ICBC Law

BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Posts Tagged ‘Master McCallum’

Raising the Bar for “Resposive” Independent Medical Exams

June 19th, 2013

While the BC Supreme Court can order a Plaintiff to undergo an independent medical exam to allow the opposing party to obtain a ‘responsive’ report, a clear evidentiary foundation must exist in order for such an application to succeed.  Unreported reasons for judgement were recently released by the BC Supreme Court, Vancouver Registry, demonstrating this.

In the recent case (Becker v. Zetzos) the Plaintiff was injured in a collision.  In support of his claim he served a report from a physiatrist.   As trial neared the Defendant sought an order requiring the Plaintiff to undergo an independent exam with an orthopedic surgeon for a ‘responsive’ report.    This application was brought after the expiry of the 84 day deadline for conventional expert reports to be served.

In support of the application the orthopedic surgeon provided an an affidavit stating as follows:

In order for me to assist the court and properly prepare a rebuttal to the expert report of Dr. Giantomaso I must physically examine the Plaintiff and ask him the usual questions that a doctor would ask in order to elicit any information upon which to ground my expert rebuttal report.  I could not give a proper rebuttal opinion report of the Plaintiff which assist the court and opines on the movement, functioning, diagnosis, prognosis, distribution of symptoms, recommendations, suitability for work, and etiology of the Plaintiff without physically examining the Plaintiff and where appropriate palpating the Plaintiff.

In finding this evidence falls short of the mark, Master McCallum provided the following reasons:

[17]  In this case I say the evidentiary threshold has not been crossed.  Dr. Dommisse’s letter is simply saying that he cannot give a proper rebuttal opinion report to assist the court without examining the plaintiff.  In support of that position he goes through what seems to me to be simply a description of the work he would do if he were preparing a report in the first instance.

[18]  He has Dr. Giantomaso’s report.  He doe snot say, as he could have, what there is about that report that would lead him to think that he himself needs to examine the plaintiff.  The defendant has not met the evidentiary threshold to support the request for a physical examination of the plaintiff prior to preparation of a rebuttal report.

To my knowledge this decision is not publicly available but, as always, I’m happy to provide a copy to anyone who contacts me and requests one.

 


ICBC Denied Access to Plaintiff's Vacation Photos

October 29th, 2012

Reasons for judgement were recently released by the BC Supreme Court, Victoria Registry, dismissing an ICBC application to compel production of a Plaintiff’s vacation photos.

In the recent case (Dawn-Prince v. Elston) the Plaintiff was injured in a 2007 collision.  In the course of her lawsuit she was examined for discovery where she “testified that she had been on these vacations…(and) about her activities on the vacations“.

ICBC brought an application to have access to any photos taken of these holidays.  The Court dismissed this application finding that while canvassing the scope of a Plaintiff’s vacation activities is fair game at discovery production of photos is not required.  In dismissing the application Master McCallum provided the following reasons:

[3]  In the authorities to which I was referred, the court has on some occasions ordered production of photographs in similar circumstances where on vacation…

[4]  The difference in this case is that the plaintiff acknowledges that she engaged in the sporting and physical recreational activities, including the very ones that are referred to in the Fric decision; hiking, scuba diving, and so on.  The photographs that are requested have been reviewed by counsel or someone in cosunsel’s office, Marler, who swears in her affidavit that she reviewed 23 photographs in which the plaintiff was shown and says that they do not depict the plaintiff in strenuous physical activities; rather they depict her standing, sitting, or walking, by the pool, or on the beach…I am satisfied from that evidence that production of this evidence, which is clearly the second stage of documentary discovery contemplated by the Rules, is not appropriate.  These photographs, from the evidence on this application, will not assist the defendant in defending the claim.  The evidence of the plaintiff, of course, with respect tow hat she did on her vacations nay well assist, but the photographs neither contradict nor confirm that.  They show the plaintiff on the evidence in activities that are not inconsistent with anything other than standing, sitting, or walking, none of which she says she cannot do,..

[6]  The application for production of photographs…is dismissed.


"Belt and Suspenders" Exam Denied in Face of Previous Opinion on Plaintiff's Medical Condition

October 26th, 2012

As previously discussed, while the BC Supreme Court Rules permit multi-disciplinary defence medical exams in appropriate circumstances.  Once a Defendant obtains an opinion from a properly qualified expert with respect to the Plaintiff’s alleged injury, a further exam will not be ordered to bolster the opinion of the initial expert.  This is sometimes referred to as the “Belt and Suspenders” principle.  Reasons for judgement were recently published by the BC Supreme Court, Victoria Registry, further addressing this issue.

