This modest out of court motor vehicle accident settlement with ICBC concerned, in part, the costs of a Functional Capacity Evaluation (“FCE”) set up by the claimant’s personal injury lawyer. The claimant suffered soft tissue injuries to his neck and upper back after the accident and had ongoing left shoulder pain. If the matter did not settle it was the claimant’s intention to claim for losses associated with cost of care and loss of earning capacity.
Rule 14-1(5) of the Supreme Court Civil Rules applies when resolving a dispute over disbursement or case expenses after the settlement of a personal injury case with ICBC.
The Master found in this case that is was not necessary to order the $4, 875.00 FCE report:
I find that it was neither proper nor necessary in the circumstances of this case to retain an occupational therapist to prepare a Functional Capacity Evaluation and Cost of Future Care report. There was no evidence that there would be a real and substantial possibility of a future event leading to an income loss resulting from the injuries this plaintiff sustained in the two motor vehicle accidents.
Functional Capacity Evaluation reports should not be commissioned without reviewing medical records and having some testing to rely upon. By their very nature FCE’s, “involve significant expenditure of time by the preparer of the report, and thus incurring of substantial cost.” A disbursement can be disallowed by the court if it is incurred out of extravagance, excessive caution or zeal.
Posted by Vancouver Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.
ISSUE: Should claimants automatically get all their expenses paid upon settlement?