There is conflicting legal precedent on the issue of whether or not a Plaintiff can be forced to sign a consent form with respect to an independent medical examination, when such attendance has been court-ordered.

 

In Wee v. Fowler, the Plaintiff was injured in a motor vehicle collision, and consequently sued for damages.

 

At one point in the litigation process, ICBC’S lawyer requested that the Plaintiff be examined by a physiatrist for the purposes of an independent medical examination. Although this was initially refused by Plaintiff’s counsel, it was later agreed to in the form of a consent order.

 

However, upon arriving for the examination, the Plaintiff refused to sign the consent form, and the physiatrist would not proceed with the examination as a result of this. The issue was brought before the Court for further consideration.

 

ICBC’S lawyer argued that the law was clear with respect to the Court’s authority to compel a Plaintiff to consent to a medical examination, and that, provided the consent form is reasonable, the Court can and should order that it be signed.

 

Counsel for the Plaintiff submitted that ICBC’S lawyer had not sought an order requiring the Plaintiff to sign the consent form. Further, counsel for the Plaintiff argued that the Court does not have the authority to force a consent form to be signed, and that the consent form in question went beyond what is required, submitting that all that is required is that the Plaintiff agree that the doctor is entitled to conduct the examination. The Plaintiff’s objections were on the basis that :

 

• She must acknowledge that the doctor in question is independent of the parties
• She is not in a doctor/patient relationship with him
• She received an explanation as to the nature of the assessment
• She was there voluntarily or pursuant to a court order under Rule 7-6 (1)

 

The Court would rule that the consent form in question was reasonable, and ordered that the client sign it.

 

[40]         With respect to the plaintiff’s first objection, the plaintiff suggests that Dr. Hirsch is not “independent” as he receives instructions and communicates with only one party. While it is true that Dr. Hirsch was retained by one party to the litigation, under Rule 11-2, an expert who is retained to provide an opinion, which includes physicians conducting IME’s like Dr. Hirsch, has a duty to assist the court and not be an advocate for any party. Dr. Hirsch is, therefore, to perform a role that is truly independent of the parties to the litigation. In that regard, I note that both parties refer to Dr. Hirsch conducting an “independent medical examination” in their correspondence, which is reflective of the generally accepted role of physicians conducting such examinations. I do not accept that the reference in the consent form to Dr. Hirsch being independent or to his conducting an independent medical examination to be unreasonable.

 

[41]         The plaintiff also objects to the requirement that the plaintiff confirm her understanding that there is no doctor‑patient relationship arising from the IME. In my view, the statement, read in its context, elucidates its meaning, that is, Dr. Hirsch, although conducting a medical assessment, is not her treating physician. I am not prepared to find, without any evidence, that this statement is ambiguous or outside the knowledge of the plaintiff who, I note from the materials included in the Application Record, is a registered nurse working in a hospital setting. In any event, this is a matter which the plaintiff could ask of Dr. Hirsch should she need any clarification.

 

[42]         The third objection is that the plaintiff is asked to confirm in advance that she has received an explanation as to the nature of the assessment. Again, I do not have evidence that suggests Dr. Hirsch did not or would not discuss the nature of the assessment prior to commencing the IME or prior to asking the plaintiff to complete the consent form. I find no basis for this objection.

 

[43]         The final objection to the proposed form of consent is that it requires the plaintiff to agree that her attendance is voluntary or pursuant to Rule 7-6(1). The plaintiff suggests that it is either one or the other. In my view, these are the two usual circumstances under which a party participates in an IME, and the reference is simply descriptive of the basis for the plaintiff’s participation. I do not accept there is merit to the plaintiff’s objection.

In Falbo v. Ryan, the Plaintiff was injured in a motor vehicle accident, and consequently sued for damages, alleging chronic pain.

 

The Plaintiff was examined by several ICBC medical experts, including a physiatrist, a psychiatrist, a dentist, and a rheumatologist.

