IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20151209

Docket: M136277

Registry:
Vancouver

Between:

Robert Peter
Stocker

Plaintiff

And

Jaime Theresa
Osei-Appiah

Defendant

Before:
The Honourable Mr. Justice Pearlman

Oral Reasons for Judgment

INTRODUCTION

[1]            
The defendant Jaime Theresa Osei-Appiah applies for an order pursuant to
Rule 7-6 of the Supreme Court Civil Rules requiring the plaintiff Robert
Peter Stocker to attend a functional capacity evaluation by Jeff Padvaiskas, an
occupational therapist, on January 11, 2016 and a vocational assessment by Ms. Samantha
Gallagher, a vocational consultant, on January 14, 2016.

BACKGROUND

[2]            
The facts giving rise to this application are, for the most part, not in
dispute.

[3]            
The plaintiff, who is now 56 years old, was employed at the University
of British Columbia, IT Services Department, as an installation and repair
service person from 1994 until 2014.

[4]            
In this action, Mr. Stocker claims damages for injuries he claims
to have sustained in a motor vehicle accident which occurred on March 30, 2012
in Burnaby, British Columbia when his vehicle was struck from behind by a vehicle
owned and operated by the defendant. Liability, causation and damages are all in
issue.

[5]            
The plaintiff alleges that as a result of the defendant’s negligence he
sustained multiple injuries including injuries to his face, neck, shoulder and
low back, headaches and depression. The plaintiff claims damages for pain and
suffering, loss of enjoyment of life, loss or impairment of his capacity to
perform household tasks, loss of past and future earning capacity and costs of
future care.

[6]            
The trial of this action is set for 14 days commencing June 6, 2016.

[7]            
After the accident, Mr. Stocker took April 2, 2012 off work. He
returned to work the following day and performed light duties full-time for
approximately two weeks.

[8]            
The plaintiff went off work again on April 17, 2012 and has not resumed
employment since then.

[9]            
The defendant contends that on April16, 2012 the plaintiff suffered a
low back injury while moving a freezer in his garage.  That incident, rather
than the motor vehicle accident, says the defendant, caused the plaintiff’s
persistent and allegedly disabling back pain.   For his part, the plaintiff
attributes his inability to return to work to the injuries he sustained in the
accident.

[10]        
In or about September 2014, following receipt of a functional capacity
evaluation report performed at the request of the plaintiff’s long-term
disability insurer, UBC concluded that it could offer no position to
accommodate Mr. Stocker. That report, dated August 26, 2014, concluded:

Although Mr. Stocker is able to
perform keyboarding tasks, due to his inability to sustain a sitting position
or a sitting and reaching position for no longer than 5-8 minutes, it is this Evaluator’s
opinion that Mr. Stocker is not physically able to perform keyboarding
and/or administrative duties in a work environment at this time.

[11]        
The plaintiff disclosed the Sun Life functional capacity evaluation
report to defence counsel on April 13, 2015.

[12]        
On October 27, 2015 counsel for the defendant examined the plaintiff for
discovery. On his discovery, Mr. Stocker give evidence that since the
accident he had not been able to return to his former employment and that “There
is no way I could return to work in any capacity."

[13]        
The plaintiff has recently attended two independent medical examinations
at the request of the defendant. On November 9, 2015, Mr. Stocker was
examined by Dr. Lee Rasmussen, a psychiatrist. On November 27, 2015, Dr. Bassam
Masri, an orthopedic surgeon, examined Mr. Stocker.

[14]        
Counsel for the defendant instructed Dr. Rasmussen and Dr. Masri
to provide, in addition to their diagnoses, prognoses and opinions on
causation, opinions on the following issues:

2.  Your assessment of Mr. Stocker’s
present level of impairment and/or disability, if any, and whether any
improvement can be expected;

4.  Whether Mr. Stocker
requires any rehabilitation program, therapy, or other treatment;

5.  What is the anticipated outcome
of such rehabilitation program/therapy;

6.  Your assessment of whether Mr. Stocker
is restricted in terms of employment or activities of daily living and if so,
to what extent; and

7.  The implications if any of Mr. Stocker’s impairment
and/or disability, if any, for his future employment or activities of daily
living.

