SUPREME COURT OF Nova Scotia
Citation: Smiley v. Hartley 2020 NSSC 233
Date: 20200903
Docket: Hfx 461345
Registry: Halifax
Between:
Deborah Leah Smiley
Plaintiff
v.
James Hartley
Defendant
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Judge: |
The Honourable Justice D. Timothy Gabriel |
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Heard: |
August 12, 2020, in Halifax, Nova Scotia |
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Counsel: |
Tara Miller, Q.C., and Allison Harris, for the Plaintiff/Respondent Michelle Chai, for the Defendant/Applicant
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By the Court:
[1] This is a motion brought by the Defendant, James Hartley, for an order compelling the Plaintiff, Deborah Leah Smiley, to attend a medical examination with Dr. Edvin Koshi on November 16, 2020, at 8:00 a.m., pursuant to Civil Procedure Rule 21.
[2] Michelle Chai has filed an affidavit on behalf of the Defendant, dated March 17, 2020 (“the Defendant's affidavit”) and Ms. Smiley has filed an affidavit dated June 26, 2020 (“the Plaintiff's affidavit”). Each of these affidavits, as well as the filed briefs and oral argument, thoroughly canvassed the parties’ positions with respect to this motion.
Background
[3] The Plaintiff's claim results from a motor vehicle accident which occurred on December 28, 2015. Liability, damages, and causation are all in issue. Ms. Smiley’s pleadings, medical evidence, and the excerpts from her referenced discovery testimony indicate that she is seeking damages sustained in that accident arising from concussion, TMJ disorder, and musculoskeletal injuries to her back, neck, shoulders and arms. Her counsel acknowledges that the claim also includes a past and future wage loss component as a result of symptoms of fatigue and cognitive issues.
[4] The Plaintiff has submitted two reports pursuant to Civil Procedure Rule 55. One is from neurologist Dr. Dale Robinson dated November 10, 2017, and the other is from psychiatrist Dr. Sunjay Patel dated September 19, 2018.
[5] Dealing first with that of Dr. Robinson, the most relevant points (with respect to this motion) that are noted in his 44 page assessment appear in his responses to the specific questions that had been posed to him by Plaintiff's counsel. For example, when asked "what neurological injuries did Ms. Smiley sustain as a result of the... [MVA]", he stated:
... Ms. Smiley sustained mild traumatic brain injury in the indexed collision and went on to develop post concussion syndrome with problems in each of three spheres: physical, cognitive and psycho emotional. In order of importance for her, beginning with the most problematic, Ms. Smiley has the following: altered sleep hygiene with chronic in fatigue; perceived cognitive dysfunction; chronic headache with intermittent or intense headache, in keeping with posttraumatic headache now likely complicated by medication overuse/rebound headache; chronic myofascial pain (diagnosis deferred) involving the neck and back; and clumsiness/disequilibrium. I would concur with Dr.Schoffer that the demonstrated tremor appears functional, which raises the potential diagnosis of a conversion disorder, further comment on which I defer to the appropriate mental health professional. (“Dr. Robinson’s Report”, Defendant's affidavit, Tab M, p. 10)
[6] Dr. Robinson further opined that the MVA was the cause (both directly and indirectly) of Ms. Smiley's tremors and cognitive complaints, that Ms. Smiley has reached the maximum medical improvement attainable by her, that she would probably be unable to return to her pre-collision employment in the future, that she will probably be unable to return to any employment for which she is reasonably suited by education, training, or experience, that her ability to manage heavier household items and run her household without assistance has been compromised, and that these problems are also expected to continue into the foreseeable future. (Report, p. 11)
[7] Particularly important within the context of this motion was Dr. Robinson's answer to question (h). Both the question and the answer are reproduced below:
(h) What, if any, treatment(s) and/ or investigation would you recommend to improve Ms. Smiley's diagnosis/prognosis and to help her achieve maximum medical improvement, both now and into the future?
