IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Garford v. Findlow, |
| 2014 BCSC 2404 |
Date: 20141219
Docket: 12-0422
Registry:
Victoria
Between:
Alexandra Garford
Plaintiff
And:
Daniel Findlow
Defendant
Docket: 14-1198
Registry:
Victoria
Between:
Alexandra
Garford
Plaintiff
And:
Andrew
Nicholas Vanderstap and Leslie Gordon Morton
Defendants
Before:
Master Bouck
Reasons for Judgment
Counsel for the Plaintiff in both actions: | R.W. Cameron, Z. Marler (Articled |
Counsel for the Defendants in both actions: | M.J.C. Smith |
Place and Date of Hearing: | Victoria, B.C. December 10, 2014 |
Place and Date of Judgment: | Victoria, B.C. December 19, 2014 |
The
Application
[1]
The defendants in these two actions seek an order that the plaintiff
attend an independent medical examination (IME) with Dr. Robert Miller, a psychiatrist.
The appointment with Dr. Miller is scheduled to take place on January 12, 2015.
Ms. Garford refuses to attend the examination, having already submitted to
defence medical examinations with a neurologist, an orthopedic surgeon and a dentist.
[2]
The two actions are to be heard together in an 8-day jury trial
commencing April 27, 2015. Thus, any expert reports must be delivered by
February 2, 2015.
[3]
No issue is taken with Dr. Millers qualifications and no conditions are
sought with respect to the examination if the order is granted.
Background Facts
[4]
The plaintiff is a 26 year old married woman who alleges to have been
injured in two motor vehicle accidents. The first accident occurred on
October 15, 2010 and is the subject matter of Action No. 12-0422 (the
First Action). The second accident occurred on September 30, 2013 and is the
subject matter of Action No. 14-1198 (the Second Action). Liability is
not in issue in either action.
[5]
The application for the IME is brought in separate notices of
application in each of the actions. No issue was taken with this procedure. The
parties respective affidavit evidence is largely filed in the First Action.
[6]
In the First Action, the plaintiff pleads that the accident resulted in
pain and injury to her neck, shoulders, back, headaches, dizziness, numbness in
right arm and further particulars of injuries yet to be determined. No
particulars have been delivered.
[7]
In the Second Action, Ms. Garford alleges that in addition to some
tissue spinal injuries and headaches, this accident led to hip and knee pain as
well as sleep disturbance, dizziness, numbness to arms, depression, anxiety,
jaw pain, TMJ dysfunction, aggravation of pre-existing medical conditions,
and further particulars of injuries yet to be determined. Again, no such
particulars have been delivered.
[8]
In their respective responses, the defendants deny that the accidents
caused these injuries or conditions and attribute the plaintiffs complaints to
pre-existing or other causes.
[9]
The plaintiff has also commenced a Part 7 action. At the request of the
Insurance Corporation of British Columbia, Ms. Garford has attended two medical
assessments pursuant to Part 7: the first with Dr. Stuart Gershman on
February 15, 2011; and a second with Dr. Chris Stewart-Patterson, an occupational
medicine specialist, on October 16, 2014. Mr. Jeff Hepburn is the instructing
insurance adjuster in both the Part 7 and tort actions.
[10]
Dr. Gershmans undated report includes the disclaimer that the content
is not intended for the purpose of litigation. Dr. Gershman identifies evolving
chronic pain disorder, heightened pain and disability perception and mood issues
as barriers to the plaintiffs recovery. There is no report from Dr.
Stewart-Patterson, although Mr. Cameron suggests that one is likely
coming. Defence counsel says that his clients will not rely on any opinion from
Dr. Stewart-Patterson at trial as to do so would be off-side.
[11]
As noted, the plaintiff consented to examinations by three experts
chosen by the defendants:
1. Dr. R. Dost, a neurologist, on
July 29, 2014;
2. Dr. M. Piper, an orthopedic
surgeon, on September 17, 2014; and
3. Dr. Blasberg, a dentist, on
December 11, 2014.
