IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20151207

Docket: M136276

Registry:
Vancouver

Between:

Jodene Gee

Plaintiff

And

Baltej Basra

Avtar Basra

A-G Tej
Construction Ltd.

Defendants

Before:
Master Harper

Oral Reasons for Judgment

In
Chambers

[1]            
THE COURT: There are two applications before me. The first is a defence
application for an authorization for the production of certain medical records
of the plaintiff, and the next is an application that the plaintiff attend an
independent medical examination with a neurologist.

Application for an authorization
for the production of certain medical records of the plaintiff

[2]            
I will deal with the application for the production of medical records
first. The application is framed as follows:

That within seven days of the date of this order the
plaintiff do provide to counsel for the defendants, or alternatively do provide
signed authorizations for the release of the following documents and
information:

…

(e) the complete clinical records
from the massage therapist in Burnaby who treated the plaintiff post-accident,

(h) the complete clinical records of all optometrists,
ophthalmologists and eye surgeons who have treated the plaintiff post-accident.

[3]            
The application, in my view, is couched in a rather unusual way. Counsel
for the defendants says that an application for the production of signed
authorizations is a more efficient way than giving notice to third party record
holders. While it might be efficient to proceed in this way, in my view, it is
not good practice to apply without notice to third party record holders.

[4]            
In my view, an order that the plaintiff sign authorizations does nothing
to compel the third party to produce records, and it is the third party who
should be bound by the court order and not the plaintiff. However, both counsel
seem to agree that the application is not irregular, and with some reluctance,
I will accede to the method that has been adopted here.

[5]            
Counsel for the plaintiff says that the plaintiff has no objection to
signing an authorization, but wants it to go in a Halliday form. Again, this is
an example of some kind of a hybrid position. A Halliday order is more properly
the subject of an application that a third party produce records. However,
again, acceding to counsel’s request to get this matter resolved, I will
deal with the application on the basis on which it is framed.

[6]            
Counsel for the plaintiff says that since he has yet to receive the
massage therapist and eye doctor records, he cannot say what is in those
records. Therefore, out of an abundance of caution and in order to protect his
client’s interests, he says that the order should go in Halliday form.

[7]            
Halliday orders should not be granted without good reason. There has to
be evidence of some sort that the records may contain confidential or private
information, and there is no evidence before me that such privacy interests are
paramount.

[8]            
However, again, and returning for a third time as to how irregular this
application is, the application is for an authorization signed by the plaintiff
that documents go directly to counsel for the defendants. I do not think
that is appropriate, and I am going to accede to the plaintiff’s position,
without setting any kind of precedent whatsoever, that the plaintiff sign an
authorization for the release of the requested documents, but that the
documents go to counsel for the plaintiff in a Halliday form.

[9]            
I do not know how counsel is going to draft that order because it is a
strange hybrid of a Halliday order, but in the interests of efficiency, I will
make the order. However, I have to say that, when it comes to time to make
court applications, it is my view that the application should be made in the
conventional way. The non-party record-holder should be given notice and the
application should be framed as requiring the record-holder itself to produce
the records, whether by Halliday or some other form.

Application for the plaintiff to
attend an independent medical examination with a neurologist

[10]        
I now turn to the application for the independent medical examination
with a neurologist. The plaintiff was injured in a motor vehicle accident and
claims that she has sustained injuries. The injuries as set out in the
application response are as follows:

a)    chronic
mechanical neck pain,

b)    chronic
mechanical low back pain,

c)     cervicogenic
headaches,

d)    whiplash
associated disorder,

e)    chronic
myofascial pain syndrome,

f)      sleep
disorder, and

g)    headache
attributed to trauma or injury to the neck (headache occurring within seven
days of trauma and persisting for greater than three months in duration).

This action is a fast track action, which gives us some
idea as to proportionality.

[11]        
At the request of the defendants, the plaintiff has seen an orthopaedic
surgeon, Dr. Rickards, and his report is before me. The plaintiff has delivered
two expert reports, one from a neurologist and one from a physiatrist.

[12]        
In the letter of instruction to Dr. Rickards, counsel for the defendants
sets out that Dr. Rickards is to include his diagnosis of any orthopaedic
injuries currently affecting the plaintiff. Then the letter of instruction goes
on to request Dr. Rickards’ opinion as to the likely causation of the
plaintiff’s orthopaedic injuries, his current prognosis for the plaintiff’s orthopaedic
injuries, and his opinion as to treatment recommendations for these orthopaedic
injuries. However, the letter of instruction further goes on to state as
follows:

Whether in your opinion the
plaintiff has been rendered disabled, in whole or in part, to this point in time
as a result of any injuries sustained in this motor vehicle accident with
regard to her regular employment as a project manager for a fibreglass
production company as well as employment generally, and further, whether there
is any ongoing disability now and into the future.