 

Counsel for the Plaintiff served two functional capacity evaluations expert reports on ICBC’S lawyer within the customary 84 day time limit before trial. ICBC’S lawyer then requested that the Plaintiff be personally examined by one of ICBC’S experts for the purposes of a responsive report, which would have to be served upon Plaintiff’s counsel 42 days before trial. Counsel for the Plaintiff refused, necessitating an interlocutory application by ICBC’S lawyer for an order directing that the Plaintiff attend for a functional capacity evaluation.

 

ICBC’S lawyer alleged that the two functional capacity evaluation reports from the Plaintiff took the Defendant by surprise in the sense that the Plaintiff is shown not to meet the full demands of her job, and that a physical examination is necessary in order to prepare a responsive report. Counsel for the Plaintiff countered that the Plaintiff’s inability to work full time has been at issue for years, and thus ICBC’S lawyer should not have been taken by surprise. Counsel for the Plaintiff also argued that no physical examination of the Plaintiff was necessary for the purposes of preparing a responsive report.

 

The Court, citing the previous decision in Timar v. Barson, stated that independent medical examinations, where the Plaintiff is subjected to a physical examination, for the purposes of responsive reports should be rare.

 

[10] There are numerous cases that have dealt with these types of applications. The plaintiff in fact produced a binder of 21 case authorities. One of the cases that I find most persuasive in this matter is Timar v. Barson, 2015 BCSC 340. In that case, Mr. Justice Smith said that IMEs for responsive reports should be rare. I agree.

 

[11] In my view, the defendants cannot reasonably claim to be surprised by the subject matter of the report, and further, it is my view that it is not necessary in order to provide a responsive report for the plaintiff to be subjected to a physical examination. These types of orders are discretionary. They ought to be rare. There is, unfortunately in my view, what seems to be an acceleration of these types of applications. They should be extremely rare, and in my view the defendants do not require a physical examination of the plaintiff in order to properly respond to Ms. Craig’s two functional capacity evaluations.

In Thandi v. Higuchi, the Plaintiff was injured in a motor vehicle collision, and sued for damages. During the litigation process, the Plaintiff underwent an independent medical examination by an orthopaedic surgeon for ICBC. The Defendant did not produce an expert report from the examination. Later, ICBC’S lawyer requested that the Plaintiff submit to an independent medical examination by a neurologist, however Plaintiff’s counsel refused, thus necessitating an interlocutory court application by ICBC’S lawyer.

 

The Plaintiff had also earlier agreed to attend a functional capacity evaluation, causing the Court to note that, in effect, ICBC’S lawyer’s request was in fact for a third independent medical examination.

 

The Court would eventually rule that ICBC’S lawyer did not prove that the independent medical examination was necessary so that both the Plaintiff and Defendant would be on “equal footing”, as there was insufficient evidence before the Court as to the necessity of the independent medical examination with the neurologist.

 

[6]             The major impediment to the defendant’s application in this case is the absence of Dr. Loomer’s report. It might be the case that the defendant could establish the necessity for a third independent medical examination before a neurologist, but the Court does not have sufficient evidence to assess that issue. Here, I rely on Koulechov v. Dunstan, 2015 BCSC 393 at para. 6, which is on all fours with this application:

 

[6]        It is counsel’s prerogative, of course, to control the timing of disclosure in a civil case. However, an order for a second independent medical examination under Rule 7-6 is a discretionary remedy that will only go if it is required to put the parties on an equal footing with respect to medical evidence: Stainer v. Plaza, 2001 BCCA 133 at para. 8. In the present application, in the absence of Dr. Gittens’ report, it is impossible for me to evaluate if there is any inequality in evidence or if an orthopaedic IME could redress it. …

With respect to independent medical examinations (IMES), there is generally a prohibition on attending a physical exam for the purposes of bolstering a previous opinion.

