IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20111020

Docket: 10 1669

Registry:
Victoria

Between:

Barry Vincent
Dillon

Plaintiff

And:

Bryanne Montgomery
and Michael Ernest Montgomery

Defendants

Before:
Master Bouck

Reasons for Judgment

[1]            
At the conclusion of submissions, I dismissed the defendants’ application
for an order that the plaintiff attend an independent medical examination with
Dr. Alexander Moll. The application was brought on short notice given
that the examination was scheduled for October 3, 2011.

[2]            
The parties were advised that these reasons would follow.

The Facts

[3]            
The plaintiff is alleged to have suffered injury and pecuniary losses as
result of his involvement in two motor vehicle accidents. Those accidents
occurred on September 13, 2008 (the “First Accident”) and September 12,
2009 (the “Second Accident”).

[4]            
Separate actions have been commenced with respect to each accident. This
action concerns the Second Accident.

[5]            
The two actions are to be tried at the same time. The seven-day trial commencing
January 9, 2012, will be before a judge and jury.

[6]            
In this action, the plaintiff pleads a variety of complaints including
aggravation of existing injury to the neck, back and shoulders. Similar
injuries are pled in the action concerning the First Accident.

[7]            
Plaintiff’s counsel characterizes the complaints raised in both actions as
primarily soft tissue injuries.

[8]            
When examined for discovery on September 22, 2010, Mr. Dillon testified
that he continued to suffer accident-related health problems. Among Mr. Dillon’s
ongoing complaints was a sensation of pins and needles in his legs, feet and
hands.

[9]            
At the request of the defence, Mr. Dillon voluntarily attended an
independent medical examination with Dr. Robert McGraw on May 24, 2011. Dr.
McGraw is an orthopoedic surgeon.

[10]        
In his medical/legal report issued on August 30, 2011, Dr. McGraw lists
the records reviewed prior to his examination of the plaintiff. Those records
included clinical notes of Dr. Daniel Vincent, a pain management specialist, and
clinical records (undated) of Dr. Wayne Shtybel, a consulting neurologist.

[11]        
In advance of the plaintiff’s examination, Dr. McGraw was able to review
pre-accident the clinical notes of the plaintiff’s family doctor(s) for the
period January 5, 2004 to February 1, 2010. The plaintiff was under the care of
at least two general practitioners during this period.

[12]        
Dr. Shtybel’s consult report is perhaps the most relevant medical record
on this application. This consult report is authored by a medical resident but
issued on Dr. Shtybel’s letterhead.

[13]        
The consult report notes that Mr. Dillon’s “past medical history is
significant for migraines for which he is on merapamil”. Apparently, Mr. Dillon
has not experienced a migraine since being placed on this medication in 1996.

[14]        
On page 5 of the report, the following impression and plan is discussed:

In summary, Mr. Dillon is a 49 year old gentleman who
experienced a motor vehicle collision approximately 2½ years ago with a
subsequent collision the following year.  He complains of numbness and tingling
in both his lower extremities as well as his right shoulder and arm.  He also
experiences intermittent shock like jerks of his extremities.  Finally, he also
complains of significant cognitive difficulties which he attributes to his
medication.

With respect to his numbness and radicular symptoms, he has
had a CT scan as well as a MRI of his lumbar spine.  The MRI was performed
January 21, 2011 and was completely normal with no disc bulges or tears noted.
… He has not, however, had any imaging of his cervical spine which we will
arrange for.  We have also arranged for some blood work including a B12 and a
VDRL to exclude any causes of a radiculopathy which can be reversed.

As for his intermittent motor jerks, they sound suspicious
for myoclonus.  The patient is very clear that this occurred before starting
any medications and, therefore, we will arrange for an EEG to be performed to
rule out myoclonic epilepsy.  Temporally, the patient feels these are related
to his motor vehicle collision but it is difficult to think of an etiology that
would also coincide with the collision itself.  It is well known that both
Gabapentin and Baclofen can cause myoclonus and he is on quite high doses of
both and, therefore, I am suspicious that these may be cause of his
intermittent myoclonic jerks.

Finally, his cognitive status is
most likely due to his current medications. …

[15]        
The results of the subsequently performed EEG were determined as normal.

[16]        
Relevant to this application is the plaintiff’s pre-accident complaints
of tingling in his legs (in either 2004 or 2005). Those complaints are recorded
in the family physician’s records.

[17]        
Dr. McGraw reviews the findings contained in the neurological consult
report in his own report. In additon, Dr. McGraw conducted a neurological
examination.

[18]        
This expert’s opinion is that the plaintiff’s “back pain is of muscular
origin and not related to intervertebral disc disease, arthritis of the
apophyseal joints, or nerve root irritation”.

