Tag: dr. schweigel

Who's Paying The "Independent" Medical Examiner in Your Injury Claim?


I’ve written many times about the lucrative business of ‘independent‘ medical exams in the context of personal injury claims.  Since ICBC is a public institution they disclose annual financial statements documenting how much they have paid various doctors.  A review of these statements reveals that a handful of doctors get a lot of repeat business from ICBC and that some earn hundreds of thousands of dollars per year doing this work.
Another useful source of information is the Ministry of Health “Blue Book” which is published each year and reveals annual MSP “Payments to Practitioners“.
If you cross reference these two sources of information you can gain useful insight into some of the various streams of income of independent medical examiners.
One quick illustration are the reported ICBC and MSP billings of Dr. J. F. Schweigel.  If you look at his company’s ICBC billings for 2009 and contrast these with his MSP billings for the same year it becomes clear just how lucrative the independent medical examination business can be for a practicing doctor.
2009 ICBC Billings

2009 MSP Billings

If you’re interested in learning who’s paying your indepdendent medical examiner some quick homework can reveal very useful information.
(Note: it’s worth pointing out that MSP billings are not the only source of income for physicians’ clinical practices in BC.  One noteworthy example would be Health Authority Billings where  a doctor has hospital privileges.  When scrutinizing physician billings its good practice to get as much information as possible from all sources to get a fair and objective picture.)

Damages for "Chronic Pain" Assessed at $80,000; Dr. Schweigel Criticized

Reasons for judgement were released this week by the BC Supreme Court awarding an injured Plaintiff just over $112,000 in total damages as a result of 2 BC car crashes.  In reaching verdict the court had some critical words for Dr. Schweigel who is one of ICBC’s biggest billing physicians.
In this week’s case (Frangolias v. Parry) the Plaintiff was injured in two collisions in December, 2004.  Fault was admitted for both crashes.  Both cases were tried at the same time with the Court focusing on the value of the claims.  As is usual in these types of claims there was competing medical evidence.  Ultimately the Court preferred the evidence of the Plaintiff’s physicians and in assessing her non-pecuniary damages at $80,000 the Court made the following findings:

[97]    I find that Mrs. Frangolias continues to suffer debilitating chronic pain symptoms arising from soft tissue injuries caused by the December MVAs. She suffers headaches, and pain that begins in her head and extends down through her shoulders and then extends through her back to her tail bone.

[98]    Mrs. Frangolias’ headaches and pain caused by the December MVAs have had an adverse effect on her life. I accept as accurate the limitations on Mrs. Frangolias’ lifestyle described by Mr. Frangolias and Effie Ainsley. While Mrs. Frangolias is able to carry out light housekeeping duties and do some minor cooking, she is otherwise prevented from engaging in active housekeeping, cooking, and gardening.

[99]    While there are no objective signs of injury at this time such as muscle spasm, Mrs. Frangolias continues to display tenderness during medical examinations.

Mr. Justice Walker went on to make some critical comments of Dr. Scwheigel.  Specifically his objectivity as a witness was questioned as illustrated by the following paragraphs of the judgement:

[85]    The defendants relied upon the medical-legal report of Dr. Schweigel, which followed his independent medical examination of Mrs. Frangolias that took place on October 20, 2008. I have considerable concerns about the reliability of the opinions expressed in that report. My concerns arise in respect of Dr. Schweigel’s opinions relating to surveillance videos of Mrs. Frangolias taken on May 12 to 14, 2006, March 14 to April 26, 2008, and May 17 to May 23, 2008, and in respect of some of the comments contained in his report concerning his findings on examination.

[86]    The surveillance videos were marked in evidence and shown to me during the trial. The videos show Mrs. Frangolias in her front yard, driving to a grocery store, and driving to a medical appointment. Surveillance of Mrs. Frangolias must have been taken at some distance away or with a camera of poor quality since with the exception of one sequence, none of Mrs. Frangolias’ facial features are discernable.

[87]    In respect of the first DVD containing the videos from May 12 to May 14, 2006, Dr. Schweigel wrote:

This lady is seen walking in a very normal fashion. She bends quite easily on repeated occasions to inspect her flowers on the May 13, 2006 section of this video. She rotates her neck in a very agile fashion with no obvious discomfort both right and left.

