IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20160308

Docket: M112434

Registry:
Vancouver

Between:

Heather Gawlick

Plaintiff

And

Joon Lim and Hertz
Canada Limited doing business as
Hertz Canada Vehicles Partnership

Defendants

Before:
Master Muir

Oral Reasons for Judgment

In
Chambers

[1]            
THE COURT:  This is an application by the
defendants for an order that the plaintiff attend a defence medical examination
by a Dr. Waseem, a physiatrist, on March 21, 2016, and for costs.

[2]            
The background is that the action involves a claim
for personal injury and damages arising out of a motor vehicle accident that
occurred on June 13, 2009. The plaintiff is claiming various injuries,
including a soft-tissue injury of the neck, back and right shoulder, injuries
to the chest, abdomen and so forth. She is seeking recovery of non-pecuniary
loss, loss of income, loss of capacity to earn income in the future, special
damages and future expenses.

[3]            
The plaintiff’s examination for discovery took
place on August 8, 2012, and a further examination was held in February of
this year. The trial is scheduled for July 11, 2016 for ten days. The
deadline to serve expert reports, that is the 84-day deadline, is April 18,
2016.

[4]            
The plaintiff attended a defence medical
examination with Dr. McPherson, an orthopedic surgeon, on June 24,
2013. Dr. McPherson prepared a medical/legal report dated September 10,
2013 and that was served on plaintiff’s counsel on October 4, 2013.

[5]            
The plaintiff has served on defence counsel a
medical/legal report of Dr. Madison, a general practitioner, dated April 17,
2011, and a report of Dr. Rosemary Nairn Stewart, a physiatrist, dated March 31,
2014. Both of these reports were served December 15, 2014.

[6]            
Dr. Stewart diagnosed the plaintiff with
soft-tissue injuries to the neck and back, and found symptoms and signs of a
secondary thoracic outlet syndrome. Her opinion was that, given the duration of
the plaintiff’s symptoms, she will continue to experience all of her current
symptoms in the future, due to her injuries from the accident.

[7]            
The plaintiff has also served a medical/legal
report of Dr. Hoy, a chiropractor, a work capacity evaluation and a
vocational assessment report. The plaintiff opposes the independent medical
examination by Dr. Waseem.

[8]            
I should add that the plaintiff has agreed, and
the defendants have conducted, a vocational assessment and a functional
capacity evaluation.

[9]            
The legal basis for this type of order is not in
dispute. Both parties relied on the statement of the law contained in
Hamilton v. Pavlova, 2010 BCSC 493.

[10]        
The primary issues as defined by the defendant
applicants are, in their words, firstly, “proportionality”; secondly, that this
is not an attempt to bolster a previous opinion; and thirdly, timeliness.

[11]        
The case before me is somewhat unusual in that
the defendants bring a lengthy affidavit from Dr. Waseem. In that
affidavit, Dr. Waseem points out the differences between his practice and
the practice of an orthopedic surgeon with a particular focus on this patient.
He also attaches his CV to his affidavit.

[12]        
I am just going to refer from some excerpts from
Dr. Waseem’s affidavit. His evidence is:

I have a broad-based
physiatry practice that includes the assessment and treatment of patients with
chronic pain, neurological and musculoskeletal injuries.

[13]        
He considers Dr. McPherson’s qualifications
and says:

Dr. McPherson’s curriculum vitae in
describing his practice and experience includes no reference to chronic pain.
I see no references to Dr. McPherson’s qualifications with respect to
neurological conditions.

I have
privileges at Oakville-Trafalgar Memorial Hospital, where I perform and
interpret nerve conduction studies and electromyography (EMG). Conditions that
are commonly diagnosed and treated include radiculopathy peripheral nerve
injury or entrapment, brachial and lumbar plexus injuries. This is particularly
relevant to Ms. Gawlick since she was diagnosed with thoracic outlet
syndrome by Dr. Stewart, a neurological condition I have experience
and expertise with.

[14]        
He goes on:

As a physiatrist
I am able to comment on cases involving chronic pain without orthopedic
fractures. An orthopedic surgeon’s expertise lies in obvious structural or
mechanical causes for pain. When no such causes are present a surgeon’s
expertise is limited. In my practice as a physiatrist I regularly assess
patients with chronic …

It says “care”,
I am sure, as urged on me by counsel, it should read “chronic pain”:

… and can evaluate their complaints beyond
strictly a biomechanical model that is used by orthopedic surgeons.

As an orthopedic
surgeon, Dr. McPherson appropriately focused on the absence or presence of
physical impairments in formulating his opinion on the matter of objective
disability arising from the subject accident. A further assessment is necessary
if the plaintiff’s condition is complicated by her chronic pain, a medical
condition not addressed by Dr. McPherson in his report but raised by Dr. Stewart
in her report.

