IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150601

Docket: 13‑3597

Registry:
Victoria

Between:

Melinda Marie
Monahan

Plaintiff

And

Stephen
Yang and Sampan Chinese Seafood Restaurant Ltd.

Defendants

Before:
The Honourable Mr. Justice Tindale
(appearing by videoconference)

Oral Ruling
re Defence Application for IME of Dr. Tarazi

In
Chambers

[1]           
THE COURT: The defendants have brought this application to
compel the plaintiff to attend a medical examination on June 9, 2015, at the
offices of Dr. Fadi Tarazi in Burnaby, British Columbia.  The plaintiff is
opposed to this application because the plaintiff has already attended a
medical examination at the request of the defendants with a neurologist, Dr. Alexander
Moll.  The plaintiff argues that Dr. Moll has already given an opinion on
all of the plaintiff’s injuries.

BACKGROUND

[2]           
This action is for damages as a result of a motor vehicle accident that
occurred on March 22, 2012.  The defendants have admitted liability for the
motor vehicle accident.

[3]           
The notice of civil claim was filed on October 17, 2013.  The plaintiff
in that document claims to have suffered from the following injuries as a
result of the motor vehicle accident, those injuries being headaches, nausea,
vertigo, numbness, muscle spasms, injury to shoulder, injury to arm, and
fatigue, injury to her neck, injury to her back, and it goes on to state further
particulars of injuries yet to be determined.

[4]           
The plaintiff was examined for discovery on March 6, 2014.  During the
examination for discovery, the plaintiff indicated that she was still suffering
from the following injuries and complaints, those being daily symptoms in her
right shoulder and her right arm, muscle spasms with pain in her right shoulder
and right forearm, daily activity‑related right‑sided neck pain,
chest and sternum pain, upper back pain, and bilateral SI joint pain.

[5]           
The trial of this matter is set to be heard on October 19, 2015.

[6]           
Paragraph 14 of the defendants’ notice of application reads as follows:

14.       The proposed IME investigation will address, inter
alia, the following issues central to the litigation:

a)         Whether the subject Accident
caused these physical complaints?

b)         Alternatively, whether these
symptoms are related to the admitted-to pre‑existing physical complaints?

c)         The role of the Plaintiff’s
pre-accident symptoms in her current presentation?

d)         Whether with respect to
injuries she admitted suffering prior to the accident, such injuries were
active and disabling, or latent and quiescent?

e)         Whether her physical symptoms
fit a recognised musculoskeletal diagnosis?

d)         What is the prognosis for
complete recovery of her physical symptoms?

g)         Whether her physical injuries
are likely to functionally impair her to the point of partial disability?

h)         Whether further treatment is
required, and if yes what treatment, and the frequency and duration of any
treatment?

[7]           
This is what the defendants are seeking to achieve with a further independent
medical examination.

[8]           
The plaintiff attended a medical examination at the request of the
defendants with Dr. Alexander Moll on April 20, 2015.  Dr. Moll
provided a medical‑legal report dated April 26, 2015.  I am going to read
from that report relatively extensively, as it bears significance to this
application.  Dr. Moll, under the heading, "Diagnostic
Conclusions" opined to the following at paragraphs 53 through 66 of his medical‑legal
report:

53.       Ms. Monahan did not sustain any injury to the
brain, spinal cord or peripheral nervous system in the accident.

54.       There were no findings on examination to indicate
any persistence of muscle spasm or any restriction in the range of movements of
her neck or low back.

55.       There were no abnormal findings on imaging studies
of Ms. Monahan’s neck or back to indicate accident-related or pre-existing
abnormalities in the spine which might be associated with prolonged recovery
from soft tissue injuries sustained in the accident.

56.       The persistence of Ms. Monahan’s painful symptoms
and her inability to resume normal activities has extended beyond what might be
expected, given the nature of the accident and the absence of any complicating
factors.  I would have anticipated that she should have been able to return to
her usual, pre-accident activities within a period of at most 12 – 18 months
following this accident.