[88]    I carefully watched the images on the first DVD. There were a number of occasions where Mrs. Frangolias appeared to be moving stiffly, moving her head with her body in a stiff manner, as if they were all one stiff board. There are times when Mrs. Frangolias bends over to look at the flowers in her front garden, but due to the quality of the video images, it is impossible to tell whether Mrs. Frangolias was in discomfort when she did or indeed, at any time. My concern with Dr. Schweigel’s remarks is for overstatement and more importantly, for the failure to remark on those images showing Mrs. Frangolias to be moving more slowly or stiffly…

[96]    The foregoing excerpts as some examples of the remarks that cause me to be concerned that some of the opinions expressed in Dr. Schweigel’s report lack balance and objectivity. I am, therefore, most concerned about the reliability of the opinions expressed in the report. In the circumstances, I prefer to rely upon the evidence of Drs. Liu and Travlos as well as my assessment of Mrs. Frangolias and the accounts provided by Mr. Frangolias and Effie Ainsley.

Special Costs and "Obviously Flawed Expert Reports"

When ICBC Claims proceed to trial in the BC Supreme Court the parties to the lawsuit frequently rely on the reports of ‘expert’ witnesses.  Usually these are medical doctors but other experts such as engineers, economists, functional capacity witnesses and others are common. If a party relies on a hired expert who authors an ‘obviously flawed report’ that party can be penalized by the judge with an order of ‘special costs’.  The BC Supreme Court summarized this principle of law in a 2003 decision by the name of Coulter v.  Ball as follows:

[75]   The use of obviously flawed expert reports is conduct that has been found by the Courts to warrant an award of special costs, see Heppner v. Schmand, supra.  In McKitrick v. Iskic, [1999] B.C.J. No. 1724, Madam Justice Bennett stated, although declining to order special costs on that basis in the case before her at para. 11:

There is no doubt that when a party bases a claim or defence on obviously flawed reports, or an unsubstantiated basis, special costs may be awarded.

In Coulter, the BC Supreme Court summarized the principles behind orders of special costs as follows:

The principle which guides the decision to award solicitor-and-client costs in a contested matter where there is no fund in issue and where the parties have not agreed on solicitor-and-client costs in advance, is that solicitor-and-client costs should not be awarded unless there is some form of reprehensible conduct, either in the circumstances giving rise to the cause of action, or in the proceedings, which makes such costs desirable as a form of chastisement. The words “scandalous” and “outrageous” have also been used. (citations omitted)

[10]   In Leung v. Leung,[1993] B.C.J. No. 2909 (S.C.), Chief Justice Esson, as he then was, clarified the meaning of reprehensible in this context as conduct that the Court finds worthy of rebuke.  At paragraph 5 he stated:

There is nothing in the conduct of Mr. Leung in relation to this matter which I would call “scandalous” or “outrageous”.  But “reprehensible” is a word of wide meaning.  It can include conduct which is scandalous, outrageous or constitutes misbehaviour; but it also includes milder forms of misconduct.  It means simply “deserving of reproof or rebuke”.

[11]   That broader meaning of reprehensible was endorsed in Garcia v. Crestbrook Forest Industries Ltd., [1994] B.C.J. No. 2486 (C.A.).  It was again confirmed in Heppner v. Schmand, [1998] B.C.J. No. 2843(C.A.) by Hinds J.A., speaking for the court, at paragraph 17:

In my view, there was evidence before Mr. Justice Shaw upon which he could found his conclusion that the conduct complained of was reprehensible and was deserving of rebuke.  While the conduct complained of may not have been scandalous or outrageous it was, nevertheless, reprehensible in the sense that it constituted a milder form of misconduct deserving of reproof or rebuke.  It was conduct from which the court sought to dissociate itself.

[12]   Because special costs are awarded to penalize conduct from which the Court seeks to dissociate itself, the award will extend beyond indemnity.  The governing factors are punishment and deterrence, see Fullerton v. Matsqui (District), [1992] B.C.J. No. 2986 (C.A.).

