COURT FILE AND PARTIES

COURT FILE NO.: CV-10-623
DATE: 20121026
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ELIZABETH PATRICIA GEORGE, Plaintiff

AND:

LOUISE LANDLES, Defendant

BEFORE: The Honourable Mr. Justice C. Boswell

COUNSEL: Scott Taylor for the Plaintiff

Marianne Motha for the Defendant

HEARD: October 26, 2012

ENDORSEMENT

The Collision

[ 1 ] Ms. George used to work at Tim Horton’s. Her last shift ended about 2 p.m. on January 18, 2009. She went out the back door and into the parking lot to smoke a cigarette while waiting for her husband to pick her up. While in the parking lot she was struck by a car backing up. The impact was at the level of her shins. She was knocked to the ground. She remembers striking her head, back and shoulders. She has not returned to work

The Lawsuit

[ 2 ] Ms. Landles was the driver of the vehicle that struck Ms. George. In this lawsuit, Ms. George sues Ms. Landles for $1 million. In this motion, Ms. Landles asks the Court for an order compelling Ms.George to attend for two defence medical appointments: one with a vascular surgeon and the second with an ophthalmologist.

[ 3 ] The Statement of Claim was issued on June 9, 2010. Ms. George’s injuries are described at paragraph 6 as including, but not limited to the following:

a. Damage to her cervical spine area;

b. Damage to her thoracic spine area;

c. Damage to her lumbar spine area;

d. Damage to her left shoulder;

e. Damage to her left leg;

f. Damage to her left knee;

g. Damage to her left ankle;

h. Psychological injuries and sequelae ; and,

i. A bruising and general wearing, tearing and straining of the muscles and connective tissues throughout her entire body.

[ 4 ] Significantly, there is no mention of vision problems found anywhere in the Claim.

[ 5 ] The procedural history of the lawsuit is as follows. Examinations for discovery were completed in February 2011. An unsuccessful mediation was conducted in April 2011. The Trial Record was passed in April 2012. A trial scheduling court appearance in August 2012 was adjourned to November 2012 to accommodate this motion. Accordingly a trial date has not yet been fixed and no pre-trial conference date assigned. A further mediation is apparently scheduled for June 2012.

Medical Assessments

[ 6 ] The following is not intended to be an exhaustive recitation of medical assessments that the Plaintiff has been involved in, but rather provides what I consider the relevant highlights in the context of this motion.

[ 7 ] At the time of the accident in issue the Plaintiff’s family doctor was Dr. Mary Chakkalackal. The Plaintiff continued to see Dr. Chakkalakal for some time after the accident. She was referred to an ophthalmologist at Mt. Sinai Hospital, Dr. Edward Margolin, as a result of complaints about blurry vision. Dr. Margolin was seen on March 4, 2010 and he diagnosed the Plaintiff with a complete right homonymous hemianopia defect which he said was likely caused by previous blunt trauma. Dr. Margolin has not provided a report relating to his consultation.

[ 8 ] The Plaintiff subsequently saw a neurologist, Dr. Rehan Dost, as part of a catastrophic impairment assessment. The Plaintiff was referred to Dr. Dost by her insurance company pursuant to s. 42 of the Statutory Accident Benefit Schedule . Dr. Dost prepared a report dated April 11, 2011. He opined that the Plaintiff’s right homonymous hemianopia is due to a left occipital lob infarct which is non-traumatic. He suggested that the impairment is explained by a left occipital lobe stroke given that: (1) the Plaintiff had several risk factors for stroke; (2) there was no evidence of a traumatic brain injury; and (3) the vision symptoms did not appear until 4 – 6 weeks after the accident.

[ 9 ] The Plaintiff was also assessed by a neuro-ophthalmologist as part of the catastrophic impairment assessment, namely Dr. Paul Ranalli. Dr. Ranalli confirmed that there was evidence of a complete right homonymous hemianopia, as previously identified by Dr. Margolin. He concluded that the impairment was secondary to left occipital lobe infarction likely acquired on a congenital or earlier life basis, entirely unrelated to the accident on January 18, 2009.

[ 10 ] Significantly, no treating or consulting physician has provided an opinion, to date, that the Plaintiff’s vision problems were caused by the accident.

