COURT FILE NO.: 686/10

DATE: January 17, 2014

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Nadira Ramrup, plaintiff

AND:

Alphonso Lazzara, Venice Auto Inc. and Skyview General Contracting Ltd., defendants

BEFORE: MITROW J.

COUNSEL: Greg Robson for the plaintiff

Brian Foster for the defendants

HEARD: October 4, 2013

ENDORSEMENT

INTRODUCTION

[1] This is a motion by the defendants requiring the plaintiff to attend for two additional defence medicals: one examination to be conducted by the defendants’ physiatrist and the other by the defendants’ psychiatrist.

[2] The action arises from a motor vehicle accident that occurred on February 21, 2009 (“the subject accident”). The motor vehicle operated by the plaintiff was struck from behind by a motor vehicle in respect of which the various defendants were the operator, owner, lessor and lessee.

[3] The plaintiff claims $6 million in damages. Both liability and damages are vigorously disputed. The plaintiff describes this as a chronic pain case with psychological factors.

[4] As a consequence of the pre-trial and trial management process in June and August of 2013, it was determined that the initial trial estimate of two to three weeks was insufficient. This jury trial is now estimated at five weeks and is expected to start in February 2015. During the pre-trial, the defendants’ request for the two additional defence medicals was discussed but not resolved, and it was agreed that a motion would be brought.

[5] Both the plaintiff and the defendants have each retained one physiatrist and one psychiatrist as their respective medical experts.

[6] The plaintiff has been examined three times by each of her two experts. The defendants’ two experts have each examined the plaintiff once. The third examination of the plaintiff by each of her two experts occurred in March 2013, approximately three months prior to the pre-trial.

[7] The defendants’ submissions in support of their motion can be summarized as follows:

• The three examinations of the plaintiff by each of her experts versus only one examination of the plaintiff by each of the defendants’ experts creates an unfair advantage for the plaintiff and compromises the defendants’ right to a fair trial unless further defence medicals are permitted;

• The defendants’ trial fairness argument includes the submission that in order to have “a level playing field,” the defendants’ experts should be allowed to examine the plaintiff a second time to properly respond to the fresh and current reports received from the plaintiff’s experts;

• There has been a change in the plaintiff’s condition, complaints and symptoms sufficient to justify a further examination of the plaintiff by each of the defendants’ experts.

[8] The plaintiff strongly argues against further defence medical examinations. The plaintiff submits that there has been no substantial, or sufficient, change in her condition, symptoms or complaints, and further, that the evidence relied on by the defendants is otherwise insufficient to justify further defence medicals.

[9] For reasons that follow, I agree with the plaintiff’s submissions and the defendants’ motion is dismissed.

THE EXPERTS’ REPORTS

[10] The two psychiatrists are Dr. Guscott for the plaintiff and Dr. Reznek for the defendants. The two physiatrists are Dr. Garner for the plaintiff and Dr. Tepperman for the defendants.

A. The Psychiatrists’ Reports

[11] The plaintiff’s psychiatrist, Dr. Guscott, has produced a report following each of his three examinations of the plaintiff.

[12] In his initial report dated May 10, 2010, after examining the plaintiff that day, Dr. Guscott summarized (page 2 of his report) that as a result of the subject accident the plaintiff sustained physical injuries as described in the medical brief, chronic pain disorder due to both medical and psychological factors and “major depressive disorder with panic.” Dr. Guscott opined that the plaintiff is substantially restricted and limited in areas of activities, daily living, social functioning and employment and that the plaintiff has sustained serious permanent impairment of an important mental/psychological function. It was Dr. Guscott’s opinion that the plaintiff was currently unemployable and more likely than not would remain unemployable in the future. Dr. Guscott characterized the plaintiff’s prognosis as “poor.”

[13] The next psychiatrist to examine the plaintiff was Dr. Reznek, the defence expert psychiatrist and this examination occurred on August 2, 2011.

[14] Dr. Reznek, in his report (dated August 3, 2011) following his examination of the plaintiff on the day previous, concluded that the plaintiff “is not suffering from any psychiatric impairment arising from the motor vehicle accident, is not suffering from a chronic Major Depression, is not suffering from a chronic Adjustment Disorder, is not suffering from a chronic Post-Traumatic Stress Disorder and is not suffering from a chronic Pain Disorder” (page 34).

