Court denies defence request for IME with Vocational Psychologist as previous IME held with Psychiatrist

In reasons for judgment released last week, the court in Baxter v. Shelton, 2017 BCSC 953 denied the defence request for an IME with a Vocational Psychologist due to the defence having a previous IME with a defence Psychiatrist (from whom they had no ordered a report).  Master Keighley said:

[6]             ...counsel for the defence determined to have a vocational rehabilitation assessment done and scheduled an appointment for March 24, 2017, before Dr. Colleen Quee Newell, a vocational rehabilitation consultant.  Plaintiff's counsel took objection to the plaintiff's attendance at that appointment and indicated in any event that the plaintiff was going to be away at the time of that appointment. 

[7]             It appears that another appointment has now been arranged but with a different expert, a Dr. Dennis Magrega, who is an expert in vocational psychology, and his assistant Kim Eyrl.  That appointment is scheduled for April 5, 2017, at 9:00 a.m. at the offices of IMA Solutions in Vancouver.

...

[16]         Now, here we do not know specifically what issues Dr. Axler dealt with during the examination.  We know what he was asked to do.  We do not have a report.  There is nothing in the material to suggest to me that there is some issue which has arisen since the time that referral was made which could not have been dealt with at the time of that examination.

[17]         It is difficult in circumstances where a report of an expert with an overlapping expertise has not been produced to make a determination as to whether that subsequent examination is required for the purpose of levelling the playing field or addressing some issue which could not have been raised at the time of the original examination.  The onus is on the defendant to establish those issues.  I am not satisfied on this application that the defendant has done so.

[18]         The application is dismissed.

The full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/17/09/2017BCSC0953.htm

Court rules that voluntary attendance at IME does not constitute a "first examination" under Rule 7-6

In reasons for judgment released today, the court in Kenny v. Bateman, 2017 BCSC 900, addressed the issue of whether an IME was a "second IME" under Rule 7-6 given that the plaintiff had voluntarily attended a previous IME.  The court concluded that the second IME was not a "second IME" for the purposes of the Rule.  Mr. Justice Blok said:

[40]         Voluntary attendance at a medical examination does not constitute a first examination under the Rule: Teichroab v. Poyner, 2008 BCSC 1130 at para. 24 [Teichroab].

[41]         In contrast, the express mention of Rule 7-6 in the correspondence between counsel lends support for the plaintiff’s argument that the IME by Dr. Russell must be considered a Rule 7-6 examination.

[42]         The correspondence between counsel leaves the exact nature of the examination unclear.  There is support for both views.  I conclude, however, that the defendant’s argument is the stronger one because the Rule refers to an order being made,  a point mentioned by Barrow J. in Teichroab, where the former iteration of the Rule (Rule 30) was at issue:

[24] In my view, the wording of the Rule and the weight of authority supports the conclusion that the “further examination” contemplated by Rule 30(2) means an examination in addition to one ordered under Rule 30(1).  To the extent that is so, there can be no question but that the examination ordered by the master was a first examination for purposes of the Rule.  The examination carried out by Dr. Laidlow was not ordered under Rule 30(1).

[Emphasis added.]

[43]         In the present case the examination by Dr. Russell was not ordered by the Court, there was no express agreement or reference to the examination taking place as if there were an order from the Court, and there was no mention of the examination constituting a first examination under Rule 7-6.  The absence of that type of language distinguishes this case from Stene v. Echols, 2015 BCSC 1063 [Stene] and Stocker v. Osei-Appiah, 2015 BCSC 2312, both cited by the plaintiff.  The mere mention of the Rule in the correspondence was, in my view, not enough.

[44]         Accordingly, I conclude that the application for a neuropsychological examination of the plaintiff by Dr. Lysak was a first examination under the Rule.

