ICBC Law

Further to my recent post on this topic, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating that ICBC may face an uphill battle when they apply for a Defence medical exam when the trial of the action is imminent.

In this week’s case (Agesen v. ICBC) the Plaintiff was injured in 2 separate motor vehicle accidents.  The Plaintiff sued and both cases where scheduled to be heard at the same time.  In support of his case the Plaintiff served medico-legal reports from a psychiatrist, a psychologist, an occupational therapist, his GP and a vocational assessment.  The Plaintiff attended a defence medical exam with a neurosurgeon and a report was served by the Defendants.

The Defendants then requested that the Plaintiff be assessed by an orthopaedic surgeon.  The Plaintiff would not consent and a court motion was brought.  The Master who presided granted the motion and ordered the Plaintiff to be assessed by the orthopaedic surgeon.  This appointment was to take place less than one month before trial.  The Plaintiff appealed and succeeded.  In overturning the Master’s decision Madam Justice Morrison reasoned that the late application would be prejudicial to the Plaintiff.  Specifically, on the topic of timing of defence applications for medical exams the Court stated as follows:

[38]        In Benner v. Vancouver (City), Mr. Justice N. Smith refused an application for a medical examination that came three weeks before trial.  The application was three weeks before trial and the examination itself would have been less than two weeks before trial.  In paragraph 19 of his judgment, Smith J. confirmed that the purpose of Rule 30 was “to place the parties on an equal footing in their ability to obtain medical evidence in a case where injuries are alleged.”  He also referred to Rule 40A which requires service of expert opinions 60 days before trial, where a report delivered less than 60 days before trial is inadmissible unless the court were to order otherwise.  In that case, the court found that the plaintiff’s physical condition was clearly put in issue by the pleadings.  The defendants had full advantage and protection of routine production of medical records.  I find that decision is applicable to this appeal.

[39]        In dismissing the application for a medical examination at that late stage, at paragraph 35, Smith J. stated, “… the Rules of Court are intended to level the playing field as between the plaintiff and the defendant, a defendant who takes no timely steps to exercise its rights under the rules does so at its peril.”..

[45] In my view, it would be prejudicial to the plaintiff at this date to order an IME four weeks before a ten day jury trial.  That the plaintiff has serious injuries is not a surprise to the defence.  That his claim is substantial should certainly not have been a surprise.  Any advantage to the defence at this point in time would be outweighed by prejudice to the plaintiff, not only because of his problems in dealing with examinations, depositions and preparation for trial, but also because of the very real possibility that a late medical opinion could well result in plaintiff’s counsel having to seek an adjournment of this trial, in order to meet unexpected or opinion evidence that may be prejudicial to the plaintiff.  In this case, the balancing of prejudice must be in favour of the plaintiff, given the chronology of events.

As readers of this blog know the BC Supreme Court Civil Rules are being overhauled in July 2010.  Some of the biggest changes in the new Rules relate to expert evidence and you can click here to read my article discussing these changes.  The Court will continue to have the power to order multiple medical exams in particular circumstances but one thing that will change is that the concept of ‘proportionality’ will be introduced into the analysis.  I will continue to post about these decisions as the new Rules is developed in its application by the BC Supreme Court.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with the fair assessment of damages for chronic soft tissue injuries.

In today’s case (Baxter v. Jamal) the Plaintiff was involved in a ‘substantial‘ 2005 motor vehicle collision.  The Plaintiff was in her vehicle in an intersection waiting to turn left.  The Defendant “ran a red light and struck the driver’s side door of the plaintiff’s vehicle“.

Despite feeling no pain at the time of the accident the Plaintiff in fact was injured.  Her symptoms came on shortly after the crash and some of them persisted to the time of trial.   In awarding $50,000 for the plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) Madam Justice Boyd stated as follows:

[18] Dr. Witherspoon and Dr. Rosemary Nairne Stewart, a physiatrist who conducted an independent medical examination on behalf of the plaintiff in February 2009, both opine the plaintiff has suffered soft tissue injuries to her neck and back.  Since more than three years have passed since the injury, they expect she will continue to experience her current symptoms over the long term and that as a result, she will likely be unable to do physically demanding work.  ..

I am satisfied that pre-accident, the plaintiff was asymptomatic and that since the accident, she has unfortunately been plagued by ongoing neck and back pain which now remain unresolved over four years since the accident.  I accept Dr. Nairne Stewart’s opinion that her condition is either the reflection of the soft tissue injuries (suffered at the time of the accident) which remain unresolved or are the result of the trauma to her back (suffered at the time of the accident), which has rendered a previously asymptomatic condition symptomatic.

