Purganan v. Joliet

2023 BCSC 858 Purganan v. Joliet

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Purganan v. Joliet, 2023 BCSC 858 Date: 20230425 Docket: M202719 Registry: Vancouver Between: Herman Purganan Plaintiff And Nicole Lise Joliet Defendant Before: Master Harper Oral Reasons for Judgment In Chambers Counsel for the Plaintiff: M. Gladkikh Counsel for the Defendant: L. Yeom Place and Date of Hearing: Vancouver, B.C. April 25, 2023 Place and Date of Judgment: Vancouver, B.C. April 25, 2023 [1] THE COURT: This is a personal injury case arising from a motor vehicle accident. [2] The defence seeks an order that the plaintiff attend an independent medical examination ("IME") with Dr. Mark Crossman, a physiatrist, on April 27th. I note that today is April 25th. This application was brought on short notice which has with it all of the usual problems with putting evidence together at the last minute. [3] The issue between the parties is that Dr. Crossman may require the plaintiff to fill in certain questionnaires: for instance, a low back pain disability questionnaire; a questionnaire that seems to be addressing emotional state; another questionnaire that is called a "Neck Disability Index"; another questionnaire which has diagrams of the front body and the back body entitled "Brief Pain Inventory"; another form which is about anxiety; and another one called "Headache Impact Test". There is a further form called "MoCA",

which is short form for Montreal Cognitive Assessment, something to do with a brain injury. The plaintiff agrees that he should fill in the MoCA form. [4] However, the plaintiff says that there is insufficient evidence before the court to justify an order that the plaintiff answer these questionnaires. The plaintiff relies on Chen v. Davidson (25 November 2022), Vancouver M206107 (B.C.S.C.), which set out that there was no evidence from the experts that the forms were required. [5] Here, we have an email from Dr. Crossman to defence counsel dated April 12, 2023. Apart from the MoCA test which he said is non-negotiable, Dr. Crossman goes on as follows: As for the other questionnaires about pain and emotional dysregulation, these are not obligatory, but it is highly encouraged that the claimant complete them. Any interference with these would result in a comment in the opinion section of the IME that plaintiff counsel interfered with a medical specialist's full assessment. [6] In my view, that paragraph provides sufficient support for the order that the defendant is seeking. I think because of the rushed nature of this application, the plaintiff's questions, which I think are reasonable questions, were not able to be answered. For instance, the plaintiff asks, "What is the setting for the questionnaires being filled in?" In submissions, defence counsel says the setting would be

at the IME itself. The plaintiff then asks, "Does the plaintiff do the questionnaires on his own?" I think the answer to that is yes, but presumably if the plaintiff has any difficulty understanding the questions, because the questionnaires are going to be filled out at the IME itself, the plaintiff has an opportunity to talk to the doctor about any difficulty he has in understanding the question. [7] Plaintiff's counsel says there is a potential for the plaintiff not to understand the questionnaire. Again, I think, as with any patient (not that there is a patient/doctor relationship here, but with any individual seeing a doctor), if the plaintiff does not understand the question, the plaintiff will simply ask the doctor to explain it. It is quite possible that these questionnaires will not be filled in to a standard of perfection. It is not a university exam. It is simply a questionnaire. [8] As for the plaintiff's position that the doctor is free to ask all of the questions and make note of the plaintiff's answers, I agree with defence counsel that that will simply prolong the appointment and is a distinction without a difference. [9] There is no difference, in my view, between the plaintiff being asked the question and the doctor circling the plaintiff's response versus the plaintiff reading the questionnaire himself and circling the response. I do not have any evidence

before me that the plaintiff has literacy or cognitive problems to the extent that he is unable to understand the written word. I would have certainly been very open to either modifying the order or not granting it if there was evidence from the plaintiff himself that he has such cognitive deficits that he cannot understand written questionnaires, but I do not have that evidence. [10] I do not think that these questionnaires are intrusive. Dr. Crossman has made it clear that he may require some of them or all of them and he will make that determination in the course of the IME itself. He will obviously, because of his professional responsibilities, ensure that the plaintiff has the time and the place to fill in these questionnaires, and then again to reiterate, if there is something that the plaintiff cannot understand, he should certainly tell the doctor that he does not understand the question, and there should be as little interference with the conduct of an IME as possible. [11] Dr. Crossman has decided that some or all of these questionnaires might be required for him to do a proper job and it is not the plaintiff's role to tie the hands of the IME doctor. These questionnaires are not intrusive, they are not an x-ray, they are not a blood test, or anything of that sort. I have looked through the questionnaires and they all seem very straightforward to me and would be

familiar to any person who has seen a doctor, a physiotherapist, or a chiropractor, and has been asked to fill in a questionnaire. I think these questionnaires will be useful for the doctor and, more importantly, he has said they are important for him to provide a proper opinion. [12] Therefore, I will make the order sought. [13] I do not think there is anything problematic in paragraph 2 of the notice of application. I have already said that if the plaintiff has difficulty answering the questions, he should tell the doctor about that, but I think that goes without saying with respect to any IME and the doctor will record in his report any concerns he has about the quality of the information that the plaintiff is able to give. [14] Paragraph 3 is not relevant. The plaintiff is under a court order to attend the IME. It is premature to assume that he will not attend. [15] Those are my reasons. [SUBMISSIONS ON COSTS] [16] THE COURT: Costs will be to the defendant in the cause. "Master Harper"