[13]   The general rule is that where special costs are awarded, they will be for the entire proceeding, see Sammartino v. Hiebert, [1997] BCJ 2036 (S.C.).  However, there is discretion to award special costs for only a particular period of time related to the impugned conduct.  The factors which will be relevant in relation to this exercise of discretion included whether the impugned conduct was an isolated occurrence and its significance in terms of the conduct of the litigation, see Muncaster v. Nunnenmacher (1996), 76 B.C.A.C. 211 at paragraph 17 per Finch J.A., speaking for the court:

When one looks at the overall course of this litigation and at the reasons of the learned trial judge in their entirety, two things seem apparent with respect to the false document.  The first is that the learned trial judge viewed its creation as a matter which called for a sanction in costs.  The second is that the document did not play a major part in the disposition of the law suit.  It seems to me that in awarding special costs for the short period he did the learned trial judge was attempting to balance those somewhat conflicting factors.  The order limiting special costs to a brief period of the law suit is an unusual one.  Indeed, counsel were unable to find any case where a similar order had been made.  However, the learned trial judge had the unique advantage of having heard all of the evidence and having seen all of the witnesses, and the advantage of being able to assess the relative importance of the false document in the full context of this long, complex and obviously difficult lawsuit.

On Friday the BC Supreme Court released reasons for judgement dealing with this area of the law.  In Friday’s case (Henri v. Seo) the Plaintiff took her ICBC Claim to trial.  ICBC relied on an orthopaedic surgeon who is often retained in ICBC claims.  The Plaintiff argued that she should be awarded special costs because “the defendant and her insurer (ICBC) improperly relied on the report and the testimony of Dr. J. Schweigel – an orthopaedic surgeon whose evidence has been either rejected or not relied upon in a number of previous cases.  The plaintiff says that by way of an award of special costs this Court ought to express its disapproval of ICBC’s repeated use of what she characterizes as Dr. Schweigel’s “clearly flawed reports”.

Madam Justice Boyd rejected this argument and summarized and applied the law as follows:

[10] I entirely reject this submission.  Even if an award of special costs may be made in the case of an action under Rule 66 (which I do not necessarily accept), it remains that simply by virtue of being insured by ICBC the defendant does not thereby assume the corporate persona of the Insurance Corporation and therefore be subject to criticism concerning its prevailing policies or practices, whether as an insurer or as a litigant.  How ICBC goes about defending motor vehicle actions, including which experts it retains and relies upon, is not a matter to be addressed in costs in an action between the plaintiff and the defendant here.

[11] As to the merits of the argument, it remains that while the use of obviously flawed expert reports may be conduct which warrants an award of special costs (Coulter v. Ball, 2003 BCSC 1186; Heppner v. Schamnd [1998] B.C.J. No. 2843 (C.A.), this is not the case here.  The defence has referred to a number of different actions in which Dr. Schweigel’s opinion has either been accepted or preferred to that of other physicians.

ICBC Claims and Cross Examination of Experts at Trial

In ICBC Injury Claims that proceed to trial there are often 2 competing medical theories with respect to the cause and extent of injury.  Typically Plaintiff’s rely on the opinions of their treating physicans and sometimes the opinions of Indepmendent Medical Examiners. ICBC, on behalf of the Defendant, usually rely on the opinions of an independent physician who examines the Plaintiff pursuant to Rule 30 of the BC Supreme Court Rules.
When the conflicting expert evidence is presented at trial the lawyers can cross examine the opposing expert(s) opinion.  This process can be a powerful tool in helping the judge or jury decide whose opinion should be preferred and given more weight.  What happens if the expert is not cross-examined?  Does that experts opinion carry more weight with the court? Reasons for judgement were released today by the BC Supreme Court (Yip v. Chin) dealing with this issue.
In today’s case the Plaintiff sued for injuries cuased in a 2006 Car Crash which took place in Vancouver, BC.  The Plaintiff suffered from a pre-existing degenerative condition and suffered soft tissue injuries in the crash.  One of the key issues at trial was whether the Car Crash had any effect on the Plaintiff’s pre-existing degenerative arthritis.
The Plaintiff’s physicain feld that this pre-existing condition was aggravated by the car crash.  The doctor hired by the Defendant, Dr. Schweigel, disagreed.  Dr. Schweigel’s report was intorduced into evidence unchallenged by the Plaintiff.  Ulimately the Court preferred Dr. Schweigel’s opinion on this narrow issue.  Mr. Justice Voith summarized and applied the law as follows with respect to the failure to cross-examine an expert witness at trial:

[30]            The evidence of both Dr. Lui and Dr. Schweigel was consistent in concluding that at the time of the Accident Mr. Yip suffered from some degenerative arthritis of the cervical spine.  The two experts differed, however, on the significance of this pre-existing condition and on whether the Accident caused this condition to be aggravated.

