Skip to main content

ICBC Part 7 Exam Once Again Thwarts Defence Medical Exam Request

Written by admin on . Posted in BCSC Civil Rule 7, independent medical exams, Uncategorized.

Earlier this month I discussed a case dismissing a defence application for an ‘independent’ medical exam where the Plaintiff already attended an ICBC arranged medical examination.  Further reasons for judgement were released by the BC Supreme Court, Vancouver Registry, with the same disposition.
In this week’s case (Soczynski v. Cai) the Plaintiff was injured in a 2008 collision.  Both she and the Defendant were insured by ICBC. As is the usual practice in BC, the same ICBC adjuster was handling the Plaintiff’s claim for no-fault benefits and also her tort claim.
The adjuster arranged an independent medical exam with an orthopaedic surgeon.  The Plaintiff attended.  In the course of the lawsuit the Defendant brought a court motion to compel the Plaintiff to be examined by a second surgeon.  The motion was dismissed, however, with the Court finding that the previous ICBC exam created a ‘level playing field’.  Master McDiarmid provided the following useful reasons:
[21] In reviewing the facts in this case, and keeping in mind the main principle to be looked at here, the principle of keeping the parties on an equal footing, I find that in the circumstances of this case, and in particular, the fact that the ICBC adjuster was handling both the Part 7 and tort claims, and did not respond when she knew that the plaintiff’s position was that the examination in front of Dr. Bishop was to deal with both those claims, I find that the examination which took place at the behest of ICBC on January 27, 2009 by Dr. Paul Bishop constituted the first medical examination as contemplated by Rule 7-6(1). The defendants want a further examination by another medical practitioner who practices in the area of orthopaedics. The plaintiff is not relying on any orthopaedic specialists. Keeping in mind the “level playing field” principle, it is not appropriate to order a further examination of the plaintiff by a medical practitioner having expertise in the area of orthopaedics.
For an example of a recent case where an ICBC Part 7 exam which went beyond Part 7 matters did not prohibit a tort Defence Medical exam you can click here to read Master MacNaughton’s recent reasons for judgement in Assalone v. Le.

Silence Means Loser Pays

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, Uncategorized. 66 Comments on Silence Means Loser Pays


If a BC Supreme Court Judgement is silent with respect to costs following trial the default Loser Pays system kicks in as a result of Rule 14-1(9).  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, discussing this default position.
In last week’s case (Habib v. Jack) the Plaintiff’s personal injury lawsuit was dismissed following trial. The trial Judge’s reasons did not set out any costs order.  The Defendant sought their costs but the Plaintiff opposed this arguing that silence on costs in the trial judgement makes the issue ‘res judicata’.  Madam Justice Ross disagreed and provided the following short but useful reasons:
[9] The plaintiff’s res judicata argument has previously been considered and rejected by this court. In Graham v. Great West Life et al., 2004 BCSC 1544, Sinclair Prowse J. considered the argument that silence in earlier reasons for judgment regarding costs is tantamount to an order that there will not be an order for costs. After reviewing the authorities she found that if reasons are silent, by operation of Rule 57(9), there is a presumption that costs will follow the event unless either party objects to the order being framed in that manner, in which case an application for costs should be made to the court. The present Rule 14-1(9) contains the same presumption.

ICBC Psychiatrist Criticized for Not Being "An Impartial Expert"

Written by admin on . Posted in Uncategorized.

In my continued efforts to archive judicial critisism of expert witnesses who cross the line into ‘advocacy’, reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, finding a psychiatrist retained by ICBC failed to provided evidence with “the sufficient degree of objectivity“.
In this week’s case (Drodge v. Kozek) the Plaintiff was involved in 2006 collision.  He suffered chronic pain and cognitive dysfunction following the crash.   ICBC retained a psychiatrist who authored a report and provided opinion evidence to the court which, in contrast to the Plaintiff’s treating doctor, placed less emphasis on role of the collision with respect to the Plaintiff’s complaints.
The Court found that this psychiatrist was not sufficiently objective and placed ‘little weight‘ in his opinion.  Madam Justice Dardi provided the following criticism:

[49] Dr. Solomons is a qualified psychiatrist who at the request of ICBC examined Mr. Drodge on July 9, 2009, and prepared a report dated August 2, 2009. At trial I ordered that certain contents of his report be expurgated, on the basis that the statements were not properly admissible opinion evidence.

