Dr. Richard Herschberg

The defendant brought a motion seeking an order compelling the plaintiff to attend further defence medical examinations with a vascular surgeon and an ophthalmologist in a motor vehicle personal injury action.

The court considered the discretionary authority under s. 105(2) of the Courts of Justice Act and Rule 33.02(2) of the Rules of Civil Procedure governing additional medical examinations.

The plaintiff had not pleaded vision loss and existing expert evidence suggested the visual impairment was unrelated to the accident, making an ophthalmological examination unnecessary and disproportionate.

However, causation of the plaintiff’s significant leg injuries remained a central issue and an orthopaedic expert had raised the possibility of vascular disease, recommending assessment by a vascular surgeon.

The court held that fairness required allowing the vascular examination but not the ophthalmological assessment.

The applicant was injured in a minor rear-end motor vehicle accident and received income replacement benefits until they were terminated following a DAC assessment.

He applied for arbitration seeking reinstatement of IRBs, a loss of earning capacity benefit offer, and transportation expenses, claiming severe psychological and physical impairments.

The arbitrator dismissed the claims, finding that the applicant exaggerated his symptoms and was malingering.

The arbitrator concluded that the applicant's physical complaints were related to pre-existing conditions, including post-polio syndrome and degenerative disc disease, and that the minor impact of the collision could not account for his extreme clinical presentation.

Video surveillance showing the applicant walking normally without a cane further undermined his credibility.