IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20101214

Docket: 10260

Registry:
Rossland

Between:

Nancy Wocknitz

Plaintiff

And:

Travis Kenneth
Donaldson and
Lorne William Murray Carry

Defendants

Before:
The Honourable Mr. Justice Pearlman

Oral Reasons for Judgment

In
Chambers
December 14, 2010

[1]            
THE COURT: This is an application brought by the defendants for
orders that Rule 15-1 cease to apply in this motor vehicle action, that the
plaintiff submit to examination by two medical practitioners, first of all, by
a physiatrist, Dr. Apel at 420, 1011 Glenmore Trail Southwest, in Calgary,
Alberta, on February 18, 2011, and secondly, by a psychiatrist, Dr. Joy, with
proposed dates for that examination on February 16 or 23 of 2011.

[2]            
This action arises out of a motor vehicle accident which occurred on July 22, 2008.  The action was commenced in July of 2010, and the pleadings were closed in
August of this year.  On or about November 19, 2010, plaintiff’s counsel set the action for trial on February 14, 2011.  If the defendants are successful on their application for the independent medical examinations of the plaintiff,
the result will be an adjournment of the trial date probably until at least
July or August of 2011.

[3]            
Counsel for the defendants acknowledges that there would be prejudice to
the plaintiff by way of delay in the trial of this matter.  However, the
defendants propose to ameliorate that prejudice by providing the plaintiff with
an advance of $5,000 —

[DISCUSSION RE TELECONFERENCE
CONNECTION]

[4]            
THE COURT:  If the defendants are successful on the application for the
further independent medical examinations of the plaintiff, the result will be
an adjournment of the trial probably until July or August of 2011.  The
defendants acknowledge that a delay in the trial would prejudice the plaintiff,
but submit that that prejudice may be ameliorated by the defendants providing
to the plaintiff an advance of $5,000.  The amount of the proposed advance, I
understand, is equivalent to the plaintiff’s recent annual income.

[5]            
The defendants submit that if the application for the independent
medical examinations is not granted, then the defendants will suffer prejudice
in so far as they say they will not be able to properly defend the action. 
Counsel for the defendants submits that the plaintiff has alleged injuries
resulting from the motor vehicle accident including loss of memory and some
impairment of her cognitive capacities and that, in these circumstances, the
defendants should be entitled to the benefit of an independent medical
examination by a psychiatrist.

[6]            
The range of injuries that the plaintiff alleges she sustained in the
accident are summarized in the defendants’ notice of application, paragraph 3,
where it is stated that:

The plaintiff alleges that as a
result of the accident she has suffered physical, emotional, cognitive, and
psychological injuries including headaches, back pain, neck pain, hip pain,
shoulder pain, chest wall injury, numbness in her left arm and shoulder, loss
of memory, loss of consciousness, confusion, chronic pain disorder, depression,
sleep disorder, nausea, and other injuries.

[7]            
The defendants also make the submission that the physiatrist who
conducted an independent medical examination of the plaintiff, Dr. Findlay, in
his report of April 24, 2009, referred to certain of the plaintiff’s complaints
and suggested that treatment by a psychologist or a psychiatrist would be
appropriate.  In other words, Dr. Findlay identified the need for the kind of
examination that the defendants say they should now be entitled to obtain by
way of an independent medical examination by a psychiatrist.

[8]            
Dr. Findlay at paragraphs 4 and 6 of his report of April 24, 2009, states that:

 Ms.
Wocknitz is best described as having a possible major depression that has not
been assessed or treated to date and that at least she requires assessment and
management by a qualified psychologist or psychiatrist.

6          If she has treatment-resistant
depression, then a psychiatric assessment will be required.

[9]            
Dr. Findlay went on to observe in his report under the heading,
"Diagnostic Considerations," that given the limited history that was
presented and the uncertain natural history of fibromyalgia syndrome, it is not
possible to attribute any of the plaintiff’s current complaints to the motor
vehicle accident in question.  However, he went on to state that, "I note
also that Ms. Wocknitz is complaining of significant psycho-social stressors
that she stated are related to everything," and concluded by saying:

Nevertheless it is apparent that
her current pain complaints did start following the collision in question.

[10]        
The defendants submit that they should be permitted to conduct another
independent medical examination by a physiatrist on the basis that they should
have the opportunity to make full answer and defence to the full range of the
plaintiff’s physical injuries.  They say that because Dr. Findlay did his
assessment some nine months after the motor vehicle accident, it was too soon
for him to comment in any meaningful way on a prognosis for the plaintiff. 
Because Dr. Findlay apparently may not be available to conduct independent
medical examinations until February of 2011 at the very earliest, the
defendants have proposed that a second independent examination by a physiatrist
be conducted by a physician other than Dr. Findlay.