[50] Dr. Solomons opined that Mr. Drodge did not sustain any functional brain injury as a result of the accident; nor did he develop any psychiatric condition or disorder as a result of the accident. It is Dr. Solomans’ view that the pre-conditions for the diagnosis of post-traumatic stress disorder were not met in this case. Rather, in his opinion Mr. Drodge presented with non-specific stress symptoms that potentially related to a number of causes, including physical pain, unemployment, financial constraints, and boredom. Other than some stress associated with his financial difficulties, he opined that Mr. Drodge’s present psychological status is “essentially normal”. Insofar as a prognosis, Dr. Solomans opined that there are no cognitive or psychiatric concerns, and that Mr. Drodge has no psychiatric or neuro-cognitive impediments for any vocational activities.

[51] In cross-examination Dr. Solomans admitted that a person could suffer from cognitive symptoms as a consequence of severe headaches. He agreed that headaches of this nature could affect someone’s mood and their ability to work, and that the headaches could therefore be disabling.

[52] Although Dr. Solomons maintained that Mr. Drodge did not exhibit any cognitive difficulties during his interview, the evidence supports a finding to the contrary. In cross-examination he acknowledged that his notes from the interview indicate as follows:

Not had cognitive tests. Then he says did. Query name. Not remember when. About 18 months to two years ago. Not remember the feedback about the test results.

Not recall anything about it at all, not even why he was treated.

Moreover, Mr. Drodge had mistakenly told him he had sustained his back injury in 1986; his back injury occurred in 1996.

[53] In my view, Dr. Solomons was not an impartial expert providing a balanced discussion on Mr. Drodge’s condition. Overall, I found his evidence lacking the sufficient degree of objectivity to be of any real assistance. In the result I have accorded his opinion little weight.

$70,000 Non-Pecuniary Damages for Thumb Joint Injury

Written by admin on . Posted in ICBC Hand Injury Cases, ICBC Wage Loss, Uncategorized.


Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing non-pecuniary damages of $70,000 for a serious thumb injury.
In this week’s case (Dobre v. Langley) the Plaintiff cyclist was struck by a vehicle.  He suffered a right thumb “Bennett Fracture” (a fracture at the base of the thumb where it connects with the wrist).  The Plaintiff was 20 years old at the time of injury.  He required surgery to fix the fracture.  Unfortunately the Plaintiff was left with limitations of the thumb and these were expected to continue and worsen with age with the onset of post-traumatic arthritis.  In assessing the non-pecuniary damages at $70,000 Mr. Justice Brown provided the following reasons:

[58] While there are some discernible slight divergences between the opinions of Dr. Gropper and Dr. Smit, in substance they are not large ones. I accept that within the span of 15 years Mr. Dobre will experience some worsening of his degenerative arthritis that carries with it a risk that by middle age it could become severe and accompanied by a corresponding decline in function. There is also a chance Mr. Dobre could make his way into his middle age years without experiencing a significant decline in function, but the chances are greater that he will do so by then. While confident predictions about his needing future surgery are not possible, given the early onset of degenerative changes and the nature of his fracture, there is at least some risk he will require future surgery with doubtful benefit.

