There is wide discretion for the BC Supreme Court to order a plaintiff to be examined by multiple defence expert witnesses where the alleged injuries call for it. While the law does not allow multiple exams to be conducted simply to get “the best expert” on each area in dispute, where initial experts come up short due to limitations in their area of expertise further examinations may be allowed. This was demonstrated in reasons released today.
In today’s case (Garford v. Findlow) the Plaintiff was injured in two collisions. In the course of her lawsuit she agreed to be examined by three defence physicians, namely an orthopedic surgeon, a dentist and a neurologist. When the Defence asked for a further exam with a psychiatrist the Plaintiff drew the line. The Court found, however, despite the multiple exams a further expert was warranted as the existing experts pointed to psychiatric issues playing a role in the Plaintiff’s condition and conceded this was an area out of their expertise. In allowing the exam Master Bouck provided the following reasons:
 In this case, I find that Dr. Miller’s examination is not an attempt to bolster an earlier opinion of another expert. Neither Drs. Piper, Gershman nor Dost provide a medical opinion on the plaintiff’s mental health, nor do any of them address the cause of the mental health complaints. These physicians comment on Ms. Garford’s mental health condition but no diagnosis is made with deference given to a psychiatrist to make such findings. It is pure speculation that Dr. Stewart-Patterson will provide a diagnostic opinion. Regardless, Dr. Stewart-Patterson’s credentials do not closely resemble those of a psychiatrist.
 Given these findings, I am not at all certain that the defendants are required to meet the higher standard stipulated in Hamilton v. Pavlova. None of the authorities suggest that there is an absolute limit on the number of independent medical examinations that may be ordered under Rule 7-6(2). More to the point, all other assessments or examinations have been directed towards the plaintiff’s physical rather than mental condition.
 On the question of timeliness, the defendants say that they will be in a position to serve any expert opinion by February 2, 2015. Whether the plaintiff will be able to assess and respond to any report remains to be seen. Obviously, the court was persuaded in De Corde that the timeliness factor weighed against granting the IME order. However, as the court determined in Critchley v. McDiarmid, 2009 BCSC 28, the order requiring a plaintiff attend an IME relatively close to trial does not necessarily mean that the trial will be adjourned or the plaintiff prejudiced: paras. 11?14.
 In my view, the defendants are not required to show any exceptional circumstances as this is not an application for a subsequent examination by an expert in the same field or a multidisciplinary assessment as was the case in Wildemann v. Webster.
 In terms of proportionality, the plaintiff has been out of the workforce for four years and is not expected to return to her pre-accident employment as a dental assistant. It is apparent that there will be a significant claim for both past and future income loss. The plaintiff’s claim for special damages is also indicative of the amount involved. I accept defence’s unchallenged submission that Ms. Garford will be seeking damages well in excess of $100,000 at trial. As with the court in Kim v. Lin, I find that the SCCR 1-3 factors in this case favour the order being made.
 The plaintiff may not be pursuing a psychiatric opinion at this time, but she clearly blames the accidents for her mental health condition and necessity for psychological counselling. In my view, the task of identifying let alone proving other causes or sources for these mental health issues cannot be accomplished by simply cross-examining the plaintiff at trial.
 In conclusion, I find that the plaintiff’s attendance at an IME with Dr. Miller will put the parties on an equal footing in terms of addressing diagnosis and causation of the plaintiff’s mental health condition. The examination may also address the interplay of the plaintiff’s mental and physical complaints.
While the BC Supreme Court Rules give defendants in personal injury lawsuits the power to, in appropriate circumstances, force a plaintiff to attend an ‘independent’ medical exam, a plaintiff is entitled to reasonable accommodation with respect to the scheduling of these. Reasons for judgement were recently released by the BC Supreme Court, New Westminster Registry, demonstrating this point.