[15] Dr. Reznek concluded that overall “there is evidence that there is an element of deliberate symptom exaggeration or malingering in this case” (page 18).

[16] In coming to his conclusion, Dr. Reznek opines that the plaintiff misled him about the pre-accident problems she was having as a result of accidents prior to the subject accident. Dr. Reznek opines that the review of the medical brief indicates that the plaintiff had significant chronic pain prior to the subject accident, that she had been diagnosed with “chronic pain syndrome” by her family physician and that she was on high doses of narcotic analgesics contrary to her claim to Dr. Reznek that she was only taking “very, very low doses.” Dr. Reznek also refers to medical reports that on February 17, 2009 (four days prior to the subject accident) the plaintiff told her family physician that she was uncertain whether she could do her job for long and that she may consider long-term disability (page 16).

[17] Dr. Reznek was specifically asked as to whether he required any other evaluations to quantify or validate any possible functional limitations for the plaintiff in regards to any psychological impairments and/or injuries from the subject accident. Dr. Reznek responded to this question as follows:

I do not feel that any other evaluations are needed to quantify or validate any functional limitations in regard to any psychological impairment that Ms. Ramrup may have sustained in the accident of February 21, 2009. (page 36)

[18] Dr. Reznek concluded that as a result of the subject accident the plaintiff did not sustain serious permanent impairment of an important mental or psychological function. Dr. Reznek opined that from the psychiatric point of view, as a result of the subject accident, the plaintiff is not prevented from performing any of her pre-accident activities of daily living, or from continuing to work as a recruiter or any other job for which she is suited by reason of education, training and experience (page 38).

[19] Dr. Reznek, in his second medical report (dated August 6, 2011), opines on the defendants’ surveillance evidence that he was asked to review. This report is relatively brief. Dr. Reznek opines that the surveillance evidence provides further support for his opinion. Dr. Reznek concludes that the surveillance evidence confirms that there is an element of “deliberate symptom exaggeration/malingering in this case” (page 4).

[20] Dr. Guscott, in his second examination of the plaintiff on September 27, 2011, described the injuries sustained by the plaintiff in the accident and Dr. Guscott’s description was the same as in his first medical report. As a result of the plaintiff’s chronic pain and depression, Dr. Guscott opined the plaintiff “has serious restriction to limitations” in her functioning in the areas of activities of daily living, social function and employment. He confirmed his previous opinion that the plaintiff suffers serious and permanent impairment of important mental/psychological functions. Dr. Guscott described that the plaintiff has reached “maximum medical recovery.” Dr. Guscott further opined the plaintiff is “currently unemployable, and more likely than not, will remain unemployable in the future” due to injuries sustained in the subject accident, and opined that the plaintiff’s prognosis is “poor.”

[21] Dr. Reznek’s last report (dated July 16, 2012) deals with a review and critique of additional plaintiff’s experts’ reports, including the report of Dr. Guscott dated September 27, 2011. In relation to Dr. Guscott’s report, Dr. Reznek opines that Dr. Guscott “not only failed to do any validity testing, but he failed to do any cognitive testing to ascertain whether her [the plaintiff’s] ‘subjective complaints of problems with concentration, memory, focus and attention’ were real or manufactured. This again is a serious omission.” Dr. Reznek then notes that the plaintiff has been assessed by three psychiatrists and Dr. Reznek states that “it is Dr. Guscott who is out of step” (page 4).

[22] In his third examination of the plaintiff on March 14, 2013, Dr. Guscott in his subsequent report (dated June 3, 2013) confirmed his diagnosis and opinions contained in his first two reports. He also discussed and critiqued Dr. Reznek’s report.

B. The Physiatrist’s Reports

[23] The plaintiff’s expert physiatrist, Dr. Garner, first saw the plaintiff on August 9, 2010, which is also the date of his first report. He reviewed her current symptoms of low back pain, neck pain, left shoulder pain, right leg weakness/numbness, other arm/leg symptoms, reduced energy level, headaches, sleep disturbance and emotional adjustment issues.

[24] In relation to the plaintiff’s pre-existing diagnoses, Dr. Garner opined as to symptoms that were present since her previous motor vehicle accident in 1998 and Dr. Garner concluded that, despite being on long-term opiate medication, the plaintiff was functioning well and able to work in the community, she had an active social life, was able to engage in sporting activities and was able to independently manage her home (page 14).

