Tag: Advocacy in the Guise of Opinion

ICBC Doctor Criticized as "Very Unhelpful Medical Witness" By BC Supreme Court

In the latest example of expert witnesses who cross the line into prohibited advocacy, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, criticizing a physician for such behavior.
In this week’s case (Ferguson v. McLaughlin) the Plaintiff was injured in a 2009 collision caused by the Defendant.  The Defendant’s insurer hired a physician who presented evidence largely discounting the connection of the Plaintiff’s complaints to the collision.  In rejecting this evidence Madam Justice Griffin had the following pointed comments for the physician –

[63]         The defendant called the evidence of Dr. Duncan McPherson, an orthopaedic surgeon, who performed a medical examination of the plaintiff at the request of the defendant.

[64]         Dr. McPherson was a very unhelpful medical witness.

[65]         Dr. McPherson has not practised medicine for years. He stopped his work as a surgeon in 1992 or 1994 and ceased practising medicine in 1997. It is difficult to assume that he is up to date on medical studies regarding soft tissue injuries and pain.

[66]         Dr. McPherson is wholly reliant on the Insurance Corporation of British Columbia (“ICBC”) for his income and has been for years. He was clever, and I mean this not in a complimentary way, when questioned about his reliance on ICBC for his income in the last several years, hinting at the notion that he had other sources of income. He then agreed the other sources of income were simply his investment income.

[67]         Dr. McPherson’s approach to examining patients appeared to be dependent on a verbal test. He asks the patient to explain the patient’s complaint, and if the patient does not mention pain in his answer, he concludes that in his opinion the patient does not have pain and thus does not have a lasting injury. Dr. McPherson stated that when patients describe complaints in the activities they can do, rather than stating they have pain in a body part, that is because they are not sure where the pain “should” be, implying that the patient is not telling the truth if they do say they have pain.

[68]         Dr. McPherson was in my view overly confident that the question he poses to patients is a scientifically valid “truth-o-meter”, foolproof in discovering whether pain exists or not. He seemed completely close-minded to the possibility that some patients might not understand what he means by “complaint” or may not consider “pain” to be a complaint but a condition that they simply deal with on a day-to-day basis.

[69]         Dr. McPherson found it highly relevant that when he asked the plaintiff about his present complaints relating to the accident, the plaintiff did not say he has pain, but said he is limited to certain activities now, such as he cannot do heavy work, or has issues with his back hurting during sexual activities. Dr. McPherson appeared to conclude that because the plaintiff did not say “I have pain in my back” during the interview, he therefore did not have a chronic pain injury in his back.

[70]         I found Dr. McPherson’s logic to be at best simplistic and superficial. At worst it reveals that Dr. McPherson holds such a degree of cynicism regarding patients advancing claims against ICBC that he is not independent and his evidence is unreliable.

[71]         When it was suggested to Dr. McPherson he may not have written down exactly what the patient said he was absolutely confident that he was always a perfect recorder of what patients said to him. This is so despite the brevity of his report. A reasonable, educated person would allow for the possibility of mistakes being made in transcribing a patient’s comments, but Dr. McPherson did not do so, illustrating his close-minded disposition.

[72]         It seems obvious to me that when describing his limitations to Dr. McPherson, the plaintiff was intending to convey to Dr. McPherson that the accident caused these limitations because of the pain he suffers, as he explained in court. The fact that he might not have spelled out to Dr. McPherson in a more explanatory way that ”the accident caused me to have pain in my back which limits me from these activities” is not an admission that proves that his injuries do not cause him pain in his back.

[73]         Also, Dr. McPherson gave significant weight to the fact that the plaintiff exhibits a full range of motion. He seemed unwilling to accept that a person can have a full range of motion but also suffer from pain. Dr. Lepard, the plaintiff’s family doctor until she retired in 2011, said that it is not uncommon for a patient with an injury to have full range of motion but also to have pain. I prefer Dr. Lepard’s evidence on this point, as it is consistent with the plaintiff’s evidence that he has pain on prolonged activity on a recurring basis.

[74]         Dr. Lepard did agree that the plaintiff’s range of motion suggested that his whiplash injury was not as serious as Category 3 and 4, but was more in the Category 2 range, of being in the medium to low end of whiplash soft tissue injuries.

[75]         Dr. McPherson concluded that there was no “objective” evidence of a disability relating to the motor vehicle accident. This is not a helpful opinion in relation to the injuries in this case. Pain may not something that can be measured objectively with a scientific instrument, but it can still be disabling.