... cognitive-behavioural therapy, physiotherapy and neuropsychology evaluation are recommended to help address the functional tremor. A psychiatry evaluation with regard to possible conversion disorder may also be a benefit. I would suggest consideration of a physiatry evaluation with regard to myofascial pain complaints. Her complaints represent a web of interconnected complaints, and as such improvement in one area might result in improvement in another area. For example, if her myofascial pain could be improved, it is possible that her sleep could be improved, which might in turn have a beneficial impact on her cognitive complaints. However, the odds of such improvement occurring are not good. Given the long-standing nature and relative stability of her symptoms, I would not expect significant improvement in her symptoms at this point. I am of the opinion that, on the balance of medical probabilities, Ms. Smiley has reached maximum medical improvement.
(Report, p. 12)
[Emphasis added]
[8] Dr. Patel's report consisted of 59 pages. Some of his opinions are excerpted below:
There is a link between Ms. Smiley's physical and emotional symptoms. This acts as evidence that psychological factors substantially contribute to the experience of physical symptoms that result in functional limitations that may not necessarily be clearly explained by physical assessments. Furthermore, cognitive distortions (e.g., physical symptom related catastrophic thinking) along with poor physical symptom coping capabilities, are leading to a perception of disability and physical symptom/mood – related avoidance behaviour. Essentially, we have a situation where Ms. Smiley is caught up in a physical symptom – anxiety – depression cycle whereby persistent physical symptoms result in decreased activity and increase depression and anxiety, which in turn results in depressive genic and catastrophic thinking which in turn results in increased perceptions of physical and activity avoidance, thereby fuelling and maintaining a vicious cycle.
...
Following the subject collision she never returned to her part-time position as a road test administrator due to pain, tremors, anergia, difficulty with cognition, anxiety, poor stress tolerance, and her inability to multitask. She remained off of her full-time work employment for one year and attempted to return in "March or April" 2017. When she first referred turn to her full-time position, she "shadowed" a co-worker that she was returning on a gradual basis. On the first day that she was required to work independently, she experienced "severe tremors "and was a "really bad scene"... currently her full-time employment position is no longer available.
...
Ms. Smiley’s prognosis for psychiatric recovery is guarded at this point in time. Over time, her psychiatric symptoms and dysfunction have plateaued and persisted. This is due to her psychiatric co-morbidities, psychosocial stressors (with impaired stress tolerance), persistent pain and concussive symptoms as well as the severe and persistent nature of her psychiatric symptoms and related impairments.
She has had limited psychotherapeutic (including Cognitive Behavioral Therapy) and psychotropic treatment (e.g., optimizing current dose of antidepressant and/or considering switching or combination treatments). However, due to the severity of her psychiatric symptoms, she requires regular on-going psychotherapeutic and biological treatments to have any chance of recovering. Furthermore, she will benefit from multidisciplinary care (possibly though a brain injury and/or pain and/or psychosocial rehabilitation program) that focuses on attempting to improve physical, cognitive and emotional symptoms (and related impairments) in an integrated way. A psychiatrist should also be involved in overseeing pharmacological interventions. Until then, her psychiatric conditions are considered to be permanent.
The primary purpose of future treatment would be to prevent worsening symptoms and function, and to optimize Ms. Smiley’s quality of life.
[Emphasis added]
(“Dr. Patel’s Report”, Plaintiff’s affidavit, Tab B, pp. 48 – 59)
[9] On June 11, 2019, Ms. Smiley attended an IME with Dr. David King at the request of the Defendant. Four days later, Dr. King provided a 58 page "Neurology Report" and also his curriculum vitae, consisting of another 35 pages. These were reproduced in the Defendant's affidavit at Tab O (“Dr. King’s Report”).
[10] In the course of expressing his opinions, he made a number of statements which are germane to this motion. For example, he begins with: "I have agreed to see Ms. Deborah Leah Smiley in consultation with Ms. Michelle L. Chai and provide a report within the parameters of my specialty” .
[11] He then adds:
In my practice I see general neurology, and do subspecialty work in movement disorders and publish largely in this area. About 30% of my current practices involved with medicolegal cases, in which I see claimants for plaintiff and defence as well as for disability purposes. The distribution of plaintiff versus defence cases is about equal.
I've been qualified a number of times as an expert witness in the Supreme Courts of Nova Scotia, Newfoundland and Labrador, New Brunswick, Alberta and Prince Edward Island for both the defence and the plaintiff.
I have given opinion evidence in relation to soft tissue injuries, myofascial pain syndrome, complex regional pain syndrome, chronic pain, traumatic brain injury, concussion, epilepsy, arterial dissections, stroke, radiculopathy and thoracic outlet syndrome.