[12]
The examinations by Drs. Dost and Piper were originally scheduled to
take place before the Second Action was commenced. As a result of the second
accident, the examinations were postponed.
[13]
Medical-legal reports were requisitioned from Drs. Dost and Piper and
have now been served on the plaintiffs counsel. Dr. Piper opines that there
is a very significant psychological overlay that is greatly affecting [the
plaintiffs] symptomology, however, that is also an area well out of my area of
expertise and will leave that discussion to experts in that field. Dr. Dost
opines that ongoing subjectively reported cognitive difficulties reflect the
impact of chronic pain, sleep alteration and psychological issues. And
further, that psychiatric issues are beyond the scope of my expertise to
comment on.
[14]
The plaintiff acknowledges to be suffering from long lasting or chronic
pain and attributes this condition to the physical injuries resulting from the accidents.
[15]
At the time of filing of these applications, the defence had in its
possession records from various clinicians treating the plaintiff. It is not
clear when these records came into the defendants possession but few are of
recent vintage.
[16]
The clinicians include a neurologist, pain management specialist,
dentist, orthodontist and three psychologists. As part of her response to these
applications, the plaintiff served two psychovocational reports authored by
Dr. M. Boissevain. The first report is dated October 19, 2012, with a follow
up report dated November 5, 2013. No other expert reports have been served
by the plaintiff.
[17]
Dr. Boissevains report contains opinion on the relationship between
Ms. Garfords pre-existing psychological difficulties and her
employability. He also reports cognitive symptoms and suggests a
neuropsychological assessment might be considered if the symptoms persist. As
of October 2013, the plaintiffs pain related depression remained prominent
but unchanged from the earlier assessment. Dr. Boissevan opines that the
persistence of pain is a factor that will limit the plaintiffs ability to
engage in full-time employment.
[18]
Although Ms. Garford is continuing to receive psychological counselling,
no psychiatric or psychological opinion evidence has been commissioned by her
counsel.
[19]
The notes of Dr. Sawchyn, one of the treating psychologists, have been
in the defendants possession at least since May 2014 but appear to have been
up-dated in early October of this year. The notes cover a treatment period from
August 20, 2012 to October 8, 2014.
[20]
In a brief note to whom it may concern dated October, 2, 2013,
Dr. Sawchyn states that the plaintiff has been dealing with depression,
anxiety and chronic pain resulting from the first accident. The second
accident is said to have exacerbated the plaintiffs symptoms.
[21]
Dr. Sawchyns clinical notes are replete with references to the
plaintiffs depression, feelings of anxiety and general emotional upset. The
plaintiff attributes these conditions to physical pain. In February of 2013,
Ms. Garfords husband attended a treatment session and raised the
possibility his wife seeing a psychiatrist to deal with emotional and mental
health issues. The plaintiff did attend a pain clinic but no mention is made of
a psychiatric component to the treatment.
[22]
Following the second accident, the plaintiffs mental and emotional
condition deteriorated. Ms. Garford reported memory and cognitive issues which she
again attributed to the physical injuries suffered in that accident. Ms.
Garford also reported serious anxiety about the health and well-being of her
loved ones as well as thoughts of self-harm. Dr. Sawchyn poses the question
as to whether Ms. Garford is catastrophizing (experiencing irrational
thought believing that something is worse than it is).
[23]
The notes record Ms. Garfords emotional difficulties with members of
her extended family. Most of those difficulties are historical and unrelated to
the motor vehicle accidents. Ms. Garford had been prescribed anti-depressants,
but has discontinued the use of this medication. Various pain and anti-anxiety
medication has also been prescribed and consumed.
[24]
Ms. Garford was working as a dental assistant at the time of the first accident.
She has been largely out of the workforce for the past four years. All of
Ms. Garfords treating physicians have ruled out a return to the dental
assistant field due to ongoing physical challenges. In the meantime, Ms.