[59] Mr. Dobre feels dull intermittent pain at the base of his thumb, where the surgical nails were inserted. Moreover, his grip is weaker and his thumb is stiff. Prolonged grabbing and pulling brings the rapid onset of piercing pain. Prolonged writing causes discomfort and his thumb discomfort bothers him when he is writing university exams. In his part time job as a librarian, he finds he cannot hold many books when sorting them throughout the library. Due to his injury, he has to hold the books in an awkward position to avoid stressing the thumb…

[92] I find Mr. Dobre’s injuries are more akin to those in Tsougrianis, in which the 22 year old plaintiff suffered fractures to both thumbs, one of which required surgery, soft tissue injuries to her neck and back, and tendonitis.  The Court found the soft tissue injuries and tendonitis would heal within a year of the trial.  With respect to the thumb injuries, the Court found the plaintiff’s right thumb injury had largely resolved itself by trial and there was “not a substantial possibility” the left thumb injury was a permanent functional disability: Tsougrianis, at para. 35.  Furthermore, the Court found the plaintiff’s pain, strength and gripping difficulties in the left thumb would eventually disappear with exercise and further surgery, with the exception of “fine precision” handiwork:Tsougrianis, at para. 36. This is not the case for Mr. Dobre.   Given the permanence of Mr. Dobre’s right thumb disability and the likely onset of arthritis, his injuries, all factors considered, appear somewhat worse than those of the plaintiff in Tsougrianis.

[93] I find an award of $70,000 for non-pecuniary damages is appropriate in the circumstances if the $5,000 assessed for loss of home making/maintenance capacity is included in that amount. I therefore award $70,000 for non-pecuniary damages, an amount that includes a specific segment of $5,000 for loss of home making/maintenance capacity.

This case is also worth reviewing for the Court’s discussion of diminished earning capacity.   Given the Plaintiff’s young age he had no set pattern of earnings prior to the injury.  In these cases it is more difficult to predict the consequences of injury on long term employment.  Mr. Justice Brown assessed damages of $60,000 for diminished earning capacity in doing so made some practical comments at paragraphs 65-74 of the reasons for judgement.

Historic Sexual Abuse Claim Results In $59,000 Damage Assessment

Written by admin on . Posted in Sexual Assault Civil Cases, Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages for historic sexual abuse.
In this week’s case (R.D. v. G.S) the Defendant stepfather was found liable for abusing his stepdaughter when she was aged 8-12.  The Plaintiff suffered psychological harm as a consequence of this.  Her non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) were assessed at $35,000.  In arriving at this figure Madam Justice Smith made the following findings with respect to the harm caused by the abuse:

[145] I have considered all of the evidence regarding the plaintiff’s psychological injury, including her testimony and the opinion evidence of Dr. Hotz and of Dr. O’Shaughnessy.

[146] I accept the plaintiff’s evidence regarding the symptoms she has experienced.  She was cross-examined at some length, and was consistent and convincing in describing her enormous sense of betrayal and destruction of trust, as well as her persistent experience of intrusive dreams, intrusive thoughts, anxiety, depression, low self esteem and low self confidence.

[147] As to the experts, with respect to the existence of a psychiatric disorder I prefer the evidence of Dr. O’Shaughnessy over that of Dr. Hotz.  I reach that conclusion because Dr. O’Shaughnessy clearly separated out the facts upon which he was relying from his opinions, is highly experienced in this area, has a higher degree of expertise and seemed to retain more objectivity in his approach.  I accept, accordingly, that the plaintiff does not currently suffer from a psychiatric disorder and it is unlikely that she has suffered from one in the past.

[148] I find, however, that she does suffer from psychological dysfunction that has interfered with her ability to pursue education or a more rewarding career, and that has interfered with her ability to build good relationships and to enjoy life.  The extent to which the psychological dysfunction finds its origins in what the defendant did is the question.  I find that he is responsible for it in some measure, although it also has other causes…

[214] The defendant’s position is that there is no evidence of harm to the plaintiff caused by the defendant’s actions, and there should be no award of general damages.

[215] I will consider the factors referred to in Y.(S.) v. C.(F.G.), in assessing the appropriate award for non-pecuniary damages.

[216] I begin with the nature of the assault.  In comparison with the sexual assaults found to have occurred in many other cases, the sexual touching in this case was not violent, intrusive, frequent, coercive or egregious.

[217] The breach of trust, however, was egregious, both with respect to the sexual touching that began when the plaintiff was quite young, and with respect to the defendant’s addition of photographs of the plaintiff to his collection of child pornography.

