Hamilton v. Demandre, 2010 BCSC 1914

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Hamilton v. Demandre, 2010 BCSC 1914 Date: 20101230 Docket: 10 3133 Registry: Victoria Between: Robyn Mary Hamilton Plaintiff And: Margot Lyth Demandre Defendant Before: Master Bouck Oral Ruling Re: Medical Examinations In Chambers Counsel for the Plaintiff: M. Selly Counsel for the Defendant: B. McConnan, Q.C. Place and Date of Trial/Hearing: Victoria, B.C. December 30, 2010 Place and Date of Judgment: Victoria, B. C. December 30, 2010 [ 1 ] THE COURT : In this personal injury action, the defendant seeks an order that the plaintiff attend and submit to (

a) an independent medical examination with Dr. Desmond Bell on January 7, 2011, at 12:00 p.m., and (

b) balance testing conducted by Art Malinson at 8:00 a.m. that same day. [ 2 ] Dr. Bell is an ear, nose, and throat specialist (or “ENT”) who in turn recommends the balance testing. [ 3 ] The plaintiff resists the application on the basis that the examination is neither necessary on the evidence nor permissible under the Supreme Court Civil Rules .

Furthermore, the plaintiff says that she will be prejudiced if the defendant's application is granted, as there will be insufficient time between now and trial to undergo an examination by her own ENT specialist. [ 4 ] The trial of this action is scheduled to proceed for 20 days in March 2011. Liability, causation, and damages will be in dispute at that trial. [ 5 ] All of the facts relevant to this application are set out in the application record.

For the purposes of these reasons, I will attempt to summarize those facts. [ 6 ] The trial to be heard in March 2011 will concern two actions brought by the plaintiff. The first action relates to injuries suffered by Ms. Hamilton in a 2002 motor vehicle accident (the “First Action”). The defendants in the First Action are represented by separate counsel. The accident, which is the subject matter of this action, occurred on April 6, 2010.

Counsel for the defendant in this action was appointed in August 2010. [ 7 ] It was agreed by all parties concerned that the trial of the two actions would be heard at the same time. The March 2011 trial date had been reserved in September 2009. [ 8 ] The medical evidence and the pleadings reflect the allegation that the second motor vehicle accident aggravated injuries and/or symptoms suffered in the 2002 accident.

The plaintiff does not allege that the second accident caused any new injuries. [ 9 ] The plaintiff's ongoing complaints include visual vestibular mismatch with associated dizziness, motion sickness, balance problems, and double vision. [ 10 ] The plaintiff is a realtor by profession. Following the 2002 accident, Ms. Hamilton returned to her work as a realtor, despite ongoing complaints and alleged MVA-related symptoms. Ms. Hamilton has not returned to work in any capacity since the April 2010 accident. According to some of the medical information before me, it is Ms.

Hamilton's inability to drive, due to the visual vestibular mismatch, which prevents her return to the workforce.

[ 11 ] At the request of the defendants in the First Action, the plaintiff has been examined by Dr. Moll, a neurologist, and Dr. Warren, an orthopaedic surgeon. The examinations occurred before the second accident. Both of these physicians opine that the plaintiff's complaints are psychosomatic in nature. [ 12 ] In March 2010, or just prior to the second accident, the court dismissed the defendants’ application in the First Action for an order that the plaintiff be examined by a psychiatrist: Hamilton v. Pavlova , 2010 BCSC 493 .

However, the plaintiff did undergo an independent psychiatric examination at the request of the defendant in this action. That examination was conducted by Dr. Alexander Levin on November 24, 2010. The results of Dr. Levin’s examination are contained in a report issued five days later. [ 13 ] In October of this year, thus prior to Dr. Levin's examination, the plaintiff served, pursuant to Rule 11-6(3), a number of expert reports, including a medical-legal report by Dr. Neil S.

Longridge, an ENT specialist, dated November 15, 2007 and a neurological physiotherapy reassessment report prepared by Cathy Coshman, dated August 23, 2010. [ 14 ] Dr. Longridge diagnoses the condition of visual vestibular mismatch and opines that the 2002 accident is the probable cause. Depending on the outcome of this application, the plaintiff does not intend to tender any further evidence from Dr. Longridge, other than the doctor’s raw test data. [ 15 ] Ms. Coshman, who saw the plaintiff both before and after the second accident, opines that the second accident "almost nullified" improvement in Ms.

Hamilton's balance, ocular vestibular disturbances, and cognitive problems following the first accident, but also that Ms. Hamilton is recovering slowly and, as of August 2010, was still within the spontaneous recovery period. Further, Ms. Cossman states that while it is expected that the various symptoms, including the ocular vestibular disturbances, will improve over time, there will remain some irreversible damage. Ms. Coshman recommends that the plaintiff remain off work for a further period of time and limit her driving. [ 16 ] The reports of Ms. Coshman and Dr. Longridge were provided to Dr.

Levin in advance of the November 24 examination. In his report, Dr. Levin mentions the visual vestibular mismatch, but says that he will "defer a clinical opinion regarding Ms.

Hamilton's physical injuries to specialists in internal medicine, ENT, neurology, and orthopaedic surgery." [ 17 ] He opines that there are no underlying psychological/psychiatric disturbances that would explain the plaintiff's complaints of motion sickness and double vision. [ 18 ] It would appear that the defendant in this action considered the possibility of an independent medical examination by an ENT specialist around the same time that Dr. Levin was retained. The appointment with Dr. Bell for January 7 was obtained on November 12.

On December 7, defence counsel made the request that the plaintiff attend the examination with Dr. Bell. That request was rejected by plaintiff's counsel one week later. [ 19 ] On December 10 and 15, respectively, the plaintiff served on the defendant two additional reports. The first, a report of an occupational therapist dated November 5, 2010, purports to show the plaintiff's future care costs. The second report is that of the plaintiff's family physician, Dr. Ballard, dated November 27, 2010. The deadline for serving expert reports pursuant to Rule 11-6 (3) expired on December 13, 2010.

The defendant is apparently not objecting to the late delivery of Dr. Ballard's report. [ 20 ] Consistent with Ms. Coshman's opinion, the occupational therapist states that the plaintiff's balance problems worsened after the second accident. Dr. Ballard confirms the existence of ongoing visual vestibular complaints and recommends continued vestibular physiotherapy "for the immediate future and as required after that.” [ 21 ] More generally, Dr.

Ballard recommends that the plaintiff attend a multidisciplinary pain clinic and "would be" referred to various specialists, including an ENT physician, if her symptoms persist and “for monitoring purposes.” Dr. Ballard does not state that such a referral is necessary at this time. [ 22 ] Dr. Ballard concludes that the 2010 accident has set back the plaintiff's recovery completely, and also that her symptoms, in concert with pain and fatigue, are completely disabling. Furthermore, Dr. Ballard does not expect that Ms. Hamilton will return to her work as a realtor. [ 23 ] In rejecting the request to have Ms.

Hamilton examined by Dr. Bell, plaintiff's counsel takes the position that the defendant is attempting to introduce new evidence after the deadline for delivery of such evidence has expired. In addition, if the examination proceeds, the earliest opportunity for the plaintiff to be examined by her own ENT specialist would be February 2011, or on the eve of trial. Thus, the plaintiff will be prejudiced in pursuing this exam when she should be preparing for trial. [ 24 ] The deadline for delivery of any rebuttal reports by the defendant is January 24, 2011.

The plaintiff was given notice of this application on or about December 20, 2010. [ 25 ] The defendant relies on Rule 1-3 (2), 7-6, 8-1, 11-6 (4), and 11-6 (8) of the Supreme Court Civil Rules . Some of those rules relate to the defendant's request for production of the raw data and are not applicable to the application that is considered in these reasons. [ 26 ] Rule 7-6 governs the granting of orders for a physical examination. It is the successor to former Rule 30(1).