In Monohan v. Yang, the Plaintiff was injured in a motor vehicle accident, and consequently brought an ICBC claim for damages for pain and suffering, as well as other forms of damages. Liability was admitted by ICBC’S lawyer. At one point during the litigation process, the Plaintiff was examined by a neurologist of the Defendant’s choosing. Counsel for the Defendant also wanted the Plaintiff to be examined by an orthopedic specialist of the Defendant’s choosing, however counsel for the Plaintiff refused on the basis that the original report of the neurologist discussed all of the Plaintiff’s injuries, so a further examination by the orthopedic specialist was not warranted. The Court agreed, and dismissed the Defendant’s application for another examination.

 

[21] In Hamilton v. Pavlova, 2010 BCSC 493, Mr. Justice Bracken, in reviewing the principles associated with this type of application, stated the following at paragraphs 10 through 16:

 

[10] Rule 30(1) provides discretion to the court to order an independent medical examination, and under Rule 30(2), more than one examination may be ordered. Counsel, in their helpful submissions, have thoroughly canvassed the relative authorities on this point. From those authorities, certain principles emerge. The case law is against a background of the rules of court, and in particular, the principle that the rules are designed to secure a just determination of every proceeding on the merits and to ensure full disclosure, so the rules should be given a fair and liberal interpretation to meet those objectives . . .

 

[11] Rule 30(2) is a discretionary rule, and the discretion must be exercised judicially. An independent examination is granted to ensure a “reasonable equality between the parties in the preparation of a case for trial” . . .

 

[12] Reasonable equality does not mean that the defendant should be able to match expert for expert or report for report . . .

 

[13] A second exam will not be allowed for the purpose of attempting to bolster an earlier opinion of another expert. That is, there must be some question or matter that could not have been dealt with at the earlier examination . . .

 

[14] There is a higher standard required where the defendant seeks a second or subsequent medical exam of the plaintiff . . .

 

[15] The application must be timely. That is, the proposed examination should be complete and a report available in sufficient time to comply with the rules of admissibility and to allow enough time for the plaintiff to assess and respond if necessary . . .

 

[16] Finally, subsequent independent medical examinations should be reserved for cases where there are some exceptional circumstances . . .

 

[22] In my view, Dr. Moll did fully opine on all of the physical injuries alleged by the plaintiff. Dr. Moll gave his opinion with regard to a diagnosis, prognosis, and the causation of not only the plaintiff’s neurological complaints, but her musculoskeletal injuries. The opinion of an orthopedic surgeon would only go to bolster the opinion of Dr. Moll.

 

[23] While I appreciate the defendants may not have specifically requested the opinion that they received from Dr. Moll, he is their expert and he opined on all of the plaintiff’s physical injuries.

 

[24] Dr. Moll did raise the new issue of a psychological injury. However, an orthopedic surgeon cannot address that issue.

In Foster v. Chandel, the Plaintiff was injured in a motor vehicle accident, and subsequently brought an ICBC claim for pain and suffering, as well as other various forms of damages. Liability was admitted by the Defendant. The Plaintiff‘s injuries led to chronic pain and a major depressive disorder. During the course of the litigation, an interlocutory application was brought by ICBC’S lawyer for an independent medical examination. The Court noted that defence counsel could have sought the information requested at an Examination for Discovery.

 

[18] There is no evidence from any medically-trained person suggesting that a psychiatric examination is necessary or useful to either diagnose or treat the plaintiff. The plaintiff is taking medication in the dosage recommended by physicians with no suggestion of prescription abuse. The emotional symptoms are said by the medical experts to emanate from the plaintiff’s physical pain, not from any alleged psychiatric condition or disorder.

[19] The defendants submit that the psychiatric examination may reveal other causes for the plaintiff’s anxiety and depression. It may also reveal the nature and extent of these conditions.

[20] Such information can be sought at the plaintiff’s examination for discovery. A psychiatric examination should not be ordered simply to allow the defendants to ask the same questions asked in discovery but in a different manner and venue.

[21] The nature and extent of the plaintiff’s pain disorder and resulting symptoms is revealed in the records and reports of the treating physicians. There is no evidence to suggest that a psychiatrist could offer a “better” diagnosis or prognosis on that condition.

