COURT CASES on INDEPENDENT MEDICAL EXAMS (IMES)
Under Rule 7-6(1) of the British Columbia Supreme Court Civil Rules, the Court has the power to order that a person undergo a medical examination.
ATTENDANCE at a PHYSICAL EXAM for the PURPOSES of a RESPONDING REPORT
In LaBrecque v Tyler, the lawyer for ICBC brought an application to have the Plaintiff attend for an independent medical examination for the purposes of obtaining a responding expert report. The Court denied ICBC’S lawyer’s application, ruling that there was not enough evidence presented to justify the necessity of the Plaintiff attending for the examination.
[37] Here, the evidence from Dr. Piper as to the necessity for an examination is rather general in nature. Dr. Piper refers to the reports of both Dr. Grimwood and Dr. MacKean when in fact the responsive opinion would concern only the latter’s report. Unlike the evidence from the proposed examiner in Luedecke, Dr. Piper does not specifically identify the “medical evidence” (other than the reports themselves) that can only be addressed if a physical examination of the plaintiff occurs. Rather, Dr. Piper’s evidence suggests that an examination is necessary to respond generally to the subject matter of the plaintiff’s case and, as such, is no justification for the order sought
[39] The plaintiff in Luedecke could not reasonably argue prejudice based on the timing of the delivery of any new report. The report would be delivered in compliance with Rule 11-6(3). That is not the situation here. The defendant seeks to address this prejudice by asking the court to extend the time for delivery of Dr. Piper’s report and thus abridge the Rule. However, the only justification for such an order would be that the defendant did not have an opportunity to make this application in a timely manner upon receipt of Dr. MacKean’s opinion in October 2010. No evidence is presented explaining that delay.
[40] Furthermore, Luedecke represents a situation whereby the plaintiff’s case significantly changed upon the delivery of expert reports. Until that time, the defence did not appreciate the case that was expected to be met. That is different from the circumstances here where, again, Dr. MacKean’s opinion has been known to the defence for several months.
[41] Lastly, on the question of prejudice, the defendant’s application comes at a time when the plaintiff could or should be preparing for trial. An examination by Dr. Piper would disrupt that preparation and should not be ordered: White v. Gait, 2003 BCSC 2023 (CanLII), 2003 BCSC 2023; Benner v. Vancouver (City), 2007 BCSC 1998 (CanLII), 2007 BCSC 1998.
GENERAL PROHIBITION on ATTENDING PHYSICAL EXAM for PURPOSES of BOLSTERING PREVIOUS OPINION
In Knowles v. Watters, the Plaintiff was injured in a motor vehicle accident, and brought an ICBC claim for damages. Some of the injuries alleged by the Plaintiff were imbalance and inner ear problems. The Plaintiff retained an expert in this regard, and agreed to be examined by a doctor for the defense. ICBC’S lawyer then tried to bolster the opinion of the defence doctor by having the Plaintiff see another specialist, however the Court refused to allow this.
[9] In this case the defendant has had the opportunity the authorities require to essentially balance the playing field. Counsel are agreed that the authorities I have been cited are to that effect. The court’s job is to ensure that there is a so-called level playing field or that the parties have the opportunity to deal with the case fairly on the merits.
[10] The plaintiff here has, as is always the case, the opportunity to visit various specialists and get various reports. The defendant’s opportunity is limited to reports necessary to ensure that a fair trial can be obtained on the merits. In this case it is too fine a distinction to make to say that Dr. Moll, who made a comprehensive examination and gave a comprehensive report on the plaintiff’s balance complaints, can be distinguished from what Dr. Bell might or might not do as an otolaryngologist. There is no evidence to say that Dr. Moll was unable to make the report he did, that if he had had more information he might have made a different report, or indeed that if he had seen Dr. Noel’s report that he might have come to a different conclusion. None of that is the case. The plaintiff has disclosed its reports to date. The defendant has had a fair opportunity to respond to those reports. Dr. Moll’s report is indeed a complete response to Dr. Noel’s report. The plaintiff’s own report from Dr. Noel does not suggest that there is an underlying otolaryngological cause to the plaintiff’s symptoms. He says that the ENG test was normal except for one abnormality that he says is most likely due to other causes. Dr. Noel says the symptoms were multifactorial, not related to one issue. That is at odds with what Dr. Moll has to say, but that is what the jury will have to decide when the case comes to trial.