[ 11 ] The Plaintiff’s counsel referred her to a physiatrist, Dr. Gordon Ko, for an assessment. Dr. Ko has produced a report dated December 21, 2011 in which he provides the following clinical diagnoses:

• Probable left leg complex regional pain syndrome

• Cervical strain and sprain

• Lumbar strain and sprain

• Hypermobility of the sacroiliac joints

• Possible carpal tunnel syndrome

• Possible thoracic outlet syndrome

• Diffuse chronic neuropathic pain syndrome

• Cervicogenic/post-traumatic headaches

• Possible closed head injury with visual field restriction (emphasis mine)

• Thoracic strain and sprain

• Post-traumatic myofascial pain syndrome

• Myofascial tender/trigger points

• General deconditioning due to inactivity

• Muscular contracture due to inactivity

• Upper Cross Syndrome

• Lower Cross Syndrome

• Core lumbar muscle stabilizer weakness

• Obesity

• Left knee capsulitis

• Left shoulder rotator cuff strains.

[ 12 ] At the request of the Defendant, the Plaintiff met with an orthopaedic surgeon, Dr. Michael Ford on February 21, 2012. Dr. Ford prepared a report dated February 21, 2012. Dr. Ford opined that the Plaintiff demonstrated all of the hallmarks of a chronic dysvascular limb. He opined that her left ankle and left foot pain are unrelated to the motor vehicle accident and are secondary to Peripheral Vascular Disease. He thought the disease was related to the Plaintiff’s long history of smoking.

[ 13 ] Significantly, Dr. Ford is the first physician to diagnose vascular disease. In a further note dated October 23, 2012, Dr. Ford advised that the Plaintiff’s condition would best be assessed by a vascular surgeon and that she should have Dopplar studies completed beforehand.

[ 14 ] At the further request of the Defendant, the Plaintiff was seen by a psychiatrist, Dr. Richard Herschberg, who prepared a report dated March 19, 2012.

Positions of the Parties

[ 15 ] The Defendant submits that the Plaintiff should be assessed, further to Dr. Ford’s diagnosis and recommendation, by a vascular surgeon. Moreover, the Defendant wants the Plaintiff assessed by an ophthalmologist so that a report might be obtained on the etiology of the Plaintiff’s vision impairments.

[ 16 ] The Defendant argues that there will be no prejudice to the Plaintiff, given the status of proceedings, that the assessments are necessary for trial fairness and that they are further necessary to provide the trier of fact with a full and complete medical record.

[ 17 ] The Plaintiff resists the further assessments. She says, firstly, that she has already attended for two defence medicals, which should be sufficient in the circumstances of this case. Second, she says that she is not even sure that the vision issue will be pursued at trial. Third, that at present there is no medical expert opinion that says the vision issues were caused by the accident and as such there is nothing for the Defendant to respond to in that regard. Finally, that Dr. Ford is adequately suited and qualified to give an opinion at trial about the vascular nature of the Plaintiff’s leg injury.

Governing Legal Principles

[ 18 ] Section 105(2) of the Courts of Justice Act , R.S.O. 1990 c. C.43 provides that where the physical or mental condition of a party to a proceeding is in question, the court may order the party to undergo a physical or mental examination by one or more health practitioners. Rule 33.02(2) of the Rules of Civil Procedure provides that the court may, on motion, order a second or further medical examination(s) on such terms as are just. The upshot of these provisions is that an order compelling a plaintiff to attend a second or subsequent defence medical examination is a discretionary matter.

[ 19 ] The exercise of the court’s discretion involves a consideration of a number of factors, including, but not limited to the following:

(i) The need for the examination, keeping in mind that the onus is on a defendant to satisfy the court as to its necessity: Jones v. Spencer , [2005] O.J. No. 1539 (S.C.J.) ; Francescutto v. Bojsic, [1999] O.J. No. 602 (S.C.J.) ; Moore v. Royal Insurance Co. of Canada, [2006] O.J. No. 166 (S.C.J.) ;

(ii) The relative prejudice to the parties in allowing or not allowing the further examination(s): Chiarelli v. Weins , 2000 3904 (ON CA) , [2000] O.J. No. 296 (C.A.); MacRae v. Dreuniok , as above;

