Mierzejewski v. Brooks, 2021 ONSC 2295

Full Decision

The Reasons for Decision in Mierzejewski v. Brooks, released by Master Jolley on March 25, 2021, should stand as a warning for Plaintiffs who are not prepared to attend in-person defence medical examinations during the COVID-19 pandemic. In this decision, despite the climbing numbers of infected individuals and the great risks posed to individuals (and particularly those with complex medical pictures), Master Jolley ordered that it was necessary that the Plaintiff attend two assessments in-person, during the height of the pandemic. The Reasons provide some important commentary on the (lack of) developments of conducting remote assessments in the context of personal injury actions in Ontario, despite the release of “Guidelines for Best Practices in Psychological Remote Assessments: Version 1” by the Ontario Psychological Association and Canadian Academy of Psychologists in Disability Assessment in August, 2020.

The Defendants brought a Motion seeking an Order to compel the Plaintiff to attend two defence medical examinations on an expedited basis: a neuropsychological assessment and a physiatry assessment, both of which were to be attended in-person. The Motion was brought on March 22, 2021, and the medical assessments were booked for March 31 and April 5, 2021, respectively.

The Plaintiff had agreed to attend the physiatry examination, however, the issue for the Motion was the form that the examination would take. The Plaintiff did not consent to attending the assessment in-person due to pandemic-related concerns as well as her compromised health situation (including a heart attack and heart surgery in 2016, breast cancer in 2017 and a lumpectomy in 2018).

The Plaintiff did not agree to attend the neuropsychological examination on the basis that she had not suffered a brain injury or any head trauma in the subject incident.

Physiatry Examination
The Defendants sought an Order compelling the Plaintiff to attend an in-person physiatry defence medical examination with Dr. Muhlstock on April 5, 2021, as Dr. Muhlstock opined that assessment could not be done virtually since the physical examination was critical.

One of the Plaintiff’s treating doctors had filed an Affidavit in which he concluded that it would be irresponsible for her to attend the assessment in person since the Plaintiff’s medical issues and pharmaceutical needs placed her in the high end of the high-risk category for contracting COVID-19 and having a poor outcome. He noted the public health recommendations to limit contact with others and noted that the assessment centre would require the Plaintiff to enter a mixed-use office building.

It was noted that the assessment centre, AssessMed, had extensive COVID-19 protocols in place, which were compliant with the Ministry of Health and CPSO guidelines.

The Plaintiff had attended necessary appointments in-person throughout the pandemic with proper COVID-19 protocols in place.

The Plaintiff had put in issue her musculoskeletal injuries and chronic pain and it was admitted that an examination by a physiatrist is relevant to those injuries.

It was noted that the Trial of this matter was scheduled for June 2021. As such, Master Jolley indicated that this was not a case in which the parties can wait for the pandemic to improve before the examination takes place. She concluded that, based on the evidence before her, it is necessary to have the physiatry examination conducted in person.

Master Jolley adopted the reasoning in Severin v. Barker, 2020 ONSC 7784, in which it was held that requiring a Plaintiff to attend an in-person defence medical assessment during the pandemic does not pose undue hardship on the Plaintiff where the examination is to be conducted with COVID-19 safety protocols in place.

It was ordered that the Plaintiff attend the physiatry examination in person.

Neuropsychological Examination
The Defendants argued that the Plaintiff had put her neurocognitive state at issue in her pleadings and through the medical reports, and as such, they sought a neuropsychological examination by Dr. Dowhaniuk to assess the relationship between the brain and mental functions.

The Plaintiff argued that she had not put her neurocognitive condition at issue on the basis that she had not complained of any head injury, post-concussion syndrome, neurocognitive problems, or psychological problems.

Master Jolley noted that the Plaintiff’s Statement of Claim alleges that she sustained impairments of important mental and physical functions including headaches, dizziness, ringing in the ears, depression, nightmares, flashbacks, concentration issues and memory difficulties. She also noted that there were various medical reports tendered by the Plaintiff indicating that she suffered from psychological problems, post-concussive syndrome, pain disorder with psychological factors, query concussion/traumatic brain injury and chronic pain as a result of the accident.

It was further noted that the Statement of Claim had not been amended to reflect that the Plaintiff will not argue that these injuries arose from the accident, and as such, the Defendants face an argument at trial that the Plaintiff had sustained these neurocognitive problems as a result of the collision.

