2013 ONSC 2535, 2013 ONSC 2535

CITATION : Bougouneau v. Sevigny , 2013 ONSC 2535 COURT FILE NO.: 09-391379 MOTION HEARD: March 21, 2013 SUPERIOR COURT OF JUSTICE - ONTARIO RE: 09-391379 Bougouneau v. Sevigny BEFORE: Master Joan Haberman COUNSEL: Erentzen, S. for the moving party Voudouris, A. for the responding party REASONS Master Haberman: [ 1 ] The defendants seek an order requiring the plaintiff to make himself available for a medical examination with Dr.

Paitich, an orthopaedic surgeon. [ 2 ] The motion arises in the context of Bougouneau’s action for damages for personal injuries she allegedly sustained in a motor vehicle accident that took place in November 2007. Bougouneau claims that as a result of this accident, she sustained permanent serious impairments of important physical, mental and psychological functions . This is “boiler plate” language, often included in motor vehicle- related claims in order to address the need to meet the verbal threshold in motor vehicle no-fault legislation.

THE STATEMENT OF CLAIM [ 3 ] In her statement of claim, Bougouneau asserts that the accident affected her entire musculoskeletal system . She claims she tore and damaged nerves, muscles and ligaments throughout her entire body.., suffered from neck strain and pain, chronic pain, headaches … right and left shoulder strain and pain, aggravation of lower back pain.

Among her post accident symptoms, she lists dizziness, nausea, difficulty walking, sleep disturbances, loss of appetite, weakness and low energy, anxiety and phobias, difficulty performing recreational and leisure activities and inability to perform tasks. [ 4 ] Bougouneau further asserts that, as a result of these issues, she has had to undergo lengthy rehabilitative procedures, including….medical imaging, physiotherapy treatment, massages therapy and chiropractic treatments.

She has also had to take painkillers, anti-inflammatory and analgesic medication. [ 5 ] As a result of all of the foregoing, Bougouneau claims that she has been unable to participate in employment, recreational, social, household and athletic activities to the extent that she participated in said activities prior to the accident. She claims she has and will continue to sustain a loss of income, a loss of competitive advantage, a loss of income earning potential and a diminution of earning capacity.

THE EVIDENCE Evidence filed by the defendants [ 6 ] Though both a motion record and a supplementary motion record were filed by the defence, nether provides much in the way of background. There is very little evidence as to the diagnosis and prognosis of Bougouneau’s injuries, either from any of her treating physicians or from those retained on her behalf to assess her for the purpose of this litigation. The report from the physiatrist who has seen her for the defence is also absent from the materials filed.

As a result, it is not possible to see what areas have already been covered by this defence medical examination and any possible gaps that might have been left, such that there is an obvious need for an orthopaedic assessment, as well. [ 7 ] Instead, we have Mr. Krkachovski’s affidavit, which tells us a bit about the case, as follows. The accident took place on November 19, 2007 and the plaintiff has apparently produced “voluminous medical documentation” from both treating physicians and medical professionals.

A copy of only one of these reports has been appended as an exhibit, again making it impossible to determine what issues has been raised by the plaintiff’s medical assessors that the defence must be ready to address at trial. [ 8 ] Bougouneau was apparently seen by one psychologist (Dr. Gloria Fiati) and one psychiatrist (Dr. M. Mamelak), both of whom produced reports for her. In Dr. Fiat’s case, there were four reports, dating from February 2008 to March 2012 and, in Dr.

Mamelak’s case, there were three, starting in April 2008 and running up to May 2011. [ 9 ] The plaintiff was also seen by two orthopaedic surgeons: Dr. Ansari, who produced reports dated November 19, 2007 and January 23, 2010, and Dr. Alpert, whose report is dated June 23, 2011.

[ 10 ] It is important to note that Dr. Alpert’s report of June 2011 is the only medical report included in the defendant’s motion materials. It is also the one they appear to hang their hat on, as its delivery appears to have triggered their first requests to have the plaintiff attend for any defence medical assessments. It therefore merits a close look. [ 11 ] Dr. Alpert appears to have been provided with the full package of reports that preceded his own and he spends three pages simply listing what he reviewed in preparation for the examination.

