In Prothero v. Togeretz, the Plaintiff was injured in a motor vehicle accident, and subsequently advanced an ICBC claim for damages for pain and suffering, as well as other forms of damages. At one point, the Plaintiff’s treating physician wrote to Plaintiff’s counsel, requesting that the Plaintiff undergo an MRI for possible referral to a specialist for assessment, rehabilitation, and ongoing management of symptoms. Not surprisingly, the ICBC adjuster refused to pay for the cost of the MRI. The Plaintiff did nevertheless undergo an MRI on a private basis. An issue later arose as to whether or not the MRI disk should be producible in the litigation, with Plaintiff’s counsel taking the position that it was subject to litigation privilege and, as such, was not producible. The Court, however, ruled differently, stating that the MRI disk arose out of the Plaintiff’s treating physician’s investigation and treatment of the Plaintiff for his injuries, and not via the request of Plaintiff’s counsel.

 

[10]         On the material before me I am unable to agree with plaintiff counsel’s assertion of litigation privilege or solicitor’s brief privilege. It appears clear on the material that the MRI was requested by Dr. Fernandes as part of his course of investigation and treatment of the plaintiff for injuries resulting from the motor vehicle accident; he then obtained the results and referred the plaintiff to a specialist for further assistance in diagnosis and treatment. Dr. Mutat was a treating doctor at the time this took place and only took on the role of expert at a later date when approached by plaintiff’s counsel.

[11]         In the result, the MRI disk is producible and is ordered produced; it came into existence for diagnostic and treatment purposes at the request of Dr. Fernandes, not for litigation purposes at the instance of plaintiff’s counsel. In this regard it would seem that the cost of the MRI will be addressable as a special damage matter relating to medically necessary investigation and treatment rather than as a disbursement in the litigation however that will remain to be determined in the fullness of time.

 

If you have been injured in a motor vehicle accident, and you are thinking about ordering an MRI (Magnetic Resonance Imaging) privately, it is important to think twice before incurring the cost, as you may not be able to recover the amount of the disbursement. The Court will look at whether the incurred expense was reasonable, and whether it was of such an urgent nature that it could not wait until you were able to avail yourself of a free MRI through the public healthcare system. You should be sure to obtain a recommendation from your doctor that the MRI is of an urgent nature, in order to improve your chances of recovering the disbursement.

 

In Kumanan v. Achim, the Plaintiff was hurt in a motor vehicle collision, and brought an ICBC claim for non-pecuniary damages, as well as other forms of damages. The Plaintiff sought a variety of treatment modalities, as per the recommendation of her doctor. At one point, her doctor recommended that the Plaintiff get an MRI of her cervical and lumbar spine. The matter eventually settled, however the parties could not decide on the reasonableness of the MRI disbursement. Counsel for the Plaintiff argued that the MRI was a necessary or proper disbursement, something which ICBC’S lawyer conceded, however who also argued that the expense was not reasonable, as it was not of an urgent nature. Further, ICBC’S lawyer argued that no evidence was adduced to show that it was necessary to bypass the publicly funded healthcare system so that the MRI could be conducted at a private clinic. The cost of the MRI came to $2,015.00. The Court ruled that the disbursement was not allowed, due to the non-urgent nature of obtaining the MRI.

 

[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.