Defence counsel in this case applies for an Order that the Plaintiff attend a Functional Capacity Evaluation with an Occupational Therapist, Timothy Winter.
- Right Arm
- Right hand
- Left leg
The Plaintiff claims permanent physical disability, past and future loss of housekeeping and past and future loss of earning capacity, among other categories.
Plaintiff opposes this application.
Should the examination be granted in order to put the parties on a reasonable basis of equality in preparing the case for trial?
The Factors to Consider
In Milburn v Phillips (1963), CanLII 497 (BCSC), the Court states:
“… Regarded in its broadest sense the examination is granted in order to put the parties on a basis of equality. The plaintiffs’ doctors have examined the plaintiffs and the plaintiffs’ solicitors know their findings. The defendant, apart from this Order, would have to go into Court gravely handicapped by lack of any similar expert opinion based on medical examination. This Order is meant to redress that inequality … “
A further list of factors to consider were outlined in Kenny v Bateman, 2017 BCSC 900:
- reasonable equality does not mean that the defendant should be able to match expert for expert or report for report (Kenny para. 56);
- the defendant faces a higher threshold if seeking a subsequent examination by a specialist in a field that is the same specialty as an expert who previously examined the plaintiff on behalf of the defendant (Kenny paras. 47 – 51);
- newly diagnosed symptoms may justify a subsequent examination by an appropriate specialist (Kenny paras. 57 – 63);
- if the amount involved is likely to be significant and the issues in dispute are important to both parties, proportionality becomes a relevant consideration and can weigh in favour of granting a further defence examination (Kenny paras. 64 – 66); and
- timeliness of the application can be an issue, as the ability to respond to a new report and the effect that a new report may have on trial preparation or the trial are factors properly taken into account on these applications (Kenny para. 67).
The basis for the IME, besides obvious reasons, is that the FCE would assist counsel in preparation for trial, she seeks expert evidence on the Plaintiff’s functional capabilities, employment capacity and an opinion on treatment recommendations.
The Court states:
The concept that both sides should have a reasonable opportunity to properly prepare for the likely issues at trial is an essential element of achieving a just determination of the case on the merits.
- Defence IME was conducted by neurosurgeon who last assessed the Plaintiff 3 years ago;
- Since that IME, the Plaintiff was not able to return to full-time work;
- IME from OT could relate to damages for future loss of earning capacity (which is different from the evidence sought from the neurosurgeon)
- Trial will be dealing with the Plaintiff’s loss of future earning capacity, which will be a main issue to address
- This is not a request for an expert-to-expert match
- The Plaintiff has not served his expert reports (other than from a GP)
- It is unknown whether evidence in this regard will be produced by the Plaintiff
- 84 deadline is in 2 months time
- A report from the proposed IME with the OT would not alter trial preparation / or the issues at trial
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