Court File and Parties

COURT FILE NO.: CV-16-557162 DATE: 20190111

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: SUZANNE McGEE, Plaintiff – AND – SUNLIFE ASSURANCE COMPANY OF CANADA, Defendant

BEFORE: E.M. Morgan J.

COUNSEL: Geoffrey Adair, for the Plaintiff Stephen Shantz, for the Defendant

HEARD: January 11, 2019

Endorsement

[1] In this action the Plaintiff seeks, inter alia, a declaration of entitlement to long term disability benefits payable by the Defendant.

[2] The Defendant moves under Rule 33 of the Rules of Civil Procedure and section 105 of the Courts of Justice Act for an order requiring the Plaintiff to undergo a neuropsychological evaluation. There is a pre-trial scheduled for January 15, 2019 and a trial scheduled to start on March 4, 2019. As a consequence of the proposed neuropsychological evaluation and the possibility that the Plaintiff may then want to respond with a neuropsychological evaluation of her own, the Defendant also seeks an adjournment of the pre-trial and trial dates.

[3] This motion obviously comes rather late in the day. Each side pins responsibility for this timing on the other. In my view, however, neither is entirely responsible. The action was started on July 21, 2016, discoveries were conducted in November 2017, and the matter was set down for trial on April 18, 2018. That is a relatively expeditious schedule. Expert reports were to be exchanged by August 2018. The Plaintiff missed that deadline by a few weeks, but by early October 2018 all of the expert reports were completed and exchanged. Neither party is guilty of delay; indeed, if all cases moved along at this pace the court system would be in better shape than it is.

[4] The question is not who is responsible for this last minute request for a neuropsychological evaluation. Rather, the question is whether it is necessary at all.

[5] Counsel for the Defendant submits that it has been made necessary by a change of opinion by the Plaintiff’s orthopedic expert, Dr. Drew A. Bednar. In his first report, dated July 11, 2018, Dr. Bednar said nothing about any cognitive or emotional issues relating to the Plaintiff except to observe that she is bright and articulate. His report is strictly orthopedic assessment of her back injuries.

[6] Defendant’s counsel points out that in the course of his report, Dr. Bednar observed that the Plaintiff is not disabled from engaging in productive employment. He particularly stresses the brief passage in Dr. Bednar’s report where it is indicated that, with some accommodation, the Plaintiff could likely work in a clerical capacity. Defendant’s counsel concedes that this was not a conclusive finding, and that Dr. Bednar specifically indicated that, “An objectified determination of her capacity to return to employment of any sort can only be predicated on the results of an objectified third-party Functional Abilities Evaluation”. However, the Defendant emphasizes that nothing in Dr. Bednar’s July 11th report stated that a return to work was out of the question for the Plaintiff.

[7] Following closely on the heels of the Bednar report, the Plaintiff underwent a Functional Abilities Evaluation (“FAE”). This evaluation was performed by Ross Rehabilitation, who issued a report dated July 23, 2018. The Ross report expressed the view that the Plaintiff’s medical condition, which included both physical and mental components, made it virtually impossible for her to contemplate returning to work. The FAE concludes: “Her reduced physical tolerances, limited attentional skills, and reduced emotional tolerances, combined with stamina concerns, would interfere with her ability to perform any suitable occupation in the competitive labour market.”

[8] The Plaintiff provided a copy of the FAE to Dr. Bednar. On August 27, 2018, Dr. Bednar issued a brief letter commenting on the conclusions reached by Ross report. After stating that he had reviewed the report of July 23, 2018, he indicated:

That document goes beyond my neuromusculoskeletal expertise. It clearly documents that, despite the client’s best intentions and physical efforts, issues of performance anxiety and cognitive impairment that are likely compounded by sleep deprivation and narcotics habituation have rendered her quite completely unemployable.

[9] That is the entire comment contained in Dr. Bednar’s letter. It was accompanied by no further elaboration or embellishment.