[76]         I note that even the defendant concedes on the whole of the evidence that the plaintiff has suffered a soft tissue injury which will cause some future loss of earning capacity.

[77]         I do not find Dr. McPherson’s evidence to be of any value in deciding the issues in this case.

BC Supreme Court Criticizes Defense Doctor Who "Crosses the Line"

In what is not the first time, a psychiatrist who is frequently retained in the defense of personal injury lawsuits was criticized by the BC Supreme Court for crossing the line from impartial opinion to prohibited ‘advocacy‘.
In today’s case (Bricker v. Danyk) the Plaintiff was involved in a 2011 collision and sustained physical injuries with psychological repercussions.  The Defense hired a doctor who minimized the connection of the Plaintiff’s psychological difficulties to the collision.  In rejecting this evidence and finding the defense doctor ‘crosses the line‘ Mr. Justice Skolrood provided the following critical comments –

[118]     It is useful at this point to address Ms. Bricker’s submission that the court should place little weight on Dr. Levin’s opinion which she submits constitutes advocacy rather than expert opinion. She points in particular to numerous places in Dr. Levin’s report where he appears to editorialize about answers given by Ms. Bricker during his interview of her in a manner that suggests a pre-determined outcome.

[119]     Much of the editorializing complained of by Ms. Bricker is directed at questioning whether Ms. Bricker’s complaints are sufficiently serious to meet the diagnostic criteria for PTSD and Major Depressive Disorder and, in this regard, Dr. Levin raises valid issues. However, I agree with Ms. Bricker that the overall focus and tenor of his report, as well as his evidence at trial, crosses the line of what is proper for an expert witness and strays into advocacy.

[120]     Without going into great detail about his evidence, some excerpts from his report are illustrative:

a)    at p. 4 Dr. Levin suggests that Ms. Bricker has not reported any neurobehavioral or neurocognitive symptoms that “would even remotely be suggestive of any underlying concussive brain injury”;

b)    at p. 4 of Appendix A, where he records the results of his interview of Ms. Bricker, Dr. Levin refers to the “significant discrepancy” between her report to him and chiropractic records of past treatments;

c)     at p. 5 of Appendix A, he editorializes that the fact that Ms. Bricker enjoys watching National Geographic television programs involving sharks is inconsistent with someone complaining of anxiety; and

d)    at p. 5 of Appendix A, he again editorializes that Ms. Bricker’s description of her range of interests is “clearly not suggestive” of someone suffering from a major depressive disorder or PTSD.

[121]     While these are but a few examples, they reflect the argumentative nature of his report. I agree with Ms. Bricker that Dr. Levin’s evidence in its entirety lacks the degree of objectivity expected of an expert witness. For that reason, I attach no weight to his report.

Expert Who "Did Not Meet With, Examine Or Interview" Plaintiff Given Zero Weight

In the latest case  (Preston v. Kontzamanis) of courts having critical comments for medico-legal practices, reasons for judgement were released today by the BC Supreme Court, Quesnel Registry, rejecting the opinion of a defence retained doctor who “did not meet with, examine or interview” the Plaintiff but nonetheless authored a report opining on the Plaintiff’s injuries.
In criticizing this practice Mr. Justice Parrett provided the following comments:

[125]      The defendant provided and relied upon what purported to be an independent medical report (IME) by Dr. Boyle.

[126]     Dr. Boyle readily acknowledged that he was not asked to and did not meet with, examine or interview the plaintiff.

[127]     Dr. Boyle reviewed documents and information provided by counsel and wrote his report.

[128]     These documents and that information included clinical records of various medical professionals.

[129]     This is a process that is unlikely to assist the court in any material way.  The first concession is invariably, and was in this case, that interviewing, examining and getting a personal history is important to providing an accurate and complete assessment.

[130]     This is a trend that appears to have been of relatively recent origin.

[131]     It is also a trend which has drawn adverse comment from judges of this court.  Dhaliwal v. Bassi 2007 B.C.S.C. 549 (Burnyeat, J. at paras. 2-3); Ruscheinski v. Biln 2011 B.C.S.C. 1263 (Walker, J. at paras. 85-87);Rizotti v. Doe 2012 B.C.S.C. 1330 (Tindale, J. at para. 35).

[132]     To these I would add my own comments.  Where an expert chooses to prepare a report as he did here, expecting this court to accept and rely on it.  He is presenting a report in which he effectively asserts that he accepts as true and accurate the factual base on which his opinions are based.

[133]     Where he does so without seeing, examining or taking a personal history he chooses to offer his opinion on the basis of hearsay.  Worse still he chooses to offer it on the basis of his interpretation of hearsay recorded by others.

