Court File and Parties

COURT FILE NO.: CV- 14-498577

MOTION HEARD: 20210322

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Anna Mierzejewski, Plaintiff

AND:

Mark Brook and 1435664 Ontario Business Corporation, carrying on business under the name of Nationwide Freight Systems Ltd., Defendants

BEFORE: Master Jolley

COUNSEL: Nazli Buhary, Counsel for the Moving Party Defendants

P. Michael Rotondo, Counsel for the Responding Party Plaintiff

HEARD: 22 March 2021

REASONS FOR DECISION

[1] The defendants brought this motion on 22 March 2021 in respect of medical assessments they have booked for 31 March 2021 and 5 April 2021. The trial is set to commence in June 2021. I have released this decision as quickly as possible in light of the compressed time frame given.

[2] The defendants seek an order compelling the plaintiff to attend both a neuropsychology defence medical examination with Dr. Mark Dowhaniuk on 31 March 2021 (the “neuropsychology examination”) and a physiatry defence medical examination with Dr. Muhlstock on 5 April 2021 (the “physiatry examination”). Both examinations would take place at AssessMed, 4945 Airport Road, Suite 335, Mississauga, Ontario (“AssessMed”).

[3] The plaintiff does not challenge whether leave should be granted pursuant to Rule 48.04(1). She has agreed to the physiatry examination. The issue is the form that examination will take. The plaintiff does not consent to attending that examination in person, given the pandemic and what she describes as her compromised health situation. The plaintiff had a heart attack and underwent heart surgery in 2016, had had breast cancer in 2017 and underwent a lumpectomy in 2018. She generally does not leave her home unless necessary.

[4] The plaintiff disagrees that a neuropsychology examination is necessary, arguing that she has not put any brain injury or head trauma in issue.

The Physiatry Examination

[5] Dr. Marciniak, one of the plaintiff’s treating physicians, filed an affidavit and report dated 13 March 2021 commenting on the request that the plaintiff attend an in-person assessment. He opined that the plaintiff’s multiple and significant medical conditions and her intake of medications place her in the high end of the high risk category to contract COVID-19 and to have a poor outcome. He notes the public health recommendation for those with chronic conditions is to limit their contact with others and to avoid closed indoor spaces and crowded places. He notes that attendance at AssessMed would require the plaintiff to enter a multi-tenant mixed use office building. Based on the plaintiff’s medical issues and pharmaceutical needs, he has opined that it would be irresponsible to require her to attend in person.

[6] Dr. Muhlstock has indicated “A Physiatry assessment CANNOT be done virtually. The physical examination is critical to the assessment.”

[7] While the plaintiff is concerned about attending in person, the evidence is that AssessMed has extensive COVID-19 protocols in place, which are compliant with both the Ministry of Health guidelines and the guidelines of the College of Physicians and Surgeons of Ontario. They include COVID-19 screening and temperature check prior to the examination, a socially distanced waiting room, plexiglass barrier during the interview, use of PPE including a mask, gloves and shoe covers by the client and gloves, boot covers, mask and an N95 mask and full face shield by the assessor.

[8] The plaintiff has attended necessary appointments, although understandably a limited number during the pandemic. She attended in person in February 2021 for a mammogram as part of her cancer follow up. She attended her lawyer’s office for the pre-trial, albeit in a separate room in the firm and with all applicable COVID-19 guidelines being followed.

[9] It is admitted that the plaintiff has put in issue her musculoskeletal injuries and chronic pain and that an examination by a physiatrist is relevant to those claimed injuries. Given the pending trial date, this is not a case where the parties can wait some months for the pandemic to ameliorate before this examination can take place. The defendants must file their reports by 15 May 2021 and the trial is set to commence in June 2021. As noted, the plaintiff states that she limits in-person visits with her primary health practitioners unless an in person attendance is necessary. The evidence before me is that it is necessary to have this examination in person.

[10] I adopt the reasoning in Severin v. Barker 2020 ONSC 7784 which held that requiring a plaintiff to attend an in-person defence medical during the pandemic does not pose an undue hardship on a plaintiff where the examination will be conducted with COVID-19 safety protocols.

[11] The plaintiff shall attend the physiatry examination with Dr. Muhlstock on 5 April 2021 at the offices of AssessMed.

The Neuropsychology Examination

[12] The defendants argue that the plaintiff has put her neurocognitive state in issue in her pleading and through the medical reports she has tendered. It is necessary that she undergo a neuropsychology examination which will assess the relationship between the nervous system, especially the brain and cerebral or mental functions.

[13] The plaintiff did not suggest that Dr. Dowhaniuk did not have the appropriate expertise to conduct the assessment, but argued that a neuropsychology assessment would not be relevant to any pleaded issue. She argues that she has not put her neurocognitive condition in issue. She has not complained of any head injury, post concussion syndrome, neurocognitive problems or psychological problems.

[14] In paragraph 9 of her statement of claim, the plaintiff alleges that as a result of the collision, she has sustained “serious and permanent impairment of important … mental and psychological functions … which include the following serious and lasting permanent personal injuries and disfigurements: 9 (a) headaches; (b) dizziness, (c) ringing in the ears, (o) depression, (q) nightmares, (r) flashbacks, (s) concentration difficulties and (v) memory difficulties.