This information is all the court was given to get a sense of how Bougouneau felt immediately after the accident and how her injuries progressed. [ 12 ] Dr. Alpert also tells us a bit about the plaintiff, pre-accident, explaining that she had worked as a registered practical nurse before the accident but that she has been unable to return to this type of work thereafter.

He describes some of the challenges of that position to demonstrate why it is no longer suitable for her. [ 13 ] This is followed by a detailed discussion of the various health practitioners who were involved in Bougouneaus’s care, an indication as to why she saw each and the nature of treatment prescribed or provided by each of them. It is clear is that this plaintiff had significant complaints from the outset and was sent from one health practitioner to another. [ 14 ] Based on Dr. Alpert’s review of these earlier reports, along with his report, it is clear that Bougouneau’s prognosis shifted over time. Dr.

Yee saw the plaintiff on behalf of an insurer pre-litigation in November 2008 . At that time, his view was that her overall prognosis was fair , though he felt her impairment was a direct result of the accident and that, at that time, it caused a substantial inability to engage in the essential tasks of her pre-accident employment . [ 15 ] By the time Bougouneau was seen by Dr. Ansari in January 2010 , she was also having major problems with depression and anxiety, while still suffering from a substantial inability regarding her pre-accident employment. [ 16 ] When Bougouneau was seen by Dr.

Prutis in May 2010, that physician, a physical and rehabilitation specialist, stated that she had ongoing limitations and restrictions preventing her from returning to her previous occupation. He recommended multidisciplinary chronic pain management and the prognosis now was no longer fair but rather, guarded. [ 17 ] It was in the context of this background that Dr. Alpert examined the plaintiff in June 2011 . He concluded that her residual musculoskeletal impairments were both permanent and serious with respect to her cervical and lumbar spine, trapezii and left shoulder .

In his view, her prognosis was now poor with respect to these areas of her body . [ 18 ] The progression in the prognosis is not mentioned in the defence evidence but it is obvious from Dr. Alpert’s report. It appears, though it is not stated, that the progression of Bougouneau’s prognosis from fair to guarded to poor is why the defence started to pay attention to the case and seek out their own medical assessments. [ 19 ] The supporting affidavit focuses on laying a framework within which to talk about “levelling the playing field.” Mr.

Krkachovski states that it is apparent that if this matter proceeds to trial, the plaintiff will seek to rely on the aforementioned (those listed in exhibit

B) reports and that she will likely seek to produce Dr. Rajendra and/or Prutis, Dr. Mamelak, and Dr. Fiati, in their capacity as treating physicians. The first two are physiatrists, Dr. Mamelak is a psychiatrist and Dr. Fiati is a psychologist. [ 20 ] Mr. Krkachovski also discusses the report of Dr. Alpert, the orthopaedic surgeon, stating: In order to properly respond to the medical evidence put forward by the plaintiff, the defendants will need to rebut the evidence presented by at least Dr. Alpert , and for this reason require a responding orthopaedic assessment to be conducted. [ 21 ] Mr.

Krkachoski discusses how the defence came to be in this position. On May 25, 2012, well after receipt of Dr. Alpert’s report, their counsel wrote, asking the plaintiff to attend for three examinations with the following physicians: Dr. Hoffman (psychiatrist); Dr. Soric (physiatrist) and Dr. Paitich (orthopaedic surgeon). In response, Mr. Kram wrote as follows: We note that you are requesting two defence medicals to address Ms. Bougouneau’s physical injuries. This is not reasonable in the circumstances. We are agreeable to produce (sic) Ms.

Bougouneau for either the orthopaedic or the physiatry assessment but not both. [ 22 ] Despite some back and forth between counsel, Mr. Kram remained unconvinced and has not changed his position.