[34] I accept Dr. Nairne Stewart’s evidence concerning the plaintiff prognosis, namely that she is “likely to continue to experience all of her current symptoms and limitations over the long term.  She will be unable to do physically demanding work because of her injury.  In sedentary work, she will continue to need a good ergonomic setup in her workstation and the flexibility to change her work tasks and position periodically throughout her workday”.

[35] I accept that these injuries have had a significant effect on the plaintiff’s life, both in terms of her career and her recreational activities. ..

[43] On a revinew of all of the evidence, and considering the significant impact these injuries have had and will continue to have on this young woman, I find that an appropriate award of damages is $50,000.

An interesting part of this decision dealt with the Court’s analysis of the competing medical evidence.  As is common in ICBC Injury Claims the Defence called the evidence of an ‘independent medical examiner’ (orthopaedic surgeon Dr. Maloon) who provided an opinion contrary to the Plaintiff’s treating physician with respect to the extent of the accident related injuries.  The court noted that Dr. Maloon’s competing opinion was ‘obliquely stated‘ and ultimately preferred the evidence of the Plaintiff’s doctors.  This case is worth reviewing for the Court’s discussion of the competing expert evidence and the analysis of the Court in favouring the expert evidence in support of the Plaintiff’s case.

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, highlighting an important truth in injury litigation - it is not up to ICBC’s doctors to decide if a Plaintiff’s pain complaints are legitimate, rather it is up to the Judge or Jury.

In today’s case (Sharma v. Didiuk) the Plaintiff was involved in 2004 rear end collision in Delta, British Columbia.  Fault was admitted by the rear motorist.   The vehicles did not suffer much damage but the Plaintiff alleged injury.

The Plaintiff’s doctor provided the following evidence with respect to her accident related injuries:

She sustained soft tissue injuries of her back, neck, and shoulders. This pain is present several times a week. It is aggravated by her work as a hairdresser. It is also aggravated by lifting or carrying. She has used Tylenol, heat, anti[‑]inflammatories, physiotherapy, and massage as treatment with some variable symptoms. Her recent pregnancy also aggravated her symptoms. Ms Sharma’s pain has become chronic recurrent in nature. With regular strengthening and stretching exercises she should continue to remain functional with pain. She may require future treatments of massage, physiotherapy, and accupun[c]ture, to manage her pain. She will likely remain prone to aggravations of her pain with prolonged standing, lifting of her arms to shoulder height, and carrying.

The Defendant arranged for an ‘independent medical exam’ with orthopaedic surgeon Dr. Boyle.  Dr. Boyle disagreed with the Plaintiff’s physician with respect to the extent of the Plaintiff’s injuries.  Dr. Boyle provided the following evidence:

[66] In his report Dr. Boyle concluded that the plaintiff had suffered a minor myofascial strain to her cervical spine with injury to ligaments, tendons and muscles, and that medical management for this should be in the form of stretching and strengthening exercises and the use of anti-inflammatories.

[67] He also said she may have suffered a very minor strain to her lumbar spine although she was asymptomatic at the time of his examination.

[68] He concluded there was no disability associated with her function as a hairdresser from 2005 onwards and the myofascial strain that she would have suffered would have been very mild at most with a very transient and limited effect on her.

[69] In his opinion there is no disability associated with the events surrounding the motor vehicle accident and no vocational or avocational limitations to be placed on her, with no need for any passive modalities of treatment.

[70] At trial he agrees that pain is usually considered chronic after two years, and that soft tissue injury may not exhibit any objective signs. Even if the soft tissue injuries heal in three months they can still produce current pain.

[71] However, in his opinion the probability that the plaintiff has these complaints ongoing is very low.

The Court went on to accept that the Plaintiff was injured and rejected Dr. Boyle’s opinion.  In awarding the Plaintiff $30,000 for her non-pecuniary damages Mr. Justice Truscott made the following comments:

[73] I also accept that the plaintiff’s complaints of continuing pain from her soft tissue injuries have exceeded the expected time period for recovery.

[74] I conclude that Dr. Boyle is saying in his own words that he does not believe the plaintiff when she says she still has continuing pain from injuries in this motor vehicle accident, almost six years later, as he found no basis for that in his examination and in his general understanding of the effects of minor soft tissue injuries.

[75] However, the fact is that I do accept the plaintiff’s evidence when she says she is still suffering pain from soft tissue injuries that she sustained in this motor vehicle accident of April 8, 2004.