57.       Factors other than injuries sustained in the
accident may be contributing to persistence of her painful complaints and
limitation in her levels of function since the accident.

58.       I don’t believe that there is any physiologic
mechanism or injury that is continuing to reduce her level of function.

59.       Psychological and physical distress as a consequence
of relationship problems may have contributed to a delay in her initial
recovery from soft tissue injuries sustained in the accident.

60.       Uncertainty regarding the nature and extent of her
injuries may contribute to persistence of her symptoms.  Ms. Monahan told me
that she had not had any explanation from her personal physician or other
physicians involved in her care since the accident regarding the specific
nature of her injuries and their prognosis for recovery . . .

61.       Ms. Monahan should have recovered fully from any
injury to muscles sustained in the accident within a period of 12 – 18 months
after the accident.  It is likely that anxiety regarding the unexplained nature
of her injuries and the persistence of her symptoms is contributing through
psychogenic mechanisms to persistence of painful complaints and her reluctance
to resume normal activities.

62.       Mild mood disorder or depression may be
contributing to the persistence of her painful symptoms and the limitations in
her activities.

63.       It may be helpful for Ms. Monahan to have a careful
explanation from her family physician or physicians involved in her care
regarding the recoverable nature of her injuries and the absence of any
complicating factors.  Encouragement to gradually resume her pre-accident level
of recreational activities may help restore her confidence in her physical
abilities.

64.       I believe that she should be able to return to her
pre-accident level of activities both with regards to her work and recreational
activities, based on my neurologic and neuromuscular assessment and my
experience in examining and treating persons with similar complaints and
injuries.

65.       The episodic dizziness that Ms. Monahan experienced
following the accident was likely related to a combination of muscle tension in
the neck and shoulder region and possibly some disturbance in inner ear balance
mechanisms triggered by vigorous physical therapy activities following the
accident.  Ms. Monahan appears to have recovered fully from this symptom and I
would not anticipate any future disability.

66.       I don’t believe that
brain injury caused Ms. Monahan’s complaints of dizziness.

[9]           
Finally, Dr. Moll opined to the following:

In conclusion, I have interviewed
and examined Ms. Monahan and have provided my opinion concerning her current
condition and any injuries she may have sustained in the accident in question,
as well as recommendations and my opinion concerning prognosis, from the
standpoint of my experience and qualifications in Neurology.

POSITION OF THE PARTIES

[10]       
The defence have, from the onset, sought to have the plaintiff examined
by both a neurologist and an orthopedic surgeon.  Counsel for the parties
exchanged numerous correspondence in that regard.

[11]       
The plaintiff initially did not agree to being examined by Dr. Moll,
as she thought that a neurological examination was not warranted.  It is
interesting to note the letter of April 13, 2015, sent by counsel for the
plaintiff to counsel for the defendants relating to the proposed IME with Dr. Tarazi,
which reads in part as follows:

As per our correspondence regarding Dr. Moll, I have advised
you that my client will not consent to an additional medical examination.  It
is the Plaintiff’s position that this case does not call for two experts.  Dr.
Moll will inevitably opine on the Plaintiff’s entire medical condition,
including orthopedic.

However, if you would prefer to
have the Plaintiff seen by Dr. Tarazi instead of Dr. Moll, that would be
agreeable to my client, provided that she is available on the requested date.  If
that is your position, kindly advise my paralegal and she will contact the
Plaintiff regarding her availability.

[12]       
The defendant submits that the issue on this application is whether or
not the content of Dr. Moll’s neurological examination disqualifies them
from a second independent medical examination.  The defendant submits that the
plaintiff has claimed two distinct categories of injuries, those being
neurological and musculoskeletal injuries which require both a neurological and
orthopedic assessment.

[13]       
The defendant argues that the plaintiff is a registered nurse who was
off work for approximately eight months and who has not returned to her pre‑accident
levels of employment.  The defendant argues that the plaintiff will likely
serve another five expert reports in this matter.  To date, the plaintiff has
only served two somewhat dated physiatrists’ reports.