The defence selected the assessment with the physiatrist, and then wrote to say he had scheduled this motion in order to pursue the request for an orthopaedic assessment, as well. [ 23 ] As a result, the only defence medical assessments performed to date were conducted by a psychiatrist (September 12, 2012) and by a physiatrist (October 2, 2012). [ 24 ] By way of supplementary record, the defence has now filed an affidavit from Dr. Paitich, the orthopaedic surgeon by whom they seek to have Bougouneau assessed.

This affidavit is dated March 6, 2013. [ 25 ] He begins his evidence by stating that he was asked to outline the difference between an examination by an orthopaedic surgeon in contrast to one by a physiatrist . He then approaches the issue by way of letter, appended as an exhibit to his affidavit, in which he sets out what he believes are the differences. [ 26 ] In the letter, however, Dr. Paitich states that he was asked to provide an opinion on whether he felt an orthopaedic evaluation could be appropriate in the context of a tort claim . This is not the same as what he states in his affidavit.

Without question, an orthopaedic assessment could be appropriate in a tort claim. The issue for this court to decide is whether it is appropriate, in light of the evidence filed and the state of the law, in this tort claim. [ 27 ] Dr. Paitich’s letter is not helpful. He starts by describing what orthopaedic assessments are designed to do ( address the issue

of trauma) without commenting on what a physiatrist’s assessment would address. [ 28 ] He then uses overly technical language to essentially say that orthopaedic surgeons are trained in both conservative management of musculoskeletal trauma and in providing surgical solutions. He contrasts this with physiatrists who have conservative forms of management available to them, only, without the additional option of surgical intervention.

In other words, both a physiatrist and an orthopaedic surgeon are able to manage these injuries in a conservative way, whereas orthopaedic surgeons have the additional tool of surgery available to them. [ 29 ] This suggests that there is the potential for considerable overlap between the two specialities, but this is not what Dr. Paitcih says. Instead he asserts that the perspective provided by an orthopaedic surgeon is distinctly different from the perspective provided by a physiatrist. Aside from the fact that the latter will not consider surgical options, Dr.

Paitich never goes on to explain what those distinct differences are. [ 30 ] From that point on, Dr. Paitich approaches the issue from what appears to be a surgeon’s perspective. He notes that orthopaedic surgeons evaluate up to 100 people in their fracture clinics on a weekly basis, so that they have vast experience in the management of traumatically injured people.

He adds that they would have a different perspective regarding the injuries, possible treatment that may be required , along with prognosis and that their assessment would also allow for comment about whether surgical intervention could be beneficial. [ 31 ] Dr. Paitich sums up by saying: I believe it would be important to go forth with an Orthopaedic Evaluation to provide a different perspective regarding this individual’s injuries and possible management strategies for the future. [ 32 ] Aside from commenting on prognosis, none of what Dr.

Paitich says he could do as an orthopaedic surgeon has any relevance to what his role would be as a physician conducting a defence medical assessment. He was not asked to review the report of the defence physiatrist, to identify gaps that only he, as an orthopaedic surgeon, could address. I will return to this. Evidence filed by the plaintiff [ 33 ] The plaintiff obtained a letter from Dr. Alpert dated August 30, 2012 in which he states as follows: In my orthopaedic opinion, a Defence Orthopaedic Assessment of Ms. Bougouneau is reasonable with respect to the motor vehicle accident of November 1, 2007.

A Defence Physiatry assessment is not reasonable and necessary in addition to a Defence Orthopaedic Assessment. [ 34 ] That represents the sum total of the context of what Dr. Alpert wrote. He provides absolutely no indication as to why he feels this way or how he arrived at this conclusion and he appears to have issues backwards.

This is a case where a physiatry report has been already been obtained and the issue is whether an orthopaedic report is also necessary. [ 35 ] It is also unclear if these statements are specific to this plaintiff in the context of the symptoms of which she currently complains or if this is a more general opinion, despite the reference to the plaintiff’s accident. [ 36 ] The report is also unhelpful, in that, as noted, the physiatrist’s assessment has already occurred. What the defence now seeks is an assessment performed by an orthopaedic surgeon. Taken on its face, Dr.