[11]        
The plaintiff opposes the defendants’ application and makes a number of
submissions.  First of all, the plaintiff says that she has not sought a
psychiatric assessment and that she will be relying on the opinion obtained
from a physiatrist, Dr. Valentine, in May of this year, and her treating
general practitioner, in order to meet the burden of proof upon her to
establish the various damages and injuries claimed in this case, including her
claim of chronic pain disorder.  The plaintiff says that in these circumstances
there is simply no basis for requiring Ms. Wocknitz to undergo an invasive
psychiatric examination at the behest of the defendants.

[12]        
With respect to the application for a further examination by a
physiatrist, in essence the plaintiff says that the defendants have had their
opportunity for such an examination and that this is not a case where the
defendant has met the stringent requirements for a second examination by a
specialist in the same field as Dr. Findlay.

[13]        
In this case, the examination by Dr. Findlay was arranged at the request
of the ICBC adjustor who is handling both the Part 7 claim and the tort claim. 
At the time the examination of the plaintiff by Dr. Findlay was arranged, the
plaintiff had not yet submitted her application for Part 7 benefits and indeed
had not yet qualified for payment of those benefits.  The plaintiff takes the
position that the independent medical examination conducted by Dr. Findlay was
not limited to a Part 7 examination and that it canvassed matters which are
directly relevant to the tort claim in this case.

[14]        
In Robertson v. Grist, 2006 BCSC 1245, at paragraph 14, Madam
Justice Dillon addressed the question of whether a Part 7 examination
constitutes a first independent medical examination for the purposes of a tort
claim. She said this:

[14]      Whether the Part 7 examination
constitutes a first independent medical examination depends upon the scope of
the examination, given the rest of the circumstances here.  There was no
limitation on Dr. Jaworski’s examination and the request letter covered matters
that would solely be relevant to a tort action.  The doctor’s report was not
limited to a rehabilitation opinion about whether the injuries sustained in the
accident totally disabled the plaintiff from work within 20 days of the
accident and for a period of 104 weeks or less, the criteria in section 80 of
the Part 7 benefits Regulations.  The examination was a first independent
medical examination within the meaning of Rule 30.

[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.

[16]        
In Teichroab v. Poyner, 2008 BCSC 1130, Mr. Justice Barrow
took a slightly different approach to the problem.  At paragraph 24, he dealt
with the interpretation of Rule 30(1) and (2), which are now subsumed within
the new Rule 7-6 of the Supreme Court Civil Rules.  At paragraph 24, His
Lordship said this:

In my view, the wording of the
Rule and the weight of authority supports the conclusion that the “further
examination” contemplated by Rule 30(2) means an examination in addition to one
ordered under Rule 30(1).

Later in that paragraph, he continued:

It may be that this is a
distinction which will make little difference to the analysis in most cases because
the same factors which are to guide the exercise of the discretion under Rule
30(2) will inform a decision to be made under Rule 30(1) when there has been an
earlier assessment.  Approaching the matter in this way serves to focus the
inquiry on the exercise of the discretion with a view to the purpose of the
Rule and obviates the need to guess as to whether, and if so when, a first
assessment not ordered under the Rule may have evolved into such an
assessment.  Generally, the more closely an examination performed under a
contractual obligation or for purposes of a claim for Part VII benefits resembles an independent medical examination under Rule 30(1), the more relevant it
will be to the exercise of the discretion conferred by the Rule, and the less
likely it may be that an order under that Rule will be made.  That is so
because the purpose of Rule 30 is, in part, to put the parties on an equal
footing in terms of their ability to explore the issues in the case … To the
extent an assessment prepared under a contract of insurance or in relation to a
claim for Part VII benefits puts a defendant on an equal footing, the need for
an assessment under Rule 30(1) will be mitigated.

[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.

[23]        
With respect to the application that this case be removed from the
fast-track process, in my view this case is perfectly suited to disposition
through the fast-track procedure.  Although liability as well as damages are in
issue, the liability issues do not appear to be particularly complex.  This is
not a case involving multiple accidents.  Based upon the material that has been
adduced on this application, it certainly appears that a trial can be
effectively and economically conducted within the trial period contemplated by
Rule 15-1.  The plaintiff has deposed to her desire to see this matter through
to a conclusion and to the stress that she has suffered and which she
attributes to the litigation process.   It goes without saying that all
litigants suffer some degree of stress through the litigation process.

[24]        
Taking that into account, I am of the view that there is a benefit in
having this case heard through the fast-track process and heard without the
necessity of the adjournments which would have resulted had the applications
for the independent medical examinations been granted.  Accordingly, the
application of the defendants is dismissed.  Thank you.

[25]        
MR. POON:  Thank you, My Lord.

[26]        
MS. DAROUX:  My Lord, just with respect to costs?

[27]        
THE COURT:  The costs of this application will be costs in the cause.

“PEARLMAN J.”