[15]        
Although Drs. Rasmussen and Masri have each conducted their independent
medical examinations of the plaintiff, their reports were not before the court
on the hearing of this application.  As yet, the plaintiff has not delivered
any expert reports. The deadline for the service of expert reports under Rule
11 – 6(3) is March 11, 2016.

[16]        
Each of the independent medical examinations now sought by the defendant
would be a “further examination” within the meaning of sub rule 7-6(2) since
the plaintiff has already attended examinations by Drs. Rasmussen and Masri.  Although
Mr. Stocker attended those examinations without a court order compelling
him to do so, his counsel clearly stipulated beforehand that Mr. Stocker was
attending those assessments as first IMEs pursuant to Rule 7-6(1).

POSITIONS OF THE PARTIES

[17]        
The defendant says the functional capacity evaluation and the vocational
assessment are necessary to ensure reasonable equality between the parties in
preparing the case for trial.  According to the defendant, the functional
capacity evaluation will provide objective data for assessing the plaintiff’s
current physical functionality and his capacity for future employment. The
defendant submits the vocational assessment is necessary to identify employment
options for which the plaintiff may be suited. A vocational assessment would
also assist the assessment of Mr. Stocker’s claim for past and future
income loss. In short, the defendant contends the further independent medical
examinations are necessary to enable her to properly defend this action.

[18]        
The defendant also submits if the plaintiff establishes his injuries
were caused by the accident, he will have a potentially significant claim for
damages for past and future loss of earning capacity. In these circumstances,
the defendant says that the principle of proportionality militates in favour of
the Court exercising its discretion to order the further assessments.

[19]        
The plaintiff correctly submits the defendant bears the onus of
establishing that the further medical examinations are necessary: Henri v.
Derbyshire, [1999] B.C.J. No. 1750 (S.C.) at para. 15.  Counsel
for Mr. Stocker also argues no unforeseen circumstances arise here which
would warrant further defence examinations of the plaintiff, particularly where
the defendant has requested both the psychiatrist and the orthopedic surgeon to
provide opinions on the plaintiff’s present level of impairment or disability,
and on whether, and to what extent the plaintiff is restricted or disabled for
future employment or activities of daily living.  The plaintiff contends there
would be a substantial overlap between the reports to be provided by Drs.
Rasmussen and Masri and the proposed functional capacity and vocational
assessments.

DISCUSSION AND ANALYSIS

Applicable Legal Principles

[20]        
In their submissions, counsel referred to various authorities where the
court either granted or refused further defence medical examinations.  In each
case, the court exercised its discretion based on the particular facts before
it.  While I have considered all of the authorities cited by counsel, I will
only discuss those upon which counsel placed particular reliance or which I
found to be of assistance in defining or applying the relevant principles.

[21]        
The applicable principles are conveniently summarized in Hamilton v.
Pavlova, 2010 BCSC 493, a case decided under the former Rule 30, the
predecessor to Supreme Court Civil Rule 7-6. There, Bracken J stated:

[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.

[22]        
The defendant also referred to Garford v. Findlow, 2014 BCSC 2404
and Kim v. Lin, 2010 BCSC 1386.

[23]        
In Garford, the defendant applied for an order for the
independent medical examination of the plaintiff by a psychiatrist. The
plaintiff had previously submitted to defence medical examinations by a
neurologist, an orthopedic surgeon and a dentist. In ordering the psychiatric
examination, Master Bouck found that both the pleadings and the medical
evidence before the court put the plaintiff’s mental condition in issue.  All
of the previous defence medical examinations addressed the plaintiff’s physical
condition, rather than her mental condition. Accordingly, the psychiatric
examination would not serve to bolster the earlier defence opinions. In these
circumstances, Master Bouck was not certain that the defendants were required
to meet the higher standard for second or subsequent examinations: Garford at
para. 38.

[24]        
However recently, in Stene v. Echols, 2015 BCSC 1063, Holmes J. 
at paras. 20-22 affirmed that a defendant applying for a further
examination, even in a field different from the independent examinations
already ordered, must meet a higher threshold. I respectfully agree.

