IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150313

Docket: M133813

Registry:
Vancouver

Between:

Pavel Koulechov

Plaintiff

And

Cole Crossman and
Olivia Dunstan

Defendants

Before:
The Honourable Mr. Justice Baird

Reasons for Judgment

[1]            
The defendants apply under Rule 7-6 for an order that the plaintiff
submit to an examination by an orthopaedic surgeon.

[2]            
On July 5, 2011, the plaintiff was involved in a motor vehicle collision.
He has sued the defendants in negligence. Liability has been denied. The matter
is scheduled for trial by jury starting on August 17, 2015. The plaintiff
claims to have suffered soft tissue injuries and an aggravation of a
well-documented orthopaedic injury to his right shoulder. His clinical records
reveal that he has been involved in at least three prior motoring accidents,
the earliest of which, in approximately 2006, led to right clavicle surgery. He
claims that his shoulder problems had resolved by the time of the July 2011
accident but flared up after it.

[3]            
There is evidence on file showing that the plaintiff consulted with Dr.
Gilbart, an orthopaedic surgeon, on February 27, 2013. Dr. Gilbart noted that
the plaintiff had some osteoarthritis in his right AC joint and possibly a
grade II AC separation. The main locus of pain was the right scapula, which
appeared winged and tender to palpation. Dr. Gilbart recommended physiotherapy
and scapulothoracic strengthening. He noted, however, that the plaintiff was
presently incapable of such treatment owing to left-sided neck and arm pain
brought on, possibly, by a disc herniation.

[4]            
In fact, the medical evidence produced for this application makes it
clear that the plaintiff’s main complaint after the present accident was severe
left-side pain, mostly in the arm, caused by a disc herniation at C5-C6. Thankfully,
this condition appears to have been substantially relieved by discectomy
surgery performed in May, 2013. This should mean, amongst other things, that
Dr. Gilbart’s modest rehabilitative treatment plan for the plaintiff’s
lingering right shoulder problems will be under way by now.

[5]            
On November 24, 2014, approximately twenty-one months after the
plaintiff’s consultation with Dr. Gilbart and eighteen months after his
discectomy surgery, the defendants required the plaintiff to attend for an
independent medical examination performed by Dr. Gittens, a neurosurgeon. Defendants’
counsel told me that Dr. Gittens has prepared a medico-legal report which forms
part of his trial brief, but this has not been disclosed to the plaintiff and
was not in evidence on this application.

[6]            
It is counsel’s prerogative, of course, to control the timing of
disclosure in a civil case. However, an order for a second independent medical
examination under Rule 7-6 is a discretionary remedy that will only go if it is
required to put the parties on an equal footing with respect to medical
evidence: Stainer v. Plaza, 2001 BCCA 133 at para. 8. In the present
application, in the absence of Dr. Gittens’ report, it is impossible for me to
evaluate if there is any inequality in evidence or if an orthopaedic IME could redress
it. There is no evidence, in particular, that Dr. Gittens did not examine the
plaintiff’s shoulder, or that he lacked the expertise to render an opinion
about it. There is nothing to suggest that there are exceptional circumstances
meriting a subsequent examination: Wildemann v. Webster, [1990] B.C.J.
No. 2304 (C.A.) at para. 7, or to allay the plaintiff’s concern that a second IME
might amount merely to an opportunity for the defendant to get a second opinion
concerning the same injury.  While Hietala v. Reib, [1993] B.C.J. No.
2555 (S.C.) holds that a second opinion may be appropriate where there is some
question which could not have been dealt with in the first examination (para.
6), I have no evidence to suggest that such is the case here.

[7]            
On an application such as this the defendant bears the onus of
establishing on a balance of probabilities that the principle of evidentiary equality
requires a second medical examination. The proof before me does not discharge
this burden and the application is dismissed. The plaintiff will have his costs
on Scale B in any event of the cause.

“Baird J.”