[11] This is not a case where the defendant has made out the burden on him to demonstrate that this application is necessary. The application is dismissed. Costs should go as costs in the cause. There is no reason to depart from the usual rule.
In Dillon v. Montgomery, the Plaintiff agreed to attend a defence medical examination with an orthopaedic surgeon, which included a neurological assessment. ICBC’S lawyer then requested that the Plaintiff attend for a second medical examination, this time with a neurologist. The Plaintiff refused, so the lawyer for ICBC brought a court application. The Court dismissed the application, holding that the effect of the second examination would be to bolster previous opinion.
[28] In the case at bar, I determined that an examination by Dr. Moll is not necessary to put the parties on equal footing.
[29] First, there was nothing new in the medical evidence since the examination by Dr. McGraw that might justify an examination by a neurologist. The only alleged new information is the plaintiff’s ongoing complaints of tingling in his arms and legs. These complaints are of long standing and even pre-date the accidents.
[30] Second, a neurological opinion has been obtained [by the plaintiff] which negates any correlation between the plaintiff’s symptoms and the motor vehicle accidents. Indeed, Dr. Shtybel’s resident made no findings of neurological impairment whatsoever. In other words, the only purpose of an independent medical examination by a neurologist would be to prove a negative, or, perhaps bolster Dr. McGraw’s opinion. This circumstance is different than the one considered in Kim v. Lin where there had yet to be any medical opinions proferred to explain ongoing (and even worsening) accident related complaints.
[31] Finally, the fact that the plaintiff has ongoing complaints that may be considered neurological symptoms does not warrant this second examination. The defence is “not entitled to pursue every potential medical possibility” to address the plaintiff’s subjective complaints: Lowry v. Spencer, (10 December, 1990) Vancouver Registry No. B883909 as cited in Trahan v. West Coast Amusements Ltd., 2000 BCSC 691 at para. 49.
In Hoflin v Rea, the ICBC lawyer brought an application to have the Plaintiff attend for a physical examination, however the Court dismissed the application, ruling that it was an attempt to bolster previous opinions.
[9] Having said all that, I cannot see that this case is in any significant way distinct from that decided by Mr. Justice Voith, to which I just referred. With greatest respect, at least two specialists for the defence have commented on, concluded, and been quite specifically direct that they regard Ms. Hoflin as having been either habituated, as one — Dr. Smith, I think, said it — or dependent, euphemistically perhaps, addicted to opioids. This has had consequences for her recovery, or her response to the accident.
[14] I am satisfied, on the circumstances and facts before me, that this does constitute a situation in which the defence is wishing to bolster the opinion of Dr. Smith at least, and possibly Dr. Hashimoto, with the further and yes, more focused opinion of Dr. Baker.
[15] The law in this area does not support that course. That is sufficient, in my respectful view, to decide the issue.
[17] Essentially, for me to order this pre-empts her opportunity to proceed in a normal and timely way to prepare her own case. Dr. Smith saw her some time ago. The opinion of Dr. Smith has been in the hands of the defence for some time, as well. Possibly over a year, based on the dates and chronologies here. It seems to me that the defence has had ample opportunity to consider his conclusions and to consider whether or not they wish to have further and more focused expertise on the point.
[18] So in all the circumstances, the application is dismissed.
LOCATION of the INDEPENDENT MEDICAL EXAM
It is sometimes the case that you live in one city, yet ICBC’S lawyer wishes you to attend for an IME in another city.
In Parsons v Mears, the Plaintiff lived in Victoria, yet ICBC’S lawyer wanted the examination to occur in Vancouver. An application was brought by the lawyer for ICBC, and the Court ruled that the IME should take place in Vancouver.
