IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150504

Docket: M102062

Registry:
Kelowna

Between:

Penny Belle Lloyd

Plaintiff

And

Kenneth Munday

Defendant

Before:
The Honourable Mr. Justice Schultes

Reasons for Judgment

1.              
INTRODUCTION

[1]            
This is an application on behalf of Mr. Munday, the defendant in
this motor vehicle personal injury action, to have the plaintiff, Ms. Lloyd,
undergo independent medical examinations by three practitioners: a physiatrist,
an orthopaedic surgeon, and a psychiatrist.

[2]            
Ms. Lloyd opposes the application. She submits that a detailed
medical assessment that was performed on her at the direction of the insurer to
assess her eligibility for Part 7 benefits was effectively a first independent
medical examination for the purposes of Rule 7-6, and that Mr. Munday has
not met the more onerous test for having her undergo successive examinations.

2.              
EVIDENCE

[3]            
The accident in which Ms. Lloyd was injured occurred on February
16, 2012. Her notice of civil claim was filed in February of 2014. The specific
injuries it pleads are headaches, injuries to her neck, back, left shoulder and
arm, left-sided thoracic outlet syndrome, depression, and chronic pain. Before
her accident, Ms. Lloyd was working as a mobile massage therapist. She
found that her pain symptoms following the accident prevented her from being
able to return to this work.

[4]            
In the context of her claim for Part 7 benefits as an insured, an ICBC
adjuster referred her for assessment by Dr. McDougall, who is a specialist
in occupational medicine. The first referral was made in August of 2012. Dr. McDougall
examined Ms. Lloyd in September of that year. He ultimately produced three
reports: the main report in October, a follow-up in November after he had
reviewed the results of an MRI, and a final one in December that was based on
additional records that had been sent to him. This final report was at the
request of a new adjuster who was assigned to the claim after Ms. Lloyd
had retained counsel.

[5]            
Dr. McDougall’s main conclusions in the first report were that Ms. Lloyd
had suffered a "whiplash-associated disorder level 2" in the accident,
which had resolved. While she had also suffered what he described as a
"direct blow contusion", he found it unlikely that it has caused any
"acute left-shoulder pathology." He noted her ambivalence about
returning to work and explained the barrier that that could create to a
successful return. He also identified some relevant pre-existing issues, in
particular her ongoing mood disorder and a recent concussion she had suffered
while snowboarding. He viewed her use of antidepressants, which she had been
prescribed previously, as "still relevant."

[6]            
In his November report, following the MRI, Dr. McDougall identified
a major finding — an impingement to the acromioclavicular joint (“AC joint”)
in Ms. Lloyd’s left shoulder. This related to his finding during the
clinical examination that she could not raise her left arm above shoulder
height. In his opinion, this impingement issue was not accident-related.

[7]            
He also described two small pinpoint tears within the tendons in the
rotator cuff area of that shoulder. These, in his view, were likely to have
been based on the contusion to the left shoulder that she had received in the
accident. He did not specifically describe the seriousness or effect of these
tears.

[8]            
He envisioned Ms. Lloyd being able to regain the strength and some
of the mobility in her left shoulder through the completion of a further
six-week-long gym program, after which he expected that she would not be
disabled in her vocational role. In addition, he raised the possibility of a
type of surgery that could potentially relieve the impingement.

[9]            
The December report was based on Dr. McDougall’s review of further
notes from Ms. Lloyd’s family physician concerning her ongoing neck and shoulder
pain, a letter from her clinical counsellor, and the opinion of an occupational
therapist. He reiterated that the soft tissue injuries that she had suffered in
the accident had resolved and that the left shoulder impingement "is
pre-existing and not a direct result of the injuries sustained in the
accident."

[10]        
As to the results of Ms. Lloyd’s involvement with a counsellor, Dr. McDougall
expressed the belief that she does not suffer from post-traumatic stress
disorder, as had been suspected, but pointed out that an opinion from a
psychiatrist could be obtained.