[25] In relation to the primary diagnosis related to subject accident, Dr. Garner opined as follows (at pages 14 and 15):

1. Cervical musculoligamentous injury (WAD – II pattern injury).

2. Left shoulder girdle strain – possible seatbelt injury. There is evidence of significant asymmetry in the positioning and posture of her shoulder which suggests shoulder girdle myofascial pain syndrome.

3. Aggravation of pre-existing lumbar mechanical back pain syndrome.

4. Significant residual pain and limited tolerance of activity.

[26] Dr. Garner, in his opinion, listed under secondary diagnoses: chronic neck pain and left shoulder girdle myofascial pain syndrome; persistent symptoms of increased mechanical back pain; cervicogenic headaches; sleep disturbance; and emotional adjustment difficulty with development of symptoms of emotional distress. Under other diagnoses, Dr. Garner stated the plaintiff has developed right leg weakness and profound numbness. He suggested the cause of these symptoms was not clear and further investigations might be required (page 15).

[27] In relation to prognosis, Dr. Garner opined that on the balance of probability the plaintiff will likely continue to experience limiting pain symptoms that will impact on her functional tolerance for activity and further opined that the accident has led to significant limitation of function (page 16).

[28] Dr. Garner opined that the plaintiff had sustained injuries in the subject accident that have caused serious impairment of important physical, mental or psychological function (page 17).

[29] Dr. Garner examined the plaintiff for a second time on August 16, 2011. The description of the plaintiff’s symptoms in his second report (dated August 16, 2011) are very similar to the symptoms described in his first report.

[30] Dr. Garner’s diagnoses contained in this report are similar to Dr. Garner’s first report. In terms of prognosis, Dr. Garner opined that the plaintiff “has a well-established pattern of chronic pain syndrome, which is related to the injuries sustained in the motor vehicle accident” and that the plaintiff has “significant functional difficulties which are primarily related to the development of a chronic pain syndrome, and her diagnosis of chronic pain syndrome and the associated functional difficulties (inability to work, perform ADL activities or engage in recreational activities) will continue in the foreseeable future and in my view represents a permanent impairment” (page 8).

[31] Regarding the impact on employment, Dr. Garner opined that the plaintiff would not be able to work as a recruiter. Dr. Garner believed the plaintiff would have difficulty sustaining activity in an office setting and would have difficulty travelling and meeting with individuals. Dr. Garner did not believe that the plaintiff would be able to perform any form of comparable employment “because of her limiting pain syndromes, her functional difficulties, her inability to tolerate sustained activity even of a sedentary nature” (page 9).

[32] On October 18, 2011, the plaintiff was examined by the defence physiatry expert, Dr. Tepperman (and Dr. Tepperman’s report is dated October 22, 2011). In relation to his summary and prognosis, Dr. Tepperman opined that the plaintiff’s prognosis for recovery “would be considered statistically poor.” However, Dr. Tepperman noted that there are many “confounding factors” that made it difficult to determine if the subject accident is a material contributor to this poor diagnosis. Dr. Tepperman’s major concern was the plaintiff’s pre-accident symptoms and limitations that he opined appear to be far more significant than acknowledged by the plaintiff. Dr. Tepperman also referred to concerns regarding symptom magnification by the plaintiff (page 20).

[33] Regarding diagnosis, Dr. Tepperman opined “possible post-traumatic headaches, possible cervical strain, possible soft tissue injury left shoulder, possible thoraco-lumbar strain, severe symptom magnification, probable narcotic addiction” (page 20).

[34] Dr. Tepperman also opined that the plaintiff’s reported functional limitations and restrictions do not appear to result from the subject accident. Dr. Tepperman referred to the plaintiff’s “significant pre-accident history of chronic pain for which she was taking narcotic analgesics and a significant pre-accident history of psychological difficulties, all of which she [the plaintiff] minimized today” (page 21).

[35] It was Dr. Tepperman’s opinion that the plaintiff does not exhibit accident related neuromusculoskeletal impairments that would substantially interfere with her ability to pursue avocational and vocational activities (page 23).

