COURT FILE NO.: 2007/18
DATE: 20210824
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Patricia Mitsis
Plaintiff
– and –
Holy Trinity Greek Orthodox Community of London and Vicinity,
Defendant
T. Haddy, for the Responding Party Plaintiff
N. Kiddie, for the Moving Party Defendant
HEARD: August 20, 2021
Nicholson J.
[1] The Defendant in this slip and fall personal injury action seeks an Order:
Compelling the Plaintiff to attend a second medical examination pursuant to section 105 of the Courts of Justice Act, R.S.O. c. C. 43, as amended and rule 33.02 of the Rules of Civil Procedure; and
Adjourning the pre-trial conference scheduled for October 7, 2021 to allow for the service of the report emanating from that examination.
Background:
[2] The Plaintiff claims that she sustained injury and resultant damages when she slipped and fell on ice and snow on the Defendant’s premises on December 11, 2016.
[3] The Plaintiff commenced the within action by Statement of Claim issued on October 3, 2018. Paragraph 8 of the Statement of Claim reads as follows:
- As a result of the aforementioned fall, the plaintiff sustained severe, permanent and painful injuries including a fracture to her right shoulder and arm.
[4] Examinations for discovery have been completed. Following those examinations, the Defendant arranged to have the Plaintiff examined by a physiatrist, Dr. Gihan Perera, on June 27, 2020. The Plaintiff attended this examination and Dr. Perera’s report was served on September 28, 2020.
[5] The parties attended at assignment court on September 8, 2020 and a pre-trial was scheduled to be held on October 7, 2021 with a trial date of February 2, 2022. Despite the COVID-19 pandemic, those dates remain in place. Up to the time of the assignment court, the Plaintiff had not served any expert reports.
[6] On June 22, 2021, the Plaintiff served an expert report from orthopaedic surgeon, Dr. Robin Richards. That report addresses the Plaintiff’s recovery and functional limitation as it relates to her fractured right proximal humerus. The report was served more than 90 days prior to the scheduled pre-trial conference.
[7] The Defendant, to counter Dr. Richards’ opinion, scheduled an assessment with an orthopaedic surgeon, Dr. Charlabos Karabatsos. The examination was to be conducted on August 24, 2021. When Plaintiff’s counsel indicated that the Plaintiff would not attend a further examination, that date was cancelled and has been rescheduled for September 28, 2021 should the Court order the Plaintiff to attend.
[8] In the event that the Defendant is successful in compelling the Plaintiff to attend the further examination, the Defendant seeks to adjourn the pre-trial conference to allow for the preparation and service of their expert report. The defence advises that as of the date of the motion, there were further pre-trial dates available in January of 2022.
Evidence on Motion:
[9] The Defendant’s motion is supported by an affidavit from a law clerk employed by the defence law firm.
[10] The law clerk swears in her affidavit that on the Plaintiff’s examination for discovery, the Plaintiff’s chief complaints were that of pain. As a result of the complaints of chronic pain, the Defendant opted for a physiatrist to examine the Plaintiff. The law clerk further swears that Dr. Perera’s report focuses on the Plaintiff’s complaints of pain and the impact of the pain on her functional limitations and ability to engage in activities of daily living.
[11] The report ultimately served by the Plaintiff, by Dr. Richards, is described by the law clerk as focusing on the Plaintiff’s recovery and functional limitations as it relates to her fractured right proximal humerus.
[12] Paragraph 14 of the law clerk’s affidavit states as follows:
- As initially indicated based on the clinical notes and records produced, and evidence given at discoveries, the Plaintiff’s chief complaints were that of chronic pain which a physiatrist can properly opine on. However, the recently served expert report based on the Plaintiff’s Orthopaedic IME focuses instead on the impact of the Plaintiff’s fractured right proximal humerus from an orthopaedic perspective. This is not an area in which a physiatrist can opine as it requires specialized orthopaedic expertise. In light of this, I verily believe that the Defendant’s ability to defend this action will be prejudiced if it is not permitted the opportunity to respond in kind with a similarly credentialed expert report.
