Our first case addresses issues arising from a Defendant insurer’s request to have a Plaintiff assessed at an independent medical evaluation by a neuropsychologist.
Our second case is of particular interest to insurers as it pertains to a Plaintiff’s right to recover disbursements following the settlement of an injury claim.
Fletcher v. Mitrovic, 2009 NBQB 240 CanLii
The Motions Judge’s decision examines the requirements imposed by Rule 36.05 of the New Brunswick Rules of Court before a court will order an IME by a non-medical practitioner.
The Plaintiff claimed to have suffered a brain injury from a motor vehicle accident. She was examined by two neuropsychologists retained by her solicitor and two reports were authored.
The Defendants sought an order from the court compelling the Plaintiff to attend an independent medical evaluation to be conducted by a neuropsychologist - who is a non-medical practitioner. The Defendants’ solicitor filed his own Affidavit with the court in support of the Motion.
The Motions Judge confirmed that a request to have a Plaintiff examined by a non-medical practitioner is a two step-process.
The Court held that the proper process is to first have the Plaintiff assessed by a medical practitioner. Once such an examination is completed, and if the assessing medical practitioner is of the opinion that a neuropsychological assessment is necessary to enable him to provide an opinion and complete the initial medical examination, the Defendants could then seek an order from the court authorizing the initial medical practitioner to engage the services of the neuropsychologist.
The Motions Judge stressed that the Defendants must show, at a minimum, that a neuropsychological assessment would be necessary to enable the initial medical practitioner to complete the independent medical examination and to form and finalize his opinion.
The Motions Judge then proceeded to comment on the necessary requirements of the evidence to be presented in support of such motions.
The Motions Judge found that the appropriate documentary evidence to support such a motion would be the Affidavit of the initial medical examiner attesting to the facts required to substantiate a claim that a neuropsychological assessment of the Plaintiff would be necessary under the circumstances.
In dismissing the Defendants’ Motion, the Motions Judge also ordered a higher cost award against the Defendants than normally would have been ordered due to the improper Affidavit relied upon by the Defendants in support of the Motion.
Bourgoin v. Ouellette (2009), 177 A.C.W.S. (3d) 318 NBQB
TThis matter involves an assessment of costs under the New Brunswick Rules of Court completed by the Clerk of the Court following the settlement of a personal injury action.
During the course of the litigation, the Plaintiff obtained temporary financing from a private financing company for payment of legal costs and disbursements. The financing company charged interest to the Plaintiff in the amount of 2.4% compounded monthly.
Following settlement of the injury claim, the Defendant’s solicitor sought an assessment of the Plaintiff’s disbursements in accordance with Tariff “D” of the Rules of Court.
It was determined that the private financing company’s interest charge to the Plaintiff was a necessary and reasonable expense within the meaning of Section 2 (14) of Tariff “D” of the Rules of Court. The court clerk noted that given the Plaintiff’s limited financial means, the only option which appeared to have been open to him in order to have access to justice and to resolve his injury claim was to obtain a loan from a private financing company in order to pay for allowable disbursements for the duration of the litigation.
The court clerk therefore allowed the full amount of interest charged by the private financing company, plus a daily per diem as being an allowable disbursement under the Rules of Court which would properly be paid by the Defendant.