IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100930

Docket: M071295

Registry:
Vancouver

Between:

Huljkije
Imeri

Plaintiff

And

Peter
J. Janczukowski
Uniwide Drilling Co. Limited

Defendants

Before:
Master Shaw

Reasons for Judgment

[1]          
This is an application by the defendants in a motor vehicle accident
case to have the plaintiff attend and submit to an independent medical
examination (“IME”) by an orthopaedic surgeon, Dr. Robert McGraw, on September
21, 2010.

[2]          
The application was heard on September 7, 2010, and on that date I gave
my decision that pursuant to Rule 7-6 of the Rules of Court, the
plaintiff attend for a further IME with an orthopaedic surgeon, but the IME
will be conducted by the defendants’ expert, Dr. Boyle, orthopaedic surgeon,
who conducted the initial IME of the plaintiff on February 28, 2006. I advised
that reasons for my decision would follow. The following are my reasons.

BACKGROUND

[3]          
The plaintiff was involved in a motor vehicle accident on May 24, 2005.
The plaintiff claims to have suffered injuries to her neck, shoulders, back,
face, left arm, left hand, left hip, left thigh, left leg, left foot,
headaches, fatigue, insomnia, anxiety and depression.

[4]          
Prior to the writ being filed, the plaintiff was represented by legal
counsel, and the defence was aware of this as of November 25, 2005.

[5]          
The writ and statement of claim was filed on March 20, 2007.

[6]          
At the request of the adjuster on behalf of the defendants, the
plaintiff attended a medical examination with Dr. Boyle, orthopaedic specialist,
on February 16, 2006. The letter from the adjuster to the plaintiff states the
request was for the purposes of Part 7 of the Regulations.

[7]          
The plaintiff attended and Dr. Boyle produced a report. The report was
provided to the plaintiff on March 9, 2006. The defendants now seek an order
for the plaintiff to attend with a second orthopaedic specialist.

ISSUES

[8]          
The issues to be decided are:

1)    should the court
exercise its discretion to order the plaintiff attend for an IME with an
orthopaedic specialist?

2)    if yes, should
the defence be entitled to have their chosen expert, Dr. McGraw, conduct the
IME?

POSITION OF THE PARTIES

[9]          
The defence argues the plaintiff’s attendance with Dr. Boyle was for the
purposes of the Part 7 claim, and the defendants should now be entitled to have
the plaintiff attend with their choice of orthopaedic specialist for the
purposes of the tort claim.

[10]       
The plaintiff argues she has already attended with an orthopaedic
specialist retained by the defence. The plaintiff resists attending an IME with
a second orthopaedic specialist.

[11]       
The plaintiff argues that although the adjuster, when advising of the
IME with Dr. Boyle, specified in her letter to the plaintiff the IME was for
the purposes of the Part 7 claim, the examination was a first examination for
the tort claim as well. As such, the plaintiff submits, if the defence is
entitled to a second IME with an orthopaedic specialist, it should be with Dr.
Boyle and not with a second orthopaedic specialist, Dr. McGraw.

[12]       
The plaintiff submits the adjuster who requested the first IME was the
adjuster for both the Part 7 claim and the tort claim. The plaintiff had
received some Part 7 benefits prior to retaining counsel, but was not receiving
any Part 7 benefits at the time the IME with Dr. Boyle was requested.

[13]       
The reason set out by the adjuster for the IME was to “confirm the
nature and extent of any injuries” the plaintiff sustained. The plaintiff
argues the IME was, at the least, in part for tort purposes.

[14]       
The plaintiff submits the defence has not disclosed the adjuster’s
instructions to Dr. Boyle. The plaintiff argues the report of Dr. Boyle
contains opinion in areas which are irrelevant to a Part 7 claim, but which are
relevant to a tort claim. This includes assumed facts of the plaintiff wearing
a seatbelt and having a properly adjusted headrest; considerations that the
impact was low velocity; considerations of quantum of damage to each of the
vehicles involved; and opinion evidence on the disability of the plaintiff.

[15]       
The defendants did not disagree that Dr. Boyle’s report contains some
issues that deal with the tort claim. However, the defendants say a report for
the Part 7 claim was ordered and the specialist, Dr. Boyle, produced the
report.

[16]       
As noted, the letter of instruction from the adjuster to Dr. Boyle, was not
produced.

AUTHORITY

[17]       
Rule 7-6(1), which is the new Rule 30, provides as follows:

Order for medical examination

(1) If the physical or mental condition of a person is in
issue in an action, the court may order that the person submit to examination
by a medical practitioner or other qualified person, and if the court makes an
order under this subrule, the court may also make

(a) an order respecting any expenses connected with the
examination, and

(b) an order that the result of the examination be put in
writing and that copies be made available to interested parties of record.

[18]       
In Stainer v. Plaza, 2001 BCCA 133, Finch J.A. (as he then was)
said at para. 8:

… the purpose of Rule 30 is to
put the parties on an equal footing with respect to medical evidence.

[19]       
Although the first question would be whether the defence needs an IME of
an orthopaedic specialist to put the parties on an equal footing with respect
to medical evidence, counsel for the plaintiff did not oppose the plaintiff
attending a defence IME with an orthopaedic specialist as long as it was Dr.
Boyle. The plaintiff agrees to go back to Dr. Boyle for the IME.

[20]       
The plaintiff’s submission is that the plaintiff has already attended a
first IME for tort purposes with Dr. Boyle and, if a further IME is
appropriate, it should be a follow-up with the original expert for the defence.

[21]       
In Rowe v. Kim, 2008 BCSC 1710, Master Keighley at para. 14
states:

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.

[22]       
The evidence submitted in this matter does not set out why it would not
be appropriate to send the plaintiff back to Dr. Boyle. There was no evidence
why Dr. McGraw should be preferred over Dr. Boyle.

[23]       
The plaintiff does not resist seeing Dr. Boyle. It is not necessary to
find sufficient reasoning for the further examination by Dr. Boyle.

[24]       
I find the February 28, 2006 report of Dr. Boyle contains opinion
relevant to both the Part 7 claim and the tort claim. The defence has not
provided any evidence to explain the opinion content in the report relevant to
the tort claim, other than the statement of the adjuster in her letter to the
plaintiff setting the appointment that the IME is for the Part 7 claim purposes.
It is not known what the request or instructions to Dr. Boyle were. Based on
the content of the resulting report, there is opinion relevant to the tort
claim. I find the IME by Dr. Boyle on February 28, 2006 is a first examination
by an orthopaedic specialist in the tort claim as well as for a Part 7 claim.

[25]       
The defence seeks an orthopaedic IME.

[26]       
The plaintiff will attend for a second IME with Dr. Boyle at a time and
place to be arranged.

[27]       
Paragraph 2 in part 1 of the defendants’ notice of application will also
be ordered, that being:

The solicitor for the Defendants
shall promptly enter this Order and forthwith mail or deliver a copy to the
solicitor for the Plaintiff;

COSTS

[28]       
Costs are to the plaintiff in any event of the cause.

“Master M.E. Shaw”

MASTER SHAW