[25]        
In Kim, the Insurance Corporation of British Columbia, as third
party, applied to have the plaintiff, who had previously attended defence
examinations by a neurologist and a psychiatrist, undergo a further examination
by an orthopedic surgeon. Factors which the court took into account in
exercising its discretion to order the further examination included the significant
deterioration of the plaintiff’s injuries over time; the wide range of
different injuries; and the plaintiff’s complaints of extreme pain. The
previous defence experts had not addressed all of the plaintiff’s soft tissue
injuries or the question of whether the plaintiff suffered from a pre-existing
degenerative condition. Further, proportionality was a relevant consideration
under Rule 1-3(2)(a). The court held that where the amount involved was likely
to be significant and the issues in dispute were important to both parties,
proportionality supported the defence orthopedic examination.

[26]        
Counsel for the plaintiffs referred to Norsworthy v. Greene, 2009
BCSC 173. There, Master Taylor dismissed the defendants’ application for a
functional capacity evaluation of the plaintiff after she had already submitted
to an examination by an orthopedic surgeon retained by the defendants.  The plaintiff
had previously undergone a functional capacity evaluation at the request of her
counsel. When the plaintiff offered to provide a copy of the report to the
defendants on condition that they reimburse her for the cost of the assessment,
the defendants declined. They subsequently retained an orthopedic surgeon. The
plaintiff maintained that the surgeon had provided a full opinion on the issue
of her capacity and that the defendants were not entitled to a further
assessment.

[27]        
In Norsworthy, the defendants took the position that while the
orthopedic surgeon had offered an opinion on the plaintiff’s ability to return
to work following her motor vehicle accidents, there was a major difference
between providing an opinion on disability versus an assessment of the
plaintiff’s ability to perform certain occupations. At para. 18, Master
Taylor noted that a second examination to permit the defendant a second opinion
on the same subject matter will not be allowed, but that a second examination
may be appropriate where there is some question which could not have been dealt
with on the first examination.

[28]        
In Norsworthy, unlike the case at bar, the Master was able to
compare the plaintiff’s functional capacity evaluation with the report of the
defendants’ orthopedic surgeon. At para. 22, the Master concluded that
there was a noticeable crossover in some of the observations made by each of
the experts.

[29]        
In dismissing the defendant’s application for a second examination, the
Master took into account the following factors. The defence examination by the
orthopedic surgeon was conducted after the defendants knew of the earlier
functional capacity evaluation of the plaintiff by an occupational therapist.
The defendants made a choice to have an independent medical examination
conducted by an orthopedic surgeon. They now sought an opinion of an
occupational therapist which might undermine their own expert’s opinion. In the
Master’s view, the different purposes of the reports were insufficient to provide
a valid reason for a second report: Norsworthy at paragraph. 26.

Application of Principles

[30]        
Here, the further assessments, if ordered, would be completed in time
for the defendant to serve her expert reports 84 days before the scheduled
trial date, as required by Rule 11-6(3).

[31]        
At the time of the accident, as a senior installation repair service
person, Mr. Stocker earned an annual income of $50,000.  The plaintiff did
not contest the defendant’s submission that if Mr. Stocker establishes his
injuries were caused by the motor vehicle accident, he will have a potential claim
for four years’ past wage loss in the amount of $200,000.  In addition, the
plaintiff will claim for loss of future earning capacity for eight years from
the trial date to retirement at age 65.  The amounts involved are significant. 
The issues of whether and to what extent the plaintiff is disabled from
employment by injuries he suffered in the motor vehicle accident, and his past
and future loss of earning capacity are important to both parties.  Proportionality
is a factor weighing in favour of the further examinations sought by the
defendant.

[32]        
On the other hand, this is not a case where as the result of the passage
of time or unforeseeable circumstances there has been some change in the
plaintiff’s condition warranting a further defence examination.

[33]        
A second examination will not be permitted for the purpose of attempting
to bolster an earlier opinion of another defence expert.  In meeting the higher
threshold for a further examination, the defendant must show that there is some
question or matter that could not have been dealt with at the earlier
examination.