Garford went back to school to re-train as an education assistant. Some classes
were not completed. Recently, the plaintiff obtained employment as an early
childhood educator.
[25]
To date, the plaintiff is claiming more than $65,000 in out-of-pocket
expenses or special damages. This figure includes charges for travel expenses
related to the treatment, prescription medications and $4,000 for psychological
counselling services.
The Law
[26]
Hamilton v. Pavlova, 2010 BCSC 493, decided under the
predecessor to SCCR 7-6(2), is cited by both parties for the following principles:
[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: Wildemann v. Webster, [1990]
B.C.J. No. 2304 (B.C.C.A.) at pp. 2-3.
[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: Wildemann v. Webster at p. 11 from the separate concurring
reasons of Chief Justice McEachern.
[12] Reasonable equality does not mean that the defendant
should be able to match expert for expert or report for report: McKay v.
Passmore, 2005 BCSC 570 at para. 17, and Christopherson v. Krahn,
2002 BCSC 1356 at para. 9.
[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: Trahan v. West Coast Amusements Ltd., 2000 BCSC 691 at
para. 48, and Norsworthy v. Greene, 2009 BCSC 173 at para. 18.
[14] There is a higher standard required where the defendant
seeks a second or subsequent medical exam of the plaintiff: McKay v.
Passmore, supra, at para. 17 and para. 29.
[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: Vermeulen-Miller v. Sanders,
2007 BCSC 1258 at paras. 47-48, relying in part on Goss v. Harder, 2001
BCSC 1823.
[16] Finally, subsequent
independent medical examinations should be reserved for cases where there are
some exceptional circumstances: Wildemann v. Webster, supra, at
p. 3.
[27]
Although this is an application under SCCR 7-6(1), the various
assessments and examinations in the Part 7 and tort actions are properly
considered in determining whether to grant the order sought. The more closely a
Part 7 or earlier tort IME resembles the proposed examination, the less likely the
order will be granted: Teichroab v. Poyner, 2008 BCSC 1130 at
para. 23.
[28]
The defence relies on Kim v. Lin, 2010 BCSC 1386, a case
decided under the SCCR in which a third defence medical examination was
ordered. In its analysis, the court determined that proportionality is now a
relevant consideration on these types of applications. It is further suggested
that, regardless of whether the application is for a first examination under
7-6(1) or a further examination under 7-6(2), the same legal principles apply:
para. 14.
[29]
The plaintiff relies on three decisions where an order for a psychiatric
defence examination was denied: Wocknitz v. Donaldson, 2010 BCSC
1991; De Corde v. De Corde, 2011 BCSC 1719; and Foster
v. Chandel, 2013 BCSC 1847. In each of these cases, the court found
that the applicant had not justified the need for what is described in Wocknitz
as a particularly invasive form of examination in order to level the
playing field or bring reasonable equality between the parties. The defence submits
that these cases are distinguishable as none involved the complexity of the
plaintiffs pre-existing and ongoing mental health complaints.
Discussion
[30]
The two main issues to be decided are:
1. Is the plaintiffs mental
condition in issue in these actions such that an examination by a psychiatrist
might be ordered under Rule 7-6?
2. If yes, should the court
exercise its discretion to order the examination?
[31]
Subsidiary issues arise in the consideration of the Hamilton v.
Pavlova factors.
Is the plaintiffs
mental condition in issue?
[32]
I find that the plaintiffs mental condition is in issue in the actions,
based on both the pleadings and the medical evidence now before the court. The
plaintiff has pled that the second accident led to depression and anxiety and
has admitted that that these conditions also emerged after the first accident. The
defence denies responsibility for these conditions. Various medical records and
reports suggest that mental health issues are at play in Ms. Garfords
symptomology and ongoing complaints. Whether the defendants actions are the
cause of these mental health complaints or the mental health issues are related
to ongoing pain complaints are issues that could be explored at the
examination.