In the recent case (Welder v. Johnston) the plaintiff sustained injuries in a motor vehicle collision. In the course of the lawsuit the Defendant sought to have the plaintiff examined by a vocational specialist to address the wage loss aspects of the plaintiff’s claim. The plaintiff agreed to be assessed by the Defendant’s expert but the date selected conflicted with a family reunion the plaintiff planned on attending. The defendant brought an application to force the date but this was dismissed with the court finding a plaintiff is entitled to reasonable accommodation. In dismissing the application the Court provided the following comments to defence counsel:
I’m not prepared to order the plaintiff to attend on a date when a family celebration and family reunion has been scheduled since January. I don’t think that being a plaintiff in an action you give up all rights to manage your own schedule, and I think it’s unfortunate that there was an error in your office and the information about his unavailability didn’t come to your attention sooner, but the reality is that based on the affidavit from Mr. Welder, he has a commitment that he’s made since January to be out and unavailable during the period in which this has been scheduled, and I am not prepared to make an order for him to attend in the middle of that period of the family reunion.
The reasons for judgement are not publicly available but, as always, I’m happy to provide a copy to anyone who contacts me and requests one.
Adding to this growing database of caselaw considering the relationship of Rule 7-6 and Rule 11-6(4), reasons for judgement were recently released by the BC Supreme Court, Chilliwack Registry, demonstrating that “responding” independent medical exams will not be granted as a matter of course.
In the recent case (Godfrey v. Black) the Plaintiff was injured in a motor vehicle collision. She sued for damages. Her pleadings specifically identified an alleged TMJ Injury. In the course of the lawsuit the Plaintiff was examined for discovery with respect to her TMJ pain. She also served an expert report addressing this injury in compliance with the time-lines set out in the Rules of Court.
The Defendant brought an application for the Plaintiff to be assessed by a TMJ specialist of their choosing. Their application was brought after expiry of the 84 day expert report service deadline They argued an exam was necessary in order to obtain a responding report under Rule 11-6(4). Master Caldwell disagreed and dismissed the motion finding no sufficient evidence was tendered to explain the need for a physical exam. In doing so the Court provided the following reasons:
 I am told that the pleadings, when they were issued, specifically identified among other things injury to the temporomandibular joint (“TMJ”). That, it is said, and I agree, put the defence on specific notice that there was an issue relating to the jaw and the TMJ…
 There is no evidence before me to indicate why this particular dental expert believes it necessary for him to do a physical examination of the patient. In fact, the instruction letter from counsel specifically asks for among other things a critique of the report of the first dentist. Many of those bullets which appear in the letter which I will not make further reference to appear able to be done on the basis of a criticism of methodology or findings as opposed to requiring an independent examination of the person of the plaintiff…
 I have been referred to several cases, but the one which I find the most helpful is the case of Wright v. Brauer, 2010 BCSC 1282 a decision of Mr. Justice Savage in similar circumstances where he was dealing with a trial date in the near future and an examination such as this where there was no medical evidence as to why a physical examination was necessary in order to provide a truly rebuttal or critical report…
 In my view, the same reasoning applies in this case…
 This application comes late in the day, a year after the defence was well aware that TMJ was an issue that should be looked into. Had they wished to get a full report, they were well able to make that application or the request earlier. I am not satisfied on the material that there is a basis for me to infer from the submissions of counsel or the material filed that an independent medical examination of the person of the plaintiff is required in order for this dentist to provide a truly rebuttal report.
These reasons are unpublished but as always I’m happy to share a copy with anyone who contacts me and requests these.
Earlier this month I discussed a case dismissing a defence application for an ‘independent’ medical exam where the Plaintiff already attended an ICBC arranged medical examination. Further reasons for judgement were released by the BC Supreme Court, Vancouver Registry, with the same disposition.
In this week’s case (Soczynski v. Cai) the Plaintiff was injured in a 2008 collision. Both she and the Defendant were insured by ICBC. As is the usual practice in BC, the same ICBC adjuster was handling the Plaintiff’s claim for no-fault benefits and also her tort claim.
The adjuster arranged an independent medical exam with an orthopaedic surgeon. The Plaintiff attended. In the course of the lawsuit the Defendant brought a court motion to compel the Plaintiff to be examined by a second surgeon. The motion was dismissed, however, with the Court finding that the previous ICBC exam created a ‘level playing field’. Master McDiarmid provided the following useful reasons:
 In reviewing the facts in this case, and keeping in mind the main principle to be looked at here, the principle of keeping the parties on an equal footing, I find that in the circumstances of this case, and in particular, the fact that the ICBC adjuster was handling both the Part 7 and tort claims, and did not respond when she knew that the plaintiff’s position was that the examination in front of Dr. Bishop was to deal with both those claims, I find that the examination which took place at the behest of ICBC on January 27, 2009 by Dr. Paul Bishop constituted the first medical examination as contemplated by Rule 7-6(1). The defendants want a further examination by another medical practitioner who practices in the area of orthopaedics. The plaintiff is not relying on any orthopaedic specialists. Keeping in mind the “level playing field” principle, it is not appropriate to order a further examination of the plaintiff by a medical practitioner having expertise in the area of orthopaedics.