[76] I therefore reject the opinion of Dr. Boyle that she does not have any further effects from those injuries, and I will assess the plaintiff’s damages on the basis that she continues to suffer some chronic pain from these injuries caused by the motor vehicle accident….

[92] I conclude the plaintiff’s present pain is intermittent and not continuous and that it depends on what activity she carries out and for how long she carries out those activities.

[93] She was able to continue her schooling full-time after the accident and was able to continue thereafter working close to full-time or at full-time at her hairdressing employments…

[98] Here I accept that the plaintiff’s ability to continue to work full-time has been accomplished with some difficulty because of her injuries as she has to stand and reach for long periods of time which brings about pain and discomfort and exhausts her by the end of the day. Her social activities have also been curtailed.

[99] I accept the prognosis of Dr. Rayavarapu and after reviewing the cases cited by both counsel, I consider a proper award for the plaintiff for non-pecuniary damages attributable to this motor vehicle accident to be $30,000. In assessing non‑pecuniary damages in this amount I have already reduced the full value of her injuries by $10,000 to account for the measurable risk of her pre-existing injuries continuing to affect her regardless of this accident.

Only an injured person truly knows the extent of their pain.  If a Defendant arranges for an independent medical exam and that doctor minimizes the extent of the injury cases such as this one serve as an important reminder that the Defence Medical Examiner is not the Judge and Jury.

When a court orders a Plaintiff to attend an independent medical exam (click here to read some related posts on this topic) in an ICBC or other Injury Claim and the parties appeal what is the standard of review used in the appellate hearing?

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, addressing this issue.

In today’s case (Barbosa v. Castillo) the Plaintiff attended an Independent Medical Exam (IME) with an Orthopaedic Surgeon chosen by the Defendant.  He gave an opinion that the plaintiff did not have a “functional problem” with respect to any neurological complaints.  The Plaintiff then served expert reports outlining  that he had nerve root irritation which negatively impacted his ability to work.

The Defence asked for a second medical exam, this time with a neurologist.  On application to Court the presiding Master rejected the motion.  The Defendant appealed the ruling.  On hearing the appeal Mr. Justice Schultes had to decide, amongst other things, what the legal test was on these types of applications.  He ruled that the appeal can be a rehearing (as opposed to requiring proof that the Master was ‘clearly wrong’) in essence giving the appellant a second kick at the can.  Specifically the Court held as follows:

[14] Before proceeding further, it is necessary to establish the applicable standard of review of the learned master’s decision.  It is well established that on purely interlocutory matters, it must be demonstrated that the master was “clearly wrong” in his or her decision. However, when the ruling raises questions that are vital to the final issue in the case, the reviewing court approaches the matter as a rehearing.  When the master’s decision deals with a question of law, the standard of review is correctness:  Abermin Corp. v. Granges Exploration Ltd., [1990] B.C.J. No. 1060 (S.C.), and Joubarne v. Sandes, 2009 BCSC 1413 at para. 14.

[15] A decision to deny a defendant the opportunity to have an independent medical examination conducted of the plaintiff can raise questions that are vital to the final issue in the case.  In Belke v. Bennett, 2006 BCSC 536, Mr. Justice Barrow provided the following helpful approach at para. 5:

If the Master’s order amounts to a refusal, whether in whole or in part, of an application to have the plaintiff submit to an independent medical examination, it may deprive the defendant of discovering evidence necessary for a full examination of the plaintiff’s claim or of a defence advanced.  It is in that sense that a decision may be said to go to an issue vital to the trial. […]  If, on the other hand, the Master’s order simply sets terms on which the independent medical examination is to be conducted or directs that such an examination not be performed by a particular professional, the defendant is not deprived of potential evidence, and the order cannot be characterized as going to an issue that may be vital to a final issue at the trial.

[16] I adopt this analysis.  I think the master’s decision in this case fell within the first situation envisioned in Belke.  Denying the defendant’s application effectively foreclosed any exploration of Dr. Hunt’s opinion, let alone any rebuttal of it, on behalf of the defendant by an expert with the specific expertise necessary to cope with the report on its own terms.

[17] If uncontradicted, Dr. Hunt’s opinion could be determinative of several of the kinds of damages claimed by the plaintiff, in particular as to the true nature and extent of his injuries and their impact on his future earning capacity.  These questions appear to be vital to several final issues.  Accordingly, I will treat this appeal as a rehearing.