[31]            The plaintiff chose not to cross-examine Dr. Schweigel.  This decision places different parts of Dr. Schweigel’s reports in different categories and requires different treatment by the court.  Some portions of Dr. Schweigel’s reports stand uncontradicted in that no part of the evidence led by the plaintiff takes issue with the opinions expressed by Dr. Schweigel.  Other portions of his reports are inconsistent, for example, with the report of Dr. Lui or with the evidence of Dr. Lui and Dr. Leung.

[32]            For lay witnesses, the case of Browne v. Dunn (1893), 6 R. 67 (H.L.) provides well understood guidance on the consequences that flow from the failure of a party to cross-examine on a given issue or to put given propositions to a witness.  The rule arising from that case is one which is designed to ensure that witnesses and the parties are treated fairly.

[33]            Failure to cross-examine an expert on a contested issue gives rise to additional concerns or difficulty.  The very object of proffering expert evidence is to assist the trier of fact with the necessary scientific basis upon which to assess evidence.  Inherent in the fact that evidence has been tendered by an expert, is the proposition that the trier of fact is generally neither conversant nor familiar with the subject matter of the evidence and lacks the independent means by which to weigh or measure the merits of two competing views.

[34]            In this instance, for example, Dr. Lui expressed the view that Mr. Yip’s ongoing degenerative problems of the spine were likely aggravated by the Accident.  This conclusion is apparently based on differences that exist in an initial x-ray taken in July 2006 which showed degenerative changes at C6-7 only and a subsequent CT scan performed on October 2007 which showed degenerative changes involving C3-4, C4-5, and C5-6 as well.

[35]            Dr. Schweigel’s report, conversely, expresses the view that these changes are attributable to the additional sophistication of the CT scan.  In Dr. Schweigel’s view, a CT scan will routinely pick up abnormalities which are missed by an x-ray.  Dr. Lui, in his cross-examination, firmly disagreed with this conclusion.  The court did not have benefit of any further explanation from Dr. Schweigel.  The trier of fact is thus left with two competing views, one of which, though contradicted, remains unchallenged by cross-examination.

[36]            No inflexible rule can be established as to the significance of a party failing to cross-examine an expert.  Sometimes a party will be aware that the expert will not resile from his position and cross-examination would be futile.  Thus, in Palmer v. Goodall (1991), 53 B.C.L.R. (2d) 44 (C.A.) at 49, the Court said in relation to a notional cross-examination, “It may be a mere show.  The law of evidence does not require counsel to engage in a charade”.

[37]            In this instance, I believe it is appropriate to attach some weight or significance to the fact that Dr. Schweigel’s report was introduced without any part of its contents being tested further.  This is not a case of a party failing to cross-examine on a particular portion of the report.  This is an instance of the plaintiff deciding to leave untested all of the various opinions which are offered in relation to a number of issues, notwithstanding the fact that such opinions are often at odds with the evidence tendered by the plaintiff.

ICBC Injury Claims and Future Wage Loss

One of the most difficult types of damages to value when a person sustains serious and permanent injuries through the fault of another in a BC Car Crash is that of ‘Future Wage Loss’.
Courts in British Columbia often view a person’s ability to earn a living as a ‘capital asset’ and if disabling injuries are sustained then that capital asset becomes diminished.  Accordingly BC Courts often assess damages for future wage loss as damages for a ‘diminished earning capacity’.
The basic principles that courts consider in awarding damages for ‘diminished earning capacity’ were set out almost 25 years ago in a BC Supreme Court case named Brown v. Golaiy,  These factors are as follows:

The means by which the value of the lost, or impaired, asset is to be assessed varies of course from case to case. Some of the considerations to take into account in making that assessment include whether:

1.      The plaintiff has been rendered less capable overall from earning income from all types of employment;

2.      The plaintiff is less marketable or attractive as an employee to potential employers;

3.      The plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to him, had he not been injured; and

4.      The plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market.

In 2007, in a case named Steward v. Berezan, the BC Court of Appeal rejected a trial judges award for diminished earning capacity stating that “… The claimant bears the onus to prove at trial a substantial possibility of a future event leading to an income loss, and the court must then award compensation on an estimation of the chance that the event will occur…

Ever since Berezan many ICBC Injury Defence Lawyers have argued that the law has changed since Brown v. Golaiy and that there is a higher burden to reach before damages for future wage loss can be awarded.

Reasons for judgement were released today by the BC Supreme Court (Ashmore v. Banicevic) dealing with this argument and concluding that the factors set out in Brown v. Golaiy remain good law.  In a thorough analysis Madam Justice Smith gave the following reasons:

[140]          While a literal reading of that statement might indicate a change in the law, embodying an express direction to inquire first into whether there is a substantial possibility of future income loss before embarking on assessment of the loss (see Chang v. Feng, 2008 BCSC 49; 55 C.C.L.T. (3d) 203, and Naidu v. Mann, 2007 BCSC 1313, 53 C.C.L.T. (3d) 1), the Court of Appeal inDjukic v. Hahn, 2007 BCCA 203, 66 B.C.L.R. (4th) 314 (at para. 14) limited Steward v. Berezan to its facts, stating: 

…The error of the trial judge in Steward was in awarding damages for loss of earning capacity based on the plaintiff’s inability to work as a carpenter in circumstances where he had not worked as a journeyman carpenter for twenty years prior to the trial and, at age 55, did not contemplate any return to the trade.  The case turned on its facts and did not establish any new principle of law.  Conversely here, the assessment was based on a business actively pursued by both respondents when the accidents intervened and not on any long abandoned occupation without a prospect of their return to it.  I am satisfied that Steward has no application in the case at bar. 

[141]        In Sinnott v. Boggs, the plaintiff was a 16-year-old girl who had been 11 at the time of the accident.  The medical prognosis was that she would continue to suffer neck and shoulder aches, ongoing discomfort and intermittent headaches.  The trial judge assessed non-pecuniary damages of $35,000, past wage loss of $2,400 and lost earning capacity of $30,000 “for being less marketable as an employee because of the limitations on her ability to work competitively in all jobs previously open to her”.  The assessment of damages was upheld on appeal.  Mackenzie J.A. referred to the submission of the defendant on appeal that since there was no finding that any particular types of work were foreclosed to the plaintiff, no award for lost earning capacity could be made.  He referred to a number of authorities, including Steward v. Berezan, at para. 11, and stated:

All of those cases involved middle-aged plaintiffs in settled occupations.  Their continuing symptoms resulted in continuing pain and occupational discomfort but they did not reduce the plaintiffs’ ability to earn income in their chosen occupations.  There was no prospect that they would change employment to occupations where their earning capacity would be impaired.

[142]        MacKenzie J.A. then stated at para. 13 – 17:

In my view, the limitation on loss of earning capacity awards advanced by the appellant is not supported either in logic or by the authorities.

Three of the four factors outlined in Brown are broad enough to support an award in circumstances where a plaintiff is able to continue in an occupation but the ability to perform and the earning capacity resulting from that ability are impaired by the injury.

The line between non-pecuniary damages and damages for loss of earning capacity is between losses that sound in pain and suffering and loss of non-remunerative amenities on the one hand, and pecuniary losses in the form of a reduced ability to earn income on the other. There is no reason why an injury which permits a plaintiff to continue in a particular occupation but at a reduced level of performance and income should not be compensated for that pecuniary loss through damages for loss of earning capacity.