In my view, the letter of
instruction, although mostly clear in terms of requesting an orthopaedic
opinion, seems to go further than just that.

[13]        
The statement of assumed facts provided to Dr. Rickards sets out
the history of the plaintiff’s injuries, which includes the history of the
headaches. It is quite clear that Dr. Rickards had before him the
plaintiff’s entire medical history, which includes headaches.

[14]        
Dr. Rickards does address the headache issue in his report, and
counsel for the plaintiff takes the position that the issue of headaches has
been thoroughly canvassed. The reason for the independent medical examination with
a neurologist is stated to be to address the headache issue.

[15]        
Dr. Rickards’ report does not set out any limitations that he sees
with respect to not being able to opine on any issues that he might think are
properly the sole purview of a neurologist. He does deal with the headaches in
a thorough way, in my view.

[16]        
One of the difficulties I think that the defendants are facing is
that the “Clinical Diagnosis” section of Dr. Rickards’ report states:

1)     possible
cervical facet joint syndrome;

2)     possible
lumbar facet joint syndrome; and

3)    
left sacral iliac joint strain, low back.

[17]        
Dr. Rickards further goes on even to talk about causation of the
possible cervical facet joint syndrome. Quite oddly, even though he makes a
finding of a possible cervical facet joint syndrome, he says with
respect to causation as follows:

The relationship in time between
motor vehicle accident of October 2011 and onset of neck/shoulder
headaches, as well as low back symptoms, suggest these two events are
related in a cause-effect relationship. [Emphasis added.]

[18]        
Dr. Rickards’ report does go further and talk about the headache issue,
and counsel for the plaintiff in his application response pulls out certain
references. For instance, Dr. Rickards says:

Ms. Gee presents with
occipital headaches, symptoms which can be associated with inflammation to the
C2/C3 facet joint level affecting the third occipital nerve, and further, at
the C2/C3 level, irritation of the TON can result in significant and disabling
headaches.

[19]        
And he goes on to discuss the treatment that Ms. Gee received for
her neck pain and refers to the occipital nerve block, which he says did not
provide significant pain relief. He says that:

This would suggest that
irritation of the occipital nerve is likely at the level of the C2/C3 facet
joints.

He says:

Medial branch blocks at this
level would be appropriate.

Further, he says:

For TON symptoms there is a high
expectation of success with or without ongoing litigation. In my experience,
the very least that can be expected from a successful RF with accompanying 
decreased pain in the neck, shoulder, lower back, as well as decreased
headaches, is the opportunity for the patient to participate in a more active
rehabilitation program and a more rapid return to normal lifestyle and
activity.

Further, Dr. Rickards’ report
includes various illustrations, such as a cervical facet pain map, the
occipital nerve and occipital neuralgia.

[20]        
One might think that this is a thorough neurological report, even though
it is prepared by an orthopaedic surgeon. However, counsel for the defendants
requested Dr. Rickards’ opinion as to whether he believes it is necessary
for a neurologist to assess her in regard to her headaches or her neck and back
pain issues. Dr. Rickards replied and said:

Yes, a second neurology opinion
as to headaches would be of value. Dr. Woolfenden, neurologist, has
performed occipital nerve blocks in March 2013 with no improvement in
symptoms. I find this puzzling as symptoms are certainly suggestive of
occipital nerve irritation.

[21]        
Dr. Rickards here seems to be couching his possible diagnosis with
respect to neck pain in a way that might open the door to a neurological
independent medical examination. However, in my view, the rather minor
limitation set out in Dr. Rickards’ response to the request for his
opinion on whether a neurological assessment would be appropriate does not go
so far as to justify making the order for a neurological independent medical
examination in this case.

[22]        
An order for a subsequent independent medical examination is a
discretionary order, and the onus is a high one on the defendants to establish
that a further independent medical examination is necessary to put the parties
in a position of reasonable equality.

[23]        
In my view, the fact that Dr. Rickards’ opinions about the
headaches seem to be a possible diagnosis does not render his opinion a non-opinion
on the headaches. He is simply stating that his opinion is that there is a
possible diagnosis of cervical facet joint syndrome. His opinion is thorough,
and the territory has now been fully occupied by Dr. Rickards.

[24]        
I see that Dr. Rickards does address causation, prognosis and treatment,
even though his opinion seems to be rather tenuous. However, in my view, the
defence has to live with Dr. Rickards’ report the way it is. It is
possible that Dr. Rickards could be asked to produce another report in
reply to the neurology report tendered by the plaintiff. That is something that
is certainly up to the defence to do if that is what they so choose, but the
defence has not met the heavy onus that is required to make an order for a
neurological independent medical examination in this case. Therefore, the
application is dismissed.

[25]        
The plaintiff will have her costs of this application.

“Master Harper”