[19]        
Dr. McGraw issued a further report on September 6, 2011, in which he
provides the answers to specific questions posed by defence counsel. In that
report, Dr. McGraw reiterates the findings of Dr. Shtybel who commented that
the CT scan and MRI scan of the plaintiff’s lumbar spine was normal.

[20]        
Plaintiff’s counsel denies that any expert neurological opinions will be
pursued in either action.

Discussion

[21]        
The defendants submit that an examination by a neurologist is required
to ensure reasonable equality between the parties in the preparation of a case
for trial: Wildemann v. Webster (1991), 50 B.C.L.R. (2d) 244 (C.A.).

[22]        
The defendants say that only an expert in the field of neurology could
properly investigate the plaintiff’s apparent neurological complaints and
limitations. While acknowledging that Dr. McGraw conducted a neurological examination,
the defendants say this type of assessment is not within Dr. McGraw’s area of
specialty and not the focus of his report.

[23]        
Furthermore, the defendants submit that the ongoing neurological “like”
complaints of tingling in the hands and legs make the plaintiff’s condition
complicated and justify a further independent medical examination: Kim v. Lin,
2010 BCSC 1386.

[24]        
In resisting the application, the plaintiff relies on the oft-cited
decision of Bracken J. in Hamilton v. Pavlova, 2010 BCSC 493. In
particular:

[10]      Rule 30(1) provides discretion to
the court to order an independent medical examination, and under Rule 30(2),
more than one examination may be ordered.  Counsel, in their helpful
submissions, have thoroughly canvassed the relative authorities on this point. 
From those authorities, certain principles emerge.  The case law is against a
background of the rules of court, and in particular, the principle that the
rules are designed to secure a just determination of every proceeding on the
merits and to ensure full disclosure, so the rules should be given a fair and
liberal interpretation to meet those objectives: Wildemann v. Webster,
[1990] B.C.J. No. 2304 (B.C. C.A.)at pp. 2-3.

[11]      Rule 30(2) is a discretionary
rule, and the discretion must be exercised judicially.  An in­dependent
examination is granted to ensure a "reasonable equality between the
parties in the preparation of a case for trial": Wildemann v. Webster at
p. 11 from the separate concurring reasons of Chief Justice McEachern.

[12]      Reasonable equality does not mean
that the defendant should be able to match expert for expert or report for
report: McKay v. Passmore, 2005 BCSC 570 (B.C. S.C. [In Chambers]) at
para. 17, and Christopherson v. Krahn, 2002 BCSC 1356 (B.C. S.C. [In
Chambers]) at para. 9.

[13]      A second exam will not be allowed for the purpose
of attempting to bolster an earlier opinion of another expert.
That is, there must be some question or matter that could not have been dealt
with at the earlier examination: Trahan v. West Coast Amusements Ltd., 2000
BCSC 691 (B.C. Master) at para. 48, and Norsworthy v. Greene, 2009
BCSC 173 (B.C. Master) at para. 18.

[14]      There is a higher standard
required where the defendant seeks a second or subsequent medical exam of the
plaintiff: McKay v. Passmore, supra, at para. 17 and para. 29.

[15]      The application must be timely.  That
is, the proposed examination should be complete and a report available in
sufficient time to comply with the rules of admissibility and to allow enough
time for the plaintiff to assess and respond if necessary: Vermeulen-Miller v.
Sanders, 2007 BCSC 1258 (B.C. S.C.) at paras. 47-48, relying in
part on Goss v. Harder, 2001 BCSC 1823 (B.C. S.C. [In Chambers]).

[16]      Finally,
subsequent independent medical examinations should be reserved for cases where
there are some exceptional circumstances: Wildemann v. Webster, supra, at
p. 3.

[25]        
The defence suggests that some of these principles either do not apply
or should be distinguished on this application.

[26]        
The defendants submit that the examination by Dr. McGraw was not a
first independent medical examination on the issue of possible neurological
injury or condition. Thus, under the relevant authorities, this application
should not be considered a second examination under Rule 7-6 (2).

[27]        
I accept this submission. The plaintiff attended the examination by
Dr. McGraw voluntarily: Teichroab v. Poyner, 2008 BCSC 1130 at para.
24. In those circumstances, the defendants need only meet the lower threshold
required for an order under Rule 7-6(1). Nonetheless, the fact that the
plaintiff has undergone medical examination at the defendants’ request is still
a relevant consideration for the court in exercising its discretion under Rule
7-6(1): Teichroab v. Poyner, at para. 24.

[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.

[32]        
Costs of the application will be to the plaintiff in the cause.

                   “C.
P. Bouck”                

Master
C. P. Bouck