Mohiti v. Lemaire, 2018 ONSC 4150 (CanLII) – Levelling Playing Field

August 07, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Mohiti v. Lemaire, 2018 ONSC 4150 (CanLII) – Levelling Playing Field

Date of Decision: July 3, 2018
Heard Before:  Master C. Wiebe

INDEPENDENT MEDICAL EXAMINATION: defendant brings motion to require plaintiff’s attendance at IE; making the playing field level; providing full medical evidence

REASONS FOR DECISION

Issue:

1. The defendant brings this motion for an order requiring that the plaintiff attend at an independent medical examination with Dr. Michael Devlin, a physiatrist, on August 1, 2018 at 1:00 p.m. The plaintiff opposes the motion.

Result:

1. Motion granted

Facts of the case:

This action concerns a collision on September 14, 2013 between a motorcycle driven by the plaintiff and a car driven by the defendant. The plaintiff sustained injuries which resulted in the amputation of his left leg. The plaintiff commenced this action on March 17, 2014 claiming $5 million in general damages and $2 million in special damages. The defendant defended the action on May 26, 2014. There is another action brought by the passenger on the motorcycle against the defendant in which the plaintiff in that action claims $1 million in general damages and $500,000 in special damages. These two actions have been ordered to be tried together.

The defendants’ insurance has a limit of $1 million. It is undisputed that the evidence to date indicates that the plaintiffs may obtain judgments totaling well in excess of that limit. The major issue in these cases will be damages. In this action, the plaintiff claims damages for medical care and loss of income and earning capacity amongst other damages. The plaintiff has ongoing issues with his left leg and the use of the prosthetic leg he received after the accident. 

Between December 2014 and August 2017 the plaintiff served 11 reports from 6 expert witnesses – a neuropsychologist, an orthopedic surgeon, a neurologist, a psychiatrist, a physiatrist and an occupational therapist. Between January and August 2017, the defendant served three expert reports, one from a neuropsychologist, another from an occupational therapist concerning future needs and cost of living, and one from an occupational medicine specialist.

In the Certification Form that was filled out and signed by both counsel by October 2016, defendants’ counsel specified that the defendant would be calling four expert witnesses. The plaintiff consented to the three defence medical examinations to date, but not to the one now being sought. 

Much of this motion turned on the occupational medicine defence medical reports. These were appended to an affidavit sworn by the lawyer for the plaintiff, which was filed in this motion. On November 11, 2016, the plaintiff was examined Dr. M, an occupational medicine specialist retained by the defendant. It is undisputed that the specialty of occupational medicine focuses on the fitness of injured persons for return to work. This assessment lasted for 2 hours and 55 minutes. The doctor did a thorough examination of the plaintiff and expressed his opinion on the injuries the plaintiff sustained on account of the accident and the plaintiff’s ability to return to his pre-accident work.  

On January 23, 2017, Dr. F the physiatrist was retained by the plaintiff and wrote a response to the Dr. M report. Dr. F issued a report to plaintiff’s counsel dated January 5, 2017 and was critical of Dr. M for not having a specific focus on chronic pain diagnosis, management and prognosis, and for not having extensive exposure to amputation diagnosis, management and prognosis.

Dr. M issued a supplementary report dated February 6, 2018 indicating his assessment of the plaintiff occurred while the plaintiff’s condition in relation to the prosthesis was evolving. He conceded that his specialty did not equip him to opine on the “clinical treatment of amputees.” He recommended another and more current “snapshot” of the plaintiff’s function by someone with such a specialty in the clinical treatment of amputees. Dr. D practices at the West Park Health Centre Amputee Program in Toronto. There was no dispute that he has a specialty in the clinical treatment of amputees. The proposed examination will be for about one hour. Appropriate transportation for the plaintiff will be arranged and paid for by the defendant.

Analysis

The test to be applied on a motion such as this was aptly described by Justice D. M. Brown in Bonello v. Taylor 2010 which dealt with a motion for a further defence medical examination by an orthopaedic surgeon after the plaintiff had served medical reports showing a change in the plaintiff’s injuries. The principles to be following on such a motion were identified as follows:

1. The moving party must show that the assessment is warranted and legitimate.
2. A request may be legitimate where the party’s condition has changed since the previous examination, a more current assessment is required for trial, the plaintiff has served specialist reports from new assessors after the defendant conducted its medical assessment, and some of the party’s injuries fall outside the expertise of the first examining practitioner.
3. While requests simply to “match reports” with comparable reports of similar specialist has been frowned on, the court should always be guided by what is necessary “to enable the defendant fairly to investigate and call reasonable responding evidence at trial.”
4. With a request for a second examination, the request must be supported by sufficient evidence to persuade a court of the need for the further examination. This can be either in the form of an affidavit of the first examining physician or an affidavit of a lawyer attaching medical reports.
5. There must be evidence of unfairness for the court to consider, and the court should also consider the burden the examination would impose on the plaintiff in light of the number of defence medical examinations already conducted.

There was no issue concerning the nature of the evidence that was proffered by the defendant. The affidavit sworn by the lawyer for the defendant appending the medical reports is sufficient for the purposes of this motion.

What was in issue was whether the requested assessment is warranted and legitimate. The Defendant argued that it is warranted as a matter of fairness, as the defendant does not have a report from a physiatrist or orthopedic surgeon, and certainly not one with a specialty in amputations. He also argued that, according to the most recent report of Dr. M, the plaintiff’s symptoms had not stabilized at the time of the first Dr. M assessment, and that the further assessment of Dr. D was warranted on that ground as well.

As to the first ground, the one concerning the alleged need for an assessment by a physiatrist, this has the trappings of a request for a “matching” report for the one from Dr. F. However, the defendant argued that this should not be an impediment and that the overriding issue is one of fairness to the defendant, as was stated by Justice Brown in Bonello. Master Wiebe agreed. The court should focus on what expert evidence the plaintiff has obtained and what expert evidence the defendant may need in response as a matter of fairness to “level the playing field.”  As to the second ground, the one concerning a change in the plaintiff’s condition, the issue is also one of fairness, namely that the defendant should be able to fairly assess all of the damages being claimed. 

Mater Wiebe agreed that Dr. M’s supplementary report of February 6, 2018 would not per se justify a further medical assessment by a physiatrist on the basis of the plaintiff’s changed condition, as the report only refers to the plaintiff’s evolving “function” with his prosthesis. The report makes no reference to previously unknown symptoms.

But that is not the core issue here. The issue is whether the defendant should be given an opportunity to obtain an opinion from a physiatrist with a specialty in amputation to respond to the opinion of the plaintiff’s physiatrist. While that is “matching” of reports, it is not the matching that the court should object to, as indicated in Bonello. It is only fair that the defendant be given this opportunity. Mater Wiee recognized that the “matching” that was frowned upon in Ramrup was the quantity of reports by the same defence specialists who had already examined the plaintiff and where the court found that there was no change in the plaintiff’s condition. Justice Mitrow stated in paragraph 80 that, “in my view, the defendants’ motion in large measure amounts to a request by the defendants to corroborate the existing medical opinions of their own experts.” That is not the case in the motion before me. Here the defendant does not have an existing medical report from a physiatrist and one with a specialty in amputations such as Dr. D. This means that as a matter of fairness the motion should be granted.

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