[134]     Another difficulty presents itself with respect to the report and evidence of Dr. Boyle and the report of Dr. Hawk.

[135]     The clinical records and other documents were admitted under the terms of a document agreement which was entered as Exhibit #1.

[136]     Under the terms of that agreement the use of documents in general, which includes clinical records, is limited.  Paragraph 2 and 5 of that document are particularly notable.

[137]     In my view, Dr. Boyle’s report should be afforded the weight it deserves and in this case where credibility and exaggeration are both asserted against the plaintiff by the defendant that is no weight at all.

[138]     It was not argued in this case that the report was inadmissible and Dr. Boyle’s qualifications to give an expert opinion on this case and in these circumstances was not addressed. I leave it then to another day and for full argument for this court to consider whether the requirements are met to allow the report to be received at all in these circumstances.

$120,000 Non-Pecuniary Assessment for Soft Tissue Injuries with Disabling "Pain Disorder"

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic pain disorder caused by two vehicle collisions.
In today’s case (Litt v. Guo) the Plaintiff was involved in two collisions, the first in 2003, the second in 2010.  The Plaintiff was not at fault for either.  The Court found both collisions caused various soft tissue injuries which went on to form a chronic pain disorder which was largely disabling for the Plaintiff.  In assessing non-pecuniary damages at $120,000 Mr. Justice Schultes provided the following reasons:

[371]     In summary, I will make the following findings on causation and the current state of Ms. Litt’s injuries:

·                 Ms. Litt suffered moderate soft tissue injuries to her neck, shoulders and back in the 2003 and 2010 accidents, which would not have been significantly disabling in themselves.

·                 Her physical injuries from the 2003 accident had receded to a manageable level by the time of the 2010 accident, but those injuries were aggravated by the 2010 accident.

·                 Ms. Litt developed a pain disorder as a result of the 2010 accident.

·                 Ms. Litt’s pre-existing anorexia nervosa and depression made her more vulnerable to developing depression and other psychological difficulties after the 2003 accident and to developing a pain disorder after the 2010 accident.

·                 Despite the other stressors in her life, Ms. Litt would not have suffered any disabling reappearance of her pre-existing conditions if the accidents had not occurred.

·                 There is a possibility of a continued improvement to her functioning and her capacity for employment, based on her self-described improvements to her outlook after beginning to follow a regime of healthy diet, exercise and counselling…

[378]     Keeping in mind the need to tailor the award to the particular circumstances of the case, but to consider outcomes in similar cases to ensure the overall fairness of the amount, I conclude that damages of $120,000 are appropriate under this heading.

Also of note are the Court’s critical comments of two defence expert witnesses in the case.

The first, a defence expert in ‘spine pain’ testified that soft tissue injuries would certainly have healed within 12-16 weeks of each accident and that this was “scientific fact”.  In rejecting this assertion the Court commented as follows –

[349]     Turning to the evidence dealing with the extent of Ms. Litt’s physical injuries, I find first of all that I am unable to accept Dr. Bishop’s categorical assertion that the outside limit of the duration of her actual physical injuries is 16 weeks. A comprehensive study that he accepted as authoritative shows that there is a greater variation in that recovery period, before even considering the influence of any psychological problems on the experience of pain. In addition, though through no fault of his own, he has no records and therefore no real evidentiary basis to critique the medical findings that were made by others in relation to Ms. Litt’s 2010 accident. While, as I will discuss, there is a good argument that Ms. Litt’s psychological condition has overtaken any physical causes of her pain, I am not convinced that any contribution by her physical injuries ended as quickly as he contends.

Next, the Court heard from a defence hired psychiatrist who minimized the connection between the Plaintiff’s chronic pain condition and the collisions.  In rejecting this evidence Mr. Justice Shultz provided the following critical comments-

[355]     I will start by saying that I find I cannot attach any weight to Dr. Levin’s opinion. He conflates the routine nature of the accidents with the requirement for a diagnosis of pain disorder under the DSM-V that the patient experiences the injuries as “significant, catastrophic or life threatening”. Their objective severity aside, Ms. Litt certainly perceives her injuries as being significant. His assertion that there can be no PTSD here because the accidents were not traumatic also ignores that fact that Dr. Lu does not rely on PTSD to support his diagnosis of pain disorder. PTSD is most prominent in Dr. Lee’s records, and I would not give as much weight to his diagnoses in psychiatric matters in any event.

