Court File and Parties

COURT FILE NO.: CV-12-18190

MOTION HEARD: 20141216

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Christian Godin, Plaintiff

AND:

Jason Goncalves and Tony Goncalves, Defendants

BEFORE: Master Lou Ann M. Pope

COUNSEL:
Kenneth McNair, for the Plaintiff

Crista L. Rea, for the Defendants

HEARD: November 7, 2014

REASONS FOR endorsement

[1] The defendants seek an order to compel the plaintiff to undergo a neuropsychological examination with Dr. Macartney-Filgate.

[2] This action arises out of a motor vehicle accident which occurred on September 29, 2010.

[3] In his statement of claim, the plaintiff alleges that as a result of the subject accident he sustained permanent serious impairment of an important physical and psychological function. He also claims that as a result of this accident he sustained and will continue to sustain pain and suffering, loss of enjoyment of life and loss of amenities. As well, he alleges to have sustained a head injury which is accompanied by headaches, anxiety, depression, driving phobia, emotional trauma, chronic pain, weakness, diminished energy, disturbed sleep and stiffness. He seeks damages for, inter alia, his pain and suffering, home maintenance, medical rehabilitation, and for past and future wage loss.

[4] The defendants’ position is that the plaintiff has put both his physical and psychological impairments in issue.

Background

[5] The plaintiff was 38 years of age at the time of the subject accident. In this accident, he was T-boned by another vehicle; however, the plaintiff did not lose consciousness. Immediately after the accident he complained of neck, shoulder and chest wall pain, and feeling dizzy. At the hospital, he was diagnosed with soft tissue injuries.

[6] In November 2010, approximately two months after the subject accident, the plaintiff attended at the hospital with complaints that included memory problems, a change in behaviour since the accident, headaches, anxiety, nausea, and vomiting. He was diagnosed with post-concussion irritability, anxiety, and emotional lability.

[7] He was involved in second motor vehicle accident on December 27, 2010, approximately three months after the subject accident, when he lost control in a snowstorm and hit a telephone pole head-on. As a result of the second accident, he was diagnosed as having suffered a concussion with psychological effects.

[8] Several months later the plaintiff was described by a psychologist as having difficulty staying focused, rambling, and becoming easily frustrated.

[9] On April 1, 2011, the diagnosis of his family physician was neck and back injuries and headaches. Nine days later, the plaintiff was seen at the hospital with reports of headache and ringing in his ears. It was noted that his cousin had witnessed the plaintiff’s entire body shaking for about seven to eight minutes. He was also having neck, back and memory problems. He was diagnosed with having had a seizure, either post-traumatic or benzodiazepine related.

[10] In late April 2011, an insurer’s examination listed diagnoses as major depressive disorder – moderate to severe, post- traumatic stress disorder, panic attacks with agoraphobia, panic disorder and migraine headaches due to head injury. Recommendations were made for a neuropsychiatric assessment; a psychiatrist to treat his panic attacks, post-traumatic stress disorder and depression; referral to a neurologist for seizures, head injury and sequelae; and referral to a psychologist. He was considered to have concentration problems and significant cognitive impairment.

[11] At a neurological assessment in June 2011, the plaintiff reported having had a seizure while driving when the second accident occurred. The neurologist’s diagnosis was of post-concussion epilepsy.

Plaintiff’s independent medical assessments

[12] The plaintiff retained Dr. Sequeira, a physiatrist, to conduct an assessment. Dr. Sequeira diagnosed the plaintiff with post-concussive syndrome, neck and upper parascapular pain of a musculoligamentous etiology, cervicogenic and tension type headaches, migrainous type headaches, mechanical/myofascial low back pain with referral into the right leg, and chronic pain syndrome. Dr. Sequeira recommended that the plaintiff undergo psychological-vocational and neurological-psychological assessments.

[13] This was the first time the plaintiff had been diagnosed with a brain injury as a result of the subject accident.