The full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/17/09/2017BCSC0900.htm

Court finds defence Orthopedic Surgeon Report “of little assistance” as expert did not actually examine plaintiff, but only reviewed clinical records

In reasons for judgment released last week, the court in Petrovic v. Stetsko, 2017 BCSC 741, criticized the medical-legal report of the defence Orthopedic Surgeon in circumstances where the expert did not actually examine the plaintiff.  Madam Justice J. A. Power wrote:

[34]         The defence called Dr. Paul Marks, an orthopedic surgeon from Toronto, Ontario.  Dr. Marks’ report was a response report and is entitled “Medical File Review”.  As the title suggests, Dr. Marks did not medically examine Mr. Petrovic.  Instead he simply reviewed the medical file and then provided an opinion.

[35]         Dr. Marks is of the opinion that Mr. Petrovic suffered simply soft tissue strains as a result of the accident which should have resolved within 6-12 weeks under normal biological healing parameters.  Dr. Marks agrees with Dr. Reynolds that it is highly unlikely that the plaintiff’s symptom would be permanent.

...

[39]         I have further determined that Dr. Marks’ evidence is entitled to little weight for the reasons outlined by Parrett J. in Preston v. Kontzamanis, 2015 BCSC 2219 at paras. 127 to 138.

[40]         As noted in the plaintiff’s argument, the defence did not at any point seek an Independent Medical Assessment pursuant to the Rules or request the plaintiff to submit to one voluntarily.  I am of the view that Dr. Marks’ evidence is of little assistance to the court.

The full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/17/07/2017BCSC0741.htm

Court denies ICBC’s request for Independent Medical Examination with Orthopaedic Surgeon

In a decision published yesterday, the court in Pridge v. Barnett, 2016 BCSC 2556, denied ICBC’s request for an Independent Medical Examination with an Orthopaedic Surgeon on the basis that the plaintiff had already been examined by an ICBC appointed Physiatrist.  Madam Justice Power said:

[1]             THE COURT:  This is the defence application that the plaintiff attend an independent medical examination with Dr. Darius Viskontis, an orthopaedic surgeon.

...

[4]             The plaintiff also argues that this is not a first independent medical examination, but a second one, and that the court should not exercise its discretion in favour of granting a further independent medical examination.

...

[14]         The parties have placed a number of authorities before me, both in the application and response.  Having considered those materials, I am of the view that the weight of the materials satisfies me that this is a second examination and is not required to ensure reasonable equality between the parties in the preparation of the case for trial.

[15]         The defence has the benefit of two reports of Dr. Filbey which are comprehensive and two reports of Mark Swain, an occupational therapist.  The plaintiff does not intend to call an orthopaedic surgeon at trial.

The full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/16/25/2016BCSC2556.htm

Plaintiff ordered to attend IME with defence psychiatrist

In reasons for judgment released today, the court in Huang v. Bertelsen, 2015 BCSC 2650, ordered the plaintiff to attend an independent medical examination with a defence psychiatrist.  The plaintiff in Huang objected to the attendance on the basis that she had a trip booked to Las Vegas that conflicted with the examination date.   The court was not impressed with this argument, as the plaintiff had prior knowledge the IME would take place on that day.  In ordering the plaintiff’s attendance (and awarding the defence its costs), Madam Justice Fenlon said as follows:

[6]             The only issue is the convenience of the plaintiff. She says she will be greatly inconvenienced by having to attend the IME. She is starting a new business, a store which sells items to adults. It has been described as an exotic or erotic boutique, and she says that in order to get back on her feet (and although the words were not used also in order to mitigate her losses), she needs to attend this conference in order to make contacts to figure out how best to run this kind of business and to succeed. She says that it will help with her depression to get her boutique underway, and this conference is going to help her do that.

[7]             The convenience of a plaintiff is one of the factors the court considers in determining whether an order should be made directing a plaintiff to attend an IME. In this case the defendants have already accommodated the plaintiff and her objections once. This is a situation in which the plaintiff, faced with knowledge of the date for the IME, subsequently booked flights and hotels in disregard for the commitment she already had to see a busy specialist.