[11]        
The overall opinion that he expresses in this third report is relevant
to the issues that I must decide and so is worth quoting, beginning at page 4:

In my opinion, the medical model does not support that this
patient is unfit to work. The barriers to convalescence are, in my opinion,
multidimensional and include the lack of an occupational bond and the patient’s
perception of herself as sick and disabled. Again, I reference the patient’s ambivalence
about returning to work at her pre- date of injury occupation. I also note the
pre-existing Mood Disorder and the multiple other stressors in the patient’s
life. In my opinion, this accident has been one more straw on the proverbial
back of a camel. The soft tissue consequences of this motor vehicle accident
have long since resolved. Again, in my opinion, the anatomy and impingement of
the left acromioclavicular joint pre-dates the consequences of this motor
vehicle accident. The rotator cuff pathology is not amenable to surgery; it is
amenable to active physical therapy including the athletic therapy model. In my
opinion, the patient’s ongoing symptomologies are likely somaticized psychic
stress. This is, of course, a postulation in the medical model cannot be
accurately determinate of this etiology. Nevertheless, it is not measureable as
to whether the pain comes from these now remote soft tissue injuries and/or is
purely related to this patient’s overall unwellness, mental health issues and
portrayal of the sick role. The dysfunction in this patient is therefore likely
multifactorial. Again, I note my reference above to the potential for a mental
health consultation. I believe that this patient will not convalesce until she
has a clearer avenue for vocational opportunities and that she is free and
clear of all of the enablements relevant in an administrative, medicolegal or
case management situation. These, in my opinion, are ongoing stressors for this
patient. These are superimposed upon the patient’s pre-existing stressors. This
patient, in my opinion, is ill-equipped to deal with the stressors of any
injury, illness or accident whether they be minor or significant. This is a
vulnerable patient and, in my opinion, there is a risk for long-term dysfunction.

With the above-noted comments, it
is important to understand that the most common barrier for a patient not to
convalesce when the medical model is not entirely explanatory is that of an
occupational issue. Again, I note that this patient is not job attached and
there is no occupational bond. I note the ambivalence for this patient to
return to her pre-date of disability occupation.

[12]        
I will omit his reference to the second most common reason — abuse,
which he does not find applicable here. Returning to the quote:

The third most common reason is mental health disorders. In
my opinion, that is very relevant for this patient. I note the ongoing and
pre-existing Mood Disorder. I note the anxiety issues this patient presents
with with respect to the dilemmas that she finds herself in. This patient has
significant other stressors including those of being a single parent; her
family of origin issues with her sister and of course, the financial stressors.
These, in my opinion, are burdens this patient is ill-equipped to manage.

It is also my opinion that these issues are ongoing and
present as pre-morbid, ongoing, and likely long-term stressors for this patient.

In my opinion, this motor vehicle
accident is an intercurrent event from which the patient has long since
recovered. I note the acromioclavicular left shoulder impingement, i.e. the
anatomy of the left AC joint. The impingement is anatomic and may have been
exacerbated, not aggravated by this MVA. The exacerbation from the MVA has long
since resolved. Impingement can be treated conservatively or surgically. I
agree with the orthopaedic consultation with respect to the management of the
left shoulder. Again, however, surgical intervention should be considered only
if there is a clear resolution of the other co-morbid factors perpetuating this
patient’s dysfunction. I would not expect that simply decompressing the left
shoulder, and the controversies that surgery has, will suffice to deal with all
of these patient’s issues.

[13]        
Ms. Lloyd has herself obtained medical and other therapeutic
information that is relevant to the outcome of this application.

[14]        
The clinical records of her family physician, Dr. McCloskey, show
her receiving treatment for depression in the months leading up to the
accident.

[15]        
Dr. Vallentyne, a physiatrist, provided a medical-legal report in
March of 2013. Dealing with Ms. Lloyd’s neck pain and headaches, his
findings of a whiplash injury were similar to Dr. McDougall’s, although he
also found "mild left occipital nerve entrapment and moderate upper
cervical facet joint irritation stemming from the accident." He expressed
hope for a full recovery, which was balanced by concern about the persistence
of her symptoms for more than a year by that point. He also noted that Ms. Lloyd
had not reached maximum medical improvement because she was still participating
in a work strengthening program.

[16]        
Dr. Vallentyne concluded that the tears to the rotator cuff tendons
were due to the accident. With respect to her AC joint abnormality, he agreed
that it was pre-existing, but pointed out that it was asymptomatic until the
accident. While it was possible that she would have gone on to develop a rotator
cuff problem or shoulder impingement without the accident, the abnormality
could have rendered her more susceptible to developing them following an injury.
With respect to the tears in the area of the rotator cuff that Dr. McDougall
had identified, Dr. Vallentyne thought that the AC abnormality likely
slowed down their healing. There was no evidence that she had a rotator cuff
injury before the accident, he noted.