[14] Given Dr. Sequeira’s recommendations, plaintiff’s counsel arranged to have the plaintiff assessed by Dr. Lazosky, clinical neuropsychologist.

[15] Dr. Lazosky’s report chronicles the plaintiff’s medical history which follows.

[16] He sustained a head injury in a car accident at nine years of age. As a result, he has a plate in the right frontal area of his skull. His parents abused alcohol and were abusive toward him. He had a psychiatric admission in 1993 with diagnoses of polytoxicomany and antisocial personality. In 1999 he was diagnosed with panic disorder, antisocial personality disorder, myalgia, and gastritis. He was involved in motor vehicle accidents in 1996, 1997, 1999 and 2002. He had two work accidents that caused chronic muscular, lumbar pain, and chronic epigastric pain. He had a history of drug abuse but stopped at the age of 18 to 19 years of age.

[17] Dr. Lazosky’s opinion was that the plaintiff sustained a concussion or mild brain injury as a result of the subject accident. The plaintiff’s neurological test results reflect mild impairment in executive functioning and mild to moderate impairment in memory. Dr. Lazosky felt that the impairments in executive functioning and memory may reflect longstanding cognitive impairment from the childhood brain injury. However, given the plaintiff’s main cognitive complaint since the subject accident of memory problems, she concluded that the effects of the subject accident may have exacerbated pre-existing areas of weakness and/or may have caused a new impairment. Further, given his diagnosis of post-concussion epilepsy, it was Dr. Lazosky’s opinion that his seizure disorder may contribute to his memory impairment. Lastly, she felt that his marijuana use daily to help manage his symptoms and decrease his reliance on narcotic analgesics may contribute to his cognitive impairment.

[18] Subsequent to Dr. Lazosky’s report, the plaintiff was assessed two more times by Dr. Sequeira and his reports have been provided to defence counsel. Dr. Sequeira’s subsequent reports comment on Dr. Lazosky’s report and the defendants’ independent physiatrist report of Dr. Soric.

Defendants’ independent medical assessments

[19] Following receipt of both Dr. Sequeira and Dr. Lazoski’s reports, defence counsel sought to have the plaintiff undergo four independent assessments by a psychiatrist, physiatrist, neurologist and neuropsychologist. Plaintiff’s counsel consented to the first three assessments, but refused a neuropsychological assessment.

[20] The reports from the three specialists have been delivered to plaintiff’s counsel as well as three supplemental reports of their physiatrist, Dr. Soric.

[21] The defendants seek to have the plaintiff examined by their own neuropsychologist, Dr. Macartney-Filgate to respond to Dr. Lazosky’s report.

Law

[22] Section 105 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”) sets out the court’s right to order the physical or mental examination of a party to a proceeding. The relevant provisions are ss. (2) and (4) which state as follows:

(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.

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

[23] Rule 33.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“Rules”) sets out the contents of an order for an examination under s. 105 of the CJA and the power of the court to order further examinations.

(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.

[24] The purpose of defence medical examinations is to put the parties on equal footing by allowing the defendant to meet the case advanced by the plaintiff and to respond to the allegations made by the plaintiff in the statement of claim: see Girao v. Cunningham, 2010 ONSC 4607, [2010] O.J. No. 3642, at para. 18, citing Chapell v. Marchall Estate, [2001] O.J. No. 3009.

[25] In Tsegay v. McGuire, 2000 50968 (ON SC), 1 C.P.C. (5th) 311, 25 C.C.L.I. (3d) 317 (ONSC), at para. 5, Gillese J. stated that medical reports are critical to the resolution of personal injury disputes, the choice of physician to conduct the defence medical examination is a matter of importance to the defence and that medical reports contribute to settlements and constitute the crucial expert evidence on which a court relies to do justice between the parties if the matter proceeds to trial. Her Honour went on to state that the policy behind the defence medical exam is to uphold the right of the defendant to conduct his or her defence and to assist the court at trial by furnishing expert evidence that is subject to the adversarial process.

