IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20151015

Docket: 13‑2140

Registry:
Victoria

Between:

Trea Luining

Plaintiff

And

Arthur Russell
Luining

Defendant

‑
and ‑

Docket: 13‑3649

Registry:
Victoria

Between:

Trea Luining

Plaintiff

And

Tia Still‑Couverette

Defendant

‑
and ‑

Docket: 13‑4349

Registry:
Victoria

Between:

Trea Luining

Plaintiff

And

Julio Da Silva

Defendant

Before:
The Honourable Madam Justice Fleming

Oral Reasons for Judgment
re Defence Application for Independent Medical Examination and Functional
Capacity Evaluation

In
Chambers

[1]            
THE COURT: This is an application by the defendants for orders
that the plaintiff attend an independent medical examination by Dr. Eytan
David, an otolaryngologist, or ear, nose, and throat specialist (ENT), and a
functional capacity evaluation by Shawna Bonsen, an occupational therapist and
certified functional capacity evaluator.

[2]            
The background is the plaintiff claims damages for injuries she alleges
she suffered in three motor vehicle accidents that occurred in May 2006,
November 2011, and March 2012. By consent, the court has ordered the three
actions be tried together. The trial is scheduled for 20 days commencing April
4, 2016.

[3]            
The plaintiff is now 22 years old. In September 2015, she began to work
as a supply teacher in London, England.

[4]            
In her first notice of civil claim, the plaintiff claims injuries to her
neck, back, concussion, an injury to her head, and emotional upset. In her
second notice of civil claim, the plaintiff again claims injuries to her neck
and back, as well as an aggravation of pre‑existing injuries. In her
third notice of civil claim, the plaintiff claims injuries to her hand, head,
neck, shoulder, back, knees, hips, and an aggravation of pre‑existing
injuries. In all three pleadings, the plaintiff also claims further particulars
of injuries yet to be determined and seeks damages that include loss of
earnings and loss of earning capacity, cost of future care, loss of
housekeeping capacity, in addition to non‑pecuniary damages.

[5]            
At the request of the defendants, the plaintiff attended three independent
medical examinations in 2015 conducted by a psychiatrist, an orthopedic
surgeon, and a neurologist. Neither party has served any expert reports.

[6]            
There is no dispute the plaintiff has provided significant disclosure of
her medical records to the defendants. Those records include a consultation
report prepared by Dr. Mostachfi, an ENT who examined the plaintiff at the
request of her family doctor in July 2012. His report sets out an impression
that the dizziness she described is not in keeping with peripheral vestibular
disorder. Because she experienced headaches following dizziness, he suggested
she may be suffering from migraines and referred her to a neurologist. Later,
in March 2014, the plaintiff underwent an ENG apparently in relation to
complaints of dizziness, the results of which were reported to be normal.

[7]            
At her examination for discovery in August 2015, the plaintiff testified
she began to experience problems with her balance a matter of weeks after the
May 2006 accident. The day prior to the discovery, the plaintiff advised
the defendants she intended to apply to amend her first notice of civil claim
to include a claim for a vestibular injury, as well as injuries to her hips,
knees, wrists, hands, elbow, and jaw.

[8]            
The plaintiff has completed a teaching degree and is enrolled in a
graduate program at the University of Victoria. Her discovery evidence
indicates she claims her injuries will have an impact on her ability to work
full-time as a teacher.

[9]            
The defendants have arranged for appointments with the ENT specialist
and the occupational therapist in late October 2015, when the plaintiff has a
scheduled break from teaching.

[10]        
Rule 7‑6(1) of the Supreme Court Civil Rules provides the
court may order an independent medical examination. Rule 7‑6(2) allows
the court to order a further examination. The various factors relevant to the
exercise of the court’s discretion to order subsequent medical examinations
arising from the authorities are set out in Hamilton v. Pavlova, 2010
BCSC 493 at paragraphs 10 through 16 which I summarize as follows (with
citations removed):

·       
The overriding question is whether the further medical
examination is necessary to ensure reasonable equality between the parties.

·       
Reasonable equality does not mean the defendant may match the
plaintiff expert for expert.

·       
A second examination on the same subject matter or to bolster an
earlier opinion will not be permitted.

·       
There must be some question or matter that could not have been
dealt with at the earlier examination.

·       
A higher standard applies where a defendant seeks a subsequent
medical examination of the plaintiff. Put differently, they should be reserved
for cases where there are some exceptional circumstances.

·       
The application must be timely; that is, timing of the proposed
examination should allow for compliance with rules and allow for the plaintiff
to assess and respond, if necessary.

