IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20131121

Docket: SM138859

Registry:
New Westminster

Between:

Thomas Lawrence
Rathgeber

Plaintiff

And

Leland George
Freeman

Defendant

Before:
Master Keighley

In
Chambers

Reasons for Judgment

Background

[1]            
The plaintiff was injured in a motor-vehicle accident which occurred on
July 29, 2009. A trial of the action is scheduled to begin on March 24, 2014.

[2]            
The plaintiff alleges that, as a result of the accident, he sustained
injuries to his neck, back and shoulders. He claims to suffer from headaches
and chronic pain disorder.

[3]            
The plaintiff initiated a claim for Part 7 accident benefits in the late
summer or early fall of 2009 and, incidental to that claim and at the request
of the Insurance Corporation of British Columbia (“ICBC”), attended for an
independent medical examination with Dr. Kousaie, an orthopedic surgeon.

[4]            
The letter of instruction from the Part 7 adjuster includes the
following:

This is to confirm the medical examination
appointment we have arranged for Thomas Rathgeber on Monday, November 09, 2009
at 1:30 PM.

This
examination is pursuant to Section 99 of the Insurance
(Vehicle) Regulation
(or the Revised Regulation (1984) Under the Insurance
(Motor Vehicle) Act,
depending on when coverage was purchased), which states:

Section
99

·       
(1)  An insured who makes a claim under this
Part [Part 7] shall allow a medical practitioner, dentist, physiotherapist or
chiropractor selected by the corporation, at the expense of the corporation, to
examine the insured as often as it requires.

·       
(2) The corporation is not liable to an insured
who, to the prejudice of the corporation, fails to comply with this section.

·       
CL 15 Certificate of Earnings and Job Descriptions for EV
Logisitics dated October 19, 2009

The insured is currently in receipt of medical or
rehabilitation benefits as a result of injuries sustained in a motor vehicle accident
on July 29, 2009.

The purpose of this examination is to determine whether the
insured requires, as a result of his injury, further medical or rehabilitation
benefits.

Once you have examined this patient, please provide us with a
report of your findings and opinions, addressing the following:

·       
A summary of your qualifications and experience.

·       
The facts and assumptions on which this opinion is based.

·       
The insured’s history of:

§ 
the accident

§ 
 type and number of treatments received to date

§ 
injury complaints.

·       
Whether the insured has suffered an injury and, if so, whether
the insured’s injury was caused by this motor vehicle accident.

·       
Whether the insured’s injury was caused, directly or indirectly,
by sickness or disease.

·       
Whether the insured’s current treatment is necessary.

·       
The reasonable number and duration of treatment given the
insured’s injury and lifestyle.

·       
Your recommendation for future treatment.

·       
Whether further medical or rehabilitation treatments are likely
to promote the insured’s rehabilitation.

[5]            
Dr. Kousaie concluded the requested report, dated November 9, 2009
with the following:

CONCLUSIONS:

Please accept the following as my response to your request in
evaluating Thomas Rathgeber, as a result of the motor vehicle accident dated
July 29, 2009.

1.               
I have provided you above a summary of my qualifications and
experience. A full curriculum vitae is available upon request.

2.               
The facts are the history and physical examination as well as
documentation that you have provided. I assume that the history provided and
the documentation is true.

3.               
I have provided you above the patient’s history of the motor
vehicle accident. He has informed me of the type of treatments he has received
and this is also evident in the documentation that you have provided. His
complaints from this injury are stated above.

4.               
The insured has suffered an injury as a result of this motor
vehicle accident. It is my impression that he has suffered soft tissue injuries
in the areas where he is complaining of pain. The injuries involve the mid and low
back mainly. It is also in the neck area.

I personally do not believe that he has suffered any other
injury as a result of the motor vehicle accident. I do not have evidence that
he has suffered a bony, ligamentous or discal damage as a result of this motor
vehicle accident. I have no evidence that he has suffered a nerve damage as a
result of the motor vehicle accident.

