Longva v. Phan

2007 BCSC 690 Longva v. Phan

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Longva v. Phan, 2007 BCSC 690 Date: 20070515 Docket: M05338 Registry: Vancouver Between: Robert Wayne Longva Plaintiff And Van Tai Phan Before: Master Bolton Reasons for Decision Counsel for the Plaintiff: R.S. Watts Counsel for the Defendant B.A. McIntosh Date and Place of Hearing: February 25, 2007 Vancouver, B.C. [1] This application concerns medical examinations of a plaintiff by a defendant in motor vehicle accident litigation, and whether a medical report, allegedly obtained by I.C.B.C. solely with reference to a Part 7 benefits claim, should be considered to be a first report for the purpose of the practice that limits the availability or sourcing of second reports. [2] The plaintiff was injured in a motor vehicle accident on November 2, 2003. He reported the accident to his insurer, I.C.B.C., on the same date, and attended an I.C.B.C. claims centre on November 6, 2003 for an interview. [3] No evidence has been led as to claims made by the defendant with regard to his own insurance, but it is common ground that he, too, is insured under a valid policy of insurance with I.C.B.C. It is in its capacity as the defendant's insurer that I.C.B.C. is defending the present action. [4] Two months after the accident, an I.C.B.C. claims representative, Trevor Carmont, reviewed the file. The nature of Mr. Carmont's involvement in the

file has not been explained; specifically, whether he was dealing only with the plaintiff's Part 7 claim, with the plaintiff's Part 7 claim and his anticipated tort claim, or with both or either of those plus claims for indemnity and his own losses sustained by the defendant. [5] On January 6, 2004 Mr. Carmont e-mailed another I.C.B.C. employee, presumably a supervisor, noting that the plaintiff was saying he could hardly walk and there was no return-to-work date in sight, and requesting approval for a medical examination of the plaintiff. [6] Approval must have been given, because on March 9th, Mr. Carmont wrote to the plaintiff, saying: To help me assess your claim, I have made an appointment for you to have a medical examination with a medical specialist [Dr. Hawk]. The doctor will examine you regarding your injuries from the motor vehicle accident and will provide a medical report to I.C.B.C. [7] On the same date, Mr. Carmont wrote to Dr. Hawk to confirm the particulars of the appointment. He also gave a thumb-nail sketch of the circumstances of the accident and the plaintiff's subsequent medical history, so far as he knew it. He went on to say: We have provided information pertaining to this claimant's occupation and job duties. We would ask that you obtain information, from the claimant, of his/her specific duties. We would ask that you include this information, as

described by the claimant, in your return report. Once you have examined this patient, please provide us with a report of your findings including the following information: ● A summary of your qualifications and experience. ● The facts and assumptions on which this opinion is based. ● The history of the accident and the patient's complaints as related to you. ● Your diagnosis and prognosis. ● Whether the patient had any prior or existing problems which are relevant to his job duties. ● Whether his complaints have been caused by this motor vehicle accident. ● Your opinion as to how much time off work would be reasonable considering the patient's injury and his job duties. ● Your opinion as to whether there will be any permanent disability and, if not, your estimate of the length of any temporary disability. ● Recommendations you may have with respect to current treatment and the need for any future treatment. ● Whether there will be a need for surgery in the future and, if so, how much time off work will be required. ● Whether the patient requires or has required additional household help and, if so, how much assistance is reasonable. [8] As of the date of these letters, March 9, 2004, I.C.B.C. had not been notified that the plaintiff had retained counsel. Nor had I.C.B.C. appointed counsel themselves. On March 23, 2004, I.C.B.C. did receive written notification that the

plaintiff had retained counsel. [9] The plaintiff attended for his medical examination on March 31, and Dr. Hawk provided his report the same day. This was a thorough, eight-page report describing the plaintiff's pre- and post- accident health and employment. It concluded with Dr. Hawk's opinion, where he found " no objective physical findings to support his being physically impaired other than mild residual stiffness of his neck and back. He appears to be capable of continuing with his longshoreman's work at this time." [10] He further recorded his belief, "that he has largely recovered from the soft-tissue injuries he sustained in the motor vehicle accident" and recommended a program of exercises which he believed would lead to further improvement. [11] On June 21, 2004, another I.C.B.C. claims representative, Vivian Wilson, wrote to Dr. Hawk to ask his opinion about further treatment. What had prompted this concern is not clear from the material before me. Again, there is no evidence as to the capacity in which Ms. Wilson was dealing with the matter. Dr. Hawk's reply is included in the evidence, but it is not particularly relevant to the current application. [12] On July 28, 2005, the plaintiff filed a statement of claim in which his injuries were particularized as follows: injuries to the neck; injuries to the back; injuries to the shoulders; injuries to the head; injuries