[218] I did not see any evidence of remorse on the defendant’s part.  His conduct with his stepdaughter was callous and reprehensible.  I do not overlook that the defendant himself was the victim of blatant disregard for his property and disrespect for his attempts to preserve his household and its contents after the children moved in.  However, he was the parent and the plaintiff was the child.  The fact that the plaintiff behaved badly toward him provides no justification for his behaviour toward her.

[219] The evidence of Dr. Hotz and Dr. O’Shaughnessy shows that the conduct of the defendant had a significant impact on the plaintiff’s psychological state.  I note as well that she would likely have experienced some level of psychological dysfunction in any event, and that the impact is unlikely to be permanent.

[220] I assess general damages, taking into account the aggravating factors I have described, at $35,000.

Cyclist 15% At Fault for Crash For Riding in Crosswalk

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized.


Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, addressing the issue of fault when a cyclist is struck by a vehicle while riding their bicycle in a marked cross-walk.
In today’s case (Dobre v. Langley) the Plaintiff intended to cross Martin Drive in Surrey, BC.  He approached  a marked cross-walk, activated the pedestrian lights, mounted his bike and began to cycle across the cross-walk.  At the same time the Defendant was driving near the middle lane of Martin Drive.  She “never saw” the Plaintiff prior to impact and was “completely oblivious to his presence until after impact.“.
The court found that while the Plaintiff lost his statutory right of way by riding his bike in a cross-walk the Defendant still owed a duty of care and was in breach of this by driving carelessly.  The Plaintiff was also found 15% at fault for riding in the cross-walk.  Paragraphs 31-49 of the reasons for judgement do a good job discussing the legal principles in play in these types of cases.  In coming to a 85/15 split of fault Mr. Justice Brown provided the following useful comments:
[41] In the circumstances of this case, particularly Mr. Dobre’s decision to ride across the intersection crosswalk, which heightened his duty of care, he either should have waited longer at the curb to ensure the defendant was responding to the pedestrian warning lights, or at least have more carefully monitored the defendant’s approach to ensure he could proceed safely. Had he noticed sooner that the defendant was not reducing her speed, he likely could have gotten completely ahead of harm’s way. Mr. Dobre’s decision to ride his bike across the intersection, and his resulting heightened duty, required at least those simple steps to maximize the chances the defendant was noticing him and to ensure his own safety….

[47] By any fair measure, Mr. Dobre did exercise a considerable degree of care. He stopped at the curb, straddling the bike. He looked west and east. He saw the defendant well to the east. He mistakenly reasoned she was far enough away to give him no reason for concern, especially, he thought, with the warning the flashing lights would give. He mounted the seat. He pedalled across the intersection slowly. When he saw the defendant at the last moment, he pedalled a few hard strokes, almost succeeding in removing himself from harm’s way. Apart from his one glance in either direction before pushing the button, however, he paid no further regard to Ms. Lang’s approach.

[48] In the case at bar, Mr. Dobre, for the reasons stated, owed a heightened duty of care. The defendant, for her part, was approaching a well-marked crosswalk and, in the circumstances, should have been extra vigilant in maintaining a lookout for those who might be approaching or in the crosswalk.

[49] Considering all the circumstances, I find the apportionment that fairly reflects the parties’ relative blameworthiness is an 85/15 split in liability, favouring Mr. Dobre. Mr. Dobre will thus recover 85% of his damages, to which I now turn.

