SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 122-10

DATE: 2015/06/10

RE: MAUREEN BIEHN and RICHARD BIEHN , Plaintiffs

AND:

BRIAN RAYLE, HERTZ VEHICLES LLC, THE HERTZ CORPORATION and STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendants

BEFORE: The Honourable Justice D.A. Broad

COUNSEL:
P. Hosack, for the Plaintiffs

S. Dhami, for the Defendants Brian Rayle, Hertz Vehicles LLC and The Hertz Corporation

HEARD: May 15, 2015

ENDORSEMENT

Background

[1] The defendants Brian Rayle, Hertz Vehicles LLC and The Hertz Corporation (the “moving defendants”) have brought a motion to require the plaintiff, Maureen Biehn, to attend four independent medical evaluations, namely with an occupational therapist for the purposes of preparing a Future Care Costs Report, a psychiatrist, an neuropsychologist and a diabetes specialist.

[2] The plaintiffs’ action arises out of a motor vehicle collision that occurred on August 19, 2008 (the “accident”). The plaintiff, Maureen Biehn (the “plaintiff”), in her statement of claim, alleges that she has suffered serious and permanent impairments of important physical, mental or psychological functions as a result of the accident.

[3] The plaintiff has served a future care cost to report completed by B. Darlene Humphrey, future care cost advisor/certified life care planner dated November 6, 2013. She has also served a report of her treating psychologist, Dr. Jeffrey R. Phillips, dated July 13, 2010. Dr. Phillips recommended assessment by a neurological and neuropsychological assessor.

[4] Dr. William A. Fulton, a neuropsychologist, prepared a s. 24 assessment report dated June 1, 2011 for the plaintiff in connection with her accident benefits claim in which he diagnosed the plaintiff with pain disorder associated with psychological factors and a general medical condition; adjustment disorder unspecified, mild-moderate, chronic with somatic preoccupation, work/behavioural inhibition, social withdrawal, cognitive deficits, apathy, anxiety, subsyndromal depression and some PTSD-like symptoms and soft tissue injuries, chronic pain and minor concussion.

[5] The plaintiff served a report of Dr. Angela Mailis, chronic pain expert dated October 20, 2014. Dr. Mailis’ main findings related to the lower left extremity and indicated that the plaintiff had a swollen, discoloured left foot. Dr. Mailis’ diagnosis was chronic pain disorder associated with a general medical condition and psychological factors; major depression that is poorly treated; generalized anxiety disorder and panic attacks; residuals of post-traumatic stress disorder with minimum driving phobia; and cognitive disorder (not otherwise specified). Dr. Mailis found that the plaintiff had complex regional pain syndrome (CRPS) of the left lower extremity, most likely associated with nerve damage or irritation across the left fibular head.

[6] The examination for discovery of the plaintiff was completed on August 11, 2014. Counsel for the moving defendants thereafter gave notice to counsel for the plaintiff of appointments for the plaintiff to be examined by Dr. David Stephen, orthopedic surgeon and Dr. Lawrie Reznek, psychiatrist. The plaintiff’s counsel advised that the plaintiff would attend for the defence medical appointment with Dr. Stephen but she was not available for the specified appointment date with Dr. Reznek and that a videographer would attend the rescheduled date with Dr. Reznek.

[7] Counsel for the moving defendants advised the plaintiffs’ counsel that his request to have the defence medical with Dr. Reznek videotaped was denied.

[8] The plaintiff attended the defence medical with Dr. Stephen. Counsel for the moving defendants notified counsel for the plaintiff that an appointment for a defence medical had been scheduled with Joanne Hommick, occupational therapist in order to respond to the plaintiff’s future care costs report. Counsel for the plaintiff responded that the plaintiff would not be produced for the examination by Ms. Hommick.

[9] Counsel for the moving defendants subsequently advised plaintiff’s counsel of rescheduled appointments with Ms. Hommick and Dr. Reznek and that appointments were to be scheduled with Dr. MaCartney-Filgate, neuropsychologist and Dr. Zimman for a diabetes assessment.

[10] The report of Dr. Stephen offered the opinion that the plaintiff sustained soft tissue injuries to her lower extremity and that there was no evidence that there was an orthopedic cause for her ongoing level of disability. Dr. Stephen noted that the plaintiff’s ongoing complaints of chronic pain syndrome were outside his area of expertise and that a review of the medical brief disclosed significant psychological issues that would be seen as barriers to the plaintiff’s recovery, which were again outside of his area of expertise.

[11] Plaintiff’s counsel advised that the plaintiff was prepared to consent to an examination by Dr. Reznek on the understanding that she would not be required to attend the other proposed assessments.

[12] On April 7, 2015 counsel for the moving defendants wrote to plaintiff’s counsel advising of their proposed appointments for independent mental medical evaluations with Ms. Hommick, O.T., Dr. Reznek, psychiatrist, Dr. Ladowski-Brooks, neuropsychologist and Dr. Wendy Rosenthall, diabetes specialist.

