ICBC Claims, Expert Evidence and Advocacy
If you are involved in an ICBC injury claim you likely know that ICBC may have the right to send you to a doctor of their choosing. They can do this in one of 2 ways, either pursuant to the Insurance (Vehicle) Regulation which allows ICBC to set up an Independent Medical Exam for any ‘insured’ seeking no-fault benefits, or under the Supreme Court Rules where the Defendant has the right to ‘balance the playing field’ by obtaining an independent medical exam in many circumstances.
Experts hired in such a situation can play a significant role in an ICBC claim. Much weight can be attached to what an expert has to say with issues such as causes of injuries, prognosis, reasonable treatments and future disability. Appreciating this it is important for an expert to present any opinion in a fair and balanced way. However, expert witnesses sometimes cross the line and advocate for the side that hired them.
Reasons for judgement were released today concluding that the orthopaedic surgeon hired by the Defence in a BC auto-injury case acted as an advocate.
In this case the Plaintiff was injured as a passenger in a 2003 collision. The crash was significant. The at fault driver was speeding, went through a stop sign and hit another vehicle head-on.
Just over $200,000 was awarded for the Plaintiff’s injuries and losses. In reaching this decision Madam Justice Martinson made the following findings in rejecting the evidence of the orthopaedic surgeon hired by the Defendant to assess the Plaintiff’s injuries:
 In my view the evidence of Dr. Schweigel should be given limited weight. He is no doubt a well-qualified orthopaedic surgeon. However, his opinion with respect to causation is based to a large extent on incorrect and incomplete information. His factual conclusions are, for the most part, inconsistent with the findings of fact made by the Court.
 Dr. Schweigel says in his report that (the Plaintiff) told him he had low back pain right after the accident. He rejected that statement and focused on the fact that (the Plaintiff) had not complained to his doctor about low back pain until several months later. For whatever reason, he did not have, then or later, the insurance adjuster’s notes showing that he had complained about low back pain shortly after the accident.
 In offering his opinion he downplayed the severity of the impact, though he agreed in cross-examination that the more severe a collision, the more likely is injury to the spine. He did not comment on the fact that (the Plaintiff’s) activities were curtailed after the accident but not before.
 He drew inferences from the brief clinical notes of Dr. Alderson that supported the conclusion that the pre-existing low back pain was significant. When summarizing the May 17th note, he put “less pain” when the note actually says “woke up in far less pain and is much more functional, bending without pain.”
 He was prepared to conclude, on very limited evidence, that the post accident incidents that were at issue likely caused the activation of the pre-existing condition.
 As I see it, Dr. Schweigel acted as an advocate for the defendants, not an expert whose sole purpose is to assist the Court. He highlighted all matters that would support the defence position and either downplayed or ignored those that would support the position of (the Plaintiff).