[11]        
I note that more recently in Garford v. Findlow, 2014 BCSC 2404, Master
Bouck held defendants are not required to show exceptional circumstances where
the application for a subsequent examination is not by an expert in the same
field or a multidisciplinary assessment.

[12]        
The defendants’ position is the proposed examinations are necessary to
ensure reasonable equality between the parties. They say there can be no claim
of expert matching, because any expert reports the plaintiff may have received
have not been disclosed, nor are the defendants seeking to bolster earlier
opinions provided by their experts. The defendants also submit an ENT examination
meets the criteria for exceptional circumstances in light of the plaintiff’s
intention to amend her first claim to include a vestibular injury. The functional
capacity evaluation is necessary to ensure reasonable equality, because the
plaintiff claims for loss of earnings and future earning capacity and she
testified at her examination for discovery in August 2015 she has been advised
by treating professionals that her injuries will limit what she can do in the
classroom. The defendants argue that while there may be some overlap in the
injuries examined by an orthopedic surgeon and a functional capacity evaluator,
the nature of their expertise and the examination undertaken are entirely
different, with the latter including a comprehensive evaluation of the
plaintiff’s physical capacity to perform a particular job simulating the
demands of the work environment.

[13]        
The plaintiff urges the court to dismiss the application largely on the
grounds that the evidentiary foundation for the defendants’ application is
deficient, given their failure to disclose the existing reports or provide any
evidence the experts who have already examined the plaintiff did not consider
her vestibular complaints and lacked the expertise to provide an opinion on
such an injury. The plaintiff argues the three experts selected by the
defendant likely provide a full defence to the plaintiff’s claims. She suggests
that the amendment to her notice of civil claim simply formalizes what ought to
have been apparent from the medical records she has disclosed.

[14]        
The parties have referred me to a number of authorities addressing the
circumstances under which a subsequent medical examination will or will not be
ordered, which I have considered along with the factors and principles set out
above. In my view, it is not necessarily the case the defendants must disclose
their expert reports before the court can evaluate any inequality in the expert
evidence, although the exercise is made more difficult, particularly where
neither party has disclosed any existing reports, as is their right.

[15]        
I am left to determine the defendants’ application knowing the identity
of their experts, their area of medical speciality, and the nature of the
injuries and damages claimed by the plaintiff.

[16]        
I have no trouble accepting the defendants’ submission that an ENT
specialist, and not a neurologist or a psychiatrist, has the requisite
expertise to assess and opine on a claim of vestibular injury. I also accept,
without having before me the defendants’ letters of instruction to their
experts, that they would not have been asked to determine if the plaintiff
suffered from a vestibular injury and, if so, for their opinions on issues of
causation and prognosis, given the absence of any claim for such an injury at
the time those experts examined the plaintiff. I also bear in mind the content
of the consultation report in 2012, and the normal results of the ENG in 2014. I
am satisfied the matter of vestibular injury could not reasonably have been
dealt with at the first examinations, and the proposed examination is not an
attempt to obtain a second examination on the same area of injury. Preventing
the defendants from obtaining an ENT’s opinion risks placing them at a
disadvantage at trial. There is no dispute the defendants’ application is
timely.

[17]        
Accordingly, I grant the defendants’ application for the medical
examination of the plaintiff by Dr. David.

[18]        
The proposed functional capacity evaluation poses more difficulty. I
accept the nature of such an evaluation is entirely different than an
examination done by an orthopedic surgeon. While an orthopedic surgeon will
focus on identifying a physical injury, determining causation, and providing a
prognosis for recovery or the absence of any such injury, the functional
capacity evaluator will focus on identifying and quantifying any physical
limitations arising from physical injuries specific to the plaintiff’s
workplace requirements. There is overlap in the underlying subject matter of
both examinations, being the physical injuries alleged to arise from the
accident(s), and perhaps the question of prognosis. Although the plaintiff has
claimed damages for loss of earning capacity from the outset, as a young woman
she has only recently begun working in her chosen profession and provided evidence
that her injuries may limit her physical capacity to perform that work full-time.

[19]        
Absent the report of the orthopedic surgeon prepared for the defendants,
however, I agree with the plaintiff that I am prevented from properly assessing
whether the functional capacity evaluation is necessary to ensure reasonable
equality between the parties at this time. In my view, it is appropriate that
this aspect of the defendants’ application be adjourned to await disclosure of
the expert reports.

[20]        
MS. WRONA:  My Lady, the issue of costs?

[21]        
THE COURT:  Yes, go ahead.

[SUBMISSIONS ON COSTS AT 4:13:15 TO 4:14:50 P.M.]

[22]        
THE COURT:  I am going to order the costs of the application to the
defendants. Thank you.

“Fleming J.”