[14]       
The defendants argue that this court must consider the proportionality
principle as this is not a simple case.  The defendant states the plaintiff
will likely be demanding an award in the hundreds of thousands of dollars.  The
defence argue that this application is brought in a timely manner.  The
defendants concede that Dr. Moll may have strayed from an exclusively
neurological opinion in his medical‑legal report.  The defence also argue
that that plaintiff will likely object to the admissibility of Dr. Moll’s
report on that basis.

[15]       
The defendants say that they are not looking for a second report to
bolster the opinion of Dr. Moll.  The defendants argue that the
preparation for trial should be on the basis of equality, and that this will
not occur if they do not have an orthopedic report.

[16]       
The defendants point to the retainer letter that they sent to Dr. Moll
on April 14, 2015.  The defendants argue that they only sought a neurologic
opinion from Dr. Moll.  On review of that letter, I generally agree that
the defendants were requesting an opinion on neurological injuries.  However, Dr. Moll
was also asked open‑ended questions such as, "What are your findings
upon assessment?" and "Is there a real possibility that her accident‑caused
injuries and symptoms will compromise, or limit, her ability to carry out
employment related activities as she has described them to you?"

[17]       
The plaintiff argues that Dr. Moll has fully opined on all of her
symptoms.  The plaintiffs state that they will not be seeking to have Dr. Moll’s
report ruled inadmissible; rather, they will likely argue the weight that the
report should be given at trial.

[18]       
The plaintiff further submits that the onus is on the defendant to
establish an imbalance or inequity in the trial process and that it is not a
matter of who has more reports.  Finally, the plaintiff argues that Dr. Moll
did not state that any of his opinions were outside his area of expertise, nor
did he qualify any of his opinions.

DECISION

[19]       
This application is brought pursuant to Rule 7‑6(1) and (2) of the
Supreme Court Civil Rules which allow for such independent medical examinations,
and subrule (2) reads:

The court may order a further
examination under this rule.

[20]       
The court has discretion in these matters to make such an order.  This
discretion must be exercised judicially.  The issue is whether or not the
proposed examination by Dr. Tarazi will go to put the parties on a basis
of equality.

[21]       
In Hamilton v. Pavlova, 2010 BCSC 493, Mr. Justice Bracken, in
reviewing the principles associated with this type of application, stated the
following at paragraphs 10 through 16:

[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 . . .

[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" . . .

[12]      Reasonable equality does not mean that the
defendant should be able to match expert for expert or report for report . . .

[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 . . .

[14]      There is a higher standard required where the
defendant seeks a second or subsequent medical exam of the plaintiff  . . .

[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 . . .

[16]      Finally, subsequent
independent medical examinations should be reserved for cases where there are
some exceptional circumstances . . .

[22]       
In my view, Dr. Moll did fully opine on all of the physical
injuries alleged by the plaintiff.  Dr. Moll gave his opinion with regard
to a diagnosis, prognosis, and the causation of not only the plaintiff’s
neurological complaints, but her musculoskeletal injuries.  The opinion of an
orthopedic surgeon would only go to bolster the opinion of Dr. Moll.

[23]       
While I appreciate the defendants may not have specifically requested
the opinion that they received from Dr. Moll, he is their expert and he
opined on all of the plaintiff’s physical injuries.

[24]       
Dr. Moll did raise the new issue of a psychological injury. 
However, an orthopedic surgeon cannot address that issue.

[25]       
For all of the above‑noted reasons, the defence application is
dismissed.

[26]       
With regard to costs, my view is the plaintiffs shall have their costs
in the cause.  Are there any submissions on that?

[27]       
MR. SMITH:  I think that sounds entirely reasonable, My Lord.

[28]       
MS. WRONA:  That’s agreeable.

[29]       
THE COURT:  All right, the plaintiff will have her costs of this
application in the cause.  Thank you.

[30]       
MR. SMITH:  Thank you, My Lord.

“R.S.
Tindale, J.”