(Dr. King’s Report, p. 2)
[Emphasis added]
[12] Dr. King goes on to say:
Neurology is that medical discipline that deals with the assessment, diagnosis and treatment of diseases of the nervous system.
The cardinal manifestations of neurologic disease include disorders of cognition, consciousness, affect, personality, energy, the special senses, mobility, autonomic function, pain and other disorders of somatic sensation.
The major categories of neurologic disease include disturbances of spinal fluid flow and production: neoplastic and paraneoplastic disease; infections; vascular disease; trauma; demyelinative diseases such as multiple sclerosis; metabolic and nutritional diseases; toxic diseases; developmental diseases; and degenerative diseases.
Anatomically Neurology is concerned with the brain, spinal cord, peripheral nerves and muscles.
There is an overlap between Neurology and other specialties given that patients present with complaints not specific disease entities. Problems are often shared with Neurosurgery, Orthopaedics, Psychiatry, Psychology and Physiatry. There is frequent confusion as to the expertise and areas of practice in which specialists can provide expert opinion. For example, the assessment of pain is made by all of the above practitioners. Pain may have a neurological substrate, a musculoskeletal substrate or a psychological substrate. It is well within the scope of practice of most specialists, in the above categories, to decide the underlying mechanism of the disease state or of the underlying trauma. The divergence of the specialties is not diagnostic but management. A diagnostic formulation, made by any of the above specialists, might be that the pain is of psychiatric origin. A referral would then be made to psychiatry, perhaps for diagnostic confirmation, but more likely for management. The notion that an orthopaedic surgeon cannot diagnose a neurological disease is patently ridiculous. Competent specialist practice requires a consideration of the whole person.
[Emphasis added]
(Dr. King’ Report, pp. 2 – 3)
[13] At pp. 49 - 50 Dr. King continues:
... She has no significant cognitive difficulties. The tremor that she had in the office was definitely non-organic, functional or psychogenic. There was a weak hand grip on the left which is often seen with a thoracic outlet syndrome. On the other hand, I was not able to reproduce her symptoms in the left arm with the majority of maneuvers around the thoracic outlet other than head turning to the left and down. It did reproduce some symptoms in the arm. The diagnosis is definitely questionable and requires more clinical evidence.
I believe there have been significant emotional consequences as a reaction to the treatment that she received ... I think the mistaken diagnosis of a traumatic brain injury likely worsened this patient’s prognosis. I think the prescription of prism glasses had detrimental effects.
...
The court is going to be presented with different ideas about this woman’s problems. All the evidence is that the original accident was minor. She perhaps sustained a mild soft tissue injury to the left trapezius area which is common after rear end collisions. There may have been some involvement of the left sternocleidomastoid muscle occasioning her arm symptoms and left-sided headache. As soon as it became apparent that physiotherapy was not helping her it should have been discontinued. Her subsequent course has been a product of iatrogenesis. The soft tissue injury related to the accident has dissipated. Whatever expert opinion there is to the contrary her normal MRI scan excludes, for all practical purposes, any significant brain injury that might account for her complaints. Given that these complaints are just as common in the general population there is no reason to postulate that an extremely questionable concussion has resulted in the long term alteration of brain function that precludes her working. This does not make sense from a clinical perspective. Virtually every clinician that has seen her has been impressed with the emotional component of her problem. There is no question that the tremor that she has is psychogenic in origin. It has an emotional etiology. I am of the opinion that so does her cognitive problems and likely her pain.
When considering the question of causation if one is going to make a case that her problems are predominantly psychogenic in origin then the accident has to be the cause of the psychogenesis for it to be causal. This accident was trivial in nature and could not conceivably, in a normal woman, cause an emotional reaction of this magnitude. I have contended that the likely mechanism here is the inappropriate treatment rather than the accident itself.
I would consider the possibility that she has a chronic myofascial pain syndrome but we can prove this one way or the other and if she does have this condition secondary to the accident we can resolve the issue so the accident will not produce a permanent disability.