[356]     More importantly, Dr. Levin made assumptions that are not borne out by the evidence, such as that Ms. Litt’s function was “seemingly unimpaired” in the years following the accidents, which he seems to have based largely on her continuing ability to take family vacations that involved air travel.

[357]     Worst of all in my view, he overlooked or ignored numerous entries in Dr. Lee’s clinical records that had the potential to undermine his opinions. My overall impression was that the primary purpose of his report was to counteract Dr. Lu’s opinion, rather than to address the evidence objectively, and that it was not prepared carefully.

$14,000 Non-Pecuniary Assessment Following "Mild to Moderate" Soft Tissue Injuries

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for relatively modest injuries sustained in a collision.
In today’s case (Zhibawi v. Anslow) the Plaintiff was involved in a minor collision caused by the Defendant.  The Defendant acknowledged fault but argued the collision was so minor no injury could have been sustained.  The Court rejected this argument.  The court did, however, have some difficulties with the Plaintiff’s privately retained expert witness noting his opinions “did not comply with the duty” owed to the Court.  Mr. Justice Williams did conclude that the Plaintiff suffered ‘mild to moderate’ soft tissue injuries.  In assessing non-pecuniary damages at $14,000 the Court provided the following reasons:

40]        With all that said, I have reached certain findings concerning the injuries that were sustained by the plaintiff and the effect that they have had upon her. I conclude that she sustained a mild to moderate soft tissue injury. That resulted in some neck and back discomfort. Within approximately two weeks, she was able to return to work.

[41]        The injuries had a limiting effect upon her activities for a time, including her running and housework. I find that, within a few months, their impact on her ability to work at her job was manageable and modest.

[42]        There were complaints of headache following the accident, but it is in my view quite relevant that Ms. Zhibawi had been experiencing significant headaches as part of a long-established neurological condition that also included fainting and light-headedness. While the plaintiff sought to draw a distinction between the pre-accident headaches and those she had after, I find that the headaches that are attributable to the defendant’s negligence are modest.

[43]        I conclude the bulk of the plaintiffs discomfort resulting from the motor vehicle accident was substantially resolved within six to nine months.

[44]        I do not accept that the injuries she sustained have continued in any meaningful way to the time of trial, and I find no basis to conclude that she will suffer any effects into the future…

[50]        I conclude that a fit and appropriate award of damages to compensate the plaintiff for her pain, suffering, and loss of enjoyment of life is $14,000.

"Careless" If Not "Deceptive" Expert Opinion Judicially Criticized

Adding to this site’s archived cases criticizing expert advocacy in the guise of opinion, reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, criticizing such an opinion.
In today’s case (Hendry v. Ellis) the Plaintiff was injured in a collision and sued for damages.  THe Defendant hired a doctor who minimized the connection between the Plaintiff’s complaints and the collision.  At trial, through cross examination, the doctor made various admissions beyond the borders of the opinion contained in the report.  In criticizing the physician’s opinion as “careless” if not outright “deceptive” Mr. Justice Jenkins provided the following reasons:

[26]         Expert evidence tendered at trial was that the duration of soft tissue pain is considered to be 12 to 16 weeks and if pain is experienced after that time, it is due to some other mechanism. As Ms. Hendry had no back pain prior to the accident, it is clear that some other mechanism from the accident is the cause or contributing to her current pain.

[27]         I will not review in detail the medical evidence which is lengthy. However, I can safely say that I accept the opinion of Dr. Sawhney, the plaintiff’s doctor, and do not find the evidence of the defence expert, Dr. Bishop, to be particularly helpful. I have no doubt about Dr. Bishop’s qualifications, however, there were significant inconsistencies in his evidence provided in an earlier case, the transcript of which was tendered at trial. At trial he agreed the absence of an objective basis for pain does not invalidate pain but he did not say so in his report.

[28]         At trial, Dr. Bishop admitted that the plaintiff continues to suffer pain and if the motor vehicle accident did not occur, she would not have experienced the soft tissue injury caused by the motor vehicle accident that initiated acute pain, and he also stated that pain triggers a psychiatric reaction that can lead to chronic pain which is what Ms. Hendry is experiencing. However, once again he did not say so in his report. Dr. Bishop also admitted most chronic pain patients at three years after the accident will likely not make considerable progress or at least he agreed that the chances of significant progress are low.

[29]         I will just refer as well to the notes just to save time in the written submissions of the plaintiff in paras. 48 through 53 which I accept those references in the written submissions of the plaintiff regarding the evidence of Dr. Bishop. These submissions were:

48.       He [i.e. Dr. Bishop] admitted Ms. Hendry had no prior history of low back pain.

49.       He admitted that numerous medical studies have been published, put that put that 3-15% of people continue to have pain after a soft tissue injury and that by definition, Ms. Hendry is in that percentage of people.