[36] When asked whether there was any indication for further diagnostic testing or referral to subspecialists that he felt were necessary, Dr. Tepperman referred to another attempt at EMG studies of the right leg. When asked whether he required any other evaluations to quantify or validate any possible functional limitations for the plaintiff regarding impairments and/or injuries from the subject accident, Dr. Tepperman responded that he would like to review the surveillance evidence videos, that the plaintiff’s apparent narcotic addiction requires further evaluation and finally that a formal driver’s evaluation should be obtained to ensure that the plaintiff can safely operate a motor vehicle (page 22).

[37] In relation to the video surveillance, Dr. Garner provided a brief medical report dated March 29, 2012. Dr. Garner commented on the video surveillance and concluded that this did not lead him to change the conclusions of his previous report. In his report dated January 14, 2012, regarding the video surveillance, Dr. Tepperman concluded that the videos add support to concerns about the plaintiff’s “volitional nature of her apparent pain behaviours and the non-organic signs identified during my assessment.”

[38] Dr. Tepperman provided a brief three page report dated July 21, 2012. This report notes that, as requested, Dr. Tepperman reviewed Dr. Guscott’s report dated September 27, 2011 and Dr. Garner’s reports dated August 16, 2011 and March 29, 2012.

[39] This final report by Dr. Tepperman includes a critique of the plaintiff’s expert psychiatrist, Dr. Guscott as follows (page 2):

It seems that Dr. Guscott lacks an understanding of the basic clinical aspects of Chronic Pain Disorders and so I wonder if chronic pain is a significant portion of his practice at the Mood Disorders Clinic that he operates.

[40] Dr. Garner examined the plaintiff for a third time on March 20, 2013. Dr. Garner’s description of the symptoms are similar to his first two reports, although in relation to the right leg weakness, Dr. Garner notes there was a report of improvement and that the plaintiff was reporting fifty percent normal sensation and that she no longer uses a cane.

[41] Dr. Garner’s diagnoses are similar to his previous reports but with an indication that on this occasion the plaintiff’s right leg symptoms appear to have improved from previous examinations. Dr. Garner’s prognosis is similar to his last report. Dr. Garner’s report refers to reviewing defence reports and noting the concerns of both Dr. Reznek and Dr. Tepperman about the volitional aspect of the plaintiff’s difficulties.

[42] In summary, the plaintiff’s experts produced seven reports: four from Dr. Garner and three from Dr. Guscott. The defendants’ experts produced six reports: three each from Dr. Reznek and Dr. Tepperman.

THE LAW

[43] Statutory provisions allowing for a medical examination are contained in s. 105 of the Courts of Justice Act. Subsections (2), (3) and (4) state:

(2)Where the physical or mental condition of a party to a proceeding is in question, the court, on motion, may order the party to undergo a physical or mental examination by one or more health practitioners.

(3)Where the question of a party’s physical or mental condition is first raised by another party, an order under this section shall not be made unless the allegation is relevant to a material issue in the proceeding and there is good reason to believe that there is substance to the allegation.

(4)The court may, on motion, order further physical or mental examinations.

[44] The Rules of Civil Procedure provide for a medical examination as follow:

33.01 A motion by an adverse party for an order under section 105 of the Courts of Justice Act for the physical or mental examination of a party whose physical or mental condition is in question in a proceeding shall be made on notice to every other party.

33.02(1) An order under section 105 of the Courts of Justice Act may specify the time, place and purpose of the examination and shall name the health practitioner or practitioners by whom it is to be conducted.

(2) The court may order a second examination or further examinations on such terms respecting costs and other matters as are just.

[45] The defendants rely on Moore v. Bertuzzi, 2012 ONSC 5399 (S.C.J.). Citing various authorities, that case concludes that an additional medical examination must be justified – a litigant is not entitled simply to match the experts retained by the opposing party. An order for a second or further defence medical is discretionary, not to be granted as a matter of course. The defendant has the onus of presenting sufficient evidence as to the necessity of a further medical examination (paras. 35-37).

[46] The principle that the purpose of a second or subsequent defence medical examination is not to go “one for one” or “tit for tat” with the number of plaintiff expert reports has been acknowledged in other cases including: Jeffrey v. Baker, 2010 ONSC 5620, [2010] O.J. No. 4415 (S.C.J.) at para. 4; Suchan v. Casella, 2006 20844 (ON SC), [2006] O.J. No. 2467 (Master) at para. 7; and Mason v. MacMarmon Foundation, 2011 ONSC 5823 (S.C.J.) at para. 43. In Galea v. Firkser, 2013 ONSC 1666 (S.C.J.), in reviewing the authorities, McDermid J. concluded that the cases suggest it is “not simply a numbers game.” Although it is trite that a plaintiff may obtain as many reports as he or she wishes, the issue of trial fairness concerns a defendant having an adequate opportunity of meeting the plaintiff’s case (para. 14).