[Emphasis added]
(King report, pp. 49 – 50)
[14] Dr. King elaborated that, in his opinion, there were no medical restrictions with respect to Ms. Smiley's, self-care, mobility, homemaking activities, driving, interactions with friends family or strangers, and that there were no medical restrictions with respect to recreational activities or working in her usual capacity. As to her medical prognosis, he considered the concussion to have been resolved with an excellent prognosis. He indicated that what he called “myofascial pain syndrome left trapezius muscle was ...possibly ongoing but should respond to local management”, and he also ascribed a very good prognosis in relation to this condition. He indicated that he would defer both to psychiatry (with respect to her adjustment reaction), and to dentistry with respect to her right temporomandibular joint dysfunction. As to her "non-organic tremor" he stated "this usually dissipates with time, though other nonorganic movements may appear”. He ascribed a “fair” prognosis with respect to this malady. (Report, p.52)
[15] At pp. 52 – 54, Dr. King relates what he considers to be Ms. Smiley's "functional consequences secondary to impairments". He concludes that she is without communication handicap or difficulty, that there is no impairment of her mobility or "…homemaking, though she reports symptoms".
[16] He maintains that "she has restricted herself inappropriately", and reiterates that she "... is able to work in her usual capacity. She is limited by factors unrelated to the accident." He also adds "there will be no need for any medical devices, medications, surgeries or supportive care in the future related to the accident if there is no response to local anesthetic to trigger points”.
[17] Among the answers to the specific questions posed by Defence counsel to Dr. King, he adds that the Plaintiff "...possibly suffered a concussion from which she is fully recovered. She sustained a muscular strain injury to left-sided neck muscles, that she … may have suffered a strain injury to the left trapezius and some other left-sided survival muscles which would have interfered with her normal function because of pain and reduced left arm use", and that if Ms. Smiley suffered an injury in the 2015 accident:
“ …it has likely resolved as of 25 February 2016. It is possible that she has a chronic myofascial pain syndrome that we can answer the question more definitively after focal injections with local anesthetic".
[18] He concludes:
"I believe that the major cause of this woman's ongoing difficulties is iatrogenic and, therefore, unrelated to the accident … I think that she has been mis-diagnosed". (King report, p. 54)
Issue
[19] This issue is whether, in these circumstances, the Court ought to require Ms. Smiley to attend another IME, at the request of the Defendant, this time by a Physiatrist, pursuant to Civil Procedure Rule 21.
Discussion
i) The law – general
[20] Civil Procedure Rule 21 governs medical examinations and testing:
21.01 A judge may order a medical examination or test, in accordance with this Rule.
21.02 (1) A party who, by a claim, defence, or ground, puts in issue the party’s own physical or mental condition may be ordered to submit to a physical or mental examination by a medical practitioner.
(2) The party who puts their own physical or mental condition in issue has the burden to satisfy the judge that the party should not be examined.
(3) A party who puts in issue the physical or mental condition of another party may make a motion for an order that the other party submit to a physical or mental examination by a medical practitioner, and the party must satisfy the judge on all of the following:
(a) the party has, by a claim, defence, or ground, put in issue the other party’s physical or mental condition;
(b) the claim, defence, or ground putting the other party’s condition in issue is supported by evidence;
(c) the examination may result in evidence that proves or disproves the claim, defence, or ground.
(4) A party being examined under an order must co-operate in the examination, including giving answers to questions asked by the practitioner as part of the examination.
(5) An order for a medical examination must include a description of the purpose of the examination and a requirement that the party to be examined attend for the examination, including the name of the practitioner and either the time, date, and place of the appointment or a method to determine a time, date, and place for the examination.
(6) The order may contain any other necessary provisions, including any of the following requirements:
(a) the party to be examined undergo a test and deliver evidence of the results to the practitioner before the examination;
(b) a person deliver relevant documents to the practitioner before the examination;
(c) the practitioner, by a deadline, deliver an expert’s report to the party who obtains the order;
(d) the party receiving the report, by a deadline, deliver a copy to each other party.
21.03 A judge may order more than one examination of the same party if different physical or mental conditions in issue pertain to different medical specialities, the same condition clearly calls for opinions from different specialists, or justice will be served by permitting an additional examination.
[21] I distill from the above (and the authorities which have interpreted Civil Procedure Rule 21 and its predecessor), that a Defendant contesting a personal injury claim has a prima facie right to have the Plaintiff examined by properly qualified medical expert of the Defendant’s own choosing, with respect to those aspects of the Plaintiff’s physical or mental condition which the Plaintiff has put in issue.