[26] The defendant relies also on Girao at para. 23 for the proposition that where both the physical and mental condition of the plaintiff are in question, the defendant should, subject always to reason and good sense, have the opportunity to have the plaintiff assessed in both aspects of the plaintiff’s condition, and that s. 105(2) clearly contemplates examinations by more than one health practitioner when required.

[27] Justice Mitrow in Ramrup v. Lazzara, 2014 ONSC 130, 58 C.P.C. (7th) 417, at para. 46, considered a motion by the defendants to require the plaintiff to attend two additional defence medicals. He emphasized that the purpose of a second or subsequent defence examination is not to go “one for one” or “tit for tat” with the number of plaintiff expert reports. It is not simply a numbers game. The issue of trial fairness concerns a defendant having an adequate opportunity of meeting the plaintiff’s case.

[28] The defendants submit that a defendant has the prima facie right to select the physician to perform the examination to which it is entitled: see Smith v. Liberty Life Assurance Company of Boston (2003), 37 C.P.C. (5th) 357, 2003 11628 (ONSC), at para. 14.

[29] 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. There is no dispute that the test to be applied in determining whether to order a further defence medical is necessity, fairness and prejudice: see Ramrup, at para. 47, citing Jeffrey v. Baker, 2010 ONSC 5620, [2010] O.J. No. 4415 (S.C.J.), at para. 12.

[30] The plaintiff relies on the general proposition held in Fehr v. Prior (2006), 40 CP.C. (6th) 381, [2006] O.J. No. 5244, at para. 5 (S.C.J.) that where the court held that as long as a person’s physical or mental condition is relevant to a material issue in the proceeding, a party is entitled to compel that person to undertake one examination by a health care practitioner. Any further examinations must either be undertaken with the consent of the party to be examined or with leave of the court in its discretion.

[31] The plaintiff relies on the amendments to the Rules effective January 1, 2010 that emphasize proportionality in litigation. The general principle in interpreting the rules set out in subrule 1.04(1) requires that the rules be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. Subrule 1.04(1.1), subtitled “Proportionality”, was added which states:

In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.

[32] The plaintiff also cites from Coulter A. Osborne, Q.C., Civil Justice Reform Project: Summary of Findings and Recommendations, November 2007, c. 9, at p. 68, upon which the Rule amendments were based, wherein Justice Osborne found that there was general agreement that the increased use of experts is a factor that increases the cost of litigation and causes delay through trial adjournments.

[33] The plaintiff also relies on the Evidence Act, R.S.O. 1990, c. E.23, s.12 and the policy underlying that provision which is to permit a party to call more than three experts only where the time and expense involved is justified: see Jones v. Spencer (2005), 16 C.P.C. (6th) 349, [2005] O.J. No. 1539, at para. 15 (S.C.J.).

[34] The court in Jones, took note that the defence had proposed five defence medicals at a time when no expert had examined the plaintiff and identified medical issue beyond that expert’s expertise or expressed any disagreement with anything in the plaintiff’s case. The court opined that in those circumstances, the defence considered it routine and appropriate to engage a host of experts in every allegedly “catastrophic” personal injury case. That approach was viewed by the court as inconsistent with the statutory scheme, wasteful of private and public resources, and should be discouraged.

[35] The plaintiff relies on numerous cases that address the specific requirements of necessity, fairness and prejudice.

Analysis

[36] The plaintiff placed both his physical and psychological conditions in issue in the statement of claim.

[37] Following the accident, numerous medical assessors, including the plaintiff’s independent medical assessors, identified physical, psychological and cognitive complaints. An insurer’s assessor recommended the plaintiff undergo a neuropsychiatric assessment. Of importance is the fact that Dr. Lazosky, the plaintiff’s independent neuropsychologist, identified a pre-existing childhood head injury and likely pre-existing cognitive impairments. Also of importance is the fact that the plaintiff was involved in a motor vehicle accident some three months after the subject accident when he hit a pole head-on in bad weather and was subsequently diagnosed with a concussion with psychological effects. Several months after the second accident, he was diagnosed with having had a seizure, either post-traumatic or benzodiazepine related.

