“Little Weight” Given To ICBC Experts in Three Cases Released Today

The BC government is making more noise about Rule of Court reforms regarding expert opinion evidence in personal injury cases in an effort to save ICBC money.  Their not so subtle message is that Plaintiff’s hire too many experts to prove their claims.  If cases released by the BC Supreme Court today are any guide it is ICBC that is in need of reform when it comes to the practice of hiring physicians hoping to refute collision related injuries.

In three separate cases published today by the BC Supreme Court three separate judges found ICBC hired expert opinions deserved “little weight“.

In the first case (Francello v. Cupskey) the Plaintiff was injured in two collisions.  ICBC retained a physician who provided opinion evidence minimizing the Plaintiffs injuries in connection to the crash.  In finding this opinion deserved “little weight” Mr. Justice Burnyeat provided the following comments:

[124]     I am not prepared to find that the Opinion and the testimony of Dr. Bell is inadmissible as was requested by counsel for Ms. Fancello. However, I am prepared to give it very little weight and prefer the evidence in these regards provided by those who remain licensed, continue to see patients, remain up to date in their review of applicable literature, and who saw Ms. Fancello in a professional capacity. I also cannot conclude as did Dr. Bell that the falls being experienced by Ms. Fancello were “just an isolated incident” or that it would be appropriate to discount reports of dizziness.

In the second case released today (Dinnisen v. Lee) the Plaintiff was a pedestrian struck by a vehicle while in a marked crosswalk.  She suffered serious injuries including a fractured right collarbone, a fractured left wrist, and an injury to her brain.  In the course of litigation ICBC had her assessed by neurologist who provided opinions minimizing her injuries.  In giving “little weight” to this opinion Mr. Justice Funt provided the following reasons:

[84]         I have given little weight to Dr. Dost’s opinion for several reasons. First, Dr. Dost takes a primarily statistical approach based on medical literature rather than focusing on the plaintiff with her particular health history, medical imaging, and her symptoms…

[90]         Second, Dr. Dost’s clinical testing is suspect. Dr. Dost met with the plaintiff for 27 minutes in the morning of September 24, 2017 in order to conduct his assessment. During this time, Dr. Dost asked her a number of unchallenging questions as part of an intake questionnaire (e.g., height, time in hospital, work hours, recreational pursuits)…

[92]         I do not accept that even an experienced neurologist can observe and determine decreased processing speed except in obvious instances (e.g., slow to answer easy and readily understandable questions). Dr. Dost’s method is further suspect in that he did not test the plaintiff later in the day after she had been at work for at least several hours. In the plaintiff’s case, her cognitive fatigue occurred later in the day after several hours of work involving mental tasks…

[95]         Third, Dr. Dost failed to consider the possibility that the patient lost consciousness in the Accident…

[103]     Fourth, Dr. Dost testified that none of the other experts diagnosed the plaintiff as having suffered a moderate traumatic brain injury. A moderate traumatic brain injury may have affected the “effect size” in his statistical analysis. However, as may be seen below, Dr. Cameron opined that the plaintiff “suffered a complicated mild traumatic brain injury or moderate traumatic brain injury”…

[105]     Fifth, as quoted above, Dr. Dost in his June 13, 2018 report states:

I would recommend a psychiatric assessment and I would like the report provided for a review.

[106]     The defendant obtained a psychiatric assessment from Dr. P. Janke but the defendant did not give Dr. Dost a copy of Dr. Janke’s report. Dr. Janke was not called as a witness at trial nor was his report tendered as expert opinion. Dr. Janke’s report was given to the plaintiff and the plaintiff gave it to her medical experts. Under cross-examination by defence counsel, Dr. Cameron referred to Dr. Janke’s report.

[107]     The fact that Dr. Dost recommended a psychiatric assessment of the plaintiff and asked to see the relevant report makes his report provisional…

[110]     It is unhelpful to the fact finding process that a party holds back from one of its own experts an opinion of another of its experts where the areas of expertise overlap, especially when the opinion has been provided to the other party.

[111]     As seen above, in his June 13, 2018 report, Dr. Dost states:

I would expect that if these issues are based on psychiatric issues, then treatment of her psychiatric problem will lead to improvement. [Emphasis added.]

[112]     Dr. Dost’s opinion was provisional. In his October 15, 2018 addendum, his opinion remained unchanged. By this time, he had received the October 26, 2017 independent medical examination report prepared by Dr. D.H. Smith, a psychiatrist. In his October 26, 2017 report, Dr. Smith agrees with Dr. Cameron that in terms of outcome, a mild complicated traumatic brain injury is more like a moderate traumatic brain injury.

[113]     In sum, I have given little weight to Dr. Dost’s report, addendum, and evidence. I find that he did not undertake a sufficiently thorough analysis of the plaintiff’s symptoms and surrounding circumstances in order to provide sufficient reliability of opinion evidence to the Court. He was also somewhat hampered by not having been given a copy of Dr. Janke’s report.

In the final case released today (Miller v. Resurreccion) the Plaintiff was injured in a 2011 collision that the Defendant admitted fault for.  ICBC again retained an expert who minimized the connection of the Plaintiff’s injuries to the collision.  In finding aspects of his opinion deserved “little weight” Madam Justice Baker provided the following comments:

In his second report he questioned whether the flare up of symptoms experienced by Ms. Miller in 2016 could be related to the accident. He did note that migraines fluctuate and can worsen when psychological issues develop.

[81]         Dr. Woolfenden’s opinions were based in part on his understanding that Ms. Miller had a longstanding history of pre-accident headaches, including severe headaches, and neck pain. Under cross examination, Dr. Woolfenden agreed that his understanding of Ms. Miller’s pre-accident pain and headaches arose primarily from the records of Ms. Gibson and Dr. Miles. Both Ms. Gibson and Dr. Miles testified at trial, and their evidence did not support the understanding Dr. Woolfenden gained from their notes. As such, I place little weight on Dr. Woolfenden’s conclusions on the possible origin of Ms. Miller’s headaches.

Advocacy in the Guise of Opinion, bc injury law, Dinnessen v. Lee, Fancello v. Cupskey, madam justice baker, Miller v. Resurreccion, Mr. Justice Bunryeat, Mr. Justice Funt

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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