[13] In the responding affidavit, sworn by a lawyer employed by the law firm retained by the Plaintiff, it is noted that the Emergency Room record from the day of the injury contains a diagnosis of a proximal humerus fracture. The Plaintiff was, upon discharge, referred to an orthopaedic surgeon, Dr. Faber, at the Hand and Upper Limb Clinic, who also diagnosed the fracture of the right arm. It is pointed out that the Defendant had access to all of these records at the time it scheduled the medical examination by the physiatrist.
[14] The responding affidavit provides that there has been no material change in the Plaintiff’s condition between the time she was assessed by Dr. Perera on June 27, 2020 and Dr. Richards on June 2, 2021.
[15] The Plaintiff asserts that she will be prejudiced if she is required to attend a further examination. She is currently 75 years of age. There is a pandemic. A further examination will likely necessitate an adjournment of the trial.
The Reports:
[16] I have reviewed both the report of Dr. Perera and the report of Dr. Richards.
[17] Dr. Perera’s report, dated September 22, 2020, indicates that his assessment was two hours in length. Dr. Perera identifies early in his report that the Plaintiff was diagnosed with a comminuted right proximal humeral head fracture. The referral to Dr. Faber is also noted. Further, Dr. Perera notes the involvement of an endocrinologist for osteoporosis. This history of osteoporosis is noted to put the Plaintiff at risk of a fragility fracture in the future.
[18] There is a Pain Diagram attached to the report, completed by the Plaintiff. The only area that she has shaded in is her right shoulder and right upper arm. In the body of the report, Dr. Perera describes that she has right trapezius, upper back and right arm symptoms, as well as headaches and sleep disruption.
[19] The Plaintiff is described as a self-employed piano teacher and examiner for a music conservatory. She had to close her school as she was unable to teach piano in mid-January 2017.
[20] Dr. Perera does an examination of the right shoulder, including range of motion. He discusses the possibility of scapular thoracic dyskinesis that would be consistent with adhesive capsulitis. He discusses the fracture and the x-rays that demonstrated its healing. He does, however, conclude that “the root of Ms. Mitsis’ issues is the development of a chronic pain condition, as indicated by widespread chronic pain and mood impairments.” Dr. Perera felt that her ongoing self-restriction and guarding would limit any activities that require lifting, reaching or repetitive use of the right upper extremity. He felt that her injuries “will likely prevent a return to employment as a piano teacher at her baseline capacity”. He provides some treatment options. Further, Dr. Perera states:
From a purely physical/musculoskeletal perspective her prognosis is good given that the initial fracture has healed, there are no concerns of non-union and she has not developed secondary issues such as adhesive capsulitis or CRPS as of yet. Having said this, my experience with patients who have such presentation of chronic widespread pain with self-restriction for this duration suggests that it is highly unlikely she will return to her pre-injury state.”
[21] As the Plaintiff argues, nowhere in his report is there any limitation expressed by Dr. Perera that the Plaintiff’s injuries are beyond his qualifications to address. In fact, he has executed the requisite Acknowledgement of Expert’s Duty certifying that he is providing opinion evidence that is related only to matters that are within his area of expertise.
[22] Dr. Richards’ report is dated June 10, 2021. Dr. Richards has a “special interest in the treatment of upper extremity disorders” and is a member of several surgical associations.
[23] Dr. Richards describes that Ms. Mitsis has chronic pain in her right acromion and upper deltoid. She has chronic stiffness of her right shoulder and weakness of her right shoulder and arm.
[24] Dr. Richards describes Ms. Mitsis’ right shoulder range of motion, grip strength and pinch strength. His examination, generally, does not appear to differ substantially from that performed by Dr. Perera.
[25] Dr. Richards opines that Ms. Mitsis has a significant and severe permanent disability consisting of pain, weakness, loss of the terminal range of motion, lack of endurance, sleep disturbance and inability to return to her pre-injury level of activity. In his opinion, her symptoms were due to a displaced fracture of the right proximal humerus, the soft issue injury that occurred in association with the fracture, including tearing of the rotator cuff tendon, fibrosis as a result of the healing response to the initial soft tissue injury and the development of chronic rotator cuff tendinopathy,traumatically induced. He opines that she is at risk for developing increasing rotator cuff symptoms and/or posttraumatic degenerative osteoarthritis of her right shoulder. There is a risk of future surgical treatment being required, but that possibility is thought to be 10%.
