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When is a defence medical assessment justified?

Three motions were heard before the Ontario Superior Court of Justice this summer which have further clarified when a defence medical examination is justified.  The three motions are: Marfo v. Ahmed, 2016 ONSC 396 [Marfo], Boulet v. Sir Corp. 2016 ONSC 5379 [Boulet] and Mork v. Sanghera, 2016 ONSC 5108 [Mork].

In the Mork decision (released July 29, 2016) Justice Lemon also concluded that there was insufficient evidence to grant the defendants a further defence medical examination with an orthopaedic surgeon.  The defendants argued that their proposed expert, Dr. Hugh Cameron would be able to give evidence in his area of expertise as both an orthopaedic surgeon and a chronic pain specialist.

Justice Lemon reviewed Dr. Cameron’s 79-page resume, which supports that he is an expert in orthopaedics.  Justice Lemon, however, noted that the plaintiff had not put forward an orthopaedic expert report.  In fact, the only examination undertaken by an orthopaedic specialist was at the request of the plaintiff’s accident benefit insurer more than five years prior.  On this basis, Justice Lemon saw no need for such an examination.

With respect to Dr. Cameron’s expertise in chronic pain, there were only three entries on his resume from 1978, 1985 and 1986 under “Non-peer Reviewed – Journal Publications”.  The word “pain” did not otherwise appear on his resume; the phrase “chronic pain” did not appear at all.

Justice Lemon looked at the applicable Bonello factors and concluded that the plaintiff was not relying on an orthopaedic report; therefore, there was no need for the defence to have one.  While Justice Lemon recognized that the defendant would need a report from a chronic pain specialist, there was insufficient evidence that Dr. Cameron could provide helpful evidence for the defendant and court, and it would be unfair to have the plaintiff examined by an unnecessary orthopaedic expert who is not properly qualified with respect to chronic pain.

Finally, in the Boulet decision (released August 25, 2016) the defendants brought a motion for an order requiring the plaintiff to attend a defence medical assessment with an occupational therapist pursuant to section 105 of the Courts of Justice Act RSO 1990, c.C.43 and Rule 33 of the Rules of Civil Procedure, RRO 1990, Reg. 194.

The parties agreed that the Divisional Court’s decision in Ziebenhaus (Litigation guardian of) v. Bahlieda, 2014 ONSC 138 set out the applicable legal test for such a motion.  The court must determine whether the proposed defence medical examination is necessary in the interest of trial fairness and justice and in order for the defendant to meet the plaintiff’s case.  There is no “matching principle”, i.e. a defendant is not entitled to an examination of a plaintiff simply because the plaintiff has served a report from an expert in a particular discipline.

The defendants already had an opinion from a defence medical assessor, Dr. Rajka Soric, physiatrist, who concluded that the examination revealed no indication of accident related physical pathology that would alter the plaintiff’s ability to carry on with her normal daily activities.  In Master Muir’s view the report of Dr. Soric was clear and unequivocal, and the defendants were relying on this report in their defence.  Accordingly, Master Muir concluded that the defendants were simply seeking to corroborate the findings of Dr. Soric or seeking a matching report.  Neither of those justifications were sufficient evidence, and given the defendant’s position in defending the action (i.e. the plaintiff’s injuries have no impact on her ability to carry out her normal daily activities), the further examination was not necessary to meet the plaintiff’s case or in the interest of trial fairness or justice.

Bottom line: a plaintiff should not be subjected to endless defence medical examinations at defence counsel’s discretion.  While defence medical examinations can assist defence counsel’s ability to respond to the plaintiff’s claim, they can also be invasive and traumatizing for the plaintiff.  The decisions discussed in this article will hopefully assist counsel and the court to strike a balance between these two important factors.

In the Marfo decision (released June 6, 2016) the defendants brought a motion seeking an order requiring the plaintiff to attend a defence orthopaedic examination with Dr. Axelrod.  The plaintiff had already served a medical report from Dr. West, an orthopaedic surgeon dated July 22, 2012.

The defendants had already conducted a defence medical examination of the plaintiff on October 17, 2014 with Dr. Berbrayer, physiatrist.  The plaintiff had also attended a defence psychological examination with Dr. Prendergast on December 8, 2015.  The defendants now wanted to conduct a second physical examination of the plaintiff with an orthopaedic surgeon.  The defendants knew the plaintiff would be relying on the report of an orthopaedic surgeon at trial.  However, they chose to have the plaintiff examined by a physiatrist to assess his physical injuries.  Master Muir noted that the defendants could have sent the plaintiff to an orthopaedic surgeon but they chose not to.

According to Master Muir, the defendants must demonstrate that the second physical examination is warranted based on the applicable factors as cited in the leading case on a motion of this nature, Bonello v. Taylor, 2010 ONSC 5723 [Bonello].  Master Muir concluded that there was no evidence that would suggest a significant or important change in the plaintiff’s condition since October 2014.

The defendants argued that in the summer of 2015 they received information regarding a subsequent motor vehicle accident involving the plaintiff that took place in September 2011 and that this new information formed a basis for a second physical examination of the plaintiff by the proposed orthopaedic defence expert. Master Miur did not agree as Dr. Berbrayer was aware of the second accident when he prepared his addendum report, yet concluded that his original opinion did not change.  Dr. Berbrayer did not state he required a further physical examination of the plaintiff in light of this new information.  Master Muir did not view this as sufficient justification to warrant a further physical examination.

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