Alpert could be taken to suggest that the defendant ought to have an orthopaedic assessment of this plaintiff, as an assessment by an orthopaedic surgeon is reasonable, whereas the assessment he had conducted by a physiatrist was not reasonable and necessary [ 37 ] I am also troubled by the language used by Dr. Alpert. It is one thing to state that a particular type of assessment is not necessary, quite another, however, to go so far as to state that it is not reasonable, particularly when this is the precise language used by counsel.

While experts retained by one party or the other often tend to be more partisan than the court would prefer, Dr. Alpert’s adoption of counsel’s language without any specific information of his own to explain why he feels this way is not at all helpful. [ 38 ] I find it extremely difficult to accept such a vague assertion absent the basis for it and I am left to query if this is simply an indication of bias being expressed by one specialist physician in favour of his own area of practice when compared to another. As a result, I find I am unable to give any weight to Dr.

Alpert’s letter. [ 39 ] In fact, I find the evidence of both orthopaedic surgeons unhelpful, as each appears to be treating this as some sort of contest as between their area of speciality and the kind of work done by physiatrists.

The evidence of the two largely cancel one another out. [ 40 ] Despite the myriad of reports that will be accessible to the plaintiff at trial as result of having been treated or assessed by both orthopaedic surgeons and physiatrists, her counsel maintains that she should only be subjected to one physical defence medical examination. [ 41 ] I turn to the law to determine if there is merit to this position in the context of the above factual matrix.

THE LAW [ 42 ] Section 105(2) of the Courts of Justice Act prescribes that the court may order a party to undergo a physical or mental examination by one or more health practitioners when their physical or mental proceeding is in question. Bougouneau has clearly put hers in question here. [ 43 ] The simple wording of the Act has been interpreted repeatedly by our court. The general consensus appears to be that there is no issue when a first request is made – the examination will be ordered and court intervention is rarely, if ever, required.

[44] Similarly, in complex personal injury actions, where the plaintiff has been treated and assessed by a battery of physicians, theparties are still usually able to come to terms as to which and how many examinations by a defendant are appropriate as full and fairdisclosure promotes settlement.

Though there are several reported cases in this area, the fact that there isn’t far more jurisprudencedealing with these issues when approximately 50% of the court’s case load involves personal injury actions suggests that, in large part,counsel manage to work these issues out. [45] There appears, however, to be a growing trend by plaintiffs to resist defence medical examinations, even in cases where theyhave amassed a body of their own expert reports pertaining to both a plaintiff’s physical and mental health. [46] The relevant

section of the Courts of Justice Act provides little guidance in terms of numbers or types of examinations. Itstates only that the court may make the order, indicating that discretion is involved. Case law, however, provides some assistance. [47] Neither counsel provided the court with one of the most recent and comprehensive cases on point. In Bonello v. Taylor 2010ONSC 5723 , [2010] OJ No. 4432, Brown J. dealt with a situation similar in some ways to the case at bar.

There, the issuebefore Brown J. was, whether or not to grant leave for a defence examination by an orthopaedic surgeon after the defendant had alreadyhad the plaintiff assessed by a physiatrist. Though the issue before Brown J. was identical to that before this court, the evidence and,hence, the facts surrounding that request were not. [48] After carefully reviewing the state of the case law, Brown J. granted leave.

There, the evidence filed by the parties made thefollowing clear: - The plaintiff was a pedestrian at the time of the accident (April 2003) and was struck in the knees by the defendant’s vehicle; - The plaintiff first served an orthopaedic report dated February 2007, wherein Dr. Ogilvie-Harris stated that, by that point, herknees had largely recovered. In his view, however, she still had problems in the paralumbar areas, sacroiliac joints and right arm , all softtissue injuries which he now considered to lead her to develop chronic pain syndrome; - A defence medical examination was conducted by Dr.