[17]        
He also diagnosed myogenic (that is, muscle tissue-related) thoracic
outlet syndrome (“TOS”). His hope was that the TOS would dissipate once the
soft tissue and rotator cuff injuries "settled down." She would be restricted
from performing the activities of "heavy lifting, carrying, pushing, and
pulling as well as repetitive overhead reaching." Like Dr. McDougall,
he thought there should be an assessment of the benefits of surgery to the AC
abnormality to relieve pressure on the rotator cuff tendon. In the course of
making his rehabilitation recommendation, Dr. Vallentyne noted that Ms. Lloyd
was "still manifesting high levels of stress and depression and both may
amplify pain and perpetuate disability."

[18]        
Dr. Krywulak, an orthopaedic surgeon, submitted a report at the
request of Ms. Lloyd’s counsel in April of 2014. The chief significance of
his report is that he found this AC abnormality to be slightly less serious
than Dr. McDougall had described, although he conceded there could be “interobserver
variation” in his conclusion. He also concluded that surgery of the kind
suggested by Dr. McDougall and Dr. Vallentyne would not be helpful.

[19]        
Dr. O’Brien, another orthopaedic surgeon, saw Ms. Lloyd at the
request of her family doctor later that same month. He found the same level of
seriousness in the AC abnormality as Dr. Krywulak had described. His
injection of lidocaine and the resulting partial relief of Ms. Lloyd’s
symptoms led him to the belief that 20 to 30% of her problem was related to her
rotator cuff, but 70 to 80% was related to "some other intrinsic or
extrinsic cause in her shoulder." He referred her for nerve conduction
studies, which showed normal results. In a later appointment, he injected her
with a steroid. This led to some further improvement. He recommended, in
addition, that she have physiotherapy and see a chronic pain specialist.

[20]        
With respect to psychological issues, there are letters, first of all,
from June 2013 and January 2014 written by Sue Harrhy, a clinical counsellor. The
first letter does not offer any opinion as such, but offers the following
summary of Ms. Lloyd’s situation and what are suggested as helpful approaches
for addressing it:

At this time, Ms. Lloyd’s
coping capacity has been impaired by lack of sleep, pain, lack of her regular
routine, anxiety about the future, and financial stress. The priority seems to
be supporting her to develop better problem solving skills, clearer boundaries
with others, and stress management skills. Pain management is also key, and
should be an over-arching goal.

[21]        
In her second letter, Ms. Harrhy assessed Ms. Lloyd’s
situation in the aftermath of the foreclosure on her home. It had been caused
by her inability to work:

With ongoing stress and anxiety
about meeting her basic needs it has been difficult to address other goal areas
such as pain management. Ms. Lloyd frequently reports significant anxiety
related muscle tension that she believes contributes to increased pain in her
shoulder and neck area.

[22]        
On the second page, under "Treatment recommendations", she
wrote:

Now that the majority of the practical issues related to the
foreclosure have been resolved Ms. Lloyd would likely be better able to
respond to treatment areas such as pain management and anxiety. She continues
to experience high levels of anxiety and trauma symptoms, although she has
noted an improvement in her assertiveness and problem solving skills. Ms. Lloyd
has stated that she finds counselling very helpful. I would recommend another 8
– 10 counselling sessions to be re-evaluated toward the end of that treatment
period.

I believe that Ms. Lloyd
would benefit from a vocational rehabilitation program. To the best of my
understanding she will be unable to return to her pre-injury career as an
unregistered massage therapist or server in the restaurant industry. She seems
to have a strong work ethic and desire to be self reliant. Establishing a new
career and confidence in her ability to provide for herself and her son would likely
also reduce her anxiety. Apparently Ms. Lloyd has a diploma in business,
loves math and loves to drive, which gives her some possible vocational areas
to explore. Given her current lack of confidence and anxiety I believe she
would require regular support through some vocational rehabilitation to explore
options and make a plan, although I have confidence she can be successful in
the long term. Given her current physical limitations, she may require a
functional capacity assessment.

[23]        
Dr. Ullah, a psychiatrist, saw Ms. Lloyd in March of 2014 at
the request of her family physician. He made the following observations at page
4 of his letter:

In my opinion Penny-Belle Lloyd is having difficulty coping
with physical injuries which she sustained during her motor vehicle accident of
February 16, 2012 which occurred on Gordon Drive in Kelowna, BC. She has
developed symptoms of adjustment disorder such as low mood, ongoing anxiety,
insomnia, anhedonia and episodic agitation. She remains tearful and has
difficulty maintaining social and occupational functioning. Due to physical
discomfort she is unable to work which further complicates the clinical picture.
She may have some underlying features of post-traumatic stress disorder but
there is no full blown picture which fulfills ICD-10 or DSM IV TR criteria.