[22] To rebut this presumption, the Plaintiff must show why she should not be required to comply. This onus does not change merely because (as in this case) the Defendant has requested more than one IME. The Plaintiff must show that the Defendant’s request, or choice of expert, is unreasonable in the circumstances.
ii) The basis of the Plaintiff’s opposition to the request
[23] The Plaintiff does not dispute that she bears an onus as outlined above. Moreover, she agrees that Dr. Koshi is a qualified expert in the area of physiatry, and that she has put her musculoskeletal condition in issue in this case. She nevertheless argues that the request for an IME by the Defendant is unreasonable, because the Defendant already has one: Dr. King has already examined her and provided not only his neurological, but also his assessment of her musculoskeletal issues, the very issues that the Defendant now wants (Physiatrist) Dr. Koshi to assess.
[24] In a nutshell, the Plaintiff contends that the Defendant already has a medical opinion from a qualified expert with respect to her musculoskeletal issues. Because of this, she should not be required to submit to what is, in effect, a second one to deal with the same issue.
[25] Among other things, she points to the previously referenced quote at p. 3 of Dr. King's report in which he says:
... The divergence of the specialties is not diagnostic but management ... The notion that an orthopedic surgeon cannot diagnose a neurological disease is patently ridiculous...
[Emphasis added]
iii) Analysis
[26] Despite the Plaintiff’s onus, and although Civil Procedure Rule 21.03 permits more than one IME, there is no automatic entitlement to that effect on the part of a Defendant. Indeed, in Noseworthy v. Murphy (1999), 174 NSR (2d) 367, a decision rendered by Justice Goodfellow pursuant to the predecessor of the present Civil Procedure Rule 21, it was observed:
17. My remarks are not to be construed as suggesting anywhere near an automatic entitlement to more than one examination, and the principles including the onus, must be met before an order will issue, invading the privacy of a person.
[27] So too, in Goodwin v. Lunn, 2016 NSSC 165, Justice Arnold pointed out:
28. Of course, Ms. Goodwin's personal privacy, as well as her physical and psychological integrity, must not be breached lightly. Personal privacy, along with physical and psychological integrity, can only be breached when the court is satisfied that such a breach is necessary to secure the just determination of the issues.
[28] It is appropriate to consider several more points.
[29] First, Dr. King is well known to this Court. He has been qualified many times as an expert witness in Nova Scotia and throughout Canada. Indeed, as mentioned in his report, he has given "... opinion evidence in relation to soft tissue injuries, myofascial pain syndrome complex regional pain syndrome, chronic pain, traumatic brain injury, concussion, epilepsy, arterial dissections, stroke, radiculopathy ... and thoracic outlet syndrome” (Report, p. 2).
[30] Second, it is clear that Dr. King has provided opinion evidence that has been received by this Court with respect to the diagnosis of musculoskeletal injuries on other occasions, merely some examples of which include MacDonald v. MacVicar, 2018 NSSC 271, Urbanez-Jacks v. Ploudre, 2011 NSSC 278, Morel v. Bryden, 2006 NSSC 218, and DFG v. Boudreau, 2006 NSSC 223. This is in addition to those instances noted in his curriculum vitae (Defendant’s affidavit, Tab O, pp. 30 -35).
[31] Third, Dr. King did conduct a musculoskeletal examination as part of his overall IME of M. Smiley, and reported on the results of that examination (Report, p. 37). This included an examination of Ms. Smiley's back, thoracic and lumbar spine, sacroiliac joints, shoulders, arms and legs.
[32] Further, he opined under "conclusion" (Report, p. 38) that Ms. Smiley had sustained myofascial pain syndrome "left trapezius muscle with left scalene and sternocleidomastoid involvement”. He went on to discuss the various symptoms and diagnostic impressions related to Ms. Smiley's musculoskeletal injuries in his report (pp. 45, 48 – 49). As earlier noted, he also outlines a prognosis with respect to the myofascial pain syndrome that he diagnosed and, also with respect to the “thoracic outlet syndrome left” (Report, pp. 52 and 54).