50.       In a previous case he had admitted that there is a leading medical theory that explains why people have pain after 12-16 weeks: central nervous system hypersensitivity theory, but in the case at bar he denied it was a leading theory, even though he accepted it.

51.       He admitted that he did not advise the court in either of his report that 3-15% of people continue to have pain after a soft tissue injury even though he knew he was writing his second report specifically for the purpose of an imminent trial.

52.       It is respectfully submitted that Dr. Bishop did not meet the requirement of an expert in their duty to assist the court and to candidly disclose alternate theories that could account for the plaintiff’s pain. At best, it was careless, at worst, it was deceptive by omission.

53.       He finally admitted that MVA injuries were the only reason that started the plaintiff down the path of chronic pain. When asked if the car accident initiated the process, he finally admitted that yes it had. He said that he did not put this in his report because “I’m bound by the questions I was asked”. With respect, this is an irresponsible attitude for an expert to hold.

[30]         Dr. Bishop also stated many times he does not know the objective cause of her pain as no bone scans have been performed and she has not seen a psychiatrist for testing. I find that the cause of the pain has been the soft tissue injuries and other injuries, some of which may not now be identified as per Dr. Bishop and that her pain is chronic in nature and most likely to continue.

Court Rejects "Perplexing" Defence Doctor Evidence Minimizing Plaintiff Disability

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing damages following a rear-end collision.
In today’s case (Sirak v. Noonward) the Plaintiff suffered “very significant and progressively worsening debilitating pain and neurological symptoms” as a result of a 2005 collision that the Defendant was responsible for.  In the course of the litigation the Defendant had the Plaintiff assessed by two physicians who provided the Court with an opinion that the Plaintiff “is not disabled” as a result of the collision related injuries.  In rejecting these opinions Madam Justice Warren provided the following critical comments:
[140]     In their reports, Dr. Dommisse and Dr. Turnbull both expressed the opinion that Mr. Sirak is not disabled. These opinions are perplexing because it is apparent from their reports that Dr. Dommisse and Dr. Turnbull were aware that Mr. Sirak was limited in his ability to work. Dr. Dommisse noted that Mr. Sirak had stopped bricklaying after the accident, and that his pain was aggravated by working overhead and working on a ladder. Dr. Turnbull noted, in his report, that Mr. Sirak was working “on and off as a painter”, on average four hours a day, and only three or four days a week. Both Dr. Dommisse and Dr. Turnbull agreed, in cross-examination, that if Mr. Sirak was limited in his ability to work in the manner and to the extent he had worked before the accident, then it would be appropriate to characterize him as disabled. Further, their opinions were based on their interviews and examinations of Mr. Sirak, which took place over the course of about an hour and-a-half for Dr. Dommisse and about an hour for Dr. Turnbull. The nature and extent of their inquiries pales in comparison to the work-capacity evaluations conducted by Mr. Kerr, who expressed the view that Mr. Sirak was significantly disabled. For these reasons, I do not accept the opinions of Dr. Dommisse and Dr. Turnbull as to Mr. Sirak’s disability.
In assessing non-pecuniary damages at $160,000 for the Plaintiff’s prolonged injuries the Court noted as follows:

[159]     Mr. Sirak is a middle aged man. He was 45 years old when the accident occurred and is now 55 years old. Prior to the accident, he was healthy, energetic and physically active. It is apparent from the lay witnesses, who testified on his behalf, that he was a cheerful, happy, outgoing person who enjoyed life and had many friends. His family was important to him and he enjoyed spending time with them. He enjoyed participating in a wide range of recreational activities. He worked long hours in a physically-demanding career, and had earned the respect of those in the construction industry in the Squamish and Whistler area.

[160]     For the past ten years, Mr. Sirak has suffered from severe, disabling, and progressively worsening pain and neurological symptoms. These symptoms have very significantly affected all aspects of his life. Even if he undergoes surgery, he is unlikely to experience any substantial improvement. His condition is most likely permanent. He faces many years of ongoing pain and compromised lifestyle. His personality has been affected. He has gained weight. His sleep has been affected. His appearance has changed. He has become sloppy and unkempt. He can no longer participate in most of the recreational activities he previously enjoyed. He cannot play with his grandchildren in the physical, rambunctious way that was his pre-accident nature. This, in particular, has caused emotional suffering. He has become quiet and socially withdrawn. He now spends most of his time alone.