Positions of the Parties

[13] The moving defendants argue that the requested medical assessments are necessary in order to respond to the substantial claims made by the plaintiff of physical and psychological injuries sustained as a result of accident and to respond to the reports served by the plaintiff, including the chronic pain report respecting the plaintiff’s mental and physical injuries, the future care costs report and the economic loss report. They argue that it is necessary, in order to promote trial fairness, that the plaintiff undergo the requested independent medical assessments and that the they will assist in settlement discussions and result in a more effective, efficient and fair trial. They assert that although there will be no prejudice to the plaintiff if these evaluations are ordered there will be manifest prejudice to the moving defendants if they are denied.

[14] The moving defendants submit that the plaintiff and her treating psychologist have each alleged that the plaintiff suffered a head injury as a result of the accident. Accordingly, the moving defendants require the plaintiff to be assessed by a neuropsychologist to fairly respond to this assertion. Moreover, the plaintiff’s experts point to one of the plaintiff’s main concerns being in respect to her lower left extremity. Her family doctor has noted that the plaintiff’s mobility deficit may be related to her Type I diabetes. The accident benefit assessor also recommended that the plaintiff undergo an assessment by a diabetes specialist. The moving defendants therefore request that a diabetes specialist assess the plaintiff with respect to the effect of her diabetes on her condition and complaints.

[15] The plaintiff argues that moving defendants have not satisfied the evidentiary burden on them to demonstrate that the additional independent medical assessments are necessary and warranted. She argues that the moving defendants have provided no evidence from a psychologist, psychiatrist, occupational therapist or from any other doctor to support her request for numerous and onerous defence medical examinations.

[16] The plaintiff further argues that the moving defendants chose to have their first independent medical examination of the plaintiff conducted by an orthopaedic surgeon even though the plaintiff has not served a report from an orthopaedic specialist. She is not relying on an expert report from a diabetes specialist nor has she served a report from a neuropsychologist. Although she would consent to an examination by Dr. Reznek, she requires that it be videotaped so that the best evidence of his alleged use of unorthodox methods would be available at trial. These methods are said to include having an assistant suddenly open the door or knock loudly in order to observe the reaction of the examinee.

[17] The plaintiff advises that she does not wish to undergo further examinations. She has already undergone numerous assessments at the instance of the accident benefits insurer. The plaintiff reports experiencing significant stress associated with her attendance for the examination by Dr. Stephens. The plaintiff’s treating psychologist has provided correspondence questioning whether additional assessments were required and stating that the plaintiff would be highly traumatized by having to undergo the proposed assessments. He suggested that no further assessments be conducted or, in the alternative, that the assessments be conducted closer to the plaintiff’s home.

[18] In any event, the plaintiff argues that in the circumstances of the case, the continuance of further medical assessments is both trivial and moot. By virtue of s. 267.12(3) of the Insurance Act, there is only $1,000,000 available to be claimed against the defendants whereas the plaintiff’s actual damages are estimated at over 6 times this amount.

Guiding Principles

[19] Subsection 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, on motion, may order the party to undergo a physical or mental examination by one or more health practitioners. Subsection 105(4) provides that the court may, on motion, order further physical or mental examinations. Rule 33.02(2) of the Rules of Civil Procedure provides that the court may order a second examination or further examinations under section 105 of the Courts of Justice Act on such terms respecting costs and other matters as are just.

[20] D.M. Brown, J., as he then was, observed, in the case of Bonello v. Taylor 2010 ONSC 5723 (S.C.J.) at para. 16, that, while the determination of whether to order a second or further examination by a health practitioner must turn on the specific facts and equities of each case, certain principles have developed in the case-law, which he summarized as follows:

(a) the party seeking the order for further examination must demonstrate that the assessment is warranted and legitimate;

(b) the 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;

(c) trial fairness should operate as the guiding principle, and ordering further examinations may be just where they are necessary to enable the defendant fairly to investigate and call reasonable responding evidence at trial;

(d) where the request is for a medical examination 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;

(e) a request for a second examination must be supported by sufficient evidence to persuade a court of the need for the further examination, and what constitutes sufficient evidence will vary from case to case. Determining whether the nature of the evidence filed is sufficient remains essentially an exercise of judicial discretion;

(f) while fairness 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

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

[21] The proposition that where the request is for a medical examination by a person who is not a health practitioner the proposed examination must be necessary as a diagnostic aid to a health practitioner has been a qualified in subsequent case-law. It has been held that the court has discretion to order that the plaintiff undergo an in-home occupational therapy assessment to form the basis of a future care costs assessment. The defence is entitled to know the case that it has to meet and is entitled to make an independent assessment of the plaintiff’s claim especially where the claim for future costs is substantial. A report of this nature may assist in settlement discussions and, should the matter go to trial, the court will benefit from the testimony of expert witnesses who possess the same level of knowledge (see Cook v. Glanville 2012 ONSC 405 (S.C.J.) at para. 12).