Master Jolley found that the Plaintiff had put her cognitive state in issue through her pleading and the reports tendered referencing a possible head injury and post-concussive syndrome. She noted that a neuropsychological examination will allow the Defendants to evaluate the potential cause of the injuries at issue, and that it would be unfair to require the Defendants to proceed to trial without the ability to explore the injuries at issue.

Master Jolley ultimately concluded that the proposed neuropsychological assessment was relevant to the conditions at issue in the action and that the assessment was likely to produce relevant information. She further set out that the examination is necessary, having looked at the factors in George v. Landles, 2021 ONSC 6105 at paragraph 19.

Dr. Dowhaniuk also advised that he could not conduct his assessment virtually and thus required that the Plaintiff attend in person to administer cognitive testing. Master Jolley again adopted the reasoning in Severin v. Barker, 2020 ONSC 7784, and ordered that the Plaintiff attend the neuropsychological examination in-person.

The Defendants had agreed to arrange for transportation, if requested. The matter of costs was deferred to the parties.

The OPA/CAPDA Guidelines for Remote Psychological Assessments
The OPA/CAPDA released the “Guidelines for Best Practices in Psychological Remote Assessments: Version 1” dated August 20, 2020 to outline the considerations to be included in decision-making regarding the use of remote assessments.

It was noted that typically, psychometric testing was administered in an in-person format such that the clinician and technician can be physically present with the patient during the testing. However, in light of some of the limitations of in-person assessments (including economic, socioeconomic, geographical or logistical issues) as well as the pressing COVID-19 pandemic, there has been a push to develop remotely delivered assessments.

The OPA/CAPDA Guidelines refer to the decision of Arconti v. Smith, 2020 ONSC 2782 for some guidance on moving forward while addressing issues that require consideration. The Guidelines cite multiple studies that have shown that remote psychometric testing is mostly equivalent and interchangeable with the traditional in-person testing, contributing to a growing body of literature related to remote administration of standardized testing. It was further noted that psychologists and neuropsychologists are well-positioned to respond to the COVID-19 pandemic. They have been able to provide psychological services on an ongoing basis through remotely-accessed secure online platforms, or when equipment or other considerations are not present in the home, attending a nearby testing center.

The Guidelines provide guidance on a number of issues and considerations, including consent and confidentiality, different models of remote assessment, technology requirements, review of remote and virtual platforms, security, and other special considerations.

One such special consideration is the field of legal assessments in the context of personal injury litigation. The OPA/CAPDA Guidelines note that psychological assessments are well suited to being conducted through some model of remote assessment since psychologists do not conduct physical examinations, although some assessments may have the use of materials requiring manual manipulation or the presentation of visually-based information as part of the psychometric test battery. Modifications or alternatives should be considered if fully remote procedures are to be employed, and the impact of these modifications should be discussed in the report.

It is interesting that the Reasons for Decision of Master Jolley do not consider any of the alternative models for remote assessment that are proposed in the OPA/CAPDA Guidelines. Instead, she considers only the extremes: in-person assessments (with proper COVID-19 precautions) on one end, and completely virtual and remote on the other. In reality, however, it is evident from the OPA/CAPDA Guidelines that there are a variety of models that are available to psychologists in Ontario, including an assistant/technician-assisted model (at a remote site), in-clinic hybrid model (where the patient is in a separate room from the clinician on site), or a direct-to-home videoconferencing model.

Plaintiff’s counsel should consider the alternative assessment models outlined in the OPA/CAPDA Guidelines (and similar guidelines applicable to other disciplines) when facing a situation in which the Defence insist that the Plaintiff attend in-person examinations during the COVID-19 pandemic, despite having significant health and safety concerns.

Written by

Jessica joined Gluckstein Lawyers as an articling student in 2017 and is a graduate of the J.D. program from the Faculty of Law at Western University. She graduated on the Dean’s Honour List and was awarded the Law Society of Ontario Prize for academic excellence.

As a law student, Jessica worked as a Research Student for Professor Richard H. McLaren and contributed to various corporate and commercial publications. Throughout her time in law school, she was actively involved in the Western Journal of Legal Studies as both a Managing Editor and Senior Editor and volunteered as an Associate Caseworker with the Family Law Team at Western’s Community Legal Services clinic. She also participated in an exchange program during her final year of law school at Stockholm University.

Prior to law school, Jessica graduated from the University of Toronto with an Honours Bachelor of Science degree with High Distinction in the areas of Psychology, Sociology, and Urban Studies.