[8]             The competing interests I must balance on this application are the defendants' right to have a level playing field for trial, the right to have an independent medical specialist, a psychiatrist, examine the plaintiff; and on the other hand the plaintiff's desire to attend a conference to help her with her business.

[9]             I conclude that my discretion should be exercised to compel the plaintiff to attend the IME. This is not a situation in which she will have no other opportunity to attend such a conference. In fact, she attended one in September 2014. She will be attending another one from January 14 to 17 in Las Vegas. This would be her third such conference in the space of a number of months. Although they are described as rare, the sheer number that have occurred in the last four months suggests that they are not quite as rare as the plaintiff is suggesting them to be.

[12]         The defendants have been successful on this application. In my view the application should not have been necessary. The defendants are entitled to their costs of the application at Scale B. It is probably clear but that is not forthwith. That is at the end of the proceeding.

The full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/15/26/2015BCSC2650.htm

Court dismisses defence application for Independent Medical Examination with Psychiatrist

In reasons released earlier today the court in Tournier v. Ruckle, 2017 BCSC 308 dismissed the defendant’s application to compel the plaintiff to attend an independent medical examination with a Psychiatrist.  In Tournier, the defence applied for the IME for the purpose of responding to an expert report of the plaintiff’s psychiatrist.  The application was made after the 84-day service deadline.  The defence claimed they were taken by surprise when the plaintiff served a report shortly before the deadline which diagnosed the plaintiff with PTSD.  In finding that the defence should have been aware that a PTSD diagnosis was a live possibility, and thereby dismissing the application, Master Muir said as follows:

[1]            THE COURT:  This is an application by the defendant for an independent medical examination of the plaintiff by Dr. Ursula Gutteridge, a psychiatrist, for the purpose of responding to the expert’s reports of the plaintiff’s psychiatrist, Dr. Christopher Babbage.

...

[20]        The plaintiff submits that this is just another classic example of the defendant failing to obtain any evidence on psychiatric issues when those were clearly apparent and trying to shoehorn in an opinion after the 84‑day deadline is passed.

[21]        I just pause to reflect on the number of these types of applications. They are frequent. The court in Timar, in particular, held that rebuttal reports should be rare and rebuttal reports needing an independent medical examination should be rarer still. What seems to be an issue, and I am not saying it necessarily is the case here, is that defendants seem to want to have the plaintiff’s primary expert’s reports in their hands in order to know exactly what they need to address before they decide whether to obtain an expert’s opinion, but that is not the rule.

[22]        As noted in Timar, both parties have an obligation to turn their mind to the conditions of the plaintiff that may require expert evidence prior to the 84‑day deadline. There is prejudice to the plaintiff in delay in producing reports. The plaintiff submits that the report of Dr. Gutteridge will, of necessity and obviously, be essentially the same as a primary expert’s report, to which they will have no opportunity to respond.

[25]        Counsel for the plaintiff was operating on the exact same playing field as was counsel for the defendant. As was submitted by counsel for the plaintiff, where the defendant is alerted that the plaintiff has significant mental‑health concerns that impact on the issues in the litigation, as in this case, and the defendant decides that an independent primary expert’s report is not necessary, that should not be laid at the feet of the plaintiff unless there is significant surprise.

[26]        In my view, the diagnosis of PTSD here is not sufficiently out of the realm of the symptoms and diagnoses that had been previously revealed to the defendant that this is such a case.

