Yet To Be Produced Defence Medical Report Derails Request For Second Defence Medical Exam

Last week I highlighted reasons dismissing a defence application for a second independent medical exam where they had the benefit a first exam but no report was yet produced.  Today similar reasons were published by the BC Supreme Court, Vancouver Registry.

In today’s case (Rong v. Yelland) the Plaintiff was injured in a collision and sued for damages.  In the course of the lawsuit the Plaintiff consented to be assessed by an orthopedic surgeon of the Defendant’s choosing.  After the assessment but prior to any report from the assessment being produced the Defendant requested that the Plaintiff also attend a functional capacity evaluation with a kinesiologist.  The Plaintiff declined.

The Defendant brought an application to compel attendance.  In dismissing this application the Court noted there is no way of knowing whether the medical ‘playing field‘ was even without the defence surgeon’s report.  Master Cameron provided the following reasons:

[19]          I find I am left in the same position on this application. The evidence does not disclose the instructions that were provided to Dr. Boyle, and the evidence does not provide any indication as to whether Dr. Boyle has advised defence counsel that he is limited in the opinion that he may be able to provide with respect to the plaintiff’s functional capacity. It is not possible to determine whether to ensure the parties are on equal footing to prepare for trial that it is necessary to order a functional capacity evaluation until that information is known.

[20]         In passing, I note plaintiff’s counsel on this application committed this much:  as of the date of the hearing of this application, no appointment had been booked for the plaintiff to attend a functional capacity evaluation by any expert qualified to provide such advice. That is in no way determinative of this application, but it is part of the context.

[21]         Accordingly, I am not satisfied that the defendant has met its onus to show that this second independent medical examination is warranted, and the application is dismissed with costs to the plaintiff with liberty to the defendant to bring the application on an updated  record should the need arise.