Soric, a physiatrist, in November 2009. Having reviewed the Ogilvie-Harris report, Dr. Soric focused her report on the symptoms of which the plaintiff complained: low back pain, numbness in the hands,pain in both wrists, tingling in the right foot and toes and an occasional knot in the right calf. Dr. Soric found no physiological basis forany of these complaints and concluded that the impairment of the plaintiff’s overall level of function was therefore likely due to herweight, rather than any physical pathology; - In 2010, the plaintiff served two new reports; - One was from Dr.

Prutis-Misterska, a specialist in physical medicine and rehabilitation, who included the knees in the list of bodyparts now affected by chronic pain; - The second was a further report provided by Dr. Ogilvie-Harris. In his view, the plaintiff seemed to be worse now thanpreviously. [49] I pause to point out the level of evidence that came before the court for the motion. Based on the above factual synopsis, it isclear that the court was given at least one plaintiff report that preceded the first defence medical examination, as well as the two thatfollowed it.

This enabled Brown J. to analyse how to achieve fairness in a tangible way. [50] After setting out these facts, Brown J. set out the guiding principles that emerged from the Court of Appeal’s decision inRysyk v. Booth Fisheries Canadian Co. Ltd., (ON CA), [1971] 1 OR 123, from which he quoted, as follows: It is plain that, if the defence proceeds to trial without the advantage of the examination sought, it could be seriously prejudiced.

Fairness in the conduct of this litigation seems to demand the defendant have the right now contended for, as otherwise, the opinion ofthe plaintiffs’ expert in psychiatry and the plaintiff’s own evidence would not be subjected to what is probably the best test and to a verygreat extent unchallenged. [51] From Rysyk, we get the oft repeated direction to consider these motions in terms of trying to achieve fairness between theparties.

In more recent case law, the court speaks of allowing a defence medical examination where it is necessary to “level the playingfield”. [52] Brown J. went on to set out a series of 7 guiding principles. The 5 that apply here are as follows: 1. A party seeking such an order must demonstrate that the examination sought is warranted and legitimate and that it is notbeing sought to delay the trial, prejudice the other party or only corroborate an existing medical opinion; 2.

Such a request will be considered legitimate where there is evidence (as there was in that case) that the plaintiff’s condition haschanged/deteriorated since the last defence examination; where a more current assessment is needed for trial; when the plaintiff servesreports from new specialists after the defendant has already had a defence medical assessment; or when some of the plaintiff’s injuriesfall outside the scope of first defence assessor’s expertise; 3.

While a defendant may want be able to match the plaintiff’s medical evidence, report for report, that, alone, is not a sufficientbasis for allowing a second defence medical examination.

However, as Brown J. stated: That said, I would venture that trial fairnessshould be operate as the guiding principle in this area, so if the plaintiff has decided that expert evidence from one speciality based onan examination of the plaintiff is relevant to the adjudication of her claim at trial, courts should be loathe to deny the defence a fairopportunity to respond with expert evidence from the same specialty based on an assessment of the plaintiff. Ordering furtherexamination may be just where they are necessary to enable the defendant fairly to investigate and call reasonable responding evidenceat trial;

4. A request for a second assessment must be supported by sufficient evidence to persuade a court of the need for the further examination. What constitutes sufficient evidence will vary from case to case. Whether or not the evidence is sufficient will always be a matter of judicial discretion; 5. “Creating a level playing field” is only one aspect of what the court should consider.

The party seeking this order must file evidence from someone with knowledge of the case to explain the alleged unfairness, and the nature and type of evidence will vary from case to case; [ 53 ] In the end, Brown J. agreed that a further assessment by an orthopaedic surgeon was required, on the facts before him, to level the playing field and should, therefore, be permitted. He was able to reach this conclusion as a result of the evidence that was filed.

The Role of Evidence [ 54 ] As I have stated repeatedly in many decisions, regardless of the legal test applicable with respect to any motion, the moving party’s case is only as good as the evidence they put before the court. In certain rare instances, the court can take judicial notice of certain facts, but for the most part, the onus is on a party seeking a particular form of relief to demonstrate, both factually and legally, that they are entitled to it. [ 55 ] In Nelson v.