[33]
The fact that the plaintiff does not intend to lead opinion evidence on
her mental condition is not determinative of this question. Nor is the defence
required to show that that referral to a psychiatrist has been recommended by
any of the other physicians or clinicians involved with the plaintiff. These
are merely examples of what factors might support an order for an independent
psychiatric examination.
Should the plaintiff be
required to attend the examination?
[34]
Applications relating to independent medical examinations are the
subject matter of innumerable decisions of the court. Just as all cases involve
distinct individuals with distinct injuries and complaints, no one case will be
exactly on point with another. Furthermore, individual cases may not fully describe
all of the evidentiary nuances before the court.
[35]
A central theme running through the cases, however, is the question of
whether the medical opinion being sought is redundant, a duplication of an
existing opinion or an attempt to improve upon that existing opinion.
[36]
For example, it appears that one of the primary reasons for the court
denying the defence a psychiatric IME in Hamilton v. Pavlova was the
fact that the defences neurological expert had already confidently opined on
mental health issues. Furthermore, the opinion sought was seen as somewhat
redundant given the findings of Ms. Hamiltons own experts. The case at
bar also differs from De Corde v. De Corde where defence
experts had already opined on mental health issues.
[37]
In this case, I find that Dr. Millers examination is not an attempt to
bolster an earlier opinion of another expert. Neither Drs. Piper, Gershman nor
Dost provide a medical opinion on the plaintiffs mental health, nor do any of
them address the cause of the mental health complaints. These physicians
comment on Ms. Garfords mental health condition but no diagnosis is made
with deference given to a psychiatrist to make such findings. It is pure
speculation that Dr. Stewart-Patterson will provide a diagnostic opinion. Regardless,
Dr. Stewart-Pattersons credentials do not closely resemble those of a
psychiatrist.
[38]
Given these findings, I am not at all certain that the defendants are
required to meet the higher standard stipulated in Hamilton v. Pavlova. None
of the authorities suggest that there is an absolute limit on the number of
independent medical examinations that may be ordered under Rule 7-6(2). More to
the point, all other assessments or examinations have been directed towards the
plaintiffs physical rather than mental condition.
[39]
On the question of timeliness, the defendants say that they will be in a
position to serve any expert opinion by February 2, 2015. Whether the plaintiff
will be able to assess and respond to any report remains to be seen. Obviously,
the court was persuaded in De Corde that the timeliness factor weighed
against granting the IME order. However, as the court determined in Critchley
v. McDiarmid, 2009 BCSC 28, the order requiring a
plaintiff attend an IME relatively close to trial does not necessarily mean
that the trial will be adjourned or the plaintiff prejudiced: paras. 11‑14.
[40]
In my view, the defendants are not required to show any exceptional
circumstances as this is not an application for a subsequent examination by an
expert in the same field or a multidisciplinary assessment as was the case in Wildemann
v. Webster.
[41]
In terms of proportionality, the plaintiff has been out of the workforce
for four years and is not expected to return to her pre-accident employment as
a dental assistant. It is apparent that there will be a significant claim for
both past and future income loss. The plaintiffs claim for special damages is
also indicative of the amount involved. I accept defences unchallenged submission
that Ms. Garford will be seeking damages well in excess of $100,000 at
trial. As with the court in Kim v. Lin, I find that the SCCR 1-3
factors in this case favour the order being made.
[42]
The plaintiff may not be pursuing a psychiatric opinion at this time,
but she clearly blames the accidents for her mental health condition and necessity
for psychological counselling. In my view, the task of identifying let alone
proving other causes or sources for these mental health issues cannot be
accomplished by simply cross-examining the plaintiff at trial.
Conclusion
[43]
In conclusion, I find that the plaintiffs attendance at an IME with
Dr. Miller will put the parties on an equal footing in terms of addressing
diagnosis and causation of the plaintiffs mental health condition. The
examination may also address the interplay of the plaintiffs mental and
physical complaints.
[44]
The order sought by the defendants is granted. If the parties are unable
to agree on the costs for these applications, the matter may be spoken to.
C.P.
Bouck
Master
C.P. Bouck