Mr. Justice Schultes went onto allow the appeal and order the second defence medical exam.  In doing so the Court provided the following useful summary of the law discussing factors courts can consider in applications for multiple independent defence medical exams:

[19] Turning to the actual merits of the defendant’s application on the rehearing, an excellent summary of the applicable law in this area was provided by Madam Justice D. Smith, then a member of this court, in McKay v. Passmore, 2005 BCSC 570 at paras. 15 - 19:

15.       The principles to be followed in deciding whether the defendants have shown an adequate basis for a second IME are set out in Trahan v. West Coast Amusements Ltd.[2000] BCSC 691 (CanLII), [2000] BCSC 691, at para. 48:

The authorities establish that additional medical examinations are in the discretion of the court …  (citations omitted).

That discretion is to be exercised judicially, considering the evidence adduced.  A second examination to permit the defendant a second opinion on the same subject matter will not be allowed.  A second examination may be appropriate where there is some question which could not have been dealt with on the first examination … (Citations omitted).

That the magnitude of the loss is greater than previously known is not in and of itself sufficient to permit a second examination … (Citations omitted).

Where diagnosis is difficult and existing assessments are aged, further assessment may be required …

And in Roberge v. Canada Life Assurance Co. [2002] BCSC 1500 (CanLII), [2002] BCSC 1500 at paragraph 9:

The distinction is quite important.  Simply put, when a person in litigation makes a claim for a personal injury, the defendant is, without oversimplifying the matter, almost always entitled to a medical examination of the plaintiff.  A much higher standard is imposed when the defendant seeks a second medical examination of the plaintiff.

16.       The overriding question is whether a second medical examination is necessary to ensure reasonable equality between the parties in their preparation of a case for trial: Wildemann v. Webster [1990] CanLII 206 (BC C.A.), [1991] 50 B.C.L.R. (2d) 244 (C.A.).

17.       Reasonable equality does not mean that the defendant must be able to match expert for expert or report for report.  I refer to Trahan v. West Coast Amusement Ltd. and toMacNevin v. Vroom [21 December 2004] New Westminster S072995 (S.C.).

18.       The defendants must satisfy the court that there is some question or matter that could not have been dealt with at the first examination:  Jackson v. Miller [1999] B.C.J. No. 2751 (S.C.).

19.       In considering how to exercise the discretion to grant a second IME, the court should take into account the timeliness of the application in the light of Rule 40A and the practicalities of trial preparation… [citations omitted.]

Further to my recent post on this topic it is well settled that the BC Supreme Court can order that a Plaintiff undergo multiple defence medical exams in a Personal Injury Claim depending on the circumstances of any particular case.

There are some limitations on this and one such restriction relates to having the same injury reassessed when nothing has changed since an initial defence examination.  Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, demonstrating this.

In this week’s case (Bidgood v. Kostman) the Plaintiff was involved in a personal injury lawsuit.   The Plaintiff consented to being examined by an orthopaedic surgeon at the request of the Defendant.  This surgeon provided a report commenting on the Plaintiff’s injuries.   As the lawsuit progressed the Plaintiff exchanged the medical reports that she wished to rely on to the Defendants as required by the Rules of Court.  These reports commented on the Plaintiff’s chronic myofascial pain.  This prompted the Defence to seek a second medical exam, this time with a physiatrist.  The Plaintiff did not consent to this and a Court motion was brought to compel attendance.

The Defence argued that they needed the additional exam to assess the allegation of chronic myofascial pain.    Master McCallum of the BC Supreme Court rejected the motion finding that the Defendant had a proper opportunity to assess this alleged injury when they had their first defence medical exam.  Specifically Master McCallum noted the following:

[7] The authorities are clear, and there is no real dispute between counsel here. The court can order any number of reports by nominees of a party, but in this case, in order to have an additional report on this issue of myofascial or soft tissue pain, there has to be some evidence that something has changed. There is no such evidence. The diagnosis and findings of Dr. Wahl in his report are remarkably similar to the reports that he had when he saw the plaintiff. They are remarkably similar to the reports that have been delivered later, and particularly Filbey’s report. It is clear that nothing has changed in the plaintiff’s symptomology. There is no suggestion here that Dr. Wahl made a comment that she should be seen by someone else as he was unable to make findings of fact with respect to what was troubling her or could not make a diagnosis. None of that is found in Wahl’s report. It is simply the case that the defendants now wish to have the matching specialist, as Lofgren says in her affidavit, because the defendants believe that Dr. Wahl’s report may somehow not stand up to Dr. Filbey’s report.  There is no evidence of that. There is no evidence that an orthopedic surgeon could not make findings in the way he did. There is no evidence that Dr. Filbey is somehow better off to report on the findings that he made. That is simply not the case.

