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Insurance Medical Expert Rejected as “Combative, Argumentative and Arrogant”

Reasons for judgement were published today by the BC Supreme Court rejecting and harshly criticising the opinion evidence of doctor hired to provide a defence medical opinion in a personal injury claim.

In today’s case (Chavez-Babcock v. Peerens) the Plaintiff was involved in a 2014 collison that the Defendant admitted fault for.  The crash resulted in chronic soft tissue injuries.  In the course of the lawsuit the Defendants insurer hired an orthopaedic surgeon who provided an opinion minimizing the plaintiff’s symptoms to the crash.  In rejecting this opinion and the physicians evidence as combative, argumentative and arrogant Madam Justice Matthews provided the following reasons:

[61]         Ms. Peerens relies on the opinion evidence of Dr. Maloon, an orthopedic surgeon who has a sub-specialty in spinal surgery and practices in the area of diagnosis and management of spinal disorders. Dr. Maloon opined that Mr. Chevez-Babcock probably sustained mild soft tissue strains to his neck and possibly his lower back in the December 1, 2014 accident. Dr. Maloon held that Mr. Chevez-Babcock’s report of symptom severity was too high given the lack of objective findings he noted during his physical examination of Mr. Chevez-Babcock and inconsistent with Mr. Chevez-Babcock’s ability to play seven-a-side soccer and volleyball. Dr. Maloon opined that Mr. Chevez-Babcock was exaggerating his symptoms and that Mr. Chevez-Babcock’s symptoms are not consistent with a musculoskeletal injury, but rather with that of mechanical back pain that is “extremely common in the general population” and “usually the result of wear and tear in the joints of the lower back”.

[62]         Dr. Maloon’s opinion is problematic in a few regards. First, both an x-ray and a CT scan showed no degenerative changes to his lumbar spine, which undermines his opinion that Mr. Chevez-Babcock had mechanical pain due to pre-existing wear and tear. Dr. Maloon testified that he did not have the radiographs available to him. On cross examination, he confirmed that he had the x-ray report and the CT scan report, but he was not prepared to rely on them as he prefers to review the studies himself. While Dr. Maloon’s practice may be to review x-ray films and CT scan studies himself when diagnosing a problem with the lower spine, it is problematic that he was prepared to opine that Mr. Chevez-Babcock had a pre-existing low back condition consistent with wear and tear changes in the joints without the x-ray film or the CT scan when the reports that he did have did not include any information that would support wear and tear changes in the joints.

[63]         Next, he holds the opinion that Mr. Chevez-Babcock’s symptoms are not consistent with soft tissue injuries to the low back because such injuries usually surface shortly after the accident and resolve within six to eight weeks. He stated that reports of Mr. Chevez-Babcock’s low back pain did not appear in medical records until September 2015, nine months after the accident.

[64]         Dr. Maloon is wrong about the medical records. While Mr. Chevez-Babcock’s family doctor records do not contain a record of complaints of back pain on Mr. Chevez-Babcock’s first visit after the December 1, 2014 accident, on January 2, 2015, Dr. Poteryko noted that Mr. Chevez-Babcock had strained his back at work “similar to where MVC injury” and noted paraspinal spasms at T4 (thoracic 4). On January 16, 2015, he noted paraspinal spasms at L4 (lumbar 4). There are several similar notes between that time and September 2015. In addition, as Dr. Maloon noted, the January 2015 physiotherapy notes contain complaints of low back pain.

[65]         Dr. Poteryko and Dr. Waseem noted objective signs of low back soft tissue injuries, including muscle spasms, muscle stiffness, increased muscle tone and trigger points, when they examined him. Dr. Maloon did not.

[66]         With regard to recovery rates, although the experts agreed that six to eight weeks is a typical timeframe for recovery from a whiplash-type of injury, no one offered the opinion that there are no cases that extend beyond that time. Indeed, there must be if chronic myofascial pain of the lumbar spine is a diagnosable condition. However, Dr. Maloon does not accept that chronic myofascial pain is a diagnosis. When asked to explain that opinion, he responded by asking the cross examiner what he meant by myofascial and by asking him what soft tissues he was talking about. He also asserted that pain is not a diagnosis and that he could not accept anything as imprecise as chronic myofascial pain to the lumbar spine.

[67]         While giving this evidence, Dr. Maloon was combative, argumentative and used arrogance in an attempt to quell the questions from counsel for Mr. Chevez-Babcock. When asked whether he would defer to or respect the opinion of a physiatrist whose specialty was to diagnose and treat soft tissue injuries, such as Dr. Waseem, he replied that he often was referred patients by physiatrists, but he had never referred a patient to a physiatrist. From that answer, I understood him to mean that he does not respect the opinions of physiatrists because in his hierarchical construct, orthopedic surgeons are higher than physiatrists.

[68]         Dr. Maloon’s hierarchical construct does not assist with the court’s task of finding facts. His opinions and reasoning are circular and at odds with the objective evidence recorded by Dr. Waseem and Dr. Poteryko.

[69]         This court has found Dr. Maloon’s evidence to be less than helpful for the same types of reasons I have given, and for other reasons: Hanger v. Shin, 2019 BCSC 99 at paras. 66-73; Shinzay v. McKee, 2014 BCSC 2317 at paras. 87-89; Noori v. Hughes, 2018 BCSC 965 at paras. 65-73; Baxter v. Jamal, 2010 BCSC 289 at para. 33.

[70]         I do not accept Dr. Maloon’s evidence.

[71]         Based on the evidence that I do accept, including that of Mr. Chevez-Babcock, his brother, Mr. Stewart, his father, and Ms. Thistlethwaite, I conclude that Mr. Chevez-Babcock has chronic low back soft tissue pain which is aggravated by heavy lifting, prolonged standing, prolonged sitting and limits what Mr. Chevez-Babcock can do at work, at the gym in minor regards, and limits his recreational activities to non-contact sports.

Advocacy in the Guise of Opinion, bc injury law, Chavez-Babcock v. Peerens, Madam Justice Matthews