In the case at bar, Ms. Sinnott is a young person who has not yet established a career and has no settled pattern of employment. In such circumstances, quantifying a loss is more at large. Southin J.A. commented on this distinction in Stafford

[42]  That there can be a case in which a plaintiff is so established in a profession that there is no reasonable possibility of his pursuing, whether by choice or necessity, a different one is obvious. For instance, on the one hand, if a judge of this Court were to be permanently injured to the extent that he or she could no longer do physical, in contradistinction to mental, labour, he or she would have no claim for impairment of earning capacity because the trier of fact gazing into the crystal ball would not see any possibility that the judge would ever abandon the law for physical labour, assuming that immediately before the accident the judge was capable of physical labour. But, on the other hand, if a plaintiff is young and has no trade or profession, the trier of fact gazing into the crystal ball might well consider whether the impairment of physical ability will so limit his future employment opportunities that he will suffer a loss. See e.g. Earnshaw v. Despins (1990), 45 B.C.L.R. (2d) 380 (C.A.).

[43] There is, if I may use the word, a continuum from obviously no impairment of earning capacity from a permanent physical impairment, no matter how serious the impairment, to a very large potential loss which must be based on all the circumstances of the particular plaintiff.

I agree with those observations.  Ms. Sinnott is in a category of those who are young and without a settled line of work. The trial judge has found that Ms. Sinnott faces limitations on her ability to work competitively in jobs that were previously open to her. In my view, that finding is an adequate foundation for the trial judge’s award. I am satisfied that there was evidence to support the trial judge’s conclusions on the facts and there is no palpable and over-riding error of fact which would permit this Court to disturb her conclusion or award.

[143]        I conclude that the approach I should take to the assessment of lost earning capacity has not changed.  Accordingly, I must consider, with reference to the factors listed in Brown v. Golaiy, whether the evidence establishes the basis for an award in this case, and if so, at what level.

______________________________________________________________________________________

On another note, today’s case dealt with chronic soft tissue injuries and serious headaches.  In awarding $80,000 for the Plaintiff’s non-pecuniary losses, the court made the following findings of fact about the Plaintiff’s injuries and prognosis:

[113]        I have considered all of the evidence given by treating physicians and other health care practitioners, as well as the evidence of Dr. Jung and Dr. Schweigel, who saw the plaintiff for the purpose of providing medical-legal reports.  Dr. Schweigel deferred to the expertise of Dr. Blasberg with respect to the jaw injury; as well, he saw the plaintiff on only one occasion, while Dr. Bowlsby and Dr. Condon both saw him on a number of occasions.  Both Dr. Bowlsby and Dr. Condon are very experienced practitioners and struck me as fair-minded witnesses who were not advocating for their patient.  Dr. Jung’s two examinations of the plaintiff were thorough and well-documented.  I accept the evidence of Dr. Condon, Dr. Bowlsby and Dr. Jung, who all had extensive contact with the plaintiff, and do not accept the evidence of Dr. Schweigel where it is in conflict with their evidence.  I also accept the evidence of Dr. Blasberg.

[114]        Upon consideration of all the evidence, I find that Mr. Ashmore suffered a whiplash injury in the motor vehicle accident affecting his jaw, neck, shoulders and back.  I find that he suffers a continuous low-grade headache and serious headaches at least twice weekly, and that he continues to experience right-sided neck and upper back pain, pain with swallowing, and pain in the region of the jaw joint.  There is no evidence that he suffered from these symptoms prior to the motor vehicle accident.  I do not find on the evidence that stress causes his symptoms, although it may exacerbate them.  I find that but for the accident Mr. Ashmore would not experience the persistent headaches which I find are his worst ongoing symptom, and that but for the accident he would not suffer the other symptoms I have referred to.  I find that the plaintiff has met the burden of showing on the balance of probabilities that the defendant’s negligence caused his injuries.

[115]        The plaintiff’s symptoms arising from the injuries caused by the accident have caused him frequently to require rest in the middle of the day, necessitating work late into the night.  The extent of those symptoms is shown by the fact that they have caused him to give up most of the very active sports he formerly enjoyed, and have constrained his ability to assist with the care of his young children and to enjoy the kind of life he led before the accident.  As well, these symptoms have reduced the amount of time and energy he has available for work outside his regular employment.  Finally, the symptoms have led him to spend considerable time pursuing relief through various forms of treatment.

[116]        Taking into account the opinion evidence of all of the expert witnesses as to the likelihood of further recovery, I find that Mr. Ashmore is not likely to make a full recovery, although he may experience some improvement to the point where he will be able to manage his symptoms better. 