There is a complaint of headache. In my opinion this is
related to the soft tissue injuries in his neck area and not related to an intracranial
injury. I am not though an expert in head injuries. He did suffer bums in the
forearms, likely from the deployment of the airbag. This injury was not
assessed.

5.               
There is no evidence from the history obtained or the
documentation that I reviewed that the injury was caused indirectly by sickness
or disease. There were no positive signs of non organic disease,

6.               
The injury described does necessitate the current treatment. This
is based mainly on the significant complaints of pain by this individual. It is
also based on the significance of impact that he described. I have absolutely
no clinical evidence that the injury was more than what was described above,
that is a soft tissue injury to these areas. I do believe it was a mild to
moderate injury and thus persistence with the treatments to improve upon
mobility and strength is what is required in this individual.

It is noted from the documentation that you provided in the
Sport & Spine Railway Physiotherapy that objective signs of improvement
were noted. He did not have subjective improvement. This individual I think
simply requires a little longer time for all of the symptomatology to resolve.
I do expect this to occur.

7.               
The duration of this treatment should be for another two months.
This is stated mainly as I do not believe that he is quite at a level where he
could return to the type of work that he previously performed. He described
lifting a significant amount of weight onto pallets and I think it will take a
little longer for that symptomatology to totally resolve.

8.               
There will be no academic impairment. Although I am not an expert
in this area, no evidence is noted to suggest this.

9.               
The recommendation for the future thus is to persist with
treatments in physiotherapy. These treatments should be based purely on
continuing to improve upon mobility and strength in a Work Hardening program.
Passive treatments in physiotherapy such as modalities will not work in this
case. Other passive treatments such as massage therapy, as well are not
beneficial for this individual. A limitation of two months for this treatment
should occur. Mr. Rathgeber should be informed of this.

10.       No further
investigation is recommended for this individual. I do not believe that there
will be a deterioration of the areas of concern, in particular the spine, for
the future. He will thus not require further investigation
than what has been done. He will not require any surgical treatments.

[6]            
Subsequently, the plaintiff was referred by his family doctor, Dr. Wouterloot,
to Dr. Jaworski, a physiatrist, who provided Dr. Wouterloot with two
consultative reports, one dated February 8 and the other June 14, 2010. In the
earlier of the two reports, Dr. Jaworski noted that the plaintiff was
complaining of pain spreading from the base of his skull down to the lumbosacral
areas as well occasional bilateral leg pain and pain in both arms. Dr. Jaworski
noted that the plaintiff complained of posterior headaches. Dr. Jaworski also
noted that the plaintiff’s reported pain was constant although fluctuating with
intensity. He diagnosed mechanical back pain calling for regular exercise
strengthening the plaintiff’s core musculature. In the second of the two
reports, Dr. Jaworski noted that the plaintiff reported some improvement
in his neck and back pain and noted a need to increase the intensity of the
exercise regime.

[7]            
The plaintiff was further referred by Dr. Wouterloot to the Jim
Pattison Outpatient Pain Clinic where he was assessed by Dr. David L.
Twist on April 20, 2011. In a consultative report made the following day, Dr. Twist
noted the plaintiff was still complaining of ongoing pain in the neck and lower
back. Dr. Twist noted that the neck problems were the plaintiff’s primary
concern.

[8]            
On August 27, 2011, the plaintiff was involved in a second motor-vehicle
accident. He makes no claims with respect to this accident and apparently the
physicians have made no clinical entries with respect to this accident.

[9]            
On May 10, 2012, the plaintiff attended, presumably at the instance of his
counsel, for an independent medical assessment by Dr. Travlos, another
physiatrist. Dr. Travlos noted ongoing neck and back complaints with pain
radiating into the legs. Dr. Travlos diagnosed the plaintiff’s neck pain
as resulting from a soft tissue injury to the neck and some mechanical issues
in the upper thoracic area. He felt that the majority of the plaintiff’s neck
pain was soft tissue and myofascial in nature and diagnosed the plaintiff’s low
back pain as including a combination of mechanical and soft tissue injuries. He
indicated that activity and exercise should alleviate the symptoms to some
degree.

[10]        
On October 7, 2012, the plaintiff attended, at the instance of Dr. Wouterloot,
for a CT scan of his cervical spine. In due course, the results of that scan
were disclosed to defence counsel but the material before me does not appear to
indicate when that occurred.

The application

[11]        
By this application, heard November 8th, 2013, on short leave, the
defendant sought to have the plaintiff attend for a further examination by Dr. Kousaie,
scheduled for the following Tuesday, the 12th, after the intervening long
weekend. At the conclusion of argument, I advised counsel that I intended to
reserve my decision.

[12]        
Counsel did not indicate at that time whether the examination would
proceed as scheduled (with the issue of whether a report should be
prepared/delivered left for resolution following the delivery of my decision) or
whether the examination would be cancelled and perhaps rescheduled.

[13]        
Assuming that my decision will nonetheless be of value to the parties,
it follows.

Legal basis

[14]        
Rule 7-6(1) reads as follows:

Order for medical examination

(1) If the physical or mental condition of a person is in
issue in an action, the court may order that the person submit to examination
by a medical practitioner or other qualified person, and if the court makes an
order under this subrule, the court may also make

(a) an order respecting any
expenses connected with the examination, and

(b) an order that the result of the examination be put in
writing and that copies be made available to interested parties of record.

[15]        
Rule 7-6(2) reads as follows:

Subsequent examinations

(2) The court may order a further
examination under this rule.

[16]        
In substance, the Rule differs only from its predecessor, Rule 30, in
that being confined to actions, rather than proceedings, its scope has been
narrowed. That change has no bearing on this application.

[17]        
As before, the power to order the examination sought is discretionary.
The object of the Rule is to ensure reasonable equality between the parties in
preparation for trial.

[18]        
Until quite recently, in considering applications of this nature (namely,
defence applications for medical examinations in tort actions following prior
examinations in Part 7 claims), the court may be said to have taken an
atomistic view of the circumstances leading up to the application, considering,
for example:

a.     – whether
the adjuster and/or counsel in the tort action were excluded from participating
in the selection of the examiner: Vorasarn v. Manning, [1997] 30
B.C.L.R. (3d) 63 (B.C.C.A.); Hamada v. Semple, [1983] B.C.J. No. 1307;

b.     – whether
the Part 7 adjuster was also adjusting the tort claim: Robertson v. Grist,
2006 BCSC 1245;

c.     – whether
there was agreement within ICBC to use the Part 7 report in the tort action: Robertson
v. Grist, supra;

d.     – whether
the tort action was in contemplation or commenced at the time the Part 7 report
was ordered and whether the plaintiff was represented by counsel at that time: Robertson
v. Grist, supra;

e.     – what the
Part 7 examiner was instructed to address in his/her report: Longva v. Pham,
[2007[ B.C.J. No. 1035, 42 C.P.C. (6^th) 385; Rowe v. Kim,
[2008] B.C.J. No. 2423, 2008 BCSC 1710;

f.      –
whether the scope of the Part 7 report was limited to a rehabilitation opinion
relevant only to Part 7 issues: Longva v. Pham, supra.

[19]        
More recently, and in particular since the decisions of Barrow J.
in Teichroab v. Poyner, 2008 BCSC 1130, 62 C.P.C. (6^th) 101,
and Master McDiarmid in Soczynski v. Cai, 2011 BCSC 1299, the court
may be said to have adopted a more holistic view of the circumstances leading
up to the application.

[20]        
In Teichroab, Barrow J. noted that the “further examination”
contemplated by Rule 7-6(2) meant an examination in addition to one already
ordered pursuant to Rule 7-6(1). Thus, he said, a Part 7 examination conducted
as a result of a contractual obligation to submit to an examination on the part
of the insured could not be considered a “first” examination in the context of
Rule 7-6(2).