[15]        
Dr. Waseem comments on his review of the
records and the plaintiff having several risk factors for developing chronic
pain, and then continues:

Dr. Stewart
in her medical/legal report diagnoses the plaintiff with bilateral thoracic
outlet syndrome. However, Dr. McPherson in his physical examination found
no objective evidence of physical disabilities or any medical rationale for
continuing passive modalities. Diagnosis of thoracic outlet syndrome is a
potentially significant new development. Thoracic outlet syndrome is
neurological condition with risks and deterioration causing weakness and potentially
causing disability. As a physiatrist with an interest in neurological
conditions, I have often assessed patients with thoracic outlet syndrome
in practice.

[16]        
He sets out that a records review would be
insufficient for him to provide a comprehensive opinion.

[17]        
He says an assessment is necessary to inquire
into her current and most up-to-date level of function and continues:

An assessment is also necessary for me to
perform a detailed physiatric musculoskeletal examination of the plaintiff. As
a physiatrist my examination will look for muscle spasms and trigger points,
top bands, muscular imbalances, postural abnormalities, extensive muscle
strength testing and other soft tissue findings which is common in my practice,
but less common in orthopedic practices.

I note that Dr. McPherson
did not comment on the presence or absence of relevant soft tissue pathology,
including pseudo motor changes, swelling and sweat changes, vasomotor changes,
temperature asymmetry or skin colour changes, motor/trophic changes, muscular
atrophy, alteration in hair, skin or nails. In my experience these factors are
crucial in assessing cases that pertain to chronic pain. Dr. McPherson did
not conduct a neurological examination, evaluating for thoracic outlet syndrome
or other neurological conditions. Dr. McPherson did not comment on
neuropathic pain features such as allodynia pain, pain with non-painful stimuli
and hyperalgesia, heightened in response.

[18]        
The plaintiff says the defendants had the
advantage of an examination for discovery of the plaintiff before they selected
their expert. It was clear from the plaintiff’s examination for discovery in
2012 that she had continuing pain from the accident and hence, chronic pain, as
the accident was in 2009 and the discovery was in 2012.

[19]        
It is the plaintiff’s submission that orthopedic
surgeons treat diseases, including torn ligaments, sprains, strains, tendon
injuries, pulled muscles and bursitis; that it is evident from Dr. McPherson’s
report that he conducted a physical examination, including of the spine and
bilateral shoulders; that he commented on issues of musculoskeletal pain in the
spine and shoulders. He examined the plaintiff and commented on neurological
issues such as reflexes, sensation and power.

[20]        
They strongly submit that this second
examination should not be allowed as it is simply an attempt to bolster the
opinion of Dr. McPherson. They say that, although the defendants may now
prefer to have retained a physiatrist, there is no question that Dr. McPherson
is qualified to comment on musculoskeletal pain and treatment, and he did so.

[21]        
Lastly, the plaintiff submits that this is not
brought on a timely basis. They point out that the report of Dr. Stewart
was served in December 2014. The trial of the matter is July 11, 2016
and there are no assurances from Dr. Waseem that a report will be prepared
in time for the trial and in time for the plaintiff to have a proper
opportunity to respond to any opinions he may advance.

[22]        
I have considered the factors I must look
at with respect to a second independent medical examination, particularly where
there is — as is acknowledged by the defendants — overlap between the
expertise of the existing report and the independent medical examination that
is sought. The hurdle is high. The objective is to ensure reasonable equality
between the parties. The objective is not to match expert for expert, but is to
ensure that both parties are fairly able to advance their case at trial.

[23]        
Dr. McPherson’s report is dated and
circumstances have changed in the meantime. The affidavit of Dr. Waseem
satisfies me that a second independent medical examination by him is more than
something that is sought to bolster the opinion of Dr. McPherson.

[24]        
I am satisfied by Dr. Waseem’s
evidence that the diagnosis of thoracic outlet syndrome is a potentially
significant new development. That is a factor of significance in the authorities.
This is a new development that obviously could not have been addressed by Dr. McPherson
in his report. Although the chronic pain was perhaps evident at the time of Dr. McPherson’s
examination, he did not comment on it and it appears that Dr. Waseem has
considerably more expertise in this area. Dr. Waseem’s evidence satisfies
me that his examination would break new ground in this regard as well.

[25]        
The damages given the plaintiff’s ongoing
condition could well be significant, which is relevant to the proportionality
of ordering this further examination.

[26]        
Given the distinctions between the
investigations to be conducted by Dr. Waseem and what has been done by Dr. McPherson,
although, yes, there is some overlap, I am satisfied that the new
independent medical examination is warranted in all the circumstances and the
order is granted.

[27]        
I should say with respect to timeliness: I am
satisfied that although there is no evidence from Dr. Waseem that he will
prepare a report in the time required by the Supreme Court Civil Rules,
there is ample time for such a report to be prepared and I would expect
that if he does not do so, there will be objections based on his failure to do
so.

[28]        
Given the result, the defendants will have their
costs.

[29]        
Has liability been admitted?

[30]        
MR. LEONI:  It has not.

[31]        
THE COURT:  The defendants will have their costs in the
cause.

“Master Muir”