[10] Counsel for the Defendant labels this a change of opinion by Dr. Bednar, and one that requires further response. Counsel for the Plaintiff says that it is no such thing, and that it is merely a concise summary of the conclusion reached by Ross Rehabilitation in its 38-page report.

[11] I agree with Plaintiff’s counsel. Dr. Bednar’s letter of August 27th is not a further expert opinion or report.

[12] In the first place, the August 27th letter is conclusory only, and provides no analysis of its own other than to briefly encapsulate the analysis pursued by Ross. More to the point, it starts with the disclaimer indicating that the Ross report’s conclusions are based on matters beyond Dr. Bednar’s own medical expertise – i.e. on emotional and cognitive matters for which Dr. Bednar is not qualified to opine. Plaintiff’s counsel may well stress Dr. Bednar’s admitted lack of expertise in psychological matters if he gets to cross-examine him at trial. However, counsel for the Plaintiff cannot say that Dr. Bednar has expanded his expert report into the realm of neuropsychology in a way that now needs a neuropsychological expert report in response, when Dr. Bednar himself has conceded that his reflection on the Ross report is not an expert opinion or further expert report of his own.

[13] It is, of course, possible that the Defendant has now decided that it needs something to respond not to Dr. Bednar’s follow-up letter of August 27th, but to the Ross report. Its problem is that the possibility of the Defendant obtaining an FAE of its own was considered and dismissed some time ago. In an internal report dated May 1, 2015, the Defendant determined that it should “not proceed with a 1 day general FAE (Functional Abilities Evaluation) at this time. [The Plaintiff] has had previous back surgeries and continues to report ongoing pain and is taking opioids for pain management.” Having come to that conclusion a number of years ago, it is not for the Defendant to change its mind a mere two months before trial.

[14] In any case, there is nothing new in any of this. In Dr. Bednar’s initial report of July 11, 2018, he did not express any serious or realistic view about the prospects of the Plaintiff going back to work. What he said was that if there is some imagined version of non-physical work available, she might be able to do it in an ideal world. As Dr. Bednar put it in his report:

I think she could probably work in a relatively self-directed clerical-type occupation without fixed demands on work hours or work station/job site, one requiring considerable freedom for her to change position, take breaks, stretch, etc., and one not requiring a consistently extended commute. The activity-related nature of her pain might require further accommodation in the form of shortened hours, perhaps half days or even alternate-days work, or maybe some sort of part-time accommodation where she worked just a few days per week – to be determined by demonstrated performance in the future.

[15] In view of the extensive qualifications and limitations on the Plaintiff’s ability to work expressed in Dr. Bednar’s July 11th report, his repetition on August 27th of Ross’ conclusion that the Plaintiff is unemployable was really no change at all. When Dr. Bednar said that the Plaintiff might be employable in an environment resembling the best of all possible worlds, he was effectively saying that she is not employable.

[16] Under these circumstances, I am not inclined to adjourn the proceedings to allow for yet one more expert evaluation to be conducted. Counsel for the Defendant says that a neuropsychological report is needed to “level the playing field”; that logic, however, only applies where a defendant seeks to meet expert evidence with like evidence: LaForme v Paul Revere Life Insurance Co., 84 OR (3d) 634, at para 14 (Div Ct).

[17] Here, Plaintiff’s expert has not provided a neuropsychological opinion to which the Defendant needs to respond. It is more likely the case that a neuropsychological report produced by the Defendant will tilt the playing field unfairly in the Defendant’s own direction, and will give rise to a follow-up request by Plaintiff’s counsel to re-level the playing field with a responding neuropsychological report.

[18] In terms of trial preparedness and trial fairness, this action appears ready to proceed as scheduled. I am not inclined to order a neuropsychological evaluation or to adjourn the upcoming pre-trial and trial.

[19] The Defendant’s motion is dismissed.

[20] The Defendant shall pay the Plaintiff costs in the all-inclusive, agreed-upon amount of $2,500.

Morgan J. Date: January 11, 2019