 

In Jackson v. Yusishen, the Plaintiff was injured in a motor vehicle collision, and consequently brought an ICBC claim for pain and suffering, as well as other forms of damages. Counsel for the Plaintiff produced an expert functional capacity evaluation report, at which point ICBC’S lawyer wrote to Plaintiff‘s counsel, requesting that the Plaintiff attend for a functional capacity evaluation. The Plaintiff did not agree to this, in part due to the fact that the time limit had passed for delivery of an expert report. Counsel for the Plaintiff acknowledged that ICBC’S lawyer was at liberty to obtain a responsive report, which would be due 42 days before trial, but Plaintiff‘s counsel was not convinced that a direct examination of the Plaintiff was required for such a report.  The Court ruled that ICBC’S lawyer did not meet the evidentiary test to permit the examination, however did comment that in certain exceptional circumstances, late medical examinations may be permitted.

 

[15]         There are three rules engaged by this application. The Rules of Court distinguish between new or fresh expert reports and responsive reports. Rule 11‑6(3) provides that, unless the court otherwise orders, expert reports other than responsive reports must be served on all parties of record at least 84 days before the scheduled trial date.

[16]         Rule 11‑6(4) deals with responsive reports and provides that such reports must be served on every party of record at least 42 days before the trial date.

[17]         The third rule engaged by this application is Rule 7‑6, which provides that the court may order a person submit to an examination by a medical practitioner or another appropriately qualified person. An order under Rule 7‑6(1) is discretionary. While there are a host of factors that should be considered when exercising the discretion conferred by that rule, one of the factors might broadly be taken to be whether the examination sought will advance the litigation, in the sense of potentially yielding relevant evidence touching on a material issue.

[18]         In the context of a personal injury action, meeting that evidentiary threshold where the object of the examination is the eventual production of a fresh or new expert report will not usually be difficult. On the other hand, where the time limited for serving fresh or new expert reports has passed, and thus the only purpose of an independent medical examination is in furtherance of the production of a responsive expert report, the evidentiary burden will generally be more difficult to meet.

[32]         Although the evidentiary burden has not been met in this case, I acknowledge that, on occasion, there may be circumstances which might justify the ordering of an independent medical examination, otherwise than in support of the preparation of a responsive report. It may be that, in some cases, the court may anticipate or at least allow for the possibility that a fresh opinion would be exceptionally admissible, notwithstanding that the 84‑day deadline has passed. Although not framed that way in Luedecke, the issue may have arisen at trial after the production of the report that the master ordered. In this case, however, there is no basis to conclude that an independent medical examination is necessary to level the playing field.

In Knowles v. Watters, the Plaintiff was injured in a motor vehicle accident, and brought an ICBC claim for damages. Some of the injuries alleged by the Plaintiff were imbalance and inner ear problems. The Plaintiff retained an expert in this regard, and agreed to be examined by a doctor for the defense. ICBC’S lawyer then tried to bolster the opinion of the defence doctor by having the Plaintiff see another specialist, however the Court refused to allow this.

 

[9]             In this case the defendant has had the opportunity the authorities require to essentially balance the playing field. Counsel are agreed that the authorities I have been cited are to that effect. The court’s job is to ensure that there is a so-called level playing field or that the parties have the opportunity to deal with the case fairly on the merits.

 

[10]         The plaintiff here has, as is always the case, the opportunity to visit various specialists and get various reports. The defendant’s opportunity is limited to reports necessary to ensure that a fair trial can be obtained on the merits. In this case it is too fine a distinction to make to say that Dr. Moll, who made a comprehensive examination and gave a comprehensive report on the plaintiff’s balance complaints, can be distinguished from what Dr. Bell might or might not do as an otolaryngologist. There is no evidence to say that Dr. Moll was unable to make the report he did, that if he had had more information he might have made a different report, or indeed that if he had seen Dr. Noel’s report that he might have come to a different conclusion. None of that is the case. The plaintiff has disclosed its reports to date. The defendant has had a fair opportunity to respond to those reports. Dr. Moll’s report is indeed a complete response to Dr. Noel’s report. The plaintiff’s own report from Dr. Noel does not suggest that there is an underlying otolaryngological cause to the plaintiff’s symptoms. He says that the ENG test was normal except for one abnormality that he says is most likely due to other causes. Dr. Noel says the symptoms were multifactorial, not related to one issue. That is at odds with what Dr. Moll has to say, but that is what the jury will have to decide when the case comes to trial.