I have taken the liberty of commencing her on a sedative
antidepressant named Mirtazapine 15 mg PO qhs. Mirtazapine is a sedative and a
long acting antidepressant which may stabilize her sleep pattern, relieve daytime
anxiety, and lift her mood. I have informed her about the side effects of
Mirtazapine.

In the short term she may benefit
from pharmacological intervention but in the long term she is in need of
psychological help. I believe she is seeing a local psychologist on an ongoing
basis for the purpose of supportive therapy. I have encouraged her to continue
attending these sessions.

[24]        
Ms. Lloyd deposed in March of 2015 that she had not been for any
further counselling in more than a year and that when she saw her psychiatrist
a few months previously, they agreed that she only needed to see him when
required, rather than according to a regular schedule. She also deposed that
she copes with the help of skills learned from Ms. Harrhy and medication
prescribed by Dr. Ullah.

3.              
DISCUSSION

[25]        
The applicable rules here are Rule 7-6(1) and (2) of the Supreme
Court Civil Rules. They permit a court to order an independent medical
examination or a further examination. These rules and their predecessors are
silent on the specific requirements for making either order, so the case
authorities have grafted them on.

[26]        
As a threshold issue, I should say that I find the interpretation of the
predecessor rule in Teichroab v. Poyner, 2008 BCSC 1130, at para. 24,
to be persuasive, and I intend to follow it. That decision held that a “further
examination” for the purposes of s-s. 2 means an examination in
addition to one previously ordered under s-s. (1). However, the more
closely a previous Part 7 report resembles an IME under this Rule, the less
likely it is that a court will exercise its discretion to order a first
examination under s-s. (1).

[27]        
The results under that approach and under the alternative approach in
other cases of determining in a more formal way whether the Part 7 report was
effectively a first IME may often be the same. Nevertheless, the approach in Teichroab
has, in my view, the virtues of being consistent with the plain wording of s-s. (2)
and also of encouraging a focus on the substance of the Part 7 report and the extent
to which it is sufficient to advance the interests of the defendant in the
litigation, rather than on engaging in a technical classification of it.

[28]        
The other key principles underlying applications of this kind are not in
dispute here. They are conveniently summarized in Hamilton v. Pavlova,
2010 BCSC 493, at paras. 10 to 14:

[10]      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 [citation omitted]

[11]      [It] 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”:  [again, citation omitted]

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

[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 [citations omitted]

[14]      There is a higher
standard required where the defendant seeks a second or subsequent medical exam
of the plaintiff [and I will omit that citation, as well] 

[29]        
In reliance on Teichroab, I must consider whether and to what
extent the substance of Dr. McDougall’s reports, despite their ostensible
purpose of assessing Ms. Lloyd’s eligibility for Part 7 benefits, make
it unnecessary for the defendant in this case to achieve reasonable equality in
the litigation through the further IMEs they seek.

[30]        
Although they contain answers to specific disability questions that were
posed by the adjusters, there is no question that Dr. McDougall’s reports
are both technically and in substance suitable to be introduced in a trial of
this matter with respect to the condition of Ms. Lloyd. His main
conclusions (that the soft tissue injuries have resolved, that the AC
abnormality was pre-existing and not affected by the accident, and that Ms. Lloyd’s
various life stresses, attitude towards work, and pre-existing mood disorder
play a major role in her post-accident condition) all serve to advance the
defence case very meaningfully and undermine Ms. Lloyd’s claims.

[31]        
An important issue that he does not address is the assertion that the
accident caused or worsened Ms. Lloyd’s depression. It is also not clear
how seriously he views the effects of the pinpoint tears to her rotator cuff
tendon, which Dr. Vallentyne seems to consider a more primary shoulder
difficulty.

[32]        
Applying the Teichroab analysis, I think the extent to which this
report should persuade me not to order one or more of the requested IMEs for
the defence is specific to each specialty involved.

[33]        
The only court-ready expert report, so to speak, on behalf of Ms. Lloyd
at this point is from Dr. Vallentyne, the physiatrist. He disagrees that
the whiplash symptoms have resolved, finds additional nerve entrapment and
joint irritation underlying the neck pain and headaches over and above Dr. McDougall’s
finding, and diagnoses her with TOS.

