Barry John Milne Plaintiff - v. -, 2012 ABQB 302

Court of Queen ’ s Bench of Alberta Citation: Milne v. Workers ’ Compensation Board, 2012 ABQB 302 Date: 20120508 Docket: 0201 06395 Registry: Calgary Between: Barry John Milne Plaintiff - and - The Workers ’ Compensation Board, Dr. Priscilla Barnes, Dr. Maxwell G. Plageman Defendants _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice C.A. Kent _______________________________________________________ [1] The Defendants Dr. Priscilla Barnes (Barnes) and Dr. Maxwell Plageman (Plageman) bring an application for

summary judgment of the claim against them on the basis of the statutory privilege contained in section 34(4) of the Workers ’ Compensation Act , RSA 2000 W-15. That

section of the Act provides as follows: A report made or submitted to the Board under this Act by a physician or a hospital or other treating agency is for the use and purpose of the Board only, and is a privilege communication of the person making or submitting it and, unless it is proved that it was made maliciously, is not admissible in evidence or subject to production in any court in an action of proceeding against that person.

[2] Neither Barnes or Plageman were treating physicians of Mr. Milne. Rather, they were both medical advisors to the WCB. Dr. Barnes’ only involvement with Mr. Milne was as an advisor. She provided 11 reports to the WCB. At no time did she examine Mr. Milne or communicate with him. Likewise, Dr. Plageman did not meet with, examine or communicate with Mr. Milne. He prepared a report date May 5, 2000 to the WCB. Counsel for Barnes and Plageman argue that the reports are privileged pursuant to section 34(4) and without those reports there is no evidence to provide any basis for Mr. Milne’s action. [3] Mr.

Milne’s original claim contained many allegations against both Barnes and Plageman. Previously, counsel for Barnes and Plageman brought an application for

summary judgment on the basis that they owed no duty of care to Mr. Milne, that the claim is barred by the Limitations Act RSA 2000 c. l-12, that there was no evidence to support the claim of conspiracy and finally that allegations of abuse of process were a relitigation of an earlier action. The Master ruled that it was not plain and obvious that the limitation period had passed, and second, that the law was evolving on the issue of duty. Accordingly she did not grant

summary judgment on that basis. She agreed that there was no evidence alleged with respect to the claim of conspiracy and dismissed that claim. Finally, she dismissed the argument with respect to abuse of process. As a result, she ordered that the claims against Barnes and Plageman could proceed to trial on allegations that they were negligent in handling his case, breached a duty to be fair and neutral in their approach to handling his case and that they defamed him. [4] Mr. Milne argues that the errors and misstatements made in the letters of both doctors amount to malice.

In argument, both orally and in writing submitted after oral argument, Mr. Milne referred me to the questioning of the doctors along with documents authored by others. He says there are errors in the doctors’ letters, there are facts and conclusions from others who handled his file that are not included in their reports and that they did not have or ignored information that they should have considered. He said that they did all of this deliberately, they used their positions to prevent his medical care, and failed to remain neutral in their assessment and recommendations. [5] Turning specifically to Dr.

Plageman’s letter, he has two conclusions. First, there may have been temporary aggravation to the cervical spine caused by the work related injury. Second, if a Medical Panel was established, a number of questions should be put to them to determine the diagnosis and cause of any cervical injury. [6] Dr. Barnes wrote 11 memos or letters about Mr. Milne. They are: 1 . A memo stating that a recent M.R.I. showed significant disc pathology and recommending a referral. 2 . A memo dealing with the referral. 3 . A memo stating that Mr.

Milne’s behaviour was becoming more bizarre, recommending an M.R.I. and then a consultation with another doctor. 4 . A memo summarizing the conclusions of three doctors and recommending that Mr. Milne was fit for light work. 5 . A memo summarizing conversations with Mr. Milne’s family doctor about referrals. 6 .

A memo summarizing a report from a specialist recommending no further referrals, concluding that he suffered a contusional type injury to his neck and shoulder and that his slow recovery was due to psychological maladjustment to his chronic pain and recommending sedentary or light work and counselling. 7 . A memo apparently responding to comments made in a ministerial inquiry, stating that there was no pathological condition to account for the bizarre symptoms and no organic cause for the pain focused bizarre behaviour.

8. A memo summarizing a report from a psychiatrist, a recommendation that WCB consider helping him with his addictionproblem, stating that he was fit for sedentary or light work and a recommendation that a copy of the psychiatrist’s report be sent to thefamily physician. 9. A memo recommending against a myelogram and summarizing a discussion with the family physician regarding his medication. 10. A memo recommending a referral to a spine surgeon to see if any of the problems are related to this cervical spine. 11. A memo summarizing Mr.

Milne’s attendance at a pain clinic in Toronto, commenting in the report from the pain clinic andrecommending repeat X-rays and an evaluation of the pain clinic reports by another doctor. [7] For the purposes of this application, I will assume that both doctors owed a duty of care to Mr. Milne. I will assume that eachacted carelessly, omitted information, misunderstood information and misinterpreted information. For the reports to be admitted,however, there must be one further element-malice.

Malice means “[t]he intent, without justification or cause, to commit a wrongful act, [r]eckless disregard of the law or a person’s legal rights ...” (Black’s Law Dictionary, 9th Ed), “ ... an improper motive in the sense of amotive to injure the plaintiff or to benefit the defendant or some party other than the plaintiff (Williams v. Webb, (ONCA), [1961] O. R. 353 at 364). [8] If I permitted this action to go to trial against the doctors, Mr. Milne would need to prove that they had a motive to injure himwithout any justification before their reports could be admitted in evidence.

Even with all of the assumptions that I have set out above, Ihave been shown no such evidence. Without that evidence, Mr. Milne’s action against the doctors will assuredly fail.

Summary judgmentis granted to the defendant doctors. Heard on the 27th day of February, 2012. Dated at the City of Calgary, Alberta this 8th day of May, 2012. C.A. Kent J.C.Q.B.A. Appearances: Barry Milne Self-represented

E. Bruce Mallett for the Defendants