[47] In the present case, the parties provided numerous authorities as to the nature of the evidence and the criteria necessary to justify an additional defence medical examination. In Fehr v. Prior, [2006] O.J. No. 5244 (S.C.J.), R.D. Reilly J. found that the “theme” running through the jurisprudence is whether a further defence medical is necessary as a matter of fairness in order to “level the playing field” (para. 7). The test to be applied in determining whether to order a further defence medical is “necessity, fairness and prejudice”: Jeffrey v. Baker, supra, at para. 12. A further defence medical will be permitted only where necessary to enable a defendant to fairly investigate and call reasonable responding evidence at trial. It is not available merely to corroborate the opinion of previous physicians: Marcoccia (Litigation guardian of) v. Gill, [2006] O.J. No. 4972 (S.C.J.) at para. 28.

[48] A need for a second defence medical may be justified where there is an unexpected change in the plaintiff’s complaints, symptoms or circumstances. A further defence medical will not be permitted where the recent disclosure is more a continuation of what was known rather than an unexpected change in complaints, symptoms or circumstances: Fromm v. Rajani, [2009] O.J. No. 3671 (S.C.J.) at paras. 13, 16.

[49] As to the nature of the evidence required, I accept the following statement made by Master J. Haberman in Bougouneau v. Sevigny, [2013] O.J. No. 1961 (S.C.J.) at para. 55.

55 …

The evidence on these motions is critical, and the results will vary from case to case depending on the nature and quality of the evidence filed ... At the very least, the evidence must explain why the particular examination is required (see Bergel v. Hyundai Auto Canada (2003), 28 C.P.C. (5th) 372). This means setting out the nature of the specialty of the proposed physician; indicating the type of evidence they can provide and explaining why it is necessary in the context of the injuries and symptoms complained of and the evidence already tendered by the plaintiff. In other words, what evidence will the plaintiff be calling at trial that must be addressed by this particular defence expert?

[50] The case of Bonello v. Taylor, 2010 ONSC 5723 (S.C.J.), although recent, is cited in a number of cases. In Bonello, D.M. Brown J. summarizes the principles in determining whether to order a second or further defence medical at para. 16 as follows (footnotes omitted):

16 …

(i) The party seeking the order for a further examination must demonstrate that the assessment is warranted and legitimate, and not made with a view to delaying trial, causing prejudice to the other party, or simply corroborating an existing medical opinion;

(ii) A request may be legitimate where there is evidence that (i) the party's condition has changed or deteriorated since the date of a previous examination, (ii) a more current assessment of the plaintiff's condition is required for trial, (iii) the plaintiff served specialist reports from new assessors after the defendants had conducted their medical assessments, or (iv) some of the party's injuries fall outside the expertise of the first examining health practitioner;

(iii)Some cases take the view that the need for a "matching report" - i.e. a report from a defence expert witness in the same specialty as a plaintiff's expert - is not, in and of itself, a sufficient reason to order a further defence medical. In the circumstances of the present case I need not wade deeply into that question. That said, I would venture that trial fairness should operate as the guiding principle in this area, so if the plaintiff has decided that expert evidence from one specialty based on an examination of the plaintiff is relevant to the adjudication of her claim at trial, courts should be loathe to deny the defence a fair opportunity to respond with expert evidence from the same specialty based on an assessment of the plaintiff. Ordering further examinations may be just where they are necessary to enable the defendant fairly to investigate and call reasonable responding evidence at trial;

(iv)Where the request is for the examination of the plaintiff by a person who is not a health practitioner, such as a rehabilitation expert, the defendant must demonstrate that the proposed examination is necessary as a diagnostic aid to the health practitioner who is conducting the defence medical examination;

(v) A request for a second examination must be supported by sufficient evidence to persuade a court of the need for the further examination. What constitutes sufficient evidence will vary from case to case. Some cases have suggested that need must be established by filing medical evidence, such as an affidavit from the first examining physician recommending a further examination by a health practitioner competent in another specialty. In other instances an affidavit from a lawyer or law clerk attaching medical reports has been utilized by the court. But, at the end of the day, determining whether the nature of the evidence filed is sufficient remains essentially an exercise of judicial discretion;

(vi)While fairness, or "creating a level playing field", may constitute a legitimate reason for ordering a second examination, someone with knowledge of the evidence in the case must provide evidence of unfairness for the court to consider; and,

(vii)A court should consider whether the request for a further examination would impose an undue burden on the plaintiff in light of the number of examinations already conducted of her by the defence.

