Tag: Wohlleben v. Dernisky

Caselaw Dismissing Opinions of Expert Insufficient to Derail Court Ordered Medical Examination

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, finding that past history of judicially rejected opinions is not in and of itself enough to dis-entitle a Defendant to compel a Plaintiff to attend an independent medical exam with their chosen physician.
In today’s case (Wohlleben v. Dernisky) the Plaintiff sued for personal injuries.  In the lawsuit the Plaintiff agreed to be examined by a defense selected orthopedic surgeon and also agreed that a neurologist examination “was justified” but refused to consent to the Defendant’s chosen physician based on past court judgments rejecting the expert’s opinion.  In finding this was not, in and of itself, sufficient Master Bouck provided the following reasons compelling the appointment

[10]         Here, the plaintiff, in my view, has not demonstrated by a preponderance of evidence that there are sufficient grounds to justify that I should not exercise my discretion in favour of the order that Dr. Dost conduct the examination.

[11]         Wheeler v. White, [1983] B.C.J. No. 2494 is a case where the plaintiff objected to the psychiatrist chosen by the defendant. The master accepted the expert evidence provided by another psychiatrist that, to have a valid psychiatric examination, the plaintiff is required to open up and allow the psychiatrist into their private world. This requires great trust. Further, at para. 7 of theWheeler decision at the chambers level:

[7]        … It is sufficient, in my opinion, for the plaintiff to have a reasonable apprehension that the examination will be fraught with peril. …

[12]         The plaintiff in the present case does not, in my view, have such a reasonable apprehension. If she does have an apprehension that the examination will be fraught with peril, which is not her evidence, her apprehension is not reasonable.

[13]         It is not the law that the plaintiff gets to choose the expert to examine him or her: Sinclair (para. 15). The names of alternatives would only come into play where the plaintiff demonstrates, by 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 (paras. 16 and 17). Questions of fairness, partiality, credibility, and objectivity of a physician are matters for the trial judge, not the motions judge or master on an application: Sinclair (para. 21). Further, at para. 22 of Sinclair:

[22]      … In my view, for the Plaintiff to succeed, there must be evidence of real or effective inappropriate conduct on the part of the nominee doctor, and not simply the whim or idiosyncrasies of the Plaintiff or similar views of his or her Counsel. …

[14]         There is no evidence of inappropriate conduct on the part of Dr. Dost. The views of the plaintiff, in my view, do not reasonably support the opposition to Dr. Dost. For these reasons, I grant the order requiring the plaintiff to attend the examination by Dr. Dost.

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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