Thiruchelvam [2005] OJ No. 743 , another case dealing with defence medical examinations, I stated: The evidence on these motions is critical, and the results will vary from case to case depending on the nature and quality of the evidence filed. …At the very least, the evidence must explain why the particular examination is required (see Bergel v. Hyundai Auto Canada (2003), 28 CPC (5 th ) 372 ).

This means setting out the nature of the specialty of the proposed physician; indicating the type of evidence they can provide and explaining why it is necessary in the context of the injuries and symptoms complained of and the evidence already tendered by the plaintiff. In other words, what evidence will the plaintiff be calling at trial that must be addressed by this particular defence expert? It is also important to bear in mind that a defendants task at trial is not to “solve the problem” or “get to the bottom” of the plaintiff’s complaints. [ 56 ] Thus, in Bonello v.

Taylor , supra , a defence medical with an orthopaedic surgeon after one had already been performed by a physiatrist was permitted because the evidentiary record demonstrated that it was necessary.

The evidence in that case showed that the plaintiff filed two new physical medicine reports after the defendant had had the plaintiff seen by a physiatrist and that these reports showed that her physical condition had materially deteriorated after the defence obtained its physiatrist assessment. [ 57 ] Brown J. concluded that, although the defence physiatrist report was not filed in evidence before him: I am satisfied that such a need can be readily gleaned from the compendium of expert medical reports filed by the defence through the affidavit of a law clerk from defence counsel’s firm. [ 58 ] Thus, Brown J. was in a position to review the various reports that had been obtained, reach his own conclusions and exercise his discretion on the basis of his findings.

Unfortunately, I was not in such a position as the evidence filed her was sparse. ANALYSIS and CONCLUSION [ 59 ] I do not find the evidence of either party particularly compelling or helpful, however it is the moving party who bears the onus on this motion. [ 60 ] Unlike what occurred in Bonello , this is not a case where the plaintiff filed new reports after the defence conducted its first physical assessment. Although it appears that the plaintiff’s prognosis has worsened over time, this was apparent before the defendant opted to proceed with a physiatrist’s report rather than one from an orthopaedic surgeon.

Having been put to their election, this was the path they chose. Now they have evidence on file from an orthopaedic surgeon effectively diminishing the evidentiary value of the report they have already obtained, an unusual strategy for counsel to have pursued. [ 61 ] While defence counsel had a number of interesting submissions as to why a defence orthopaedic assessment was needed, none of this was addressed by way of evidence or even hinted at in their factum, though these submissions were actually factual in nature. [ 62 ] Further, although the evidence from Dr.

Alpert raises concerns, this is not enough to take the defendant where they want to go. [ 63 ] My decision in Nelson was filed here by the responding party and I made my concerns regarding the lack of proper evidentiary record known to defence counsel at the outset of the motion, yet no adjournment was sought at that time. [ 64 ] The case law relied on by the defence can, similarly, be distinguished on the basis of the evidentiary record placed before the court in each of those cases, as compared to that filed in this case.

It is not enough, in motions of this kind for counsel to play his cards close to his chest and only reveal why a particular assessment is needed in the course of submissions. As I and other have said before, this is a matter of evidence. [ 65 ] I have also considered the criteria listed in Bonello and the evidence before this court comes up short. The defendant’s evidence does not make it clear why it would be unfair to allow this case to proceed to trial absent the report they now seek.

There is also no credible evidence that allows me to find that the specialist from whom they seek the report can address a gap in the earlier defence medical report. A lack of evidence cannot be remedied by submissions. [ 66 ] Accordingly, as in Nelson , I find I am, once again, unable to grant the relief sought as the evidence simply does not make the

case for it. The motion is therefore dismissed. [ 67 ] If the parties are unable to agree as to costs, I can be spoken to, but no later than 30 days after these Reasons have been released. _________________ __ Master Joan M. Haberman Released: April 30, 2013