Tag: icbc doctors

ICBC Medical Exams and Secret Tape Recordings


Further to my previous post discussing the topic of taping independent medical exams, reasons for judgement were released today demonstrating that BC Courts are not very receptive to such evidence if secretly obtained.
In the 2006 case of Wong v. Wong the BC Court of Appeal made it clear that permission for a Plaintiff to record a defence medical exam will rarely be granted.  Sometimes Plaintiff’s have recorded such exams without seeking the court’s permission first.  While the secret audio recording of an independent medical exam by a participant is not necessarily a criminal offence in Canada, it is frowned upon.   One remedy a Court can exercise when presented with such evidence is to simply exclude it from trial.  Today’s case used exactly this remedy.
In today’s case (Anderson v. Dwyer) the Plaintiff was injured in a 2004 rear end crash.   ICBC, on behalf of the Defendant, admitted fault for the accident but disputed the extent of the Plaintiff’s injuries.  In the course of the lawsuit the Plaintiff attended a medical exam with Dr. Locht, an orthopaedic surgeon selected by ICBC.  The Plaintiff surreptitiously recorded this exam and then her lawyer tried to make use of this recording at trial.  Mr. Justice Schultes was not receptive to this and disallowed the use of this recording for cross examination purposes.  While the reasons for judgement did not have an analysis of why the Court used this remedy the following was highlighted:

[12] The plaintiff also admitted surreptitiously recording her examination by Dr. Locht, the orthopaedic surgeon who conducted an independent medical examination of her on behalf of the defendant. ( This came to light as a result of an objection by the defendant’s counsel during the cross-examination of Dr. Locht. The plaintiff’s counsel did not use the transcript any further after the objection and nothing in my analysis of Dr. Locht’s evidence turns on its use.)

[13] Her explanation for this action was that she wanted an accurate record of everything that was said during the examination and was concerned that she would not be able to recall it herself without assistance. She felt she had been treated disrespectfully by representatives of the Insurance Corporation of British Columbia during a previous meeting about this litigation and, I gather, that as a result she was suspicious of how the examination would be conducted.

[14] She maintained that she did not originally intend to use the recording in the litigation but that a friend had typed it up for her shortly before the trial so that she could refresh her memory and at that point she found discrepancies between the transcript and Dr. Locht’s report. She intended it to be used during cross-examination only if “the truth wasn’t coming out” in his evidence…

[43] It was suggested to Dr. Locht that his report presented some of the plaintiff’s symptoms in a misleading way. For example, he described her as having “no sleep disorder”, although she told him that her neck pain woke her several times throughout the night. His explanation was that because she was still getting six hours of sleep per night, in total, he did not consider that she had a sleep disorder. Similarly, he described the plaintiff as being “physically capable” of continuing all work, household, and recreational activities that she could do before the accident, despite her descriptions of experiencing severe pain (and in one case nausea) after engaging in them. He explained that his determination that a person is physically able to perform an activity does not depend on whether she in fact avoids that activity because it causes her pain…

[49] With respect to the plaintiff’s general credibility, I did not find her recording of the examination by Dr. Locht, her failure to disclose potentially relevant documents, or her “hands on” involvement in this litigation to be as significant as the defendant suggested. However improper surreptitious recording of medical interviews may be, it appeared to me that this recording was a reflection of the plaintiff’s suspicious and hostile view of ICBC and of her desire to protect herself from the unfair treatment that she expected to receive from its representative, rather than of any desire to manipulate the evidence.

Given the very important role expert witnesses play in injury litigation it is fair to debate whether tape recordings should routinely be used to add greater objectivity to the IME process.  Unless and until this comes about our Court’s will continue to struggle with the use this evidence will be put to when parties choose to obtain evidence through surreptitious recording.

ICBC Insurance Benefits, Independent Medical Exams and Witness Immunity


Further to my many previous posts discussing Independent Medical Exams in the context of ICBC Injury Claims, reasons for judgement were released today highlighting a very interesting issue; the ability to sue an Independent Medical Examiner.
When a person is seeking medical benefits from ICBC under their own policy of insurance (Part 7 Benefits) ICBC has the right to send that person for a “medical examination“.  ICBC gets this power from s. 99 of the Insurance (Vehicle) Regulation which holds as follows:

Medical examination

99 (1)  An insured who makes a claim under this Part shall allow a medical practitioner, dentist, physiotherapist or chiropractor selected by the corporation, at the expense of the corporation, to examine the insured as often as it requires.

(2)  The corporation is not liable to an insured who, to the prejudice of the corporation, fails to comply with this section.