[18] The plaintiff consents to attending both an independent medical examination and a work capacity evaluation. Mr. Parsons simply asked that such appointments be scheduled to convenience him. Thus, the narrow issue for determination on this application is the role that convenience plays when considering an order under Rule 7-6 of the Supreme Court Civil Rules.
[19] The following principles are applicable to this discussion:
a. The purpose of an independent medical examination is to put the parties on a basis of equality. It is not for the plaintiff to decide which doctor can examine him or her on behalf of the defendant: Sinclair v. Underwood, 2002 BCSC 354 at para. 5;
b. Nonetheless, an independent medical examination is an examination conducted by a person appointed by the court. The convenience of the plaintiff is to be considered in appointing such a person: Willis v. Voetmann, [1997] B.C.J. No. 2492 (S.C.) at para. 5;
c. Convenience to the plaintiff is but one of several factors for the court to consider in exercising its discretion under Rule 7-6: Adelson v. Clint (1993), 16 C.P.C. (3d) 209 (B.C.S.C.) at para. 17; and
d. It may be appropriate for the court to consider appointing a specialist other than the proposed examiner but only where the plaintiff demonstrates, on a preponderance of evidence, sufficient grounds to justify the court in concluding that its discretion should not be exercised in favour of the appointment of the defendant’s nominee: Sinclair v. Underwood and Adelson v. Clint, supra.
[20] In terms of convenience to the plaintiff, I do not understand the authorities to say that an independent medical examination should, or even might preferably, take place at the examinee’s town or city of residence. Nor do I understand those authorities to say that all things being equal, the defence should be required to schedule an examination with a specialist practicing near the examinee’s residence. For example, the court in Willis v. Voetmann, supra, deemed it reasonable for a resident of Port McNeil to travel to Victoria or Vancouver for an examination.
[21] It is almost always an inconvenience to a plaintiff to attend an independent medical examination. An employed person might miss a day’s pay; a homemaker with young children might be required to pay for childcare. However, that inconvenience can be remedied at trial by an award of damages for this suggested loss.
[22] On a very rare occasion, the court may order that the defendant’s nominee travel to the plaintiff’s town or city of residence to conduct the independent examination or assessment. Such an order might be appropriate where the examination or assessment is requested so late in the day that travel time would unduly interfere with the plaintiff’s trial preparation. The alternative to such an order would be to deny the defendant’s entitlement to an examination altogether: White v. Gait, 2003 BCSC 2023 (CanLII), 2003 BCSC 2023.
[23] In this case, there is no objection to the qualifications of either Dr. Leith or the proposed evaluator at Progressive Rehabilitation. The plaintiff can obviously travel although the defendant may need to offer special accommodations for that trave
[24] In short, convenience to the plaintiff is one of several factors for the court’s consideration on this application. It is not the predominant factor and in itself does not provide justification for denying the defendant’s entitlement to the order sought.
EXAMINATION for PURPOSE of NO FAULT (PART 7) BENEFITS CANNOT BE TOO WIDE in SCOPE
Sometimes an ICBC adjuster will send you for an independent medical examination to determine whether or not you are entitled to “no fault” (Part 7) benefits. Sometimes the adjuster’s instruction letter will be too wide in scope, and the doctor or specialist will comment on the “tort” (personal injury claim for damages) aspect of the injuries as well.
In Rowe v Kim, this is exactly what happened. ICBC’S lawyer then brought an application to compel the Plaintiff to attend a different physician. The Court dismissed the application, noting that :
[13] It appears in the instant case that Ms. Dyrland was handling both the Part 7 and the tort claims arising out of the alleged accident. Although she deposes that her intention was that the assessment by Dr. Bishop was for the purposes of the Part 7 claim only, her instructions to him suggest a wider scope. In the case of Longva v. Phan, [2007] B.C.J. No. 1035, 2007 BCSC 690, Master Bolton considered instructions identical to those set out at paragraph 7 of these reasons. He noted that, however specific or equivocal the adjuster’s requests might have been, a request for a “history” of the accident, recommendations concerning future treatments and surgery and, in particular, a request for comment on a contributory negligence (seat belt) issue, must be considered as solely referable to the plaintiff’s tort claim and not merely concerned with issues relating to a claim for disability benefits. Thus, while the adjuster may have expressed her intention to limit the assessment to the Part 7 claim, the nature of her instructions suggests that she expected a report which would address not only the plaintiff’s current needs for treatment and rehabilitation but, as well, his prospects for recovery and other issues unrelated to the disability claim. I have reached the same conclusion. The assessment prepared by Dr. Bishop on December 22, 2005 was a “first” examination. Having reached that conclusion, I must now consider whether the circumstances justify a “second” examination.