[38] The issue of causation in this action is complicated as a result of several factors including the plaintiff’s pre-existing childhood head injury, likelihood of pre-existing cognitive impairment, injuries sustained in the subject accident, and injuries sustained in the second accident.

[39] The plaintiff was independently assessed by a physiatrist and a neuropsychologist. The defendants responded to the numerous complaints and diagnoses by having the plaintiff assessed by a psychiatrist, physiatrist and a neurologist. They seek a fourth assessment by a neuropsychologist to respond to the plaintiff’s neuropsychological opinion.

[40] There is no issue on this motion that the defendants are entitled to have the plaintiff assessed by more than one health care practitioner given that his physical and psychological conditions are in issue. The plaintiff in fact consented to three defence medical assessments – physical, psychiatric and neurological.

[41] The plaintiff consented initially to the defence neuropsychological assessment. Plaintiff’s counsel took issue with the fact that Dr. Macartney-Filgate required one and a half days to conduct her assessment whereas Dr. Lazosky’s assessment was conducted over one-day. The defendants’ evidence contains a letter from Dr. Macartney-Filgate which explains her reasons for scheduling her assessments over two days. Having received a copy Dr. Macartney-Filgate’s letter, plaintiff’s counsel continued to take the position that the defendants were entitled to a one day neurological assessment.

[42] At that point, the defendants were in a position to seek out a neuropsychologist who would conduct a one-day assessment or seek leave to have the assessment conducted by Dr. Maccartney-Filgate over two days. They chose the latter.

[43] Upon reading the material filed by each party for the motion, it was obvious that there was a misunderstanding regarding the issue on the motion. The defendants’ material addressed the narrow issue of whether the defendants were entitled to a one-day or a two- day neurological assessment; whereas, the plaintiff’s material dealt with entitlement to a fourth medical assessment. As a result, the motion was adjourned and orders were made to permit filing of further material.

[44] The defendants filed a further affidavit that contained a letter from Dr. Macartney-Filgate which explained the difference between a neuropsychological assessment and a neurological evaluation. She states that the information obtained in a neuropsychological examination is much more detailed than that derived from a mental status examination, such as administered in psychiatric and neurological examinations, and allows for documentation of cognitive impairment that may not be detected by a brief mental status exam or by a standard neurological examination. She further states that psychiatrists and neurologists are not trained in the administration and interpretation of the cognitive, psychological and validity measures that constitute the core of an expert neuropsychological evaluation. Further, she states that the functional and diagnostic information derived from a neuropsychological examination is not replicated in either a neurological or a psychiatric examination and thus provides unique information to assist the court.

[45] The facts in this case are not on all fours with the facts in the Jones action. In this action, the defendants did not propose numerous defence medical assessments prior to the plaintiff having obtained any assessments. It does not appear that the practice of proposing a list of medical assessments as referred to in Jones is the practice of defence counsel in this action. Here, the defendants had received substantial medical disclosure from the plaintiff as well as two independent assessments prior to making a decision on what assessments they required.

[46] For the following reasons, I am satisfied that the three defence assessments by a psychiatrist, neurologist and physiatrist that have been obtained were necessary. Clearly there were complaints of physical injury as evidenced by the fact that the plaintiff obtained a physiatrist assessment. Further, following the subject accident, the plaintiff was assessed by a psychiatrist with a diagnosis that included major depressive disorder and migraine headaches due to head injury. As well, the psychiatrist’s recommendations included a neuropsychiatric assessment, psychiatric treatment, neurological assessment for seizures and head injury, and referral to a psychologist.

[47] Dr. Macartney-Filgate adequately explained the differences between neuropsychological, neurological and psychiatric assessments. Dr. Lazosky diagnosed the plaintiff as having cognitive impairments as a result of a childho