The full decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/17/03/2017BCSC0308.htm

Plaintiff ordered to sign IME consent form or "risk claim being struck"

In reasons for judgment released today, the court in Gill v. Wal-Mart Corporation, 2017 BCSC 135, ordered the plaintiff to sign an “IME consent form” as part of his attendance at a defence-funded Independent Medical Examination.  The plaintiff in Gill refused to sign the consent form, and the defendant brought an application in Chambers.  The presiding Master dismissed the defence motion, ordering that the plaintiff could not be compelled to sign the form.  The defence then appealed the Master’s decision to a judge of the BC Supreme Court.  In allowing the defence appeal, Mr. Justice Funt wrote as follows:

[28]         ... the court can order that a plaintiff sign a medical examiner’s reasonable form in order for an IME to be conducted by the medical examiner...The rule is that where an IME is to be conducted, the court will order a reasonable form of consent to be signed by the examinee.

...

[35]         The Master ruled that Dr. Travlos’s form of consent for the IME to be conducted by him to be not reasonable...

...

[36]         With respect, the form of consent is reasonable.

...

[40]         ...In the case at bar... the court is not forcing the plaintiff to sign the form of consent. If the plaintiff chooses not to sign the form of consent, the plaintiff’s claim may be struck. It is the plaintiff’s choice.

...

[51]         The plaintiff is ordered to attend an independent medical examination to be conducted by Dr. Travlos at a time and location arranged by counsel.

[52]         The plaintiff is ordered to sign the subject form of consent used by Dr. Travlos. If the plaintiff refuses to sign the form of consent, the defendant, Mr. Pandher, is at liberty to apply to have the plaintiff’s claim struck.

[53]         Mr. Pandher is entitled to three-quarters of his costs at Scale B for this hearing and the hearing before the Master in any event of the cause.

The text of the full decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/17/01/2017BCSC0135.htm

Court criticizes defence Orthopedic Surgeon as being "either deliberately misleading or grossly careless"

In reasons for judgment released December 22, 2016, the court in Kim v. Lin, 2016 BCSC 2405 criticized the evidence of the defence Orthopedic Surgeon Dr. Grypma, calling his testimony “disingenuous” and describing his report as “either deliberately misleading or grossly careless”.  Mr. Justice Sewell wrote:

[11]        With the exception of Dr. Grypma, I found all of the witnesses who testified or provided reports to be credible and reliable witnesses. Unless I specifically indicate otherwise, I accept their evidence.

...

[117]     There is a fundamental disagreement between Dr. Krassioukov and Dr. Grypma over the cause of Ms. Kim’s complaints. Dr. Krassioukov’s opinion is that the SI joint deterioration noted on the CT scan and MRI is the result of trauma suffered in the Accident. Dr. Grypma is of the opinion that the SI deterioration is minor and is the result of a pre-existing condition unrelated to the Accident.

[118]     I prefer Dr. Krassioukov’s opinion on this issue to that of Dr. Grypma. I appreciate that Dr. Grypma is an orthopedic surgeon, and as such his opinion would ordinarily be accorded considerable weight. However, after reviewing his opinions in the context of the whole of the evidence and observing him under cross-examination, I have concluded that he failed to present balanced and impartial evidence in this case.

[123]     ... I find that Dr. Grypma was being disingenuous when he suggested that Dr. Budzianowska-Kwiatkowski’s report was ambiguous and that he was being either deliberately misleading or grossly careless in his reports when he used this passage to suggest that Ms. Kim had recovered from her injuries by October 2008.

...

[127]     For all of the foregoing reasons, I can give no weight to Dr. Grypma’s opinions.

The full text of the decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/16/24/2016BCSC2405.htm

 

Court Criticizes ICBC For Use of Orthopaedic Surgeon in Soft Tissue Case

In the recent decision of Khudabux v. McClary, 2016 BCSC 1886, the court criticized ICBC’s reliance on the opinion of an Orthopaedic Surgeon in a Soft Tissue Case, preferring the evidence of a Physiatrist.  Using somewhat colourful language, the court said:

[91]      The expert medical evidence presented at this trial brought into focus a difficulty that not infrequently arises when a defendant pursues the strategy of tendering the opinion of an orthopaedic surgeon to rebut allegations of soft tissue injury. Of course, there may be situations in which such a specialist feels able to offer opinion evidence that sheds light on the nature and scope of such complaints. But it is also the case that a clash between experts pitting an orthopaedic surgeon against a physiatrist, specializing in rehabilitation medicine – or even, as in the present case, against a family physician – can possibly leave counsel in the position of the hoodlum in the film The Untouchables, at the point when he realizes too late that he has brought a knife to a gunfight.