Ongoing Negotiations and Other Factors Postpone Personal Injury Limitation Period

Written by admin on . Posted in Uncategorized. 55 Comments on Ongoing Negotiations and Other Factors Postpone Personal Injury Limitation Period

(UPDATE: May 10, 2010 – The below case was overturned today by the BC Court of Appeal; reasons can be found here)

Reasons for judgement were released last month by the BC Supreme Court, Vancouver Registry, addressing the postponement of a limitation period in a personal injury claim.
In last month’s case (Iezzi v. R.) the Plaintiff worked as a foster parent.  She alleged that in 2001 one of her foster children, identified as “MW” accidentally stuck her with a hypodermic syringe and infected her with Hepatitis C.  She claimed the Ministry of Children and Family Development was responsible for the harm and started a lawsuit in 2009.
The Ministry argued the action was brought out of time set out in the Limitation Act and brought a motion to dismiss the claim.  The motion was dismissed, however, with the Court finding that on-going settlement discussions and other factors operated to postpone the running of the limitation period under Section 6(4) of BC’s Limitation Act.  In dismissing the Ministry’s motion Mr. Justice Burnyeat provided the following reasons:



[15] I am satisfied that there was a postponement of the limitation period to sometime between the Spring of 2008 and the Fall of 2008 as a result of a number of factors.  There were negotiations with the Ministry during 2006 and until April 2008 regarding a possible settlement of damages flowing from the Hepatitis C infection and from the breach of contract.  It would have been unwise to interrupt those by the commencement of an action.  While negotiations were ongoing and while there was still a hope that a settlement could be reached, a reasonable person would believe that it was not necessary to commence an action for damages flowing from the Hepatitis C infection.  It was not until the April 1, 2008 meeting with a Ministry representative that the final position of the Ministry regarding a possible settlement was received.  Even then, Ms. Iezzi advised the Ministry that she had “no desire to go to a lawyer” although she also did advise that “I have been left with no other choice”.  It was only at that point that negotiations came to a conclusion and that Ms. Iezzi was left with no other alternative.

[16] It was not until sometime between April 2008 and September 2008 that Ms. Iezzi obtained the actual documentation relating to the Hepatitis C status of MW.  Before commencing an action, a reasonable person would first ascertain the exact knowledge the Ministry had about the Hepatitis C status of MW when she was placed as a foster child.  A reasonable person would not want to rely on the unsubstantiated information that was available from an employee of the Ministry.  A reasonable person would first wish to see the actual documentation before proceeding.  That documentation was not available to Ms. Iezzi until she ascertained in a document that was made available to her that the Ministry was aware that MW had Hepatitis C when MW was placed with her because the Ministry was in possession of the records available from the Juvenile Detention Centre.

[17] Until that information was available, it would have been foolhardy and unreasonable for a person to conclude that an action should be commenced and that there was a reasonable or any possibility of success.  Until the actual documentation was available to her, Ms. Iezzi had only the hearsay statements from her resource worker.  It was reasonable not to proceed until a determination could be made that there was a reasonable prospect of success and that there was a reasonable prospect of there being sufficient funds available if an action was successful to justify the action being commenced in the first place.

[18] I also consider that Ms. Iezzi was under intense stress.  I am satisfied that I should take into account a number of circumstances in dealing with whether the running of the limitation period should be postponed.  First, she had lost her house.  Second, she had lost her health as a result of the Hepatitis C infection.  Third, she had lost her livelihood because she could no longer take foster children.  At the same time to require her to face the intense stresses and strains involved in suing the Province is unrealistic.

[19] Taking into account all of the circumstances surrounding the commencement of this action in October 2009, I am satisfied that the application of the Defendant should be dismissed.



Plaintiff Independent Medical Exams and Litigation Privilege Discussed

Written by admin on . Posted in BCSC Civil Rule 1, independent medical exams, Uncategorized.


Useful reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, discussing the scope of litigation privilege when a Plaintiff attends an independent medical exam arranged on their behalf in the course of a personal injury lawsuit.
In this week’s case (Lanteigne v. Brkopac) the Plaintiff was injured in a 2008 collision.  In the course of the lawsuit the Plaintiff’s lawyer had her assessed by a neuropsychologist to explore the possibility of organic brain injury.  The Plaintiff’s lawyer chose not to order a report from the neuropsychologist following the assessment.
ICBC brought an application to compel the neuropsychologist to produce a copy of his clinical records of the assessment.  Master Taylor dismissed the application finding that the notes generated during Plaintiff arranged independent medical exams are subject to litigation privilege.  In addition to canvassing several cases addressing this area of law Master Taylor provided the following useful comments:

[15] On the other hand, the plaintiff says this is not a case where Rule 7-6(1) is applicable because the court did not make an order under this subrule for the plaintiff to attend to be examined by Dr. Coen. Rather, the plaintiff attended upon Dr. Coen by referral from her own counsel. Accordingly, says the plaintiff, what actually applies is the law of privilege, not Stainer v. Plaza.