[8] The plaintiff may be right when she says that the defendants have an expert whose report does not favour the defendants’ case particularly, and that a further report may aid them more than Dr. Wahl’s report. This is not a case where the defendants are in a position of inequality or the defendants are prejudiced by whatever the plaintiff has done in the time between Dr. Wahl’s report and the 40A deadline. None of that occurred. The prejudice will occur if the examination by Dr. Hirsch, the further report, goes ahead because that will be, as the plaintiff says, fresh evidence on this issue to which they will feel obliged to respond. If the defendants want a rebuttal report, then the defendants are entitled to obtain one. They do not need to have the plaintiff examined to accomplish that.

[9] The application for the examination by Hirsch is dismissed. In the circumstances ‑‑ we do not have a liability problem here, do we, so the plaintiff will get her costs in any event.

As readers of this blog know the BC Supreme Court Rules are being overhauled in July 2010.  The Court will continue to have the power to order multiple medical exams in particular circumstances but one thing that will change is that the concept of ‘proportionality’ will be introduced into the analysis.  It will be interesting to see how this principle affects the law of multiple defence medical exams in ICBC and other BC Personal Injury Litigation.

As readers of this blog know when people sue for damages in the BC Supreme Court as a result of an Injury Claim they give up certain privacy rights.  Documents need to be disclosed to opposing counsel, examinations for discovery can be compelled, even ‘independent‘ medical exams can be ordered.

In the course of an Injury Claim Rule 30 of the BC Supreme Court Rules permits a Court to order that a Plaintiff undergo a Defence Medical Exam(DME) in order to “level the playing field“.   It is generally accepted that at least one DME will be ordered by the Court if requested in a typical personal injury claim.  Such an order, however, is not an automatic right and reasons for judgement were released today demonstrating this.

In today’s case (Chapman v. Magee) the Plaintiff was injured in “a reasonably nasty motor vehicle accident involving…a car and a motorcycle“.  The Injuries included a flailed chest and a broken ankle.

The Defence lawyer asked that the Plaintiff attend a defence medical exam with a respirologist and an orthopaedic surgeon.   The Plaintiff’s lawyer did not consent and a court motion was brought to compel attendance.  Master Caldwell dismissed the application finding that the materials in support were “significantly wanting“.    The Court noted that while the evidentiary burden on these applications is not high the Court is not a ‘rubber stamp‘ and some evidence needs to be tendered.  Specifically Master Caldwell stated:

There is nothing in the material where counsel opines as to the need for these reports or these examinations to be done, which, as I see the case authority, and in particular, Astels, para. 23, where the court says:

In addition to the paralegal’s affidavit, there was also in evidence a letter from counsel for the defendants to counsel for the plaintiff concerning the proposed medical examination in which counsel for the defendant said:

You will be asking the court to retrospectively decide whether or not the plaintiff was totally disabled the date the action was commenced.  Clearly medical opinion in that regard is relevant.

[5] He is opining there as counsel as to the importance and purpose of the Rule 30 examinations.  In my view, that sets out a bare minimum, and I do not want to be overly technical because it may or may not be efficient to go on that basis, but in my view there is not a scintilla of evidence here from counsel or otherwise as to the use that this information would be put to.  I can certainly speculate and it would appear from the pleadings that I could speculate as to what use it might be made, but far and away from what the minimum level is, it would be nice on these applications to have letters or some kind of material from a doctor opining as to why they need to see the person.  That certainly goes beyond what would be needed, but in my view, Astels puts down a bare minimum.

[6] And as I say, I may be being overly technical, but I do not think so.  These are not rubber-stamp applications and they cannot become rubber-stamp applications.  There must be some substance relating to what this information is going to be used for and what the focus is going to be.  And, frankly, having gone over the lunch hour and again read the letters, I can find no such supporting evidence in the material filed by the defendant.

[7] On that basis, this application for today by the defendants is dismissed.  It is dismissed without prejudice to their right to re-bring the application on proper material because I think there may be something out there and I think Rule 1(5) does say “on the merits” and it should not be just simply a technical slam-dunk there.  But the application on the basis of the material before me has to be dismissed in my respectful view.  It has to be dismissed on the basis that costs will be to the plaintiff in any event of the cause on this because the material brought by the defence simply is not adequate.  The issue of costs in subsequent application, should the defence seek to bring such an application, can be dealt with by the court that hears that application.

As with all civil procedure cases I will cross reference this with the New BC Supreme Court Civil Rules.  Rule 30 is replaced with Rule 7-6 and the wording is almost identical under the new rules making precedents such as this one useful under the soon to be in place new system.