[21]        
What was essentially before him, then, was, as here, an application for
an examination ab initio under Rule 7-6(1), but the Part 7 examination,
its resulting report and the circumstances under which it was obtained, were,
the learned justice said, properly matters to consider in determining whether to
exercise the discretion conferred by the Rule.

[22]        
At para. 24, Barrow J. said, in part:

…It may be that this is a
distinction which will make little difference to the analysis in most cases
because the same factors which are to guide the exercise of the discretion
under Rule 30(2) now Supreme Court Civil Rule 7-6(2) will inform
a decision to be made under Rule 30(1), now Supreme Court Civil Rule 7-6(1)when
there has been an earlier assessment. Approaching the matter in this way serves
to focus the inquiry on the exercise of the discretion with a view to the
purpose of the Rule and obviates the need to guess as to whether, and if so
when, a first assessment not ordered under the Rule may have evolved into such
an assessment. Generally, the more closely an examination performed under a
contractual obligation or for purposes of a claim for Part VII benefits
resembles an independent medical examination under Rule 30(1), now Supreme
Court Civil Rule 7-6(1) the more relevant it will be to the exercise of the
discretion conferred by the Rule, and the less likely it may be that an order
under that Rule will be made. That is so because the purpose of Rule 30 is, in
part, to put the parties on an equal footing in terms of their ability to
explore the issues in the case (see Milburn v. Phillips (1963),
44 W.W.R. 637 (B.C.S.C.), Wildemann v. Webster (1990), 50
B.C.L.R. (2d) 244 (C.A.), and Guglielmucci v. Makowichuk (1996),
18 B.C.L.R. (3d) 68 (C.A.) [Guglielmucci]). To the extent an
assessment prepared under a contract of insurance or in relation to a claim for
Part VII benefits puts a defendant on an equal footing, the need for an
assessment under Rule 30(1) now Supreme Court Civil Rule 7-6(1) will be
mitigated.

Discussion

[23]        
In some respects, Dr. Kousaie’s November 9, 2009 report “resembles”
a report in a tort claim. The doctor sets out his qualifications, for example,
as well as facts and assumptions. He includes details of the accident, the
plaintiff’s recreational history and comments on the possibility of academic
impairment. He indicates that the examination involved a comprehensive physical
examination. Those aspects of the report appear to be more consistent with a
comprehensive report prepared to address the plaintiff’s complaints in a tort
action.

[24]        
On the other hand, the report is now four years old and while Dr. Kousaie
makes reference to the neck injury, he appears to have focused on low back pain
as the plaintiff’s major complaint at the time of his 2009 assessment. Dr. Kousaie’s
review of the then available imaging and x-rays did not indicate any trauma to
the spine although some minor disc bulges were noted in the lumbar area.

[25]        
More recent assessments, and that of Dr. Twist in particular,
suggest an increasing focus on the neck injury and indeed the CT scan referred
to earlier shows a small circumferential disc bulge in the cervical spine, a
condition not evident at the time of Dr. Kousaie’s first examination.

Decision

[26]        
Taking a holistic view of the circumstances, Dr. Kousaie’s 2009
report is comprehensive and to some extent addresses issues more relevant to a
tort claim than a Part 7 claim. The results of the CT scan and the shift in
focus to the plaintiff’s neck injury, however, are issues which the defence may
need to address. There is, however, nothing in the evidence before me to show
why a further examination, rather than a review of the available
materials by Dr. Kousaie or some other qualified specialist, is necessary
to achieve reasonable equality with respect to medical evidence. While I do not
wish to be taken as suggesting that the proposed examiner should, in all cases,
provide an affidavit with respect to the necessity for a further examination,
such an affidavit would have been of significant assistance to me in this case.

[27]        
On the basis of the material before me, the application is dismissed.

Costs

[28]        
The plaintiff will have his costs of the application in the cause.

“Master Keighley”