[34]        
Here, the defendant was aware at an early stage in this action of the
functional capacity evaluation performed by the plaintiff’s disability insurer
for the purpose of determining his eligibility for long-term disability
benefits.  While that report was not prepared for the purposes of this
litigation, it put the defendant on notice, if she was not already aware, that
the plaintiff’s functional capacity, both at home and in the workplace, was in
issue. Mr. Stocker maintains that he is disabled, as a result of the
injuries he sustained in the accident, from returning to work in any capacity
at UBC. This case is similar to Norsworthy to the extent that the
defendant chose to have an examination conducted by an orthopedic surgeon at a
time when she knew the plaintiff’s functional capacity was in issue.

[35]        
Further, the defendant has instructed each of her medical experts, the psychiatrist
Dr. Rasmussen, and the orthopaedic surgeon, Dr. Masri, to provide
opinions on whether and to what extent the plaintiff is restricted or disabled regarding
employment or activities of daily living.  The defendant argues that the
examination by the occupational therapist will provide objective data on the
plaintiff’s current physical functionality and “evaluate his suitability for
his current vocation and/or other possible vocations”.

[36]        
To the extent that Mr. Padvaiskas is asked to evaluate the plaintiff’s
suitability for various occupations, his functional capacity evaluation would
overlap with the proposed vocational assessment.

[37]        
The instructions provided by defence counsel to Drs. Rasmussen and Masri
overlap with the subject matter of the functional capacity assessment now
sought by the defendant.

[38]        
The defence orthopaedic examination in particular will include a
physical examination and an assessment of Mr. Stocker’s level of
impairment or disability.  The defendant has also instructed Dr. Masri to
provide his assessment of whether and to what extent the plaintiff is
restricted in terms of his employment or activities of daily living and to
comment on the implications of the plaintiff’s impairment or disability, if any,
for his future employment or activities of daily living.

[39]        
The defendant has not shown that some question or matter that could not
been dealt with in the earlier examination now exists that would warrant the functional
capacity examination she now seeks.

[40]        
Here, where the plaintiff has not yet delivered any medical reports, the
defendant has not shown that the functional capacity examination is necessary
to ensure reasonable equality between the parties in preparing their cases for
trial.

[41]        
Somewhat different considerations apply with respect to the vocational assessment. 
That assessment would evaluate Mr. Stocker’s future vocational options,
his vocational aptitude and interests, and may assist in the assessment of the
plaintiff’s income loss claims.  The vocational consultant, Ms. Gallagher,
has training and professional experience in vocational rehabilitation and the
conduct of vocational assessments to determine future employability.  Her
assessment would focus on the identification of any employment options for which
the plaintiff is suited, and the income he might generate from those
occupations, rather than the identification of the plaintiff’s physical and
psychiatric limitations and their impact upon his employment and daily living
activities.

[42]        
In my view, the assessment of the plaintiff’s vocational options is not
a matter that could have been dealt with in the earlier examinations.  Taking
into account the significant amounts involved in the plaintiff’s claims for
past and future loss of earning capacity and the importance of the issues
raised by those claims to both parties, I am persuaded that in the
circumstances of this case, the further examination of the plaintiff by the
defence vocational consultant is necessary to ensure reasonable equality
between the parties in trial preparation.

[43]        
Accordingly, the defendant’s application for an order requiring the
plaintiff to attend for a vocational assessment on January 14, 2016 with
Samantha Gallagher is granted.

[44]        
The defendant’s application for the functional capacity evaluation is
dismissed.

[45]        
The defendant will provide to the plaintiff an appropriate amount (to be
agreed or determined) to reimburse the plaintiff for his reasonable costs of
transportation to and from the Gallagher assessment.

[46]        
Within 21 days following the Gallagher assessment, the defendant will
provide the plaintiff with any notes of Ms. Gallagher that capture the
factual history given by the plaintiff as well as any test data compiled by Ms. Gallagher.

[47]        
Success is divided.  Each party will bear their own costs of this
application.

“PEARLMAN J.”