[14] A party seeking to have a second examination preformed by a practitioner practicing in the same speciality or discipline as a practitioner who has already examined a person faces an uphill battle: Hothi v Grewal, [1993] 45 B.C.L.R. (3d) 394 (SC); Hamada v. Semple, [1983] B.C.J. No. 1307 (SC). Successful applicants are those who are able to demonstrate that something has happened since the first examination which could not have been foreseen or which could not, for some other reasons, have been addressed by the first examiner. It also seems to me that material filed in support of the application should indicate why a further examination by the doctor who performed the original assessment is not appropriate.
In Wocknitz v. Donaldson, the Plaintiff attended for an examination with a physiatrist, with the report going beyond the scope of the Part 7 benefits issue. ICBC’S lawyer then sought a second examination with a physiatrist, however the Plaintiff refused. The lawyer for ICBC brought an application to compel attendance, however the Court dismissed the application.
[15] In this case, the letter from the adjustor instructing Dr. Findlay has not been put in evidence. However, it is clear from Dr. Findlay’s report that it deals with matters which go beyond an inquiry restricted to Part 7 benefits, and deals with matters directly relevant to the tort claim.
[17] The test for whether a second examination will be ordered for an examination by a practitioner practicing in the same specialty or discipline as a practitioner who has already examined a party has been stated and restated in a number of decisions including Rowe v. Kim, 2008 BCSC 1710, at paragraph 14, where Master Keighley said this:
A party seeking to have a second examination preformed by a practitioner practicing in the same speciality or discipline as a practitioner who has already examined a person faces an uphill battle: Hothi v Grewal … Hamada v. Semple … Successful applicants are those who are able to demonstrate that something has happened since the first examination which could not have been foreseen or which could not, for some other reasons, have been addressed by the first examiner. It also seems to me that material filed in support of the application should indicate why a further examination by the doctor who performed the original assessment is not appropriate.
[18] An example of a case where that test was met and where an order for a further examination was made is the decision of Mr. Justice Cole in Antoniali v. Massey, 2007 BCSC 1458. In that case, there had been a number of significant and unforeseen changes since the first examination. They included the plaintiff having tripped and fallen with renewed pain in her back, the plaintiff had become pregnant and had delivered a baby, and the plaintiff had undergone a CT scan which was normal in 2004, but underwent an MRI in April of 2005 showing a disk herniation.
[19] In this case, there have been no subsequent unforeseeable events which would, in my view, warrant a second examination by a physiatrist.
[20] With respect to the application of the defendants for an order for an independent medical examination by a psychiatrist, again this is not a case where such an examination is required in order to level the playing field. This is not a case where the plaintiff has obtained or intends to obtain a psychiatric report. An independent medical examination by a psychiatrist is a particularly invasive form of examination and, in the circumstances of this case, it is not one that I would be prepared to order.
[21] With respect to the defendants’ submission that because Dr. Findlay provided his report some nine months after the accident, he was not in a position to pronounce in any definitive way with respect to a prognosis, in my view the timing of Dr. Findlay’s examination was a matter that was entirely within the control of the defendants. That does not provide a basis which would justify an order for a second independent examination by a physiatrist. As counsel for the plaintiff has pointed out, it would still be open to the defendants to have Dr. Findlay review the report of Dr. Valentine, and the clinical records that have been produced, and to provide a rebuttal report for use at trial.
[22] The application of the defendants for the two independent medical examinations sought is dismissed.