 

[11]         This is not a case where the defendant has made out the burden on him to demonstrate that this application is necessary. The application is dismissed. Costs should go as costs in the cause. There is no reason to depart from the usual rule.

In Dillon v. Montgomery,  the Plaintiff agreed to attend a defence medical examination with an orthopaedic surgeon, which included a neurological assessment. ICBC’S lawyer then requested that the Plaintiff attend for a second medical examination, this time with a neurologist. The Plaintiff refused, so the lawyer for ICBC brought a court application. The Court dismissed the application, holding that the effect of the second examination would be to bolster previous opinion.

 

[28]         In the case at bar, I determined that an examination by Dr. Moll is not necessary to put the parties on equal footing.

 

[29]         First, there was nothing new in the medical evidence since the examination by Dr. McGraw that might justify an examination by a neurologist. The only alleged new information is the plaintiff’s ongoing complaints of tingling in his arms and legs. These complaints are of long standing and even pre-date the accidents.

 

[30]         Second, a neurological opinion has been obtained [by the plaintiff] which negates any correlation between the plaintiff’s symptoms and the motor vehicle accidents. Indeed, Dr. Shtybel’s resident made no findings of neurological impairment whatsoever. In other words, the only purpose of an independent medical examination by a neurologist would be to prove a negative, or, perhaps bolster Dr. McGraw’s opinion. This circumstance is different than the one considered in Kim v. Lin where there had yet to be any medical opinions proferred to explain ongoing (and even worsening) accident related complaints.

 

[31]         Finally, the fact that the plaintiff has ongoing complaints that may be considered neurological symptoms does not warrant this second examination. The defence is “not entitled to pursue every potential medical possibility” to address the plaintiff’s subjective complaints: Lowry v. Spencer, (10 December, 1990) Vancouver Registry No. B883909 as cited in Trahan v. West Coast Amusements Ltd., 2000 BCSC 691 at para. 49.

 

Under Rule 7-6(1) of the British Columbia Supreme Court Civil Rules, the Court has the power to order that a person undergo a medical examination.

 

In LaBrecque v Tyler, the lawyer for ICBC brought an application to have the Plaintiff attend for an independent medical examination for the purposes of obtaining a responding expert report. The Court denied ICBC’S lawyer’s application, ruling that there was not enough evidence presented to justify the necessity of the Plaintiff attending for the examination.

 

[37]              Here, the evidence from Dr. Piper as to the necessity for an examination is rather general in nature. Dr. Piper refers to the reports of both Dr. Grimwood and Dr. MacKean when in fact the responsive opinion would concern only the latter’s report. Unlike the evidence from the proposed examiner in Luedecke, Dr. Piper does not specifically identify the “medical evidence” (other than the reports themselves) that can only be addressed if a physical examination of the plaintiff occurs. Rather, Dr. Piper’s evidence suggests that an examination is necessary to respond generally to the subject matter of the plaintiff’s case and, as such, is no justification for the order sought

 

[39]           The plaintiff in Luedecke could not reasonably argue prejudice based on the timing of the delivery of any new report. The report would be delivered in compliance with Rule 11-6(3). That is not the situation here. The defendant seeks to address this prejudice by asking the court to extend the time for delivery of Dr. Piper’s report and thus abridge the Rule. However, the only justification for such an order would be that the defendant did not have an opportunity to make this application in a timely manner upon receipt of Dr. MacKean’s opinion in October 2010. No evidence is presented explaining that delay.