DISCUSSION

[51] The defendants’ arguments fall into two basic categories: there has been a change in the plaintiff’s condition and symptoms; secondly, the circumstances are such that trial fairness requires the additional defence medicals to be ordered.

[52] I place little weight on the plaintiff’s argument as to the potential intrusiveness of the additional examinations. The plaintiff filed no evidence on the motion. She has already seen her own experts six times.

A. A Change in the Plaintiff’s Condition and Symptoms

[53] Specifically, the defendants submit that Dr. Guscott’s June 3, 2013 report stated that the plaintiff uses a cane to ambulate, and “this fact represents a change in physical need that the Defendant experts should be allowed to investigate” (see in particular paragraph 56 of the defendants’ factum). This medical report is in relation to Dr. Guscott’s most recent examination of the plaintiff on March 14, 2013.

[54] The evidence does not support the defendants’ submission that the plaintiff has had a change in physical need because of the use of a cane. Historically, the previous medical reports had documented that the plaintiff walks with a limp and/or uses a cane. The plaintiff’s complaint was in relation to her right leg. When examining the plaintiff on August 2, 2011 on behalf of the defendants, Dr. Reznek was told by the plaintiff that she has partial paralysis of her right leg, that she trips and falls all the time and that her mobility is extremely limited (see page 12 of Dr. Reznek’s report dated August 3, 2011). During that medical examination, Dr. Reznek observed that the plaintiff entered his office “with a cane held in her right hand and with a bizarre limp” (page 13 of the report).

[55] Surveillance videos were produced by the defendants showing the plaintiff engaged in various activities. As discussed earlier, this video surveillance had been commented on previously by some of the medical experts who opined as to whether the plaintiff’s limp, or gait, as captured in the video surveillance affected their opinions: Dr. Reznek’s report dated August 6, 2011; Dr. Tepperman’s report dated July 21, 2012; and Dr. Garner’s report dated March 29, 2012.

[56] Significantly, Dr. Tepperman, when examining the plaintiff on behalf of the defendants on October 18, 2011, stated in his subsequent report (dated October 22, 2011) that the plaintiff “frequently walks with a cane” (page 3) and later in the report, when describing the plaintiff’s gait, Dr. Tepperman stated: “Gait was slow using a cane in the right hand for the right leg” (page 8).

[57] The above evidence supports the conclusion that the defendants’ experts were well aware of the plaintiff’s allegations that she had difficulty walking and had used a cane. Accordingly, Dr. Guscott’s report of June 3, 2013 that the plaintiff uses a cane to ambulate was nothing new.

[58] The above does not entirely dispose of the issue of the plaintiff using a cane. The defendants submit that when Dr. Garner examined the plaintiff for the third time on March 20, 2013 (being only six days after the plaintiff was examined by Dr. Guscott for the third time), that Dr. Garner reported some improvement in the plaintiff’s right leg, and further that the plaintiff was reporting that she no longer needs a cane. The defendants submit that Dr. Garner’s observations are contrary to Dr. Guscott’s observations made during the previous week –that this creates a discrepancy that the defendants’ experts should be allowed to investigate.

[59] The discussion in Dr. Garner’s report dated March 20, 2013 relating to the plaintiff’s right leg included the following:

She reports improvement from when she was last seen of numbness. She said her leg was totally numb with no lasting pain, and now she reports she has about 50 percent normal sensation in the right leg. She no longer uses a cane, but notes deterioration of her gait if she attempts to walk for long periods of time. (page 10)

Her problems – with her right leg most likely fall under the latter description – a non-organic illness behaviour – and I believe that this is the most likely explanation. Her symptoms have varied in wseverity (sic), and on this occasion she appears to be improved from exams done on previous occasions. (page 13)

[60] When Dr. Garner’s observations made on March 20, 2013 relating to the plaintiff’s right leg are viewed in the context of the entire history relating to the plaintiff’s right leg symptoms, I find that these observations do not create a sufficient basis to justify further examination by the defendants’ experts. Dr. Garner notes specifically that the plaintiff’s symptoms have varied in severity. The surveillance reports demonstrate varying degrees of limp or gait. The apparent inconsistency of the plaintiff’s expert reports regarding the two examinations by her experts, less than a week apart in March 2013, can be addressed adequately by the defendants at trial through cross-examination and evidence from the defendants’ own experts.