[16] Thus, the issue is framed – can a defendant or third party who has not obtained a doctor’s report by compulsion of a court order, and prior to disclosure of any medical-legal reports by the plaintiff or in the absence of any reports, obtain access to the non-treating doctor’s notes and clinical findings, or are said notes and clinical records privileged as forming part of the brief of the plaintiff’s solicitor until the time when the plaintiff chooses to rely on the non-treating doctor as a witness at trial and the doctor’s notes must be disclosed…

[21] In my view it is improper to categorize the non-treating doctor or any other third party consultant retained on behalf of the plaintiff as a witness in which there is no property. The very fact that the plaintiff consulted with that physician or other individual during the course of litigation removes that individual from the “witness” category until such time as the plaintiff and counsel make a determination about whether or not that physician will be used as a witness at the trial, and preserves the right of privilege. The fact that the consulted doctor or other consultant never gives evidence preserves the privilege for all time unless waived by the plaintiff.

[22] While the defendant and third party submit they could have the plaintiff examined by their own doctor or proceed with an examination of the doctor pursuant to Rule 7-5, they complain that those alternatives are costly, and, accordingly, the court should assist them by ordering the records of Dr. Coen be produced and thus save them the cost of proceeding with the other alternatives. The defendant also submits that Rule 1-3 provides the court with sufficient justification to order Dr. Coen to provide his notes of the plaintiff’s examination.

[23] In my view, the defendant and third party have not shown any meritorious reason for abrogating the plaintiff’s litigation privilege related to the information obtained by Dr. Coen from the plaintiff as a result of the referral to Dr. Coen by the plaintiff’s solicitor. Nor, in my opinion, does Rule 1-3 provide justification for abrogating the privilege.

ICBC's Part 7 Exam Thwarts Defence Medical Exam Application

Written by admin on . Posted in BCSC Civil Rule 7, ICBC No-Fault (Part 7) Benefits, independent medical exams, Uncategorized. 48 Comments on ICBC's Part 7 Exam Thwarts Defence Medical Exam Application

As previously discussed, when a Defendant is insured with ICBC their ability to set up an ‘independent‘ medical exam can be compromised if ICBC exercised their rights to have the Plaintiff examined under section 99 of the Insurance (Vehicle) Regulation and if that exam went beyond what was required for a ‘part 7’ opinion.  Reasons for judgement were recently released by the BC Supreme Court, Rossland Registry, demonstrating such an outcome.
In the recent case (Wocknitz v. Donaldson) the Plaintiff was injured in a 2008 collision.  Both the Plaintiff and Defendant were insured by ICBC.  Before litigation got underway ICBC had the Plaintiff assessed by a physiatrist.   As is not uncommon with these types of examinations, the report generated exceeded the narrow scope of Part 7 Benefit needs.
In the course of the lawsuit the Plaintiff obtained their own expert opinion from a physiatrist.  The Defendant’s brought an application to compel the Plaintiff to be assessed by another physiatrist and by a psychiatrist.  They argued this was necessary to ‘level the playing field’.  Mr. Justice Pearlman disagreed and dismissed the application.  In doing so the Court provided the following helpful reasons:

[14] In Robertson v. Grist, 2006 BCSC 1245, at paragraph 14, Madam Justice Dillon addressed the question of whether a Part 7 examination constitutes a first independent medical examination for the purposes of a tort claim. She said this:

[14]      Whether the Part 7 examination constitutes a first independent medical examination depends upon the scope of the examination, given the rest of the circumstances here.  There was no limitation on Dr. Jaworski’s examination and the request letter covered matters that would solely be relevant to a tort action.  The doctor’s report was not limited to a rehabilitation opinion about whether the injuries sustained in the accident totally disabled the plaintiff from work within 20 days of the accident and for a period of 104 weeks or less, the criteria in section 80 of the Part 7 benefits Regulations.  The examination was a first independent medical examination within the meaning of Rule 30.