[26] Importantly, Dr. Richards reviews Dr. Perera’s report. Dr. Richards notes differences in their findings in respect of Ms. Mitsis’ strength. He disagrees that chronic pain is the root cause of the Plaintiff’s disability as suggested by Dr. Perera. He does agree with Dr. Perera that the Plaintiff’s accident related injuries will prevent the Plaintiff from returning to work as a piano teacher and poses certain functional limitations.
Applicable Law:
[27] Section 105 of the Courts of Justice Act provides 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.
[28] Rule 33.02 of the Rules of Civil Procedure reads as follows:
33.02(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.
[29] Both parties accept that Bonello v. Taylor, 2010 ONSC 5723 sets out the applicable test for further examinations. In that case, D.M. Brown J. (as he then was) makes clear that the overriding consideration is trial fairness. He states at para. 15, as follows:
[15] …The right to respond to a plaintiff’s expert report is a substantive one, involving principles of trial fairness, as the Court of Appeal made clear in Rysyk v. Booth Fisheries Canadian Co:
It is plain that, if the defence proceeds to trial without the advantage of the examinations sought, it could be seriously prejudiced. Fairness in the conduct of this litigation seems to demand the defendants have the right now contended for, as, otherwise, the opinion of the plaintiff’s expert in psychiatry and the plaintiff’s own evidence would not be subjected to what is probably the best test and to a very great extent go unchallenged.
[30] Brown J. then states as follows at paragraph 16:
[16] Although the determination of whether to order a second or further examination by a health practitioner must turn on the specific facts and equities of a case, a body of case-law has developed around when a second or further examination may be ordered under CJA s. 105 and Rule 33. The leading principles can be summarized as follows:
(i) The party seeking the order for a further examination must demonstrate that the assessment is warranted and legitimate, and not made with a view to delaying trial, causing prejudice to the other party, or simply corroborating an existing medical opinion;
(ii) A 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;
(iii) Some cases take the view that that the need for a “matching report”-i.e. a report from a defence expert witness in the same specialty as a plaintiff’s expert- is not, in and of itself, a sufficient reason to order a further defence medical. In the circumstances of the present case, I need not wade deeply into that question. That said, I would venture that trial fairness should operate as the guiding principle in this area, so if the plaintiff has decided that expert evidence from one specialty based on an examination of the plaintiff is relevant to the adjudication of her claim at trial, courts should be loathe to deny the defence a fair opportunity to respond with expert evidence from the same specialty based on an assessment of the plaintiff. Ordering further examinations may be just where they are necessary to enable the defendant fairly to investigate and call reasonable responding evidence at trial;
(iv) Where the request is for the examination of the plaintiff 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;
(v) A request for a second examination must be supported by sufficient evidence to persuade a court of the need for the further examination. What constitutes sufficient evidence will vary from case to case. Some cases have suggested that need must be established by filing medical evidence, such as an affidavit from the first examining physician recommending a further examination by a health practitioner competent in another specialty. In other instances, an affidavit from a lawyer or law clerk attaching medical reports has been utilized by the court. But, at the end of the day, determining whether the nature of the evidence filed is sufficient remains essentially an exercise of judicial discretion;
(vi) While fairness, or “creating a level playing field”, 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
(vii) A court should consider whether the request for a further examination would impose an undue burden on the plaintiff in light of the number of examinations already conducted of her by the defence.
[31] The Defendant points to paragraph 24 of Bonello where Brown J. indicates his willingness to accept that there is a distinction between an orthopaedic surgeon and a physiatrist, albeit with some overlap.