[33] Dr. King’s recommendations for future investigations and management of the Plaintiff's chronic pain are outlined. These consist of a number of injections at various focal points. The Plaintiff fairly points out that he does not suggest that she requires a referral to Dr. Koshi for a further physiatry IME, and that the further IME sought by the Defendant involves neither of the two disciplines (psychiatry and dentistry) to which Dr. King stated he would defer.
[34] With these points in mind, I return to Civil Procedure Rule 21.03. Under that Rule, I "may" order more than one examination of the same party if: (i) different physical or mental conditions in issue pertain to different medical specialties, (ii) the same condition clearly calls for opinion from different specialists, or (iii) justice will be served by permitting an additional examination.
[35] The first criterion appears, at first glance, to have been negated by Dr. King. As he puts it, it is well within the scope of his practice in neurology "... to decide the underlying mechanism of the disease state or of the underlying trauma ..." in the circumstances of this case. It is certainly true that he provides diagnoses and prognoses for the musculoskeletal conditions which Ms. Smiley has placed in issue. He also provides his opinion with respect to the neurological consequence that she has alleged that she suffered. Moreover, his opinion on musculoskeletal issues has been accepted by this Court in the past. It could be said that he has aggressively defended his right to opine thus.
[36] With all of that said, however, it is certainly not uncommon to see a medical expert comment upon and opine on matters involving other medical disciplines. For example, in Noseworthy, which also involved Dr. King, we find:
19. I interject that Dr. Shapter was Dr. Noseworthy's initial orthopedic surgeon and as he has passed away, Dr. Noseworthy has attended upon Dr. Noftel, another orthopedic surgeon.
20. Dr. King went on to say:
This woman had complications following the motor vehicle accident. I have not reviewed her clinically and am not in a position to make a diagnosis. Her course has been complicated by some suggestive neurologic symptoms and some findings which were felt to be valid by Dr. Shapter, from his perspective.
To my knowledge, she has not had a neurologic examination previously. To date, her problems based on the myofascial and joint derived pain supposition has not resulted in sustained benefits.
You will be aware that I see many cases of this nature. Sometimes a neurologic perspective can be useful.
21. Dr. King went on to record that Whiplash Associated Injury is not an uncommon problem for neurologists to review, then stated:
It seems to me what is important in the medico legal context is the expertise of the examiner rather than his specialty.
22. I do not interpret this last sentence by Dr. King, as it is interpreted by Dr. Noseworthy's counsel, to mean only one examination is necessary. This sentence may be more from professional ego, but I hasten to add that Dr. King has been accepted frequently as a highly qualified specialist. Dr. King went on to say management in most cases is medical and not surgical and usually, in the hands of neurologists or physiatrists.
[Emphasis added]
[37] The Plaintiff (as she herself admits) has put conditions in issue which pertain to the medical disciplines of neurology and physiatry, among others. As has been seen, her neurologist (Dr. Robinson) recommended “consideration of a physiatry evaluation” with respect to her “myofascial pain”.
[38] Moreover, Ms. Smiley’s symptoms appear to overlap medical disciplines, and it would have been somewhat artificial under the circumstances had Dr. King completely disassociated himself from comment upon every other factor and/or aspect of Ms. Smiley’s overall condition except those that unequivocally fell under the rubric of his speciality.
[39] Indeed, to force a medical expert to comment only upon those aspects of a party’s condition that (strictly speaking) fall within his/her specialty, will often distort and truncate the opinions expressed. This is particularly so in a case such as this one, where the Plaintiff presents with a “web of interconnected complaints” (per Dr. Robinson, p. 12), a conclusion which Dr. Patel also seems to endorse (Dr. Patel’s report, particularly at pp. 48 – 59).
[40] It is true that Dr. King posits his ability to opine and discuss matters that many physiatrists might claim are within their realm of expertise. It is also true that Dr. King’s competency to do so has been upheld by this Court previously, including those earlier cited specifically.
[41] However, mere acceptance of an expert’s right to offer opinion(s) in relation to areas that are (strictly speaking) outside of his medical speciality, does not predetermine the weight which any Court will accord to those opinions. More importantly, as previously mentioned, it will often be necessary for experts to comment upon, and opine with respect to other specialties in order to fully explain the rationale for the conclusions expressed within their own realm of expertise.