Rule 11-6 (4) addresses the timing of delivery of any rebuttal reports, while 11-6 (8) concerns the production of documents related to an expert report. Rule 1-3 (2) addresses the object of these other Rules, and, in particular, the overriding consideration of proportionality when applying any Rule. [ 27 ] In addition, the parties referred me to a number of decisions of this court addressing circumstances under which an independent medical examination will or will not be ordered. I do not intend to canvass all of these authorities which, in my view, can be seen to fall into two categories.

The first category are those cases where the application for an independent medical examination is brought well before trial, and indeed before all of the plaintiff's experts' reports have been served. The second category of cases is where

the court is considering an application for an examination that purports to be a true rebuttal to the plaintiff's evidence. [ 28 ] In the circumstances of this action, this application must necessarily fall within this second category. [ 29 ] In Wright v. Brauer , 2010 BCSC 1282 , Justice Savage considered an application brought on similar timelines to the case at bar. The court discusses the application of Rule 11-6(4), finding that it was enacted to “fill a lacuna in the Rules”: para. 12.

The court also finds that under this new Rule, and considering the timing of the application, the applicant's relief was limited to "truly responsive rebuttal evidence": para. 14. Justice Savage could find no basis on the evidence before him to show why a physical examination was required to produce a responsive report. [ 30 ] More recently, the same issue was considered by Justice Cullen in Luedecke v. Hillman , 2010 BCSC 1538 , an appeal from a master’s order which allowed an examination to provide “truly responsive” evidence.

The court upheld the master's order, determining that the necessary evidentiary basis for an examination was found in the material presented.

In doing so, the court confirms that: To reach the requisite threshold under Rule 11-6(4) the applicant must establish a basis of necessity for the examination to properly respond to the expert witness whose report is served under subrule (3) by the other party: para. 54. [ 31 ] The question of whether the ultimate opinion obtained was truly responsive and thus admissible was left for the trial judge's determination. [ 32 ] In the matter before me, the defendant hangs her hat, if you will, on the report of Drs. Longridge and Ballard (and to a lesser extent Dr. Levin), as well as the opinions offered by Ms.

Coshman and the occupational therapist. [ 33 ] In a nutshell, the defendant submits that an ENT examination is required to rebut the opinion that the plaintiff's ocular vestibular problems have worsened as a result of the second accident. [ 34 ] Dr. Longridge's report predates the second accident; as such, it is not of assistance to the defendant’s argument. If anyone were to rely on this report to obtain a rebuttal examination, it would be the defendants in the First Action. [ 35 ] In any event, the complaints of ocular vestibular problems are of longstanding.

This is not a case of a new diagnosis or even a suggestion that a referral to such an ENT specialist is medically required. Dr. Ballard merely opines that a referral to such a specialist is a possibility if the plaintiff's symptoms continue. Moreover, Dr.

Moll, whose opinion was clearly available to the defendant for some time, discusses these symptoms in his report of January 21, 2009. [ 36 ] As submitted by the plaintiff, the defendant chose to pursue a psychiatric, rather than ENT opinion, knowing that the ocular vestibular complaints formed a significant part of the plaintiff's claim. [ 37 ] As for the other opinions offered, the experts are in agreement that the plaintiff's condition has worsened, but that treatment may yet alleviate or reduce those symptoms. [ 38 ] The defence clearly has a theory: the plaintiff is malingering and/or suffers a somatoform disorder.

To have the plaintiff examined by an ENT specialist for an assessment that will either be diagnostic in nature and thus not true rebuttal; or merely to prove a negative, that is to confirm that there is no physiological cause for the balance and visual disturbances, would be inconsistent not only with the authorities cited to me, but also with the purposes of Rule 7-6 and 11-6 (4). [ 39 ] On the material before me, I conclude that any report forthcoming from Dr.

Bell would be fresh opinion evidence masquerading as answer to the plaintiff's reports. [ 40 ] In short, the defendant has failed to meet the necessary evidentiary threshold which might support an order for the examinations requested. The application is thus dismissed with costs in the cause. “C. P. Bouck” Master C. P. Bouck