More on ICBC Injury Claims and Independent Medical Exams

Ok, second post of the day on this topic.
Typically ICBC (on behalf of their insured defendant) are able to send a Plaintiff to an Independent Medical Exam in the course of a BC Supreme Court lawsuit in order to level the playing field.  In certain cases they are entitled to more than one exam.
Reasons for judgement were released today (Norsworthy v. Greene) dismissing a defence applicaiton for a second examination in an ICBC Injury Claim.
In this case the Plaintiff obtained several medico-legal reports including the report of a physical medicine specialist and a Functional Capacity Evaluation.  ICBC had the Plaintiff examined by Dr. Schweigel.  Dr. Schweigel provided the opinion that the Plaintiff had soft tissue injuries and that she “could have been off work for roughly 3 months.  After that she should have been able to return to work in a graduated fashion.  Within five to six months, she should have been able to return to full time work.  This lady is not disabled now from all the activities she was doing prior to the two MVA’s“.
The Plaintiff’s experts disagreed and provided opinion that her injuries were more severe and disabling that opined by Dr. Schweigel.  ICBC applied for a second ‘independent’ exam on the basis that they should be entitled to reply to the Functional Capacity Evaluation opinion obtained by the Plaintiff.  In rejecting the applicaiton Master Caldwell of the BC Supreme Court gave the following summary of the law regarding requests for multiple Independent Medical Exams:

[22] It should be obvious to any reader of these two reports that each was prepared by two persons with two completely different disciplines and approaches; yet there was a noticeable crossover in some of the observations made by each of them.

[23] In Christopherson v. Krahn, 2002 BCSC 1356, Madam Justice Smith made the observations at para. 9 that the test of reasonable equality does not mean that for each specialist relied upon by the plaintiff, the defendant is entitled to an IME from a similar specialist.  Smith J. went on to deal with this proposition when she quoted from Henry v. Derbyshire, [1997] B.C.J. No. 1750, a decision of Master Nitikman where, at para. 13, the master stated:

A third applicable principle is that the party seeking the examination is not limited to one independent examination but

The court will not order a second examination merely to permit the defendant to get a second opinion on the same matter.  [She went on to say] A second examination may be appropriate where there is some question which could not have been dealt with on the first examination.  The applicant must show a reason why it is necessary for the second examination.

[24] I take the view that in the case at bar the defendants are seeking a second examination pursuant to Rule 30(2).

[25] The IME sought by Dr. Schweigel was conducted after the defendants had knowledge of the earlier functional capacity evaluation of the plaintiff by an occupational therapist retained by the plaintiff, yet the defendants chose to have an IME conducted by an orthopedic surgeon.  That opinion seems to be firm.  Now the defendants seek an opinion of an occupational therapist which may undermine the opinion of Dr. Schweigel, their own expert.

[26] Respectfully, in my view, although the defendants point to the different purposes of the reports, I do not believe that those differences alone provide a valid reason for a second report pursuant to Rule 30(2).

[27] Accordingly, I dismiss the defendants’ application and award the plaintiff her costs for preparation for and attendance at the hearing of this matter.

ICBC Expert Rejected in Injury Claim, $100,000 Awarded for Myofacial Pain

Reasons for judgement were released today by the BC Supreme Court awarding a 22 year old Plaintiff $50,000 for pain and suffering and a further $50,000 for loss of earning capacity as a result of soft tissue injuries.
The court’s findings of injuries are summarized at paragraphs 45-46 which stated as follows:

[45]            In the final analysis, I am unable to place much weight to Dr. Schweigel’s report.  I accept Dr. Anton’s evidence that as a result of the accident, the plaintiff has suffered soft tissue injuries of the cervical and thoracic spine and shoulder girdle, which in turn have given rise to a myofascial pain syndrome. 

[46]            I accept his evidence that while there is some room for improvement, the plaintiff will likely suffer intermittent headaches and neck and upper back pain indefinitely.  She must be careful to modify her activities and avoid bending, leaning, heavy lifting or repetitive lifting—particularly those involving sustained postures of the neck and upper arms or repetitive use of the upper arms—which will exacerbate her pain. 

