Court File and Parties
CITATION: Todd Woolsey v. Industrial Alliance Ins., 2016 ONSC 7617 COURT FILE NO.: 4769/14 DATE: 2016/12/16 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Todd Woolsey, Plaintiff/Responding Party AND: Industrial Alliance Insurance and Financial Services Inc. and Bombardier Inc., Defendants/Moving Party
BEFORE: Justice H. A. Rady
COUNSEL: Chris Nicolis, for the plaintiff/responding party Denise Tynan, for the defendant/moving party, Industrial Alliance Insurance and Financial Services Inc.
HEARD: November 28, 2016
Endorsement
RADY J.
[1] The defendant, Industrial Alliance Insurance and Financial Services Inc., moves for an order compelling the plaintiff to undergo a neuropsychological examination. It says that he has placed his cognitive abilities in issue and therefore, such an examination is necessary in order to objectively assess whether he suffers a measurable cognitive impairment.
[2] The plaintiff opposes on the basis that his cognitive function is not in issue; the proposed examination is unjustifiably intrusive; and in any event, the evidence filed in support of the motion does not support the relief sought.
Background
[3] The underlying facts can be briefly recited. The plaintiff seeks damages for breach of contract and for long term disability benefits alleged to be wrongly denied.
[4] The plaintiff was an employee of Bombardier Inc. and was entitled to disability benefits pursuant to a policy of group insurance. The plaintiff alleges that he has been unable to work as an engineering analyst due to neuropathic chest pain, which among other things, has interfered with his ability to focus and concentrate at work.
[5] He received short term and then long term disability benefits until they were terminated as of October 28, 2012. After exhausting the appeal process, this action was commenced. In his claim, the plaintiff alleges as follows:
The Plaintiff has received medical opinions from a number of health care practitioners indicating that he is disabled and unable to work as a result of his disabling conditions which include, but are not limited to: chronic pain of the right chest wall, right arm and right hand. These medical opinions have been provided to Industrial Alliance and Bombardier...
The Plaintiff has suffered and continues to suffer severe financial distress and hardship as a result of Industrial Alliance and/or Bombardier’s failure to honour his claim for disability benefits. The unsupported and improper denial of his claim has served to exacerbate his medical conditions causing further pain and suffering warranting an award of aggravated damages...
Industrial Alliance and/or Bombardier knew or ought to have known that their conduct was stressful to the Plaintiff. The Plaintiff states that the stress caused by Industrial Alliance and/or Bombardier’s conduct materially contributed to the severity and duration of his physical, cognitive and emotional illness.
The Evidence
[6] The defendant relies on an affidavit sworn by Ginette Larivière, a technical advisor with Industrial Alliance, a position that I assume is like an adjuster or claims examiner. She deposes that as a result of the plaintiff’s evidence at his examination for discovery, she concluded that a neuropsychological assessment was the logical approach to take to the ongoing obligation to adjudicate the claim. Ms. Larivière summarizes certain excerpts of the plaintiff’s discovery transcript and also attaches the 161 page transcript as an exhibit. Industrial Alliance distills the evidence outlined in the Larivière affidavit at para. 36 of its factum:
Moreover, his responses on discovery to several questions regarding the difference in his video gaming for 9 hours per day and working at a computer as an engineering analyst elicited the following and other similar responses that highlighted that the Plaintiff was alleging cognitive disability:
Answer: “…the difference is the quantity of brain activity, that too much, is, is worse, it’s I can’t ignore the pain because I’m using my brain too much”.
Question: Right. So the concentration levels do what to you?
Answer: Too much concentration, I can’t handle.
Question: In what way though? Like, what’s manifesting in you?
Answer: Mentally, Emotionally
Question: What happens when you concentrate too much?
Answer: Then I get extremely irritable.