[32] The Defendant further relies upon Mork v. Sanghera, 2016 ONSC 5108, a decision of Lemon J. In that case, Lemon J. declined to order both a defense physiatry and orthopaedic assessment after citing Bonello as setting out the appropriate test. He was not persuaded, on the evidence before him, that the proposed orthopaedic surgeon was qualified to opine on chronic pain. He was clearly entitled to draw that conclusion. I, respectfully, fail to see how this case assists the Defendant on this motion.
[33] The Plaintiff directs me to the decision of Master M.P. McGraw in Kerwin v. Stuart, [2017] O.J. No. 1892, 2017 ONSC 2336. In that case, the defendant sought the plaintiff’s attendance at both a physiatry and orthopaedic assessment. The Master determined that trial fairness did not require that the plaintiff in that case be examined by both a physiatrist and orthopaedic surgeon. The key finding was that the physiatrist had unequivocally concluded that the plaintiff had no limitations from a physical point of view and in the face of such an unambiguous opinion, there was nothing further that could be added by a defence orthopaedic assessment.
[34] Each case must be determined on its own merits, as made clear in Bonello, with the ultimate goal being fairness to both parties.
Analysis:
[35] In my view, section 105 and rule 33 contemplate one defence medical examination “as of right”. Accordingly, defendants in personal injury actions ought to be well aware that while there is usually little resistance to a first medical examination, second or further examinations are not automatic. However, where an action engages both physical and psychological impairments, counsel can usually reach agreement on both a physical and psychological defence examination without the need for court intervention.
[36] Defendants are given considerable leeway on the expert that they select, both in terms of specialty and identity, for their first examination. There is also no rule that requires a defendant to obtain their medical examination before or after being served with an expert report by the plaintiff. A defendant can be proactive and have their medical examination prior to being served, or choose to wait to determine what type of expert they wish to retain when served with the plaintiff’s expert report.
[37] In the within case, it was evident from the Statement of Claim that the Plaintiff’s predominant injury was orthopaedic in nature. The Statement of Claim specifically refers to a fracture of the right shoulder and arm. Furthermore, the Emergency Room record and the referral to Dr. Faber made it clear that the Plaintiff’s primary injury was a fractured right rm.
[38] There is no suggestion in the material that Dr. Perera is unqualified to diagnose this injury and he obviously felt that he was so qualified. In many respects, his physical examination yielded comparable findings as Dr. Richards’, and his conclusions with respect to functional limitations are not dissimilar to Dr. Richards’ conclusions.
[39] One cannot help but be suspicious that the Defendant had hoped for a report more favourable to its position in the litigation from Dr. Perera and is now seeking a “mulligan”.
[40] In this case, there is no procedural unfairness to holding the Defendant to its choice of experts with respect to the Plaintiff’s physical injuries.
[41] Turning specifically to the factors enumerated in Bonello, I accept that the Defendant is not attempting to delay the trial or cause prejudice to the Plaintiff. However, I think the third branch of the first Bonello factor applies. While the Defendant may not simply be corroborating an existing medical opinion, it is my opinion that the Defendant is trying to repair the expert opinion it obtained from Dr. Perera. A defendant does not have the same luxury that a plaintiff has in simply not relying upon an expert that she retains. By virtue of Rule 33.06, a defendant is obligated to serve a report arising out of a defence medical examination. I see nothing unfair in requiring the Defendant in the circumstances of this case to advance its case on the basis of Dr. Perera’s opinion. I note that Dr. Perera has undertaken to the court to be impartial.
[42] With respect to the second factor, as I read Bonello, it was vital to Brown J.’s decision that a further examination by an orthopaedic surgeon was warranted due to the worsening of the plaintiff’s symptoms since the delivery of the first plaintiff’s expert report (paras. 19 and 20). The plaintiff intended to adduce expert evidence that her physical condition had materially deteriorated, even since the defence assessment. Accordingly, in Brown J.’s view, it would be unfair if the defendant was not afforded an opportunity to “respond to the two fresh, current assessments of Ms. Bonello’s physical condition” (para. 22).