For an example of a recent case where an ICBC Part 7 exam which went beyond Part 7 matters did not prohibit a tort Defence Medical exam you can click here to read Master MacNaughton’s recent reasons for judgement in Assalone v. Le.
As previously discussed, when a Defendant is insured with ICBC their ability to set up an ‘independent‘ medical exam can be compromised if ICBC exercised their rights to have the Plaintiff examined under section 99 of the Insurance (Vehicle) Regulation and if that exam went beyond what was required for a ‘part 7’ opinion. Reasons for judgement were recently released by the BC Supreme Court, Rossland Registry, demonstrating such an outcome.
In the recent case (Wocknitz v. Donaldson) the Plaintiff was injured in a 2008 collision. Both the Plaintiff and Defendant were insured by ICBC. Before litigation got underway ICBC had the Plaintiff assessed by a physiatrist. As is not uncommon with these types of examinations, the report generated exceeded the narrow scope of Part 7 Benefit needs.
In the course of the lawsuit the Plaintiff obtained their own expert opinion from a physiatrist. The Defendant’s brought an application to compel the Plaintiff to be assessed by another physiatrist and by a psychiatrist. They argued this was necessary to ‘level the playing field’. Mr. Justice Pearlman disagreed and dismissed the application. In doing so the Court provided the following helpful reasons:
 In Robertson v. Grist, 2006 BCSC 1245, at paragraph 14, Madam Justice Dillon addressed the question of whether a Part 7 examination constitutes a first independent medical examination for the purposes of a tort claim. She said this:
 Whether the Part 7 examination constitutes a first independent medical examination depends upon the scope of the examination, given the rest of the circumstances here. There was no limitation on Dr. Jaworski’s examination and the request letter covered matters that would solely be relevant to a tort action. The doctor’s report was not limited to a rehabilitation opinion about whether the injuries sustained in the accident totally disabled the plaintiff from work within 20 days of the accident and for a period of 104 weeks or less, the criteria in section 80 of the Part 7 benefits Regulations. The examination was a first independent medical examination within the meaning of Rule 30.
 In this case, the letter from the adjustor instructing Dr. Findlay has not been put in evidence. However, it is clear from Dr. Findlay’s report that it deals with matters which go beyond an inquiry restricted to Part 7 benefits, and deals with matters directly relevant to the tort claim. ..
 In this case, there have been no subsequent unforeseeable events which would, in my view, warrant a second examination by a physiatrist.
 With respect to the application of the defendants for an order for an independent medical examination by a psychiatrist, again this is not a case where such an examination is required in order to level the playing field. This is not a case where the plaintiff has obtained or intends to obtain a psychiatric report. An independent medical examination by a psychiatrist is a particularly invasive form of examination and, in the circumstances of this case, it is not one that I would be prepared to order.
 With respect to the defendants’ submission that because Dr. Findlay provided his report some nine months after the accident, he was not in a position to pronounce in any definitive way with respect to a prognosis, in my view the timing of Dr. Findlay’s examination was a matter that was entirely within the control of the defendants. That does not provide a basis which would justify an order for a second independent examination by a physiatrist. As counsel for the plaintiff has pointed out, it would still be open to the defendants to have Dr. Findlay review the report of Dr. Valentine, and the clinical records that have been produced, and to provide a rebuttal report for use at trial.
 The application of the defendants for the two independent medical examinations sought is dismissed.
(Update November 16, 2011 – The case discussed in the below post has now been published and full reasons for judgement can be found here)
One of the patterns that is becoming very clear under the New Rules of Court is that Parties ignore the 84 day requirement for exchange of expert evidence at their peril.