[7] The defendant also points to the notes and records from 2010 of the plaintiff’s family physician, Dr. George, which record the plaintiff’s difficulties with concentration. Dr. Bates (a physician whose area of practice is unclear to me) records neuralgic pain in his consult note of May 13, 2010. Dr. Zhuruk, a thoracic surgeon reports on January 21, 2010 that the plaintiff’s “level of pain and sensitivity does not correlate with the MRI findings”. Dr. Mirsattari, a neurologist, examined the plaintiff in March 2011. He recorded a “known history of hypertension, diabetes mellitus, ischematic heart disease, stroke, MS, etc”. He commented that limited cognitive testing was normal. In a subsequent report of September 29, 2011, he noted “the prominent neuropathic nature of the pain”.
[8] Ms. Larivière deposes with respect to Dr. Mirsattari’s report as follows:
… although we take the position that a brain injury does not have to be alleged, it is noteworthy that there are investigations in this man’s history for brain related historic disease such as stroke, MS and syphilis. The Cleveland Journal of Medicine, Volume 70, Number 9 includes a paper by Drs. Kulas and Naugle, “Indications for a Neuropsychological Assessment” which comments:
“Key Points
A referral for a neuropsychological assessment is appropriate whenever there is doubt about a patient’s cognitive functioning or competency.
Neuropsychologists assess a broad range of cognitive domains, not just memory.
Neuropsychological assessment can detect pathological processes before structural abnormalities are observable on neuroimaging and in cases where no abnormalities can be visualized.
Imaging Studies can specify the location of many structural lesions, but the functional implications of brain pathology can be identified only through neuropsychological testing”.
Exhibit “L” to this my affidavit is a copy of information from the Northern Brain Injury Association’s http://nbia.ca/, the Heart and Stroke Foundation www.heartandstroke.on.ca, the Clinical Neuropsychology; (online) American Psychological Association http://www.apa.org/ed/graduate/specialize/neuro.aspx, Kulas, Joseph F., Naugle, Richard I. Indications for Neuropsychological Assessment. (online) J. Cleveland of Medicine. 2003; 70. 9: 785-792 and some other basic internet articles to assist the court.
[9] The defendant also excerpts the notes of other physicians including Dr. Moulin (a neurologist), Dr. Billing (a pain specialist) and Dr. Bellingham (an anesthetist). Dr. Moulin noted that all adjuvant analgesics and other medications, including narcotics, have failed and a trial of medical marijuana was recommended to the plaintiff.
[10] The plaintiff filed an affidavit in which he notes that none of his treatment providers have recommended or suggested a neuropsychological assessment. He also appends Dr. Mirsattari’s corrected report from March 9, 2011, in which he clarifies that the plaintiff has no known history of hypertension, diabetes mellitus, ischemic heart disease, stroke, MS etc. Dr. Mirsattari’s clinical impression is recorded as follows:
Todd presents with relentless pain in the chest wall on the right side since April 2010, that was preceded by similar symptoms on the left side 2 weeks earlier and bilateral symptoms for about a week prior to the onset of these symptoms. His investigations have only revealed focal protrusion of the muscle mass in the pectorals area which is above the point of maximal pain, suggestive of possible referred pain. I highly doubt that he has a neurological cause for these symptoms. His neurological examination was entirely normal in my hands. His previous extensive investigations have not revealed a neurological or systemic cause, either. Therefore this is most likely on the basis of a musculoskeletal cause. I will arrange for EMG and nerve conduction study of the right upper limb including the pectoralis muscles.
The Issues
Has the plaintiff put his neuropsychological function into issue?
Industrial having raised the issue, is it relevant to a material issue and is there substance to it?
The Law
[11] The relevant sections of s. 105 of the Courts of Justice Act provide 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.
(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 there is substance to the allegation.
(4) The court may, on motion, order further physical or mental examinations.
[12] Rule 33 of the Rules of Civil Procedure provides:
33.01 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.
33.02 The court may order a second examination or further examinations on such terms respecting costs and other matters as are just.
[13] The decision whether to order an assessment is discretionary. The statute is permissive rather than mandatory. I pause here to note that insurers may have different rights under a contract of insurance but as far as I am aware, that issue does not arise here. The request does not appear to be one for a s. 105 examination after a medical examination conducted pursuant to the contract, as discussed in LaForme v. Paul Revere Life Insurance Co., 2006 CanLII 81803 (ON SCDC), 84 O.R. (3d) 634 (Div. Ct.).
[14] There is authority for the proposition that a defendant has a prima facie right to a first examination under the Courts of Justice Act without the need for evidence or justification. See Laforme, supra at para.13.
[15] However, that comment must be considered in light of the wording of the statute and in particular s. 105(3), which requires the court to assess the relevance and substance of the allegation made by the moving party.
[16] The court is to consider the interests of justice, fairness in the litigation process, the right of the defendant to conduct its defence as it sees fit, and prejudice to the plaintiff.
Analysis and Disposition
[17] I am not persuaded, at least at this point in the litigation, that a neuropsychological examination should be ordered.
[18] The plaintiff has not put his neuropsychological or cognitive function in issue. I say this for several reasons. First, the plaintiff has not pleaded it (subject to what is said below).
[19] Second, the plaintiff has not sought a neuropsychological assessment of his own nor have any of his caregivers suggested that one is necessary or recommended. I see nothing in the notes and records of the plaintiff’s physicians commenting or questioning his cognitive function. None have referred him for cognitive testing.
[20] Third, there is no suggestion that any of the defence assessors have considered such an examination is necessary. There is only Ms. Larivière’s conclusion. As already noted, she is a technical advisor with the defendant, and as far as I know, she has no medical background except that which is incidental to her employment. I have no evidence about what information would be elicited from a neuropsychological assessment except that Ms. Larivière deposes:
…neuropsychology deals with cognitive behaviours when there has been any form of injury to nervous system and a brain injury need not be inflicted by an external cause but can be resultant of an as yet, undetected or historic disease.
[21] She points to the paper published in the Cleveland Clinical Journal of Medicine 2003. However, aside from the obvious problems with hearsay, there is no obviously medico-legal context. Moreover, it reads, in part:
A referral for a neuropsychological assessment is appropriate whenever there is doubt about a patient’s cognitive functioning or competency.
[22] But Dr. Mirsattari has concluded that there is no neurological cause for the plaintiff’s complaints. Like the other treating physicians, he identified no form of injury to the nervous system or impairments of cognitive function. Finally, no one has expressed doubt about the plaintiff’s cognitive functioning or competency.
[23] The defendant appears to be concerned that the plaintiff says he is unable to concentrate at work but is able to play video games for extended periods of time. It quotes from those parts of the plaintiff’s discovery touching on the issue. The plaintiff has provided an explanation. He says video gaming distracts him from his pain. I cannot say on the strength of this evidence that cognitive issues are raised justifying the relief sought. Put another way, I am not persuaded that there is substance to the defendant’s allegation or that it is relevant to a material issue.
[24] In the absence of a neuropsychological report from the plaintiff, there is no concern about trial fairness and leveling the playing field. Clearly, that would change if the plaintiff amended his pleading or sought this kind of assessment in future. At most, a psychological assessment may be warranted at this time, but that issue is not before me.
[25] Finally, I cannot agree with Industrial’s assertion that the plaintiff has put his neuropsychological function in issue solely by pleading that the stress caused by the defendant’s denial of benefits has exacerbated his illness. While para. 17 of the claim refers to cognitive illness in connection with the claim for aggravated damages, I view the allegation as incidental to that claim and perhaps boiler plate. At the risk of repetition, none of the plaintiff’s physicians have either commented on a recommended any investigation.
[26] The motion is dismissed. If the parties cannot agree, I will receive brief submissions on costs first from the plaintiff by January 13, 2017 and the defendants by January 27, 2017.
“Justice H. A. Rady”
Justice H. A. Rady
Released: December 16, 2016