[34]        
I cannot be satisfied on the basis of the material on this application
that there is any mismatch in the respective expertise of these two physicians
that would make it necessary for a physiatrist to see Ms. Lloyd on behalf
of the defence in the interests of reasonable equality in the litigation. Dr. McDougall
did not express any limitations on his ability to diagnose the whiplash or
shoulder injuries or their implications. Dr. Vallentyne’s report is not notably
richer in detail, nor does it demonstrate additional knowledge on those points.
On the issue of the psychological dimensions of her pain experience, they seem
equally well qualified to comment. Of particular importance, I do not have a
basis at this point to infer that Dr. McDougall is not qualified to rebut
the additional features of her neck problems for the diagnosis of TOS that Dr. Vallentyne
provides.

[35]        
I have considered whether the ambiguity in Dr. McDougall’s reports
on the impacts of the tears to the rotator cuff is sufficient to justify an
examination by a physiatrist. However, it seems to me that the prominence that Dr. Vallentyne
has given this issue makes it a suitable subject for rebuttal, if necessary. Again,
I have not been told that there are any limitations on Dr. McDougall’s
ability to do so.

[36]        
As a result, I would not exercise my discretion to order an independent
medical examination by a physiatrist. Involving such an expert on the present
state of the evidence seems to me to involve attempting to improve on existing
opinions rather than on addressing an unfair gap or omission in the expert
evidence.

[37]        
I have reached the same conclusion with respect to an examination by an
orthopaedic surgeon. On this issue, the concern is whether there is any
evidence emanating from the plaintiff that truly requires the defendant to
respond. Assuming that his report is eventually put forward in an admissible
form for trial purposes, Dr. Krywulak diagnoses a slightly less serious AC
problem than Dr. McDougall found and rejects the possibility of surgery to
relieve pressure on the rotator cuff tendon. I do not see how either opinion
really advances the plaintiff’s case or undermines the defendant’s. Arguably,
by downgrading the abnormality and suggesting less intrusive treatment is
sufficient, the plaintiff’s report actually favours the defence somewhat.

[38]        
Dr. O’Brien is essentially a treating specialist at this point and
if his current opinions are put before the court in proper form, they seem
capable of relating only a small portion of Ms. Lloyd’s shoulder symptoms
to her rotator cuff. Again, it is not apparent from the material that Dr. McDougall
is not qualified to dispute that attribution of responsibility for her pain, if
he disagrees with it.

[39]        
The need for a psychiatric examination is not as straightforward a
question. It is apparent from the pleadings themselves that depression is
alleged to have been one of the consequences of the accident. Dr. McDougall’s
comments on the presence of a psychiatric condition such as post-traumatic
stress are quite scant and he refers to the potential value of a psychiatric
opinion. He also does not deal with the question of whether Ms. Lloyd has
become depressed or had her existing depression aggravated by the accident. On
the other hand, he does not hesitate at all to list her mood disorder, along
with her life stresses and attitude towards work, as a major factor in the
perpetuation of her situation.

[40]        
Ms. Harrhy and Dr. Ullah both suggest that Ms. Lloyd’s
current symptoms of depression and anxiety stem from the pain of the accident
and its consequences for her life. The difficulty with ordering an examination
to counter this evidence at this point is that so far as actual use in the
litigation is concerned, these opinions are in a latent state, currently
unavailable to the plaintiff to support that pleading. On the basis of actual
court-ready expert evidence, the defence would be having a psychiatrist examine
Ms. Lloyd to prove a negative, that is, that her depression and anxiety
have not been worsened by the accident. This is a fact that she has not yet
formally sought to prove.

[41]        
One concern I do have in this regard is that a plaintiff should not be
able to shield herself from examination on a vulnerable issue by declining to
put forward expert evidence on her own behalf. In this case, though, Ms. Lloyd’s
real vulnerability is the interaction between her mood disorder and her claimed
physical symptoms, a matter on which, as I have already said, Dr. McDougall
has commented very fully and very forcefully. Ms. Lloyd fails to respond
to that aspect of his opinion at her peril, it seems to me, and if she chooses
to rest her claim for damages based on accident-related depression on her own
evidence, her failure to put forward an expert opinion in support is likely to
be similarly self-regulating.

[42]        
I conclude, as a result, that there is not currently a report in
existence that calls for an expert psychiatric response. If one emerges, there
can certainly be consideration given as to whether Dr. McDougall is
capable of responding to it or whether balance requires a defence psychiatric
examination.

[43]        
More generally, if the landscape should change as far as any evidence
put forward by the plaintiff, there can always be further applications. However
this application is dismissed.

[44]        
Costs will be to the plaintiff in the cause.

The
Honourable Mr. Justice T.A. Schultes