[61] The defendants further argue that Dr. Garner mentioned subjective reports from the plaintiff of progressing neck and back symptoms in his last report dated March 20, 2013. At page 10 under “neck/back pain,” Dr. Garner states: “She reports that she had progression of pain symptoms so that it now includes her whole body and is not just limited to her spine or left shoulder.”

[62] The defendants rely on this observation that the pain symptoms now include the plaintiff’s whole body and submit that this indicates a change in the plaintiff’s symptoms. An examination of the medical evidence, however, belies the defendants’ submission.

[63] In his report dated August 16, 2011, Dr. Garner, in dealing with “Neck Pain,” noted the plaintiff’s comment that her “spinal pain is global and not limited just to the low back or neck” (page 4).

[64] In his defence medical dated October 22, 2011, Dr. Tepperman, under the heading “Neck Pain and Neurogenic Upper Limb Symptoms” at page 12, stated that the plaintiff reported “constant pain and stiffness along the cervical paraspinal muscles bilaterally …” with “… intermittent diffuse radiation along either arm into the fingertips at an intensity that is always 10/10 …” In dealing with “Back Pain and Neurogenic Leg Symptoms” at page 15, Dr. Tepperman stated that the plaintiff reported “… constant pain and stiffness along the center of the mid back and low back …” together with “… constant diffuse radiation along both legs into the feet, constant diffuse numbness in both legs but especially the right, and a generalized weakness in both legs (but also throughout her entire body).”

[65] I find that these reports are consistent with the plaintiff previously reporting pain symptoms that were more global rather than localized and that affected many parts of her body, including her arms down to her fingers, and her legs into the feet.

[66] Perhaps the most cogent evidence against the defendants on this point comes from their own expert, Dr. Reznek, whose medical report dated August 3, 2011, at page 11 under the heading “Current Complaints,” starts with the following:

First, Ms. Ramrup complains of pain “throughout my body.”

[67] The report of Dr. Reznek dated August 3, 2011 had been provided to Dr. Tepperman prior to Dr. Tepperman’s defence medical on October 18, 2011.

[68] Accordingly, the plaintiff’s allegation of pain symptoms throughout her body was nothing new and was known, and observed, previously by the defence experts and by the plaintiff’s expert, Dr. Garner.

[69] I find that the most recent reports from the plaintiffs’ physiatrist and psychiatrist from examinations conducted in March 2013 do not reveal new symptoms, complaints or diagnoses, or any change in the plaintiff’s condition sufficient to justify further examination by the defendants’ experts. I find that these recent reports of Dr. Guscott and Dr. Garner are similar to the situation in Fromm v. Ragani, supra: the information contained in both reports is more a continuation of what was known rather than an unexpected change in the plaintiff’s condition, symptoms, complaints and circumstances.

B. The Fairness Argument

[70] The defendants’ main argument centred around the issue of trial fairness. The defendants correctly point out that in his last report, Dr. Guscott makes reference to his “three examinations” of the plaintiff when discussing that he found the plaintiff to be a reliable historian, cooperative in interview and that he found no evidence of symptom magnification. Further, the defendants note that Dr. Garner, in his latest report, points out that this is the third time he has seen the plaintiff.

[71] The defendants argue that the playing field is not level – that the plaintiff’s experts have “unfettered” access to the plaintiff and that, at trial, the plaintiff most likely will tout this fact and argue that the plaintiff’s experts’ opinions should be preferred because of their multiple examinations of the plaintiff.

[72] While there appears to be an element of some persuasiveness to this argument, I find that it cannot succeed. This submission has all the hallmarks of a simple “numbers” argument, premised on little more than a generic argument that a level playing field requires the defendants’ experts to remain within a reasonably close proximity to the plaintiff’s experts as to the number of times that the plaintiff has been examined. The weight of the authorities discussed above rejects this argument.