to the left leg; aggravation of pre-existing injuries; headaches; fatigue; insomnia; anxiety; depression. [13] The claim seems to have proceeded in a fairly desultory fashion for the next two years or so. In November 2006, counsel who were by now acting for I.C.B.C. wrote to the plaintiff's counsel advising that they had scheduled a medical examination of the plaintiff with a Dr. Thompson in February 2007. Dr. Thompson is an orthopaedic specialist. So is Dr. Hawk. [14] The plaintiff's solicitors agreed that an orthopaedic examination was appropriate and were prepared to consent to a second examination by Dr. Hawk, but objected to the examination by Dr. Thompson on the basis that no special circumstances existed to warrant an examination by a second doctor professing the same type of expertise as another doctor who had already examined their client at the behest of the defendant. The defendant has joined issue with the plaintiff on this point, and it therefore becomes necessary to determine whether the report by Dr. Hawk is a "first report" for the purposes of this tort claim and the rules of practice that have developed in this frequently litigated area. [15] Notwithstanding the more or less passing references to it in the parties' submissions, the leading case in this area is unquestionably the decision of the Court of Appeal in Vorasarn v. Manning (1997), 30 B.C.L.R. (3d)

63. [16] That case was first considered by a master. The plaintiff had retained counsel before the "first" medical report had been obtained, and indeed plaintiff's counsel had discussed with representatives of I.C.B.C.'s rehabilitation department the selection of specialists to assess and treat the plaintiff. The doctor in question provided a written report to the I.C.B.C. rehabilitation department on July 13, 1994. Counsel for the plaintiff received a copy of the report on October 1994, but counsel for the defendants on the tort claim did not request or obtain a copy until April 1995. This latter fact presumably resulted from an explicit agreement between the rehabilitation department and counsel for the plaintiff that no reports were to be provided to counsel for the defendants in the tort action or to the examiner or adjuster handling the tort claim. After receiving this report in April 1995 the defendant's solicitors applied for an order for an independent assessment by a doctor with similar qualifications to the doctor who had provided the report to the rehabilitation department. The plaintiffs objected, but the master held that the first doctor had not been selected by the defendant, and ruled that the defendant was entitled to the examination as the first examination by a defence expert. [17] The plaintiff appealed this order to a judge of the Supreme Court, who

concluded that the master's decision was clearly wrong. The decision turned on the agreement between what the judge characterized as "the defendants' insurers" and plaintiffs' counsel with the respect to disclosure of the medical report. The court concluded, essentially, that disclosure to the defendant's insurers was tantamount to disclosure to counsel acting for the defendant in the tort claim, and that accordingly the existing medical report was a "first report", with all the limitations as to second reports stemming from that finding. [18] The matter was then appealed to the Court of Appeal, which allowed the appeal and restored the decision of the master. The court concluded that the learned chambers judge on appeal had been in error when she described the I.C.B.C. rehabilitation department representatives as agents of "the defendants' insurers". Legg J.A. held that the chambers judge had failed to distinguish the role of first-party no-fault and third-party liability representatives at I.C.B.C. Consequently, as a result of failing to distinguish the separate roles of the I.C.B.C. rehabilitation department, which was dealing with the plaintiff's own Part 7 claim, and other adjusters dealing with the plaintiff's claim against I.C.B.C as the insurer of the defendant, the chambers judge had been wrong to reverse the master's decision to order a medical examination. [19] At

paragraph 22, Legg J.A. summed up the case and the law as follows: [22] The evidence before the master established that neither defendants' counsel nor the I.C.B.C. examiner handling the claim on behalf of the defendants were consulted regarding the appointment of Dr. Schmidt or had any involvement in the preparation of his report. This can be contrasted sharply with the situation addressed in Harmada where there is no suggestion that the adjuster or counsel defending the tort action were excluded from participating and selecting and contacting the physician chosen by I.C.B.C. for the no-fault examination. [20] The Vorasarn case can be usefully contrasted with the more recent decision in Robertson v. Grist, [2006] B.C.J. No.

