December 8, 2007, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
In a recent case, Dempsey v. Wax, the plaintiff had been injured in a car accident on September 6, 2003. The issue was whether the plaintiff could have a defence medical assessment videotaped.
The plaintiff, through his accident benefit insurer, underwent a neuropsychological assessment. Among other things, the assessment found that the plaintiff’s general intelligence level was 18 points lower than expectancy based on her demographic profile, with more severe loss in the area of information processing and concentration. Her general memory was 24 points below expectancy. The plaintiff gave evidence that she has cognitive symptoms including headaches, confusion, poor memory, difficulty with word finding, fatigue, depression, frustration and control of her emotions. The plaintiff’s family doctor supported that, because of the plaintiff’s slow processing, inattention and poor memory, it would be preferable for a defence neuropsychological examination to be videotaped.
The judge, considering the evidence, determined that the evidence showed there was a clear potential for ambiguity in a defence medical. As a result the judge determined that in this case recording the examination would allow an examiner to confidently express observations, conclusions, diagnosis and prognosis for the plaintiff. There was also the possibility that the recording of the examination might enhance the prospects for settlement at a pretrial by reducing the ambiguity that could arise from an examination that was not recorded. The judge also ordered that future independent medical examinations be videotaped.