[73] In the present case I find that, although the defendants’ experts have not examined the plaintiff as often as the plaintiff’s experts, that there are a number of other factors that must be considered.

[74] There are matching experts retained between the parties. The plaintiff consented to one examination by each of the defendants’ experts.

[75] The onus is on the defendants to demonstrate, on the facts, that a further assessment is warranted and legitimate (see Bonello, supra, at para. 16), and not simply to corroborate an existing medical opinion (see Bonello, supra, at para. 16 and Marcoccia, supra, at para. 28).

[76] I find that the defendants have not addressed sufficiently why each defence expert needs to re-examine the plaintiff (see Bougouneau, supra, at para. 55). Both defence experts relied on the plaintiff’s pre-existing injuries in reaching their respective conclusions. Re-examination will not change that. Further, as noted above, both defence experts in their reports responded to questions as to whether there is any further diagnostic testing or investigation they felt may be required or necessary. The only specific testing suggested by Dr. Tepperman was EMG studies. Dr. Reznek did not feel any other evaluations were needed.

[77] The defendants’ affidavit material served with the notice of motion, initially returnable July 30, 2013, consisted of an affidavit from a lawyer from the defendants’ law firm. No affidavits or letters were filed from either defence expert to explain why a further examination was necessary. However, following the filing of the plaintiff’s factum, which pointed out the lack of any evidence from the defendants’ experts on this point, the defendants filed a supplementary affidavit on the eve of the hearing of the motion. This affidavit is from the same lawyer who swore the first affidavit and had appended to it the following documents as exhibits:

a) a letter from Dr. Reznek dated September 30, 2013 stating as follows:

Further to your enquiry, it has been over two years since I assessed Ms. Ramrup. In order for me to give an opinion on how Ms. Ramrup has been affected by the accident of February 21, 2009, and how she continues to be affected, I would need to do [sic] update my opinion with a re-evaluation of the Plaintiff.

b) an email from Dr. Tepperman sent October 2, 2013 stating as follows:

As requested, I reviewed Dr. Garner’s most recent IME report. While I have concerns about various aspects of his report, especially the paucity of reported symptom characteristics, as I have not had the opportunity to reassess Mrs. Ramrup since 2011, I would need to assess her in order to provide a proper review of her present status and proper critique of Dr. Garner’s comments. Please let me know if you wish to arrange an updated IME or just prepare a response to Dr. Garner’s report alone.

[78] I find that the defendants’ failure to include some evidence from the experts on this issue when the defendants’ motion was initially served, impacts adversely on the defendants’ arguments. Although evidence from a proposed defence expert is not mandatory, it is one factor to consider on the facts of the present case.

[79] I further find that the hastily prepared responses attached to the supplementary affidavit do little to assist the defendants. Dr. Reznek does not acknowledge that he had seen the two most recent plaintiff’s experts’ reports. There is no explanation from Dr. Reznek why a further evaluation of the plaintiff is necessary. Dr. Reznek’s previous medical reports critiqued the plaintiff’s expert reports without suggesting a need to re-examine the plaintiff. Although Dr. Tepperman’s email confirms that he did receive Dr. Garner’s most recent report, I find that there is insufficient information to explain why a further examination of the plaintiff is required to respond to Dr. Garner’s report. Dr. Tepperman’s previous reports did not suggest a need to re-examine the plaintiff prior to critiquing the plaintiff’s expert reports.

[80] In my view, the defendants’ motion in large measure amounts to a request by the defendants to corroborate the existing medical opinions of their own experts.

[81] I find that the defendants are well-equipped to respond to the plaintiff’s claims. Trial fairness does not require further defence medicals on the facts of this case.

ORDER

[82] For reasons set out above, an order shall issue as follows:

1. The defendants’ motion requiring the plaintiff to attend for a re-examination by Dr. Tepperman, the physiatrist engaged by the defendants, and also to attend for a re-examination by Dr. Reznek, the psychiatrist engaged by the defendants, is dismissed.

2. If the parties are unable to agree on costs of the motion, then within 30 days the parties shall forward their written submissions on costs to the trial coordinator, said submissions not to exceed three typed pages plus any dockets, offers and authorities.

“Justice Victor Mitrow”

Justice Victor Mitrow

Date: January 17, 2014