dr. Salvian are allowed.

·       Occupational therapy is allowed at $2,257 as recommended by Dr. Adrian.

·       Chiropractic care and maintenance is claimed in an amount exceeding $22,000. Dr. Salvian stated, at p. 38 of his report “…Ms. Downey will require occasional passive treatments such as acupuncture or massage or chiropractic or medications such as Flexeril for muscle relaxation or anti-inflammatories”. “Occasional passive treatments” are unlikely to cost in the range as claimed. I award $4,000 on account of chiropractic costs.

·       Kinesiology was recommended by Dr. Salvian and costs of $441 as claimed are granted.

·       The costs of annual gym passes are not granted as Ms. Downey may well have incurred such costs in any event.

·       Vocational counselling and educational ergonomic equipment costs are reasonable and are awarded at $1,418 and $2,713 as claimed however, workplace ergonomic equipment, which may well be provided by an employer is not awarded.

[147]     The total future care costs above amount to $13,805.

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