In the recent case (Knowles v. Watters) the Plaintiff alleged she suffered from balance issues including imbalance, dizziness and light-headedness due to a motor vehicle collision.  In support of her case the Plaintiff tendered reports from a neurologist  psychologist, an otolaryngolosit and a general practitioner    The Plaintiff’s otolaryngologist opined that the dizziness issues were “multifactoral” in origin   .

The Plaintiff agreed to see a defence expert who opined that “there was nothing in my evaluation to suggest that she has sustained any injury to her peripheral balance mechanisms, including the inner ear vestibular mechanisms“.  The Defendant then sought  an additional exam with an ENT to further address this issue.  Master McCallum dismissed the application finding the Defendant already had an opinion on the issue and a further expert was not warranted in the circumstances   In dismissing the application the Court provided the following reasons:

[8]             The defendant says that Dr. Moll’s report is restricted to neurological functions, and is not a complete answer or a complete response, if it were looked at in that way, to what Dr. Noel had to say. The defendant says that can only be accomplished by an examination by Dr. Bell.

[9]             In this case the defendant has had the opportunity the authorities require to essentially balance the playing field. Counsel are agreed that the authorities I have been cited are to that effect. The court’s job is to ensure that there is a so-called level playing field or that the parties have the opportunity to deal with the case fairly on the merits.

[10]         The plaintiff here has, as is always the case, the opportunity to visit various specialists and get various reports. The defendant’s opportunity is limited to reports necessary to ensure that a fair trial can be obtained on the merits. In this case it is too fine a distinction to make to say that Dr. Moll, who made a comprehensive examination and gave a comprehensive report on the plaintiff’s balance complaints, can be distinguished from what Dr. Bell might or might not do as an otolaryngologist. There is no evidence to say that Dr. Moll was unable to make the report he did, that if he had had more information he might have made a different report, or indeed that if he had seen Dr. Noel’s report that he might have come to a different conclusion. None of that is the case. The plaintiff has disclosed its reports to date. The defendant has had a fair opportunity to respond to those reports. Dr. Moll’s report is indeed a complete response to Dr. Noel’s report. The plaintiff’s own report from Dr. Noel does not suggest that there is an underlying otolaryngological cause to the plaintiff’s symptoms. He says that the ENG test was normal except for one abnormality that he says is most likely due to other causes. Dr. Noel says the symptoms were multifactorial, not related to one issue. That is at odds with what Dr. Moll has to say, but that is what the jury will have to decide when the case comes to trial.

[11]         This is not a case where the defendant has made out the burden on him to demonstrate that this application is necessary. The application is dismissed. Costs should go as costs in the cause. There is no reason to depart from the usual rule.


More on Part 7 Medical Exams Barring Tort Exams

July 21st, 2011

As previously discussedICBC can typically arrange an ‘independent’ medical exam (IME) in one of two ways.  The first is when an insured applies for first party no-fault benefits.  Section 99 of the Insurance (Vehicle) Regulation gives ICBC the power to compel an IME in these circumstances.  The second is under Rule 7-6(1) of the BC Supreme Court rules which allows the court to order an independent exam to “level the playing field” in an injury lawsuit.

Two sets of reasons for judgement were recently brought to my attention from the BC Supreme Court, Campbell River Registry, discussing when a previous Part 7 Exam will prevent ICBC from obtaining a new expert under the Rules of Court.

In the first case (Robinson v. Zerr) the Plaintiff was injured in a motor vehicle collision.  In the course of dealing with ICBC for his Part 7 Benefits the Plaintiff attended a medical appointment arranged by ICBC with an orthopaedic surgeon.  In the course of the tort lawsuit ICBC attempted to get an opinion from a second orthopaedic surgeon.  The Plaintiff opposed this.  ICBC brought an application to compel the second exam but this was dismissed with the Court finding that the first report strayed beyond what was required for a Part 7 exam.  In dismissing the Application Master McCallum provided the following reasons:

[8]  The authorities are clear that the Part 7 report can be treated, as it was in Robertson v. Grist, as a report in the tort action if it is shown that it effectively covered all of that ground, as I understand it.  It is clear from Dr. Dommisse’s that it does cover all of what one may expect in a report.   Dr. Dommisse did not have access to the pre-accident clinical records.  However, it is clear he knew of the plaintiff’s history because he describes past treatments and past history…

[10]  Dr. Dommisse went through the examination and gave his opinion.  His opinion is not qualified in any way.  He does not suggest that there is more information he needs.  He makes no recommendaiton for treatment.  There is nothing to suggest that, if he had more information or that he wished more information before he could make the determinations he did.