What interested me most in this judgement was the judges discussion weighing the Plaintiff’s medical evidence against the evidence tendered by the Defendant.  The Defendant relied on Dr. Schweigel, a senior orthopaedic surgeon who is often retained by ICBC to review injury claims and often disagrees with Plaintiff’s physicians regarding the long term prognosis of soft tissue injuries.  In today’s case the court largely rejected his opinion and offered the following analysis:

[36]            The defence relies heavily on the evidence of Dr. Schweigel, an orthopaedic surgeon who examined the plaintiff in January 2008.  Dr. Schweigel concluded the plaintiff suffered no more than a very minor soft tissue injury to the cervical and upper back area. 

[37]            In Dr. Schweigel’s opinion, cervical soft tissue injuries may be classified as either minor, moderate or severe, depending on the presence of various findings and complaints.  In his opinion, a cervical soft tissue injury must be in the moderate to severe category before it will give rise to a chronic myofascial pain syndrome. 

[38]            In his opinion, before being diagnosed with a moderate to severe soft tissue injury the patient must present with a constellation of at least three complaints including:  moderate to severe spasm, moderate to severe deformity, and a moderate loss of motion.  Sometimes the patient will also present with neurological findings and/or x-ray changes and sometimes the patient will require strong pain medication for a few days. 

[39]            Based on his review of Dr. Fahim’s clinical records, including the CL-19 report, which he understood was completed on March 3, 2003, Dr. Schweigel concluded that the plaintiff did not suffer a moderate to severe soft tissue injury.  In his view, since the CL-19 report reflects pain and tenderness of the neck and upper back, a good range of motion of the neck and upper back and mild tenderness of the neck and upper back, the physical abnormalities noted at this time were “extremely minimal”.  He noted that “(s)he had mild tenderness of the neck muscles with good range of motion”. 

[40]            The difficulty here is that the CL-19 report relied upon by Dr. Schweigel was actually authored on March 3, 2004 rather than March 3, 2003.  At that time the plaintiff was in Grade 12, she was dancing regularly and the intensive final examination study period had not begun.  She was in fact doing quite well. 

[41]            This is in contrast to her condition just over a year earlier when Dr. Fahim examined her on February 15, 2003.  At that point he noted her complaints of pain and tenderness in both the trapezius and upper back areas, and the decreased range of motion of her neck in all directions.  There is no recording of “mild” tenderness with a good range of motion as Dr. Schweigel suggests in his report of January 14, 2008. 

[42]            While Dr. Fahim’s clinical records were available for review, Dr. Schweigel made no reference to them in his report.  Nor did he refer to the records of the physiotherapist, Dawn Stevens, who, three weeks post accident, noted that the plaintiff’s neck was “very stiff” and that it was “very hard to mobilize (her) neck”.  

[43]            Quite apart from his erroneous reliance on the March 3, 2004 CL-19 report, I am not persuaded that Dr. Schweigel’s rigid classification of soft tissue injuries and his insistence that a myofascial pain syndrome may only arise in the case of a moderate to severe soft tissue injury case are reliable. 

[44]            While I accept that Dr. Schweigel is a very senior and experienced orthopaedic surgeon, with a long career focused particularly on spinal cord injury, in my view he did not demonstrate the same degree of expertise as Dr. Anton in the diagnosis and treatment of soft tissue injury.  His categorization of soft tissue injuries struck me as both rigid and simplistic.  No peer reviewed journals or other medical literature were produced to support his analysis.  Nor did he demonstrate any in depth appreciation of the characteristics of a “trigger point”, as described by Dr. Anton. 

[45]            In the final analysis, I am unable to place much weight to Dr. Schweigel’s report.  I accept Dr. Anton’s evidence that as a result of the accident, the plaintiff has suffered soft tissue injuries of the cervical and thoracic spine and shoulder girdle, which in turn have given rise to a myofascial pain syndrome. 

[46]            I accept his evidence that while there is some room for improvement, the plaintiff will likely suffer intermittent headaches and neck and upper back pain indefinitely.  She must be careful to modify her activities and avoid bending, leaning, heavy lifting or repetitive lifting—particularly those involving sustained postures of the neck and upper arms or repetitive use of the upper arms—which will exacerbate her pain.  

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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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