Often times Defendants apply for an order compelling a Plaintiff to attend an Independent Medical Exam beyond this deadline. Numerous cases have considered such applications with the argument that an assessment is necessary in order to obtain a ‘responding‘ report under the more generous 42 day deadline of Rule 11-6(4). Reasons for judgement were recently released by the BC Supreme Court, Vancouver Registry, considering and rejecting such an argument.
In today’s case (Scott v. Ridgway) the Plaintiff was injured and sued for damages. In the course of the lawsuit the Plaintiff served the report of a vocational consultant. The Defendant applied for an order to compel the Plaintiff to attend an independent exam in order to obtain a responding report. The Defendant brought the application after the 84 day deadline. Madam Justice Kloegman dismissed the application finding that prejudice is not enough to compel an IME for the purpose of a responding report. The Court provided the following useful reasons:
 I am not persuaded that the plaintiff is required to attend before Dr. Banks in order for the defendant to file a responsive report. I am aware of the prejudice claimed by the defendant that their expert’s opinion may be given less weight because of lack of examination of the plaintiff. However, if they are prejudiced, it is of their making and not the result of any conduct of the plaintiff.
 The rules are clear. They must be obeyed in the absence of special circumstances. There are no special circumstances here that would allow the defendant to file a report containing fresh opinion. The defendant will be restricted to analyzing and respond to the plaintiff’s report.
I should note that some previous cases have ordered physical examination for responding report purposes, however, in such cases the Court was presented with affidavit evidence from the proposed expert explaining why such an examination is necessary.
In today’s case the Defendant did provide an affidavit from a doctor but the court placed no weight in it and criticized it for being “lifted from another affidavit sworn by another expert in another case with other expertise than that of Dr. Cook”.
Today’s reasons are unpublished but as always I’m happy to share a copy with anyone who contacts me and requests these.
As previously discussed, ICBC can typically arrange an ‘independent’ medical exam (IME) in one of two ways. The first is when an insured applies for first party no-fault benefits. Section 99 of the Insurance (Vehicle) Regulation gives ICBC the power to compel an IME in these circumstances. The second is under Rule 7-6(1) of the BC Supreme Court rules which allows the court to order an independent exam to “level the playing field” in an injury lawsuit.
Two sets of reasons for judgement were recently brought to my attention from the BC Supreme Court, Campbell River Registry, discussing when a previous Part 7 Exam will prevent ICBC from obtaining a new expert under the Rules of Court.
In the first case (Robinson v. Zerr) the Plaintiff was injured in a motor vehicle collision. In the course of dealing with ICBC for his Part 7 Benefits the Plaintiff attended a medical appointment arranged by ICBC with an orthopaedic surgeon. In the course of the tort lawsuit ICBC attempted to get an opinion from a second orthopaedic surgeon. The Plaintiff opposed this. ICBC brought an application to compel the second exam but this was dismissed with the Court finding that the first report strayed beyond what was required for a Part 7 exam. In dismissing the Application Master McCallum provided the following reasons:
 The authorities are clear that the Part 7 report can be treated, as it was in Robertson v. Grist, as a report in the tort action if it is shown that it effectively covered all of that ground, as I understand it. It is clear from Dr. Dommisse’s that it does cover all of what one may expect in a report. Dr. Dommisse did not have access to the pre-accident clinical records. However, it is clear he knew of the plaintiff’s history because he describes past treatments and past history…
 Dr. Dommisse went through the examination and gave his opinion. His opinion is not qualified in any way. He does not suggest that there is more information he needs. He makes no recommendaiton for treatment. There is nothing to suggest that, if he had more information or that he wished more information before he could make the determinations he did.
 The report, in my view, is the same of sufficiently similar to the report in Robertson v. Grist and obtained in circumstances that persuade me that this report is indeed the opportunity for the level playing field that the authorities call for. The defendant has had the opportunity to have the plaintiff examined by an examiner of his choosing. Although the adjuster references Part 7 claim and the disability benefits, Dr. Dommisse does not, in my view, treat the report as limited in any way and gives his opinion on every aspect of the claim…
 In those circumstances the defendant’s application is dismissed.
In the second case (Lamontage v. Adams) a similar result was reached with a Court finding that a subsequent exam should be with the Part 7 physician as that examiner covered ground relevant in the tort claim.
The above cases are unreported but, as always, I’m happy to provide a copy of the reasons to anyone who contacts me and requests these.
One of the New Rules which has received more attention than most is Rule 11-6(4) which deals with responsive reports. The issue of whether the Court could order a Plaintiff to undergo a physical exam for a responsive report has been considered a good half dozen times. In short the authorities have held that such an order is possible but the Courts have been conservative in making these orders to date. Further reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing this topic.
In this week’s case (Mahil v. Price) the Plaintiff was injured in a 2007 motor vehicle collision. The Defendants did not order an independent medical report in the timelines allowed by Rule 11-6(3) and brought a motion for an exam less than 84 days before trial. They argued that they only wished to obtain a ‘responsive’ report and that the report would comply with Rule 11-6(4). Mr. Justice Voith held that such an appointment was permitted and allowed the order. In doing so the Court provided the following reasons:
 Rule 7-6(1), formerly Rule 30, allows for the conduct of an independent medical examination. The object of Rule 30 was succinctly described by Finch J.A., as he then was, in Stainer v. ICBC, 2001 BCCA 133 at para. 8:
…the purpose of Rule 30 is to put the parties on an equal footing with respect to medical evidence. …
 The object of placing the parties on an equal footing is, however, only achieved in real terms if the parties also adhere to those rules which govern the timely exchange of both initial expert reports and responsive expert reports.
 The important relationship of what was Rule 30 and what is now Rule 7-6(1) and those Rules which pertain to the time limits for the exchange of expert reports has been recognized in other decisions. In Wright v. Brauer, 2010 BCSC 1282, Savage J. said at para. 9:
In the context of an action seeking compensation for personal injuries, the parties are on equal footing with respect to medical evidence if they can independently obtain medical evidence and if such evidence is served in accordance with the Rules.
 In the case of Mackichan v. June and Takeshi, 2004 BCSC 1441, Master Groves, as he then was, said at para. 11:
… It is not simply a question of putting the parties on a level playing field at this stage, it is a question of really balancing the prejudice which will result to the defendants in not having a report and the prejudice that will result to the plaintiff in having a report prepared late which would no doubt, I expect, cause an adjournment of the trial.
 If the defendants have Dr. Gropper prepare a properly responsive report, and if that report is delivered in accordance with the Rules, the interests of both parties are concurrently advanced and safeguarded.
 I have, based on a request I made, been advised by counsel for the defendants that Dr. Gropper would be able to deliver his report in advance of the 42 days provided for in Rule 11-6(4).
 Notwithstanding some misgivings about some of the issues advanced by the defendants, I do not believe that it would be either prudent or appropriate for me to pre-determine that the specific concerns raised by the defendants will not, in fact, be properly responsive to the Reports.
 I have, however, earlier in these reasons, identified with some precision the very narrow issues that the defendants assert they wish to respond to in the Reports. These reasons should provide some safeguard against Dr. Gropper’s report extending or straying beyond its permitted ambit, whether inadvertently or otherwise. I note, as did Saunders J., as she then was, in Kroll v. Eli Lilly Canada Inc. (1995), 5 B.C.L.R. (3d) 7 at para. 7 (S.C.), that truly responsive evidence:
… does not permit fresh evidence to masquerade as an answer to the other side’s report.
 I am therefore prepared to grant the defendants’ application. Costs are to be in the cause.
Further to my post discussing court ordered medical exams and travel, I’ve recently had the opportunity to review whether the current Supreme Court Rules place limits on Court ordered travel for independent medical examinations. The line, it seems, is drawn at out of Province “medical practitioners“.
While I’m not aware of any cases addressing this issue under the current rules, the issue was addressed by the BC Court of Appeal under the former Rule 30(1) which reads almost identically to the current Rule 7-6(1).
In the leading case under the former rules (Hewitt v. Buell) the BC Court of Appeal held that orders for medical examinations are to be limited to BC physicians because “the phrase (medical practitioner)…as it appears in Rule 30(1) can have no meaning other than one entitled to practice in British Columbia. This is what the chambers judge concluded and in my view he was right. ”
The BC Court of Appeal went on to hold that applications for out of Province examinations with “other qualified persons” (ie- experts other than medical practitioners), can be ordered in rare circumstances.