 

[40]           Furthermore, Luedecke represents a situation whereby the plaintiff’s case significantly changed upon the delivery of expert reports. Until that time, the defence did not appreciate the case that was expected to be met. That is different from the circumstances here where, again, Dr. MacKean’s opinion has been known to the defence for several months.

 

[41]           Lastly, on the question of prejudice, the defendant’s application comes at a time when the plaintiff could or should be preparing for trial. An examination by Dr. Piper would disrupt that preparation and should not be ordered: White v. Gait, 2003 BCSC 2023 (CanLII), 2003 BCSC 2023; Benner v. Vancouver (City), 2007 BCSC 1998 (CanLII), 2007 BCSC 1998.

 

It is sometimes the case that you live in one city, yet ICBC’S lawyer wishes you to attend for an IME in another city.

 

In Parsons v Mears, the Plaintiff lived in Victoria, yet ICBC’S lawyer wanted the examination to occur in Vancouver. An application was brought by the lawyer for ICBC, and the Court ruled that the IME should take place in Vancouver.

 

[18]  The plaintiff consents to attending both an independent medical examination and a work capacity evaluation. Mr. Parsons simply asked that such appointments be scheduled to convenience him. Thus, the narrow issue for determination on this application is the role that convenience plays when considering an order under Rule 7-6 of the Supreme Court Civil Rules. 

 

[19]            The following principles are applicable to this discussion:

 

a.  The purpose of an independent medical examination is to put the parties on a basis of equality. It is not for the plaintiff to decide which doctor can examine him or her on behalf of the defendant: Sinclair v. Underwood, 2002 BCSC 354 at para. 5;

 

b.  Nonetheless, an independent medical examination is an examination conducted by a person appointed by the court. The convenience of the plaintiff is to be considered in appointing such a person: Willis v. Voetmann, [1997] B.C.J. No. 2492 (S.C.) at para. 5;

 

c.  Convenience to the plaintiff is but one of several factors for the court to consider in exercising its discretion under Rule 7-6: Adelson v. Clint (1993), 16 C.P.C. (3d) 209 (B.C.S.C.) at para. 17; and

 

d.  It may be appropriate for the court to consider appointing a specialist other than the proposed examiner but only where the plaintiff demonstrates, on a preponderance of evidence, sufficient grounds to justify the court in concluding that its discretion should not be exercised in favour of the appointment of the defendant’s nominee: Sinclair v. Underwood and Adelson v. Clint, supra.

 

[20]           In terms of convenience to the plaintiff, I do not understand the authorities to say that an independent medical examination should, or even might preferably, take place at the examinee’s town or city of residence. Nor do I understand those authorities to say that all things being equal, the defence should be required to schedule an examination with a specialist practicing near the examinee’s residence. For example, the court in Willis v. Voetmann, supra, deemed it reasonable for a resident of Port McNeil to travel to Victoria or Vancouver for an examination.

 

[21]           It is almost always an inconvenience to a plaintiff to attend an independent medical examination. An employed person might miss a day’s pay; a homemaker with young children might be required to pay for childcare. However, that inconvenience can be remedied at trial by an award of damages for this suggested loss.

 

[22]           On a very rare occasion, the court may order that the defendant’s nominee travel to the plaintiff’s town or city of residence to conduct the independent examination or assessment. Such an order might be appropriate where the examination or assessment is requested so late in the day that travel time would unduly interfere with the plaintiff’s trial preparation. The alternative to such an order would be to deny the defendant’s entitlement to an examination altogether: White v. Gait, 2003 BCSC 2023 (CanLII), 2003 BCSC 2023.

 

[23]           In this case, there is no objection to the qualifications of either Dr. Leith or the proposed evaluator at Progressive Rehabilitation. The plaintiff can obviously travel although the defendant may need to offer special accommodations for that trave 

 

[24]              In short, convenience to the plaintiff is one of several factors for the court’s consideration on this application. It is not the predominant factor and in itself does not provide justification for denying the defendant’s entitlement to the order sought.