[161]     It has become increasingly difficult for Mr. Sirak to continue to work as a painter or in any physical job. He has suffered financial consequences as a result, which will be addressed in the next section of this judgment, but this has affected his enjoyment of life in other ways as well. First, he has had to force himself to continue to work on a part-time basis so that he is able to support himself and his son, but this has further compromised his health and exacerbated his pain. Second, he has had to live with the prospect that his injuries will eventually preclude him from working in any physical job. Given his limited formal education, and now limited functionality, his options for more sedentary work are few. It is apparent, from a consideration of the whole of his evidence, that this reality, together with his poor prognosis, has weighed heavily on him, and has had an adverse effect on his overall emotional well-being…

[167]     Awards of damages in other cases provide a guideline only. Ultimately, each case turns on its own facts. Having considered the extent of Mr. Sirak’s injuries, and all of the cases presented by counsel, I am of the view that an award of $160,000 for non-pecuniary damages is appropriate in this case.

Court Finds High Billing ICBC Expert "Strayed Into Advocacy"

Adding to this site’s archived case summaries addressing advocacy by expert witnesses, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, finding a high billing ICBC expert witness’ evidence should be afforded “very little weight” in part based on advocacy.
In today’s case (Redmond v. Krider) the Plaintiff was injured in a 2010 collision that the Defendant was found solely at fault for.  The Plaintiff suffered various physical injuries along with an accompanying psychiatric condition.  The Defendant retained a psychiatrist who gave evidence “that the plaintiff did not develop a new major psychiatric condition due to this motor vehicle accident”.  The Court rejected this evidence and in doing so Madam Justice Maisonville provided the following critical comments:

[115]     Dr. Levin obtained his initial medical qualifications in the then Soviet Union.  There was much questioning of the nature of certain patient treatment at one of the institutes from where he had received his training. 

[116]     Dr. Levin was also cross-examined on the amount of income he received in 2013 from ICBC, and from the Medical Services Plan. .  Suffice it to say that 91% of his income for 2013 was derived from ICBC reports.  In 2012, it was 87%, in 2011, 78% and in 2010, the year of the accident, 60%.  Plaintiff’s counsel therefore argued that Dr. Levin’s report was not in keeping with the Supreme Court Civil Rules, in that it was biased and so not a neutral opinion rendered by an expert for the benefit of the Court…

[120]     Overall, Dr. Levin testified that the plaintiff did not develop a new major psychiatric condition due to this motor vehicle accident, and he found that her level of functioning was inconsistent with the diagnosis of a pain disorder found in her family physician’s clinical records.  He submitted the fact that she had travelled to Las Vegas and participated in boating with her partner went against the conclusion that she was suffering from a psychiatric condition.

[121]     While I have accepted that Dr. Levin is an expert, I find that his report is to be afforded very little weight given his testimony at trial, and given the extent to which his report strayed into advocacy.  It is difficult to ignore the percentage of yearly income gained by the doctor as an expert for one particular party, ICBC, although this alone is not determinative in my finding that Dr. Levin’s report should be afforded little weight. 

[122]     I note that the doctor was argumentative with counsel.  The Court was often required to direct him to answer, as he would not clearly give his evidence in response to simple questions asked.  On cross-examination, he agreed he was not a practicing physical medicine doctor and that he did not assess the plaintiff’s physical injuries, and would defer instead to the plaintiff’s physical medicine doctors, and yet he commented that the plaintiff’s pain and limitations were inconsistent with her stated injuries.  It was difficult to accept his evidence, for the further reason that Dr. Levin stated that if the DSM-5 criteria were applied as a checklist, everyone in the courtroom would have a number of psychiatric diagnoses.  I do not accept that evidence…

[125]     In his report, Dr. Levin said that the plaintiff does not suffer from somatic symptom disorder, as the requirements of that diagnosis are a catastrophic perception of injuries, pervasive preoccupation with pain, and time-consuming, excessive activities.  However, that is not the criteria set out in the DSM-5 which was put to Dr. Levin.  That criteria requires only that there be “[o]ne or more somatic symptoms that are distressing or result in significant disruption of daily life”.  Somatic symptom disorder is a spectrum disorder, and Dr. Levin agreed with that proposition, and yet in his report, he was clearly evaluating the diagnosis as existing only if symptoms fall at the severe end of the spectrum.