Analysis

[22] In my view, the moving defendants have shown, by sufficient evidence, that their requests for independent examinations by a psychiatrist, a neuropsychologist and an occupational therapist are legitimate and warranted. Although there is authority that a motion of this nature should be supported by an affidavit or affidavits from one or more medical professionals (see Lafleur v. Fraser [2000] O.J. No 3647 (S.C.J.) at para 8 and Paranitharan v. Alex Irvine Motors Ltd. [2011] O.J. No. 2330 (Master) at para. 10) there does not appear to be an inflexible rule to that effect. What will constitute sufficient evidence is a matter of discretion, based upon the circumstances of each case (see Bonello above).

[23] The plaintiff has served the report of a psychologist addressing the plaintiff’s psychological injuries. It would be manifestly unfair to require the defendant to go to trial without the opportunity to have an assessment conducted with respect to the plaintiff’s psychological condition.

[24] As indicated, the plaintiff had earlier agreed to attend an independent medical examination with Dr. Reznek, psychiatrist, with the stipulation that the examination be videotaped.

[25] The case-law indicates that there has been a long-standing requirement on a plaintiff to show substantial and compelling reasons for an order to record defence medical assessments (see Alladina v. Calvo, 2014 ONSC 2550 (Master) and the cases therein referred to). The evidence of the plaintiff falls well short of establishing substantial and compelling reasons for the examination by Dr. Reznek to be videotaped. As indicated in Alladina at para. 123 the issue raised about certain methodologies used by Dr. Reznek may be relevant at trial to challenge his findings, but do not constitute substantial or compelling reasons to require videotaping to ensure fairness.

[26] Although the plaintiff has not served a report from a neuropsychologist, such an assessment was recommended by her treating psychologist Dr. Phillips, who noted that the plaintiff reported substantial left-sided injuries including trauma to the head from the accident.

[27] In my view, the plaintiff should also undergo an in-home occupational therapy assessment which would form the basis of a future care costs assessment on behalf of the moving defendant on the same basis as was expressed by the court in Cook v. Glanville referred to above.

[28] However, the evidence falls short of demonstrating that a physical examination of the plaintiff by a diabetes specialist is warranted and that a review of the clinical notes and records, reports and test results would not suffice. Although it is self-evident that in-person examinations would be required for meaningful evaluations by a psychiatrist, neuropsychologist and occupational therapist, I am not satisfied that this is the case in respect of a diabetes specialist. An affidavit from a medical practitioner would be necessary in order to establish that.

[29] I am not satisfied that the fact that the plaintiff’s recovery in the action is capped at $1 million would justify denial of the moving parties’ request for the independent evaluations in the circumstances of this case. I am not in a position to pre-determine what effect, if any, the independent evaluations may have on the issues at trial.

[30] Rule 33.02(2) of the Rules of Civil Procedure provides that the court, in ordering additional medical examinations, may impose such terms as are just.

[31] The plaintiff has provided a letter from her treating psychologist, Dr. Phillips, that undergoing further evaluations would cause her stress, anxiety and fatigue, and recommended that two nights’ accommodations be provided to allow her time to avoid rush hour traffic and leave her time to relax before and after her appointments. This evidence has not been challenged by the moving defendants.

[32] In submissions, counsel for the moving defendants acknowledged that it would be appropriate to require them to provide transportation to the appointments by limousine service.

Disposition

[33] On the basis of the foregoing it is ordered that:

(a) The plaintiff attend an independent medical evaluation with Joanne Hommick, Occupational Therapist, on one date, or two dates if further time is required in the opinion of Ms. Hommick, at the plaintiff’s residence, the address to be confirmed by the plaintiff;

(b) The plaintiff attend an independent medical evaluation with Dr. Lawrie Reznek, psychiatrist, at Sunnybrook Health Sciences Centre, FG47-2075 Bayview Avenue, Toronto Ontario;

(c) The plaintiff attend an independent medical evaluation with Dr. Ricki Ladowski-Brooks, Neuropsychologist at 400 Applewood Crescent, Suite 100, Vaughn, Ontario;

(d) The dates for the said evaluations shall be arranged by counsel for the moving defendants, in consultation with plaintiffs’ counsel, both acting reasonably, provided that the appointments shall be at least seven days apart, unless otherwise agreed by the plaintiff;

(e) Transportation for the plaintiff to attend the appointments for the evaluations shall be provided by a limousine service arranged and paid for by the moving defendants, if requested by the plaintiff, and the moving defendants shall provide the plaintiff with reasonable confirmation respecting licensing and insurance for the drivers and vehicles of the limousine service;

(f) The moving defendants shall provide, if requested by the plaintiff, reasonable hotel accommodations at the expense of the moving defendants for the nights before and after the appointments with Dr. Lawrie Reznek and Dr. Ricki Ladowski-Brooks together with a meal allowance of $100.00 for each such appointment.

[34] If the parties cannot agree on costs, the moving defendants may make written submissions as to costs within 14 days of the release of these reasons for decision. The plaintiffs have 10 days after receipt of the moving defendants’ submissions to respond. Such submissions shall not exceed three double-spaced pages, excluding Bills of Costs and Offers to Settle. All such written submissions are to be forwarded to me at my chambers at Judges’ Chambers, 85 Frederick Street, 7th Floor, Kitchener, Ontario N2H 0A7. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.

D.A. Broad

Date: June 10, 2015