[92]      There is a tendency common to many orthopaedic surgeons who provide expert opinion reports in soft tissue injury cases before this court to express their opinions without qualification – specifically, without acknowledging the extent to which their opinions are shaped by or restricted to the narrow field of their own expertise. In the result, many such reports come before this court that, in substance, say “I have examined this patient, and nothing is wrong with them,” when what is really meant is, “I have examined this patient, and I am unable to diagnose any orthopaedic injury”. Expert witnesses who provide opinions in such stark terms without explicitly stating the limitations of their opinion may, if their opinions contrast with complaints of pain and suffering that are found to be genuine, and are at odds with contrary opinion evidence from another medical expert, risk creating confusion. They may also leave themselves vulnerable to a finding of bias if the unstated limitations of their opinions are not drawn out at trial.

The full text of the decision can be found here: http://www.canlii.org/en/bc/bcsc/doc/2016/2016bcsc1886/2016bcsc1886.html

Court grants Plaintiff's application to leave ICBC Medical Examination if forced to wait longer than 30 minutes

In the recent decision of Orr v. Pringle, 2015 BCSC 2644, the court granted the Plaintiff’s application to be allowed to leave ICBC’s Medical Examination if forced to wait longer than 30 minutes for the examination to begin.  The court also prohibited ICBC from conducting surveillance of the plaintiff during the exam.  The court said:

[2]             I will order that the plaintiff will be at liberty to leave if either examination does not proceed within 30 minutes, but I am not prepared to make the order that that is deemed to have satisfied the requirement to attend an IME. In other words, he can leave if he wants to after 30 minutes on these specific days, but there may be reasons for that delay that may justify the defendant in applying for a replacement date. I am not going to make any comment on whether they will get it or not, but I am not prepared to deem attendance.

[3]             As for surveillance, I agree that is not simply a matter of the plaintiff being potentially subject to surveillance while he is in a public place at a time chosen by the defendant or whenever they can find him. This is a matter where he is at a place at a time that has been ordered by the Court. It is a bit analogous to a plaintiff being under surveillance in the courthouse and that is not appropriate. So I will grant that condition.

The full text of the decision can be found here: http://www.canlii.org/en/bc/bcsc/doc/2015/2015bcsc2644/2015bcsc2644.html?resultIndex=1

Court denies ICBC's request for Independent Medical Examination with Physiatrist

In the recent decision of Dippel v. Kraus, 2016 BCSC 2238, the court denied ICBC’s request for an Independent Medical Examination with a Physiatrist on the basis that the plaintiff had already been examined by an ICBC appointed Orthopaedic Surgeon.  The court said:

[1]            THE COURT:  This is an application by the defendant for the plaintiff to attend at the defendant's medical examination with Dr. Gabriel Hirsch, a physiatrist, on Monday next week.

[9]            Dr. Richardson, as an orthopedic surgeon, is a different speciality from Dr. Hirsch, who is a physiatrist; however, it is established by case law and not disputed that there is significant overlap between these two specialties.

[13]        In the absence of any evidence that Dr. Richardson would not be able to provide the evidence as to the plaintiff's rehabilitation, or alternatively any evidence from Dr. Hirsch as to what he could bring to the analysis, or that he could opine on something that Dr. Richardson could not, I am unable to conclude that the defendant has established on the evidence that a second medical examination with Dr. Hirsch is required in these circumstances.

The full text of the decision can be found here: http://www.canlii.org/en/bc/bcsc/doc/2016/2016bcsc2238/2016bcsc2238.html?resultIndex=1