[15] In a report tendered by the plaintiff and served on 19 February 2021, Dr. Koczorowska has opined that the plaintiff suffers from “Post-traumatic Stress Disorder, Major Depressive Disorder with comorbid Anxiety, Insomnia, Post-Concussive Syndrome, Pain Disorder Associated with both General Medical Condition and Psychological Factors, Soft Tissue Injury, Query Concussion/ traumatic brain injury and chronic pain” as a result of the accident.

[16] In another reported tendered by the plaintiff on 15 January 2021, Dr. Marciniak has opined that the plaintiff suffers from a myriad of accident related impairments, namely, “Query Head Injury/Post-concussion Syndrome, Occipital Headaches, Neck Injury, Cervical Strain/Sprain, Upper Extremity Dysfunction, Paresthesia and Weakness, Chest Wall/Sternum Injury, Difficulties Breathing, Cardiopulmonary Injuries, post Open Heart Surgery, Severe SAM (Systolic Anterior Motion), Mitral Regurgitation, Scar Tissue - Fibrosis, Papillary Muscle Adhesion, Post-traumatic Left Ventricular Outflow Obstruction, Hypertrophic Obstructive Cardiomyopathy, Hypertension, Thyroid Problems, Back Injury, Sciatica Bilat., Multilevel Disc Abnormalities, Disc Herniation, Listhesis, Post-traumatic Degenerative Changes, Abdominal Injuries, Bowel Hematoma, Psychological Problems, Depression, Broken Heart Syndrome, Obesity, Chronic Pain Syndrome, Breast cancer, Post Chemotherapy, Drug Side Effects/Drug Interactions”.

[17] Dr. Marciniak clarified his “Query Head Injury/Post-concussion Syndrome, Occipital Headaches” comment in a supplementary report, stating that he did not diagnose the plaintiff with a head injury and, as her treating physician, was unaware of any diagnosis of a head injury from any other health practitioner. To his knowledge, the plaintiff had never even been referred for a diagnostic image of her brain. He also opined that the plaintiff’s multiple physical and psychological conditions cause general cognitive issues which render a neurocognitive assessment of no utility.

[18] On this motion, the plaintiff argued that any issues she suffers with respect to memory, concentration, headaches, etc. arise from psychiatric mood disorders. Specifically, Dr. Koczorowska has advised that “the reference to Post-Concussive Syndrome is due to the overlapping diagnostic criteria between mood and PTSD conditions and Postconcussive Syndrome. Ms. Mierzejewska’s [sic] Major Depression, Anxiety and PTSD give rise to neurocognitive problems.” The claim has not been amended to reflect that the plaintiff will not argue that these injuries arose from the accident. At present, the defendants face an argument at trial that the plaintiff has sustained these injuries “as a result of the … collision”.

[19] The cases relied on by the defendants are not of much assistance. In Beattie v. Grudinksi 2010 ONSC 737, the plaintiff had obtained her own assessment by a neuropsychologist, clearly putting her medical condition in issue. The court allowed the defendant to obtain an updated responding report, despite the lateness of the request. In Nelson v. Chadwick 2019 ONSC 2063, the plaintiff alleged that he sustained a traumatic brain injury as a result of the accident and had undergone his own neuropsychological assessment, so the relevance of the requested neuropsychological examination was not in issue. The court in Nelson did hold, however, that the defendant was entitled to his own neuropsychological examination to determine the nature and extent of the traumatic brain injury sustained by the plaintiff and the nature and extent of the plaintiff’s current cognitive dysfunction and its etiology.

[20] Once a plaintiff has put her cognitive state in issue, as I find has been done in the case through her pleading and the reports she has tendered referencing Query Head Injury and Post-Concussive Syndrome, the defendants should not be bound by the opinion of Dr. Marciniak, who is not a neuropsychologist, that an assessment would not provide relevant information about the cause of the plaintiff’s various cognitive conditions. Even he states in his supplementary report that, while he did not make any specific finding concerning the plaintiff’s injury, “the symptoms of a traumatic head injury are certainly present”. A neuropsychology examination will allow the defendants to evaluate the potential cause of the injuries the plaintiff alleges she suffers, as detailed above and in paragraph 9 of the claim.

[21] I am satisfied that the proposed neuropsychology examination is relevant to the conditions that the plaintiff has placed in issue in this action (Suchan v. Casella 2006 CanLII 20844 (ON SC) and that the assessment is likely to produce relevant information.

[22] Considering the factors set out in George v. Landles, 2021 ONSC 6105 at paragraph 19, I am satisfied that such an examination is necessary. It would be unfair to require the defendants to proceed to trial without the ability to explore the injuries that the plaintiff has put in issue. If leave is required, I grant it, noting that these examinations were contemplated by Justice Stinson who presided at the pre-trial.

[23] Like Dr. Muhlstock, Dr. Dowhaniuk has advised that: “I cannot conduct a neuropsych assessment virtually. Administration of cognitive testing must be done face to face using the required stimulus materials.” For the reasons noted above in relation to the physiatry examination, I am satisfied that the neuropsychology examination must also be conducted in person.

[24] The record indicates that the defendants are prepared to arrange transportation for the plaintiff and they shall do so, if requested.

[25] Each party was to upload their costs outline by end of day yesterday so that it was filed before this decision was released. The defendants have uploaded their costs outline but there is nothing uploaded by the plaintiff. Once my assistant trial coordinator has confirmed that the plaintiff’s costs outline has been uploaded, this decision will be released so that the parties can keep the scheduled examination dates.

[26] If, after making reasonable attempts, the parties are unable to agree on costs by 30 April 2021, they may each file costs submission no more than three pages in length.

Master Jolley

Date: 25 March 2021