[43] This is not a case where Ms. Mitsis’ condition is alleged to have changed or deteriorated since Dr. Perera’s assessment. There is no evidence before me that a more current assessment of her condition is required for trial. While the Plaintiff did serve a specialist report after the defence examination, it is important that this was the Plaintiff’s first report and the Defendant chose to obtain its expert opinion first. Finally, despite the attempt by the Defendant to distinguish between orthopaedic injuries and chronic pain, there is no evidence that I am prepared to rely upon that Dr. Perera lacks the expertise to provide an opinion with respect to the Plaintiff’s physical injuries sustained in this case.
[44] As described in the Kerwin case, the Divisional Court in Ziebenhaus (Litigation guardian of) v. Bahlieda, 2014 ONSC 138l aff’d 2015 ONCA 471, held that there is no “matching principle” such that the mere fact that a plaintiff obtains a particular expert report is insufficient to satisfy the test. There is no automatic rule that levels the playing field by providing that a defendant is entitled to the same type of report that is obtained by a plaintiff. Although in the context of non-medical practitioners, this is consistent with Brown J.’s analysis in Bonello. I have concluded that the Defendant has been provided an opportunity to fairly investigate and call evidence with respect to the Plaintiff’s injuries, and in fact has done so through Dr. Perera.
[45] The parties agree factor (iv) has no application to this motion.
[46] In regards to factors (v) and (vi), the parties have chosen to submit affidavit evidence from a law clerk and lawyer respectively that do not have carriage of the file. On this motion, I am not critical of those decisions. However, I agree with counsel for the Plaintiff that the assertion of a law clerk that a particular physician is disadvantaged in assessing a plaintiff is not nearly as persuasive as it would have been had the physician offered such evidence. In this case, no reservation whatsoever is contained within Dr. Perera’s report about his ability to opine on the Plaintiff’s injury. It is too late for the Defendant to suggest a 30-day adjournment of the motion to allow an affidavit to that effect from Dr. Perera. Besides, such an affidavit would be dramatically opposed in that regard to the tenor of his report.
[47] The Plaintiff argues that a request for a further examination would impose an undue burden upon her. I do not reach my conclusion on that basis. I accept that medical examinations are intrusive. However, if it is appropriate to order further examinations, the Plaintiff must endure such hardship as part of the litigation process. In the appropriate case, this could include a 75 year old plaintiff in the context of a global pandemic. The timeliness of the Defendant’s request does not particularly factor into my decision, as there is considerable uncertainty as to the local courthouse’s ability to conduct this trial in February 2022.
[48] On the whole, I am satisfied that the Defendant cannot, in the circumstances of this case, complain that it is unfair for it to proceed to trial with Dr. Perera’s expert opinion in hand against Dr. Richards. It was open to the Defendant to choose to have the Plaintiff assessed at the outset by an orthopaedic surgeon. It was open to the Defendant to wait and see what specialty the Plaintiff consulted. Tactically, the Defendant opted to proceed first with a physiatrist and, in this case, must be held to that decision.
Disposition:
[49] The Defendant’s motion is hereby dismissed. As I am not ordering that the Plaintiff attend a second medical examination with the proposed orthopaedic surgeon, there is no reason to delay the pre-trial conference scheduled for October 7, 2021.
[50] As they were required to do, both parties submitted costs outlines, which I have now reviewed. I simply point out that each party seeks roughly the same quantum of fees in relation to this motion. As I did not request costs submissions at the hearing, it would be unfair to simply award costs without giving the parties an opportunity to make submissions. However, the parties are urged to consider that they each expended roughly the same amount of time on the matter and come to a resolution without my assistance.
[51] In the event that the parties cannot reach agreement on the costs of the motion, the Plaintiff may make written submissions to my attention through the Court staff, no more than 2 pages in length double-spaced by September 17, 2021. The Defendant shall make responding submissions within the same parameters no later than September 28, 2021. If I do not receive costs submissions prior to those deadlines, I will assume that the parties have agreed upon costs.
Justice Spencer Nicholson
Released: August 24, 2021
COURT FILE NO.: 2007/18
DATE: 20210824
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Patricia Mitsis
Plaintiff
AND
Holy Trinity Greek Orthodox Community of London and Vicinity
Defendant
REASONS FOR DECISION
Nicholson J.
Released: August 24, 2021