[42] I have concluded that Ms. Smiley has placed different physical or mental conditions in issue which “pertain to different medical specialties”.
[43] With respect to “whether justice will be served by permitting an additional examination”, I acknowledge the aptness of Justice Goodfellow's observations in Noseworthy when he states:
15. Interpretation of the rule [now Civil Procedure Rule 21.03] should reflect the reality that has faced courts for several years, namely substantial and multifaceted claims are now advanced, allegedly as a result of a tortuous act that produces little, or no visually perceptive injuries so that claims are advanced for injuries that can not be said to be in water tight compartments. Physical and emotional claims are intertwined, overlap and often we have cervical injury without any organic damage where substantial claims for depression, fibromyalgia, loss of sleep, etc. etc. etc. are advanced.
16. Where there exists, such as in this case, a multifaceted claim, apparently of substantial magnitude, it becomes increasingly difficult, if not impossible, to avoid an unfair evidentiary advantage to the claimant without permitting the party against whom substantial damages is sought from examining the medical, physical and psychological condition of the party advancing the claims by more than one discipline. We are now finding that even within a discipline, experts are focusing on specific sub-specialties or areas and in an appropriate case, it may no longer be sufficient that the examination be conducted by only one person within a particular discipline.
[Emphasis added]
[44] Also, the comments of Arnold, J. in Goodwin bear consideration:
26. Ms. Goodwin intends to call multiple experts including an orthopedic surgeon (invasive), as well as a massage therapist and a pain specialist (noninvasive). Based on the specific circumstances in this case, Ms. Lunn should be permitted to respond with similar, relevant expert evidence. While parties are not required to, or necessarily permitted carte blanche to, match expert for expert (Heather Gawlick v. Lim, 2016 BCSC 526 at para. 22), in this case I am satisfied that according to CPR 21.03, the same condition put in issue by Ms. Goodwin clearly calls for opinions from different specialists (an orthopedic surgeon as well as an expert in nonsurgical, noninvasive treatment, such as a physiatrist). I am also satisfied that justice will be served by permitting the additional examination. Ms. Lunn needs the second IME in order to fairly advance her case at trial.
[45] The Plaintiff has argued that, unlike the situation in Goodwin, she will not be granted an unfair advantage if the Defendant is denied its opportunity to have a second IME conducted, this time by physiatrist, Dr. Koshi. She points out that she, herself, does not have a physiatry opinion.
[46] In my view, her decision (to date) not to obtain such an opinion cannot predetermine whether or not the Defendant is at liberty to do so.
[47] Moreover, it is entirely possible to boil down Dr. King’s report, insofar as it pertains to myofascial or musculoskeletal complaints, (and I make no findings in this regard, that is for the trial judge to decide) to the following essential comments:
I would consider the possibility that she has a chronic myofascial pain syndrome but we can prove this one way or the other and if she does have this condition secondary to the accident we can resolve the issue so the accident will not produce a permanent disability.
[48] Immediately after this, he stated:
Suggested Investigations
Giving her the benefit of the doubt that her ongoing pain has some organic origin I would do some trigger point injections with local anaesthetic over the left trapezius muscle, the left scalene and the left sternocleidomastoid muscle.
If the injections produce no benefit we can exclude a myofascial pain syndrome is the source of her difficulty and therefore eliminate any effect that this accident may have had.
(Report, p. 50)
[Emphasis added]
[49] What I take from these passages, and from the report as a whole (for the purposes of this motion), is that Dr. King is certain (the trial judge will decide whether s/he agrees with him) that Ms. Smiley no longer suffers from a traumatic brain injury (if she ever had one), and that, in his opinion, it is possible – but not likely - that she has myofascial pain syndrome.
iv) Plaintiff’s remaining objections
[50] The Plaintiff raised additional arguments. She contended that forcing her to undergo a physiatry IME will cause her increased expense, delay the litigation, and unnecessarily impact her privacy and her psychological health. This is particularly the case where Dr. King did not identify the need for a physiatry IME.
[51] Further, Ms. Smiley has pointed out that she already has funded two IMEs and obtained litigation loans to pay for them. Interest has begun to accrue in respect of Dr. Robinson's report and will begin to accrue with respect to Dr. Patel's IME as of September 2020. If the Defendant is allowed an IME with Dr. Koshi, it could force her to obtain her own assessment by a physiatrist, and exacerbate this expense.