1873. Again, a master had to decide whether a medical report which the defendant alleged was obtained pursuant to a Part 7 claim was in fact a "first report" for the purposes of a tort claim. In that claim, the adjuster was acknowledged to be handling "both aspects" - presumably both a Part 7 claim and a prospective tort claim. At paragraph 15 of his oral reasons, the master said: I take the meaning of Vorasarn to be that, generally speaking, an IME under the auspices of a Part 7 claim stands alone and is not to be considered as a pre-existing IME for the purposes of an application in the tort claim, but that is not a hard and fast rule that is applicable in all circumstances. The comments of the Court of Appeal suggest there may be some limited circumstances in which one can consider the Part 7 IME in an application in the tort action. I cannot begin to imagine all of those circumstances of course, but perhaps some examples would be where the adjuster and the insured, either directly or through counsel, have made some agreement that the examination will be for both purposes and one party seeks to renege, or perhaps where clearly the matters sought to be the subject of the IME go well beyond what would reasonably be expected under Part 7 and by inference must be a tort IME, or other matters of that nature. [21] On the basis of this analysis, the master concluded that the report

was not to be considered as referable to the tort action, and consequently ordered that the Rule 30 examination by a second practitioner could proceed. [22] Again, the decision was appealed, and again it was set aside. The learned judge went on to consider the application of Vorasarn and the master's application of that case. Her Ladyship concluded that the master was in error in failing to appreciate a significant distinction: in Vorasarn, I.C.B.C. rehabilitation people were completely independent of the adjuster and defence counsel in the tort claim, to the point that there was an explicit agreement that the rehabilitation representative could not disclose the report to the I.C.B.C. representatives in the tort claim, whereas in Robertson the adjuster who requested the report was dealing with both the Part 7 and tort claims. The court also concluded that the master had wrongly failed to review the content and substance of the letter requesting the medical report, which asked the doctor to review: Whether the patient had any prior or existing problems relevant to job duties, whether there was permanent disability and the length of any temporary disability, recommendations for future treatment, whether there would be a future need for surgery and the time required from work for this purpose, and whether the injuries would have been less severe if she had been wearing a seat belt

or adjusted her head rest. [23] Her Ladyship concluded at paragraph 19: Ultimately, the Master concluded that Vorasarn stood for the proposition that a Part 7 examination is not to be considered as a pre-existing independent medical examination for purposes of an application in the tort claim, although that was not a hard and fast rule. In my view, this is clearly wrong. The more logical interpretation of Vorasarn is that an independent medical examination under Part 7 is normally considered a pre-existing independent medical examination except in such circumstances where the adjuster handling the tort claim on behalf of the insured defendant was not consulted nor had any involvement in the selection of the Part 7 doctor so that it could not be said that the Part 7 doctor was the nominee or representative of the insured defendant. [24] The differing results of the Vorasarn and Robertson cases therefore require an analysis of: (1) the capacity in which the adjuster who requested the "first" medical report was acting, and (2) whether the doctor is asked to deal with issues that are confined to a Part 7 claim or relate to an actual or potential tort claim. [25] In the present case, there is simply no evidence as to the capacity of Mr. Carmont and Ms. Wilson, the two I.C.B.C. representatives who corresponded with Dr. Hawk. I do not know whether they were dealing only with the

plaintiff's Part 7 accident benefits claim, or also had authority to collect information to be used in the tort claim that they could, and presumably did, anticipate. [26] In those circumstances it might seem appropriate to draw an adverse inference against the defendant, as defence counsel could easily have resolved the uncertainty if doing so would operate in his favour. However, in my view no adverse inference is appropriate here because the plaintiff had counsel at all material times who would have corresponded with I.C.B.C., or had access to correspondence between I.C.B.C. and his client, and would therefore be in a position to know, and inform the court, if a common adjuster dealt with all aspects of the claim, or there were separate adjusters for Part 7 and the tort claim. [27] I am therefore unable to find that this issue assists either party. [28] As to the second issue, it requires a careful analysis of the terms of reference for the medical report dictated by the adjuster. Before turning to the instructions given to Dr. Hawk by Mr. Carmont, it will be useful to review the instructions to the doctor in the Robertson case set out at paragraph 20 above. Without access to the pleadings it is impossible to come to definitive conclusions, but on the face of it questions about pre-existing difficulties with employment, length of temporary disability; and recommendations for

