Nystrom v. Ranson, 2011 ABQB 116

Court of Queen ’ s Bench of Alberta Citation: Nystrom v. Ranson, 2011 ABQB 116 Date: 20110224 Docket: 0803 05181 Registry: Edmonton Between: Edward Nystrom Plaintiff - and - Shawn Ranson and John Doe Defendants _______________________________________________________ Reasons for Decision of W. S.

Schlosser, Master in Chambers _______________________________________________________ [ 1 ] This application concerns Rule 5.41 and, in particular, the scope of a Defendant’s ability to have a Plaintiff examined by a health care professional. [ 2 ] The Plaintiff’s Statement of Claim alleges physical injuries arising from a motor vehicle accident. The Plaintiff claims that his physical injuries limit his present and future vocational options. There is a corresponding past and future loss of income.

No psychological harm is expressly referred to in the Statement of Claim. [ 3 ] The Plaintiff proposes to tender expert evidence from an occupational therapist and a vocational rehabilitation counsellor at

trial. This evidence is in addition to the evidence of physicians and an orthopaedic specialist. The Plaintiff has not proposed to call a psychologist or a psychiatrist. [ 4 ] The Plaintiff has agreed to an examination by two Defendants experts, but seeks to limit the length and scope of these examinations. Dr. Hall [ 5 ] The Defendant seeks to have the Plaintiff examined by Dr. Timothy Hall, an occupational therapist. The Plaintiff agrees that Dr.

Hall is a fully qualified occupational therapist but argues that the nine hour examination and assessment proposed by him is excessive when, evidently, a two to four hour examination is the norm. An occupational therapist is a “health care professional” as defined by the Rules. [ 6 ] There is no doubt that the Court has the power to limit or restrict a defence examination of the Plaintiff. In Tat v. Ellis , 1984 Carswell Alta. 145 , at para. 15 (per Kerans, J.A.) , the Court of Appeal discussed the overriding discretion of the Court to limit or restrict examinations sought under old Rule 217.

They cited the following factors: ... the degree of competence of the proposed testor, the weight of the evidence of the reliability and usefulness of the test, the importance of the test or the diagnosis, the degree of relevance to the suit. That aspect of the diagnosis, the degree of intrusion into the privacy of the Plaintiff, and health risks involved in the test, a reasonableness in terms of time and effort, of the demands of the proposed test will make upon the examinee, and, finally, a balancing of the potential expense against the good achieved. [ 7 ] In Feniak v.

Backhouse , 2010 ABQB 232 , Madam Justice Read said, at para. 15: I accept as a general premise that the risk of harm to a Plaintiff is valid consideration for a Court in an application for an examination under Rule 217. I am satisfied as well, that the onus is on the Plaintiff seeking to avoid a defence medical to establish a real risk of serious injury . (emphasis added) [ 8 ] In Crone v.

Blue Cross Life Insurance Company of Canada , 2001 ABQB 787 , Madam Justice Acton said (at para. 26): First, it seems eminently reasonable that defence medical examiners, indeed all medical professionals, should be left to conduct their medical examinations as they see fit, unless there is a compelling reason for the Court to interfere or the Rules permit it, as for example, the Rule allowing the presence of a medical nominee chosen by the Plaintiff. [ 9 ] The new Rules may have expanded what used to be an independent medical examination under old Rule 217 but the considerations applicable to the court’s overriding discretion remain the same. [ 10 ] In my view, the nine hour testing proposed by Dr.

Hall is not overly intrusive and I am reluctant to second guess the reasons for a lengthier examination than is evidently the norm. Further, it may be preferable to give a defence expert some latitude simply because it may take additional time for a defence expert to gain the level of confidence and trust that a Plaintiff might have with their own health care professional. Accordingly, I am not willing to limit Dr. Hall’s examination of the Plaintiff to less than the proposed nine hours.

Dr. Berendt [ 11 ] The Plaintiff intends to call a vocational counsellor as an expert witness. Dr. Berendt , the proposed defence expert, is a qualified psychologist. He has also been qualified to give expert vocational assessment evidence at other trials. [ 12 ] As a qualified psychologist Dr. Berendt is a “health care professional” as defined by the Rules. [ 13 ] Dr. Berendt’s CV shows that he has been qualified as an expert in 16 Queen’s Bench trials. He has also apparently given expert testimony in the USA.

Virtually all of the cases listed in his CV relate to vocational assessments connected with Chronic Pain ,or, joint vocational and psychological assessments. [ 14 ] The Plaintiff does not object to Dr. Berendt performing a vocational assessment. However, he does object to the battery of psychological tests proposed to be administered by Dr. Berendt. [ 15 ] Vocational assessments are not specifically mentioned in the

definitions to the Rules and a vocational assessment per se would not automatically be permitted without the agreement of the Plaintiff. [ 16 ] I am prepared to allow the testing proposed by Dr. Berendt even though he may approach the topic from a psychological perspective. [ 17 ] Psychological issues are not expressly mentioned in the Statement of Claim but judicial notice can be taken of the fact that the physical health of individuals ‘may be affected by their psychological and psychiatric health’ ( Jacobson v. Sveen , 2001 ABQB 989 , per Veit, J. at para. 25).

This consideration applies to income loss as well. [ 18 ] Furthermore, the Defendant specifically put the Plaintiff’s psychological condition into issue in paragraph 5(f), in relation to housekeeping damages, and, by extension, to loss of income, in paragraph 5(g). [ 19 ] Psychological testing is not obviously inconsistent with vocational assessment. The relation of the proposed tests to a vocational assessment is explained at p. 3 of Dr. Berendt’s January 18, 2011 letter marked as exhibit “F” to the Affidavit of Sonia Smith.

The evidence tendered by the Plaintiff falls short of demonstrating that the proposed testing is inappropriate or otherwise crosses the line set by the decided cases. [ 20 ] Much was said about balancing or levelling the playing field. ‘Balancing or levelling’ is usually spoken of in the context of unfairness to a Defendant if they are not permitted to have the Plaintiff independently examined.

There may be some risk in a mandatory motor vehicle accident insurance regime that a deep pocketed Defendant can “out expert” a Plaintiff but provided that an examination by a health care professional conforms to the factors set out above, it should be permitted. The Plaintiff always has the freedom to reply with a further expert. [ 21 ] Accordingly, the proposed examinations will be allowed to proceed. Heard on the 8 th day of February, 2011. Dated at the City of Edmonton, Alberta this 24th day of February, 2011.

W. S. Schlosser M.C.C.Q.B.A. Appearances: Helmut Berndt Helmut Berndt Prof. Corp. for the Plaintiff Colin Neal Dean Duckett Carlson for the Defendants