[52] The Court completely understands her concerns in this regard. However, it is irrelevant to the point of whether the IME is necessary to secure the just determination of the issues. I observe that parties finance IMEs through various means, including litigation loans, law firm credit lines, or their own resources. In some cases, interest will be charged, while in others, it may not. Parties who obtain litigation loans, however, should not be treated differently than those who pay for IMEs through any other means.
[53] Further, it does not follow that if the Defendant is permitted to obtain a physiatry IME, that the Plaintiff will necessarily need to incur the expense of obtaining her own physiatry opinion. To date, she has chosen not to.
[54] The Plaintiff also contends that:
… "[d]efendants are obtaining multiple IME's as a matter of routine and we submit the pendulum has started to swing too far, such that personal injury cases have become overburdened with expert opinion, with little to no weight placed on the Plaintiff's own physicians and treatment providers, and a seeming forgetfulness that there is a human being behind these reports who is impacted by what these highly resected doctors are saying about her" (Plaintiff’s brief, p. 2).
[55] With respect, Mr. Hartley is not seeking an inordinate number of IMEs. The Plaintiff has obtained two IME’s, and the Defendant has obtained one. This case presents no more danger, at this point, of becoming a "battle of the experts" than any routine personal injury case. Even if the Court was inclined to accept the Plaintiff's position that the number of expert opinions being sought in some personal injury cases is impacting access to justice, this would need to be addressed through amendments to the Civil Procedure Rules. The argument does not, in any event, relate to the circumstances of this case.
[56] As to the Plaintiff's claim that a physiatry IME will delay the litigation, it is appropriate to observe that some delay was occasioned by the Plaintiff’s opposition to attending for the IME which is at issue in this motion. Further delay was occasioned by the COVID-19 protocols adopted by this Court (and Courts across the country), and should not be held against either party.
[57] With respect to the argument respecting the Plaintiff's privacy, it is fair to observe that she has undergone numerous examinations both within and outside this litigation. She concedes that she has placed her musculoskeletal condition in issue, and, as such, her privacy rights must give way to the Defendant's right to respond to the claims against him.
[58] The Plaintiff points to the fact that she has received several conflicting medical opinions concerning the etiology of her ongoing problems and her prognosis, and that this has caused her psychological distress. She concedes, however, that some of the conflicting opinions have come from her own treating physicians and experts.
[59] Moreover, and while the Court (as mentioned earlier) is certainly not without some empathy for the Plaintiff’s circumstances, conflicting medical opinions are common in personal injury litigation. No authority has been provided which suggests that conflict in existing opinions is a valid reason to deny the defendant the right to an IME that is otherwise necessary to secure the just determination of the issues.
[60] Finally, I reiterate that the issue is whether the Plaintiff has shown that the Defendant’s request, under all of the circumstances, is unreasonable. Among other things, the failure of Dr. King to identify the need for her examination by a physiatrist does not and cannot pre-determine that issue.
Conclusion
[61] The Defendant has a prima facie right to have the Plaintiff examined by a medical expert of his own choosing. The Plaintiff bears the burden of satisfying the Court that she should not be examined. In my view, she has not discharged that onus.
[62] Ms. Smiley presents with myriad issues that are impacting her physical and mental well being. Her own neurological expert, Dr. Robinson, calls these issues “…a web of interconnected complaints”. It is difficult to disagree with that observation from the present vantage point. It is reasonable in the circumstances for the Defendant to seek a physiatry IME for diagnostic confirmation and to offer an opinion on the Plaintiff's prognosis. Said differently, in my view, a physiatry IME is necessary to secure a just determination of the issues, and I so order.
[63] The Plaintiff shall attend an IME with Dr. Edvin Koshi on November 16, 2020, at 8:00 a.m., at the expense of the Defendant, and shall be compensated for all of her reasonable costs in so attending. Counsel for the Defendant shall draft the order necessary to implement this decision, and shall include (of course) the address of the location where Dr. Koshi will conduct the examination.
[64] Costs based on Tariff “C” are fixed in the amount of $750.00 inclusive of disbursements. They shall be paid by the Plaintiff to the Defendant, in any event of the cause, at the conclusion of this proceeding.
Gabriel, J.