[126]     Most difficult for the Court, however, was the aspect of Dr. Levin’s evidence discussing the somatic symptom disorder as it applies to the plaintiff.  As mentioned, he discussed commentary from the DSM-5 about those symptoms that may occur with severe cases of somatic symptom disorder, rather than the specific criteria.  When cross-examined on the actual diagnostic criteria, it became clear that he had not asked the plaintiff questions to determine if she met the diagnosis set out in the DSM-5.

[127]     I do not accept Dr. Levin’s evidence.  I prefer Dr. Anderson’s evidence over that of Dr. Levin.  Dr. Anderson candidly conceded matters, such as that the plaintiff would have a better prognosis if the physical component of her pain disorder was removed, and Dr. Anderson deferred to the physical medicine doctors respecting the plaintiff’s physical pain.  In contrast, Dr. Levin assumed this responsibility and asserted that, as a consequence, the plaintiff did not suffer from any a new psychiatric condition.

[131]     I do not accept Dr. Levin’s opinion and give it no weight.

Defence Doctor's "Bald Proposition" Minimizing Collision Related Injuries Rejected

Reasons for judgement were released today by the BC Supreme Court, Chilliwack Registry, rejecting defense expert evidence minimizing the connection of chronic pain issues to a motor vehicle collision.
In today’s case (Worobetz v. Fooks) the Plaintiff was injured in a 2010 collision and continued to experience symptoms at the time of trial.  The defendant admitted fault but denied the extent of the Plaintiff’s injuries.  In support of his case the Defendant retained a physician who gave evidence that the Plaintiff’s lingering symptoms were likely related to deconditioning and being overweight. In rejecting this evidence Mr. Justice Joyce provided the following critical comments:

[91]         Dr. Grypma’s opinion appears to be based substantially on two things: first, the lack of evidence of any structural injury; and second, her lack of conditioning and mild obesity. Dr. Grypma suggests that if Ms. Worobetz had suffered an injury other than a mild soft tissue injury, she would have experienced immediate pain of such intensity that she would have sought out immediate attention at an emergency room. I am not persuaded, however, that a person need sustain a serious structural injury in order to develop serious and chronic pain following a trauma such as an Accident. There are simply too many cases where persons have been found to have developed chronic back pain following a motor vehicle accident in the absence of objective evidence of structural damage to accept Dr. Grypma’s bald proposition.

[92]         Dr. Grypma’s opinion that Ms. Worobetz suffered only a mild injury that would have healed completely within a few months is contradicted by the evidence of Ms. Worobetz concerning her symptoms and how they affected her functioning, which is supported by the evidence of a number of other specialists who have treated Ms. Worobetz and followed her progress over a long period of time.

[93]         In my opinion, it is a relevant factor that Ms. Worobetz developed her pain complaints very soon after the Accident and that they progressed, with little change, until the present time. I accept that a mere temporal connection between an accident and the development of pain is not determinative by itself that the Accident caused the pain, but it is, nonetheless, a relevant factor. I also accept that the court must be cautious in relying on the subjective complaints of a patient, where there is no other objective evidence to support those complaints.

[94]         However, in this case, there is more evidence than simply subjective complaints and a temporal connection between those complaints and the Accident. I accept that Ms. Worobetz’s symptoms of pain are real and honestly felt. The manner in which they have impacted her functioning is supported by evidence of her husband, mother, co-worker and the woman for whom Ms. Worobetz acts as a support teacher. There is a strong body of expert opinion evidence in this case from specialists in a number of fields to support a finding that Ms. Worobetz’s ongoing pain was caused by the Accident. Those specialists have spent a great deal of time examining Ms. Worobetz, investigating her complaints and providing treatment. In my respectful view, their evidence is to be preferred over that of Dr. Grypma, who conducted a single, rather brief examination and a review of her medical records.

[95]         Dr. MacInnes, in particular, puts forward an explanation as to how Ms. Worobetz could have developed the pain at various sites in her body as a result of a rather modest soft tissue injury that one would ordinarily think would resolve quite quickly: central sensitization. Dr. Grypma admits that he is not qualified to comment on that topic, so he is not able to agree or disagree that it is a reasonable explanation for Ms. Worobetz’s continuing symptoms.

[96]         In summary, I find that but for the Accident, Ms. Worobetz would not be suffering the ongoing symptoms that she feels and her daily activities of life and ability to work would not be affected the way they are. She is less able to enjoy the social and recreational pursuits that she used to enjoy. She is less able to carry out the functions of a mother and wife, compared to her life before the Accident. She no longer has the same ability to work at her chosen career as a teacher because of the Accident.