I’ve now had the opportunity to cross reference this judgement with the new Rules of Court. It appears that the out of Province restriction for exams with “medical practitioners” remains in place. The reason being is that Rule 7-6(1) reads almost identically to the former Rule 30(1). Additionally, the current Rules of Court do not define “medical practitioner” requiring the Court to turn to Rule 1-1(2) which states that “Unless a contrary intention appears, the Interpretation Act and the interpretation section of the Supreme Court Act Apply to these Supreme Court Civil Rules“.
“Medical Practitioner” is defined at section 29 of the BC Interpretation Act as “a registrant of the College of Physicians and Surgeons of British Columbia entitled under the Health Professions Act to practice medicine and to use the title ‘medical practitioner’.”
So, if an out of Province medical exam is contested, a good place to start in opposing a defence application is to review whether the out of Province physician is a registrant of the BC College of Physicians and Surgeons.
When ICBC requests a Plaintiff to attend an ‘independent’ medical exam they often pick physicians in the Lower Mainland for these assessments. One of the obvious reasons for this is that the Lower Mainland has the highest concentration of physicians who provide these consultations to ICBC. Is it reasonable to object to such an appointment on the basis of location? The answer is usually not and reasons for judgement were released today by the BC Supreme Court, Victoria Registry, dealing with this area of law.
In today’s case (Parsons v. Mears) the Defendant was involved in an incident where he became trapped in an overturned tractor trailer. The Plaintiff “allegedly suffered various injuries when attempting to rescue the Defendant“. The Plaintiff sued for damages and in the course of the lawsuit the Defendant requested that the Plaintiff attend a Vancouver based medical exam. The Plaintiff agreed to the assessment but insisted it take place in Victoria. The parties could not reach agreement on this issue and an application was brought. Master Bouck ordered that the Plaintiff attend and in doing so provided the following summary of the law:
 The following principles are applicable to this discussion:
a. The purpose of an independent medical examination is to put the parties on a basis of equality. It is not for the plaintiff to decide which doctor can examine him or her on behalf of the defendant: Sinclair v. Underwood, 2002 BCSC 354 at para. 5;
b. Nonetheless, an independent medical examination is an examination conducted by a person appointed by the court. The convenience of the plaintiff is to be considered in appointing such a person: Willis v. Voetmann,  B.C.J. No. 2492 (S.C.) at para. 5;
c. Convenience to the plaintiff is but one of several factors for the court to consider in exercising its discretion under Rule 7-6: Adelson v. Clint (1993), 16 C.P.C. (3d) 209 (B.C.S.C.) at para. 17; and
d. It may be appropriate for the court to consider appointing a specialist other than the proposed examiner but only where the plaintiff demonstrates, on a preponderance of evidence, sufficient grounds to justify the court in concluding that its discretion should not be exercised in favour of the appointment of the defendant’s nominee: Sinclair v. Underwood and Adelson v. Clint, supra.
 In terms of convenience to the plaintiff, I do not understand the authorities to say that an independent medical examination should, or even might preferably, take place at the examinee’s town or city of residence. Nor do I understand those authorities to say that all things being equal, the defence should be required to schedule an examination with a specialist practicing near the examinee’s residence. For example, the court in Willis v. Voetmann, supra, deemed it reasonable for a resident of Port McNeil to travel to Victoria or Vancouver for an examination.
 It is almost always an inconvenience to a plaintiff to attend an independent medical examination. An employed person might miss a day’s pay; a homemaker with young children might be required to pay for childcare. However, that inconvenience can be remedied at trial by an award of damages for this suggested loss.
 On a very rare occasion, the court may order that the defendant’s nominee travel to the plaintiff’s town or city of residence to conduct the independent examination or assessment. Such an order might be appropriate where the examination or assessment is requested so late in the day that travel time would unduly interfere with the plaintiff’s trial preparation. The alternative to such an order would be to deny the defendant’s entitlement to an examination altogether: White v. Gait, 2003 BCSC 2023.
 In this case, there is no objection to the qualifications of either Dr. Leith or the proposed evaluator at Progressive Rehabilitation. The plaintiff can obviously travel although the defendant may need to offer special accommodations for that travel.
 In short, convenience to the plaintiff is one of several factors for the court’s consideration on this application. It is not the predominant factor and in itself does not provide justification for denying the defendant’s entitlement to the order sought.