[11]  The report, in my view, is the same of sufficiently similar to the report in Robertson v. Grist and obtained in circumstances that persuade me that this report is indeed the opportunity for the level playing field that the authorities call for.  The defendant has had the opportunity to have the plaintiff examined by an examiner of his choosing.  Although the adjuster references Part 7 claim and the disability benefits, Dr. Dommisse does not, in my view, treat the report as limited in any way and gives his opinion on every aspect of the claim…

[15]  In those circumstances the defendant’s application is dismissed.

In the second case (Lamontage v. Adams) a similar result was reached with a Court finding that a subsequent exam should be with the Part 7 physician as that examiner covered ground relevant in the tort claim.

The above cases are unreported but, as always, I’m happy to provide a copy of the reasons to anyone who contacts me and requests these.


More on BC Injury Claims and Multiple Defence Medical Exams

January 23rd, 2010

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.


More on BC Injury Claims, Proportionality and the Mandatory Nature of Rule 68

September 9th, 2009

Further to my previous postings on Rule 68 in ICBC and other Injury Claims, the Rules mandatory nature was further developed by the BC Supreme Court today.

First a brief background.  Rule 68 is a ‘proportionality’ based rule which limits and alters the types of pre-trial procedures available to litigants in the BC Supreme Court for certain types of cases.  Rule 68 also takes away the right to trial by jury for cases where the rule applies.

Subsection 2 of Rule 68 sets out when the Rule applies.  One type of action subject to Rule 68 is where a Plaintiff claims for pecuniary and non-pecuniary loss for less than $100,000.  This includes many ICBC and other Injury Claims.

Recent Court Decisions have interpreted Rule 68 as being mandatory when the factors in Rule 68(2) apply.  In the case of Foster v. Westfair Properties (Pacific) Ltd. Master McCallum of the BC Supreme Court held that:

Rule 68 is mandatory and requires that actions qualifying as expedited actions proceed under the provisions of the rule.  The absence of the required endorsement is an irregularity that may be remedied by amendment.  The commencement of a proceeding without the Rule 68 endorsement does not change the character of the proceeding to permit process outside the limits of the rule.

Reasons for judgement were released today by the BC Supreme Court illustrating just how far our Courts can go in applying the mandatory nature of this rule.

In today’s case (Uribe v. Magnus) the Plaintiff was allegedly injured in 2007 BC Car Crash.  The Plaintiff started a lawsuit but did not make the Claim subject to Rule 68.  As the lawsuit progressed the Defendant took advantage of the pre-trial steps available for lawsuits filed outside of Rule 68 including examinations for discovery.  Furthermore none of the Rule 68 pre trial requirements were adhered to.

The Defendant took out a Jury Notice and even paid the necessary Jury Fees.  The Plaintiff then valued his claim below $100,000 and as the trial neared brought an application for an order that the lawsuit was ‘subject to rule 68′.  The defendant opposed this motion arguing that the motion was brought too late in the lawsuit and that it would result in significant prejudice including the loss of right of trial by jury.

The Court granted the motion and noted that “there is no timiing limitation in (rule 68)“.   Master Caldwell went on to make the following comments:

The concept of proportionality is now formally ingrained in our law by the terms of Rule 68.  It is hard to imagine that a simple claim which the plaintiff’s counsel himself admits will not exceed $50,000 and which more likely falls in the $30,000 to $40,000 range can justify the overall expense of a three day jury trial.  While I accept the submissions of defendant’s counsel that the defendant has been prejudiced by the late date of the plaintiff’s application, the denial of a jury trial, the fact that they have prepared for a jury trial and the fact that they have had to undertake various steps and procedures which would not have been necessary had the matter been commenced subject to Rule 68 or placed into that rule at an earlier date I am satisfied that these issues can be compensated for by the appropriate order of costs to the defendant while at the same time maintaining and protecting the purpose and mandatory nature of Rule 68.

The Court went on to  balance some the Defence concerns by ordering that the Plaintiff be responsible for the costs for ‘all procedures undertaken to date which would not have been required or allowed under Rule 68“.  This case is worth reviewing in full for anyone interested in the development of the concept of ‘proportionality’ in BC Supreme Court Injury Litigation.

As readers of this blog may know, the current BC Supreme Court rules are being repealed and replaced with new Rules next summer.  Rule 68 will be repealed and replaced with Rule 15.  Rule 15 also utilizes the concept of proportionality and today’s case may be telling in the direction BC Courts will take under the new Rules when applying this concept to injury litigation.