treatment all seem to relate to disability benefits. Questions about permanent disability, and future surgery and any resulting time off work are more dubious, but could relate to Part 7, especially if the adjuster is charged with the responsibility for establishing reserves for those benefits. But so far as I can see there is absolutely no reason why a Part 7 claim would raise any issues of contributory negligence attributable to improper use of a seat belt or head rest. [29] The learned judge in Robertson does not explicitly say so, but logically, any one of several issues which is referable only to a tort claim would qualify a medical report as the "first report". In my view, this issue is not really suitable for a "dominant purpose" analysis imported from the law relating to privilege. Any explicit reference to the doctor of a matter not relevant to the Part 7 claim should result in a finding that the report was obtained pursuant to Rule 30, because apart from that Rule, I.C.B.C. would have no right to receive the information. [30] In the present case, Mr. Carmont has conveniently set out in point form the issues he wanted Dr. Hawk to address: [31] ● A summary of your qualifications and experience. ● The facts and assumptions on which this opinion is based. Although at first glance both matters would seem necessary only in a report to be introduced in evidence in a tort

claim, there was - and so far as I know still is - some possibility the report might be relied on in a Part 7 claim. Although such claims do not often end up in court, actions claiming accident benefits are common enough that it cannot be said that the request for the doctor to summarize his qualifications and the facts he has relied upon denotes an exclusive applicability to the tort claim. [32] ● The history of the accident and the patient's complaints as related to you. Clearly the plaintiff's description of his symptoms is relevant to Part 7. But a history of the accident is only marginally so. Part 7 benefits are often called "no fault" benefits, so liability for the accident is irrelevant. Conceivably such things as velocity and angle of impact could have a bearing on whether the plaintiff's description of his symptoms is credible, but this speculation in my view is over-reaching in the absence of evidence that it was in fact one of the reasons for the referral. [33] ● Your diagnosis and prognosis. Clearly this would relate to Part 7. [34] ● Whether the patient had any prior or existing problems which are relevant to his job duties. [35] ● Whether his complaints have been caused by this motor vehicle accident. Depending on the answers to these questions, the insurer may have been entitled to argue that any loss of earnings was not covered under Part 7. [36] ● Your opinion

as to how much time off work would be reasonable considering the patient's injury and his job duties. This is referable to Part 7. [37] ● Your opinion as to whether there will be any permanent disability and, if not, your estimate of the length of any temporary disability. In my view, the phrasing of this request makes it clearer than the court's description of the request in Robertson that this enquiry is focussing on Part 7. Basically, what the adjuster is saying here is: "We need to know how long his entitlement to wage loss benefits will continue. Will it be short term (and if so, how long) or permanent?" [38] ● Recommendations you may have with respect to current treatment and the need for any future treatment. Current treatment is clearly referable to Part 7. Future treatment would not seem to be relevant to that claim unless it is used for establishing reserves or some other aspect of long term management of a claim that does not immediately occur to me, and has not been explained. [39] ● Whether there will be a need for surgery in the future and, if so, how much time off work will be required. The same analysis applies here as to the question about future treatment above. [40] ● Whether the patient requires or has required additional household help and, if so, how much assistance is reasonable. Clearly this could relate to the potential for a claim for Part 7 disability

benefits. [41] In all the circumstances, I have concluded that requests for a history of the accident and recommendations about future treatment and surgery must be considered to be solely referable to the plaintiff's potential tort claim. Each issue could, theoretically, be related to Part 7, but the relationship is so speculative that in my view positive evidence must be introduced of the intention of the adjuster before the court can accept the proffered connection. Thus, the report from Dr. Hawk must be reckoned as a Rule 30 examination by an orthopaedic specialist, and in the absence of special circumstances a subsequent orthopaedic examination must be conducted by the same specialist. (I must confess, though, that I have some difficulty with the rationale of this result, since on the face of it a second examination by Dr. Thompson would be no more intrusive than a second examination by Dr. Hawk, and plaintiffs seek second or third opinions to bolster their cases all the time.) [42] But, be that as it may, the law as I understand it is quite clear. Given the finding that the referral to Dr. Hawk dealt with some issues that were exclusively referable to the tort claim, it is not appropriate to allow an examination by Dr. Thompson in the absence of special circumstances which do not exist here. [43] The application is dismissed, with costs to the plaintiff. "Master Bolton"