(iii) The number of defence medical reports already obtained, keeping in mind that the defence are not automatically entitled to “match” a plaintiff’s experts: Burden v. Shoebottom , 2004 24395 (S.C.J.);

(iv) The delay and increased costs that may be occasioned by the order for a further medical assessment and whether permitting further examination(s) would be consistent with the principle of keeping costs and the length of the proceeding proportionate to the amount or issues at stake;

(v) Whether fairness and justice require that a further defence medical examination be sanctioned. In other words, whether trial fairness would be prejudiced in the absence of the further examination(s): Kernohan , as above; Ortiz v. Sharma , [2007] O.J. No. 2984 (S.C.J.) .

Discussion

[ 20 ] In my view, for the reasons that follow, the Plaintiff should not be compelled to attend a further defence medical assessment with an opthalmologist at this time. On the other hand, I am persuaded that she should attend a further defence medical appointment with a vascular surgeon.

Ophthalmologist

[ 21 ] At this stage of the proceedings, the Plaintiff has not claimed damages for a loss of vision. Her claim does not include an allegation that she has vision loss related to the accident. Plaintiff’s counsel indicated, during the argument of the motion, that they have not yet made a decision whether to pursue a claim for loss relating to the Plaintiff’s vision issues. That position is surprisingly vague, given that the Plaintiff has recently set the matter down for trial. That said, as it stands, I understand that the claim does not include damages for loss of vision.

[ 22 ] Moreover, there is no expert opinion evidence at this point that points to the accident as the cause of any of the Plaintiff’s vision impairments. The opinion evidence that does exist tends to suggest that the cause is unrelated to the accident: Dr. Dost and Dr. Ranalli.

[ 23 ] In my view, under the circumstances, a defence medical assessment by an ophthalmologist is neither necessary nor warranted at this point in time. There is no prejudice to the Defendant in not having such an assessment. Given the current status of the claim, it would be disproportionate to permit such an assessment to proceed. This is particularly so in light of the fact that I am, as set out below, prepared to require the Plaintiff to attend a further assessment by a vascular surgeon. Such an assessment will be the third defence medical assessment, which in my view is sufficient in all the circumstances.

Vascular Surgeon

[ 24 ] The Plaintiff has confirmed, through counsel, that the most significant of her injuries, in terms of general damages, loss of income and future care costs, are the injuries to her lower left leg and foot. Causation remains a live issue. Dr. Ford has opined that the cause of the injuries is vascular disease unconnected to the accident in issue. He is the first physician to render such an opinion.

[ 25 ] The cause and extent of the Plaintiff’s leg injury is central to this case. Dr. Ford’s assessment is certainly plausible. But he is an orthopaedic surgeon. Despite comments by Plaintiff’s counsel that Dr. Ford is able to provide evidence about the vascular nature of the impairment, I am not convinced that he is. Ultimately it will be up to the trial judge to determine the scope of Dr. Ford’s expertise. Given Dr. Ford’s own admission that this issue is best assessed by a vascular surgeon, I am of the view that this issue is best assessed by a vascular surgeon.

[ 26 ] Given the extensive report and diagnoses offered by Dr. Ko and the extensive damages sought in relation to the leg injuries, I believe it would be unfair to the Defendant not to permit some follow up to the vascular disease theory. There is relatively minimal prejudice to the Plaintiff. The case will not be delayed – this is not an eve of trial request. There will be some inconvenience in having to attend a further medical assessment, but that inconvenience is proportionate given the amount of damages in issue.

Conclusion

[ 27 ] In summary, the Plaintiff need not attend a further defence medical with an ophthalmologist. But I do order her to attend an independent examination with a vascular surgeon of the Defendant’s choosing at a date and time to be arranged through counsel.

[ 28 ] Counsel may wish to address the issue of costs. If they are not able to agree upon the issue, they may make written submission to me, not to exceed 2 pages in length. The Defendant shall deliver its submissions by November 9, 2012 and the Plaintiff shall respond by November 16, 2012. Submissions should be filed with the judicial secretaries in Newmarket.

Boswell J.

Date: October 26, 2012