Court Criticizes Doctor As Being "An Advocate For ICBC"

Adding to this site’s archives of judicial criticism of ‘advocate’ expert witnesses, reasons for judgement were released today  by the BC Supreme Court, Vancouver Registry rejecting the evidence of a defence expert on the basis of advocacy.
In today’s case (Davidge v. Fairholm) the Plaintiff was involved in a 2009 rear end collision.  Fault was admitted.  The Plaintiff suffered a chronic back injury which interfered with both his vocational and recreational abilities.  ICBC had the Plaintiff assessed by an orthopaedic surgeon who largely discounted the crash as playing a role in the Plaintiff’s chronic symptoms.  In criticizing this evidence as ‘advocacy’ Madam Justice Griffin provided the following reasons:

[124]     ICBC called expert evidence from Dr. Olie Sovio, an orthopaedic surgeon, who at ICBC’s request conducted an independent medical examination of the plaintiff on June 27, 2013 and produced a report dated July 2, 2013, admitted at trial.  Dr. Sovio’s opinion seemed to accept that the plaintiff had low back pain and neck stiffness when he saw him.  He characterized the symptoms as subjective but did not offer a reason to believe they were not real.  He recommended that the plaintiff undertake a regular activity, or exercise, program.

[125]     Dr. Sovio’s opinion did not address what caused the plaintiff’s low back pain.

[126]     However, in cross-examination Dr. Sovio made an effort to state his opinion that because there was no abnormality in the plaintiff’s low back for seven months, it did not make sense to attribute that pain to the car accident.  This opinion was offered even though it was not responsive to the question being asked, and was not in his report.  I got the sense from his eagerness to state this that he was being an advocate for ICBC rather than a neutral expert.

[127]     Dr. Sovio’s off-hand opinion in relation to causation was not well explained.  From the context of his evidence, it appeared to be based on his view that the patient had new onset of low back pain that was not there before, seven months after the accident (i.e. it was new when first noted in Dr. Rebeyka’s April 9, 2010 clinical record).  This was despite the plaintiff telling Dr. Sovio that he had low back pain almost immediately after the accident. In other words, Dr. Sovio chose to not believe the plaintiff because Dr. Sovio did not see low back pain documented in the clinical records until later. 

[128]     Just as with the other experts, it is up to this Court to determine whether or not the plaintiff can be believed when he says he had low back problems after the accident that grew in intensity over time. 

[129]     Dr. Sovio did not provide any explanation as to what was the cause of the plaintiff’s low back pain.  According to his evidence, the degenerative changes in the plaintiff’s back should not have prevented him from returning to work in the oil fields.  If that is so, his opinion does not support any conclusion that the degenerative changes limited the plaintiff’s ability to do heavy work and led to the low back pain after the return to work.    

[130]     In the last paragraph of p. 6 of Dr. Sovio’s report, he acknowledged that he was unclear on why the plaintiff took time off work from the oil fields and ultimately attended retraining even though after the WHP he was considered fit to return to work.  Dr. Sovio concluded that the patient chose to retrain rather than return to his drilling occupation, “but this does not seem to be on a physical basis, at least, judging from the medical records”.  In stating this, Dr. Sovio either ignored the plaintiff’s history or did not ask him questions about his experiences after returning to work.

[131]     Dr. Sovio’s report leads me to conclude that he did not understand the plaintiff’s medical history leading up to his attendance at BCIT, including the fact that the plaintiff found work in the oilfields to be too painful and thus too physically difficult after the accident.  It seems somewhat careless for Dr. Sovio to opine that retraining was simply a personal choice and not due to the patient experiencing physical limitations at his work.  

[132]     Dr. Sovio performs many assessments for the Workers’ Compensation Board, and he made it clear in his evidence that he thinks many workers injured at work simply would prefer not to return to work even though they do not have a good reason for not returning.  He offered this as his explanation for discounting the opinion of the plaintiff’s general physician. Unfortunately I felt that Dr. Sovio was unduly cynical and had a bias in this regard and so viewed the plaintiff’s own reports of back pain as not worthy of any weight, which is not an objective approach.

[133]     Dr. Sovio’s approach as to the plaintiff’s ability to work also seemed very superficial.  He did not apparently know the exact nature of the physical tasks the plaintiff must perform in his work and other physical stresses of his job.  When questioned what the job involved, he rather arrogantly said, “I think I know what it’s all about”, when clearly he had little idea and had not asked the plaintiff sufficient questions to gain an understanding. 

[134]     In short, I did not find Dr. Sovio’s evidence to be helpful on the issues of causation or the plaintiff’s ability to work.  

Contact

If you would like further information or require assistance, please get in touch.

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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