[15] In this case, the letter from the adjustor instructing Dr. Findlay has not been put in evidence.  However, it is clear from Dr. Findlay’s report that it deals with matters which go beyond an inquiry restricted to Part 7 benefits, and deals with matters directly relevant to the tort claim. ..

[19] In this case, there have been no subsequent unforeseeable events which would, in my view, warrant a second examination by a physiatrist.

[20] With respect to the application of the defendants for an order for an independent medical examination by a psychiatrist, again this is not a case where such an examination is required in order to level the playing field.  This is not a case where the plaintiff has obtained or intends to obtain a psychiatric report.  An independent medical examination by a psychiatrist is a particularly invasive form of examination and, in the circumstances of this case, it is not one that I would be prepared to order.

[21] With respect to the defendants’ submission that because Dr. Findlay provided his report some nine months after the accident, he was not in a position to pronounce in any definitive way with respect to a prognosis, in my view the timing of Dr. Findlay’s examination was a matter that was entirely within the control of the defendants.  That does not provide a basis which would justify an order for a second independent examination by a physiatrist.  As counsel for the plaintiff has pointed out, it would still be open to the defendants to have Dr. Findlay review the report of Dr. Valentine, and the clinical records that have been produced, and to provide a rebuttal report for use at trial.

[22] The application of the defendants for the two independent medical examinations sought is dismissed.

$40,000 Non-Pecuniary Damages for Chronic Whiplash and Possible Facet Joint Injury

Written by admin on . Posted in ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.


Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic whiplash injury.
In last week’s case (Fiorda v. Say) the Plaintiff was involved in two collisions, the first in 2008 and the second in 2009.  The Plaintiff was not at fault for either crash.  Both collisions contributed to a chronic whiplash injury with possible facet joint involvement.  The symptoms of pain were still present by the time of trial and these were expected to carry into the future.  In assessing the Plaintiff’s non-pecuniary damages at $40,000 Madam Justice Holmes provided the following reasons:

[25] Dr. Gabriel Hirsch, specialist in physical medicine and rehabilitation, conducted an independent medical assessment on April 4, 2011.

[26] Dr. Hirsch concluded that in the first accident, Ms. Fiorda sustained relatively minor injuries to her neck, upper back, and shoulder girdle region, from which she had made a good recovery by the time of the second accident.  He concluded that absent the second accident, Ms. Fiorda probably would have made a full recovery from the first.

[27] Dr. Hirsch concluded that the second accident caused injuries to Ms. Fiorda’s neck, thoracic spine, and lumbar spine, which probably involved soft tissue structures, such as muscles, tendons, and ligaments.  Given the accident mechanism as Ms. Fiorda had described it, it was also possible that Ms. Fiorda sustained an injury to a cervical facet joint.

[28] Dr. Hirsch recommended that Ms. Fiorda carry out a regular exercise program, ideally in a well-equipped community centre or gymnasium.  Because Ms. Fiorda had recently completed a functional restoration program under the guidance of a physiotherapist and kinesiologist, he felt she should be able to continue with a maintenance program on her own.  He recommended particular components of a regular exercise program for Ms. Fiorda to follow.

[29] Dr. Hirsch also suggested that Ms. Fiorda consider trigger point injections into the neck and shoulder girdle region, her most symptomatic areas.  He noted that those injections are funded by the Medical Services Plan.

[30] Dr. Hirsch noted that “there is some uncertainty” about whether Ms. Fiorda can continue in her work as a costume designer on a sustainable basis because of the long hours and many consecutive days, which do not allow her the opportunity to recuperate from a flare-up. ..

[45] In my view, the particular circumstances of Ms. Fiorda’s case support an award of $40,000.