When ICBC obtains a medical exam under s. 99 they often base their decision of what Part 7 benefits to pay based on the physician’s recommendations.

For a variety of reasons ICBC tends to use a handful of doctors over and over again for these independent examinations.  In turn the business of independent medical exams is quite profitable for some BC doctors.

It is not uncommon for a medical examiner to author a report to ICBC which contradicts the opinions of a person’s treating physicians.  When this happens ICBC sometimes cuts off benefits from an insured even when the treating physicians feel further funding of therapy is appropriate.  When ICBC and an insured differ as to what benefits should be paid the insured can sue ICBC and the Court’s can offer a binding resolution.  What about the independent medical examiners?  Can they be sued?  Reasons for judgement were released today by the BC Supreme Court addressing this very interesting issue.

In today’s case (Mund v. Sovio) the Plaintiff was injured in a 2007 motor vehicle collision.  The Plaintiff applied to ICBC for Part 7 Benefits.  In the course of processing the request for benefits ICBC sent the Plaintiff to Dr. Sovio for a medical examination under section 99.    Dr. Sovio authored an opinion which was apparently harmful to the Plaintiff’s interests in which he stated that:

a) the Plaintiff was “staying at home, not doing any exercise and appears to be content to carry on in this fashion”;

b) “there is nothing to suggest that” the Plaintiff “should be disabled to this degree” and the Plaintiff’s “medical care appears to be somewhat disjointed”;

c) “legal matters” were interfering with the Plaintiff’s case; and

d) the Plaintiff “has a history of [being] off work for an extended period of time in the past and seems content to continue with this role of disability at this time”.

After receiving this report the Plaintiff and ICBC could not agree as to what PArt 7 benefits ought to be paid.  The Plaintiff responded in a unique way, he sued Dr. Sovio directly arguing that Dr. Sovio failed to assess his injuries in “an objective, fair and even handed manner.“.

Dr. Sovio applied to dismiss the lawsuit arguing, despite any consequences the report may have had between the Plaintiff and ICBC with respect to Part 7 benefits, that he owed the Plaintiff “no duty in contract, no duty of insurer-insured good faith and no duty of care in negligence”.  Dr. Sovio went further and argued that even if there was such a duty that the lawsuit had to be dismissed because he had “witness immunity“.

Madam Justice Hyslop of the BC Supreme Court sided with Dr. Sovio’s arguments and dismissed the Plaintiff’s lawsuit.  In doing so the Court made the following critical findings:

[34] Dr. Sovio’s role and relationship with Mr. Mund cannot be greater than that of ICBC.  It is not within the power of Dr. Sovio to determine whether Mr. Mund receives Part 7 benefits.  The power and the exercise of that power is that of ICBC. ..

[37] I find that Dr. Sovio is not in a fiduciary relationship, nor in a doctor/patient relationship, nor is one created between Mr. Mund and Dr. Sovio as a result of the medical examination by Dr. Sovio of Mr. Mund…

[48] In British Columbia, ICBC may choose, pursuant to s. 99, the medical practitioner.  The sole purpose of the s. 99 examination is that the medical practitioner examine the insured.  It is entirely at the discretion of ICBC when, and if, there is an examination.  There is no requirement that the medical practitioner provide a plan of care for the insured such as the Ontario DAC.  The doctor’s opinion is not binding on anyone; neither the insured nor the insurer.  ICBC may use, for different claims, for different insureds, the same medical practitioner time and time again.  ICBC may reject the medical practitioner’s opinion in whole or in part.  It is simply not a process in which the insured participates in other than to present himself or herself to the medical practitioner designated by ICBC…

[71] In Howatt v. Klassen, 2005 CanLll 11191, Dr. Klassen was requested by the College of Physicians and Surgeons of Ontario to examine Dr. Howatt.  That was the extent of the relationship between Dr. Klassen and the plaintiff, Dr. Howatt.  The court concluded that Dr. Klassen acted as an agent and for an appointee of the college.  In dismissing Dr. Howatt’s action, the court stated:

[11]      In any event, I agree with the submission that Dr. Klassen is protected by the common law doctrine of witness immunity, which protects individuals from civil suit based on their status as witnesses or potential witnesses at judicial proceedings.  The case law establishes that this protection is absolute so that even allegations of bad faith are insufficient to exclude the application of the witness immunity doctrine.

[72] A similar situation occurred in N. (M.) v. Forberg, [2009] A.J. No. 253.  The court found a witness immunity applied to a psychologist who counselled children involved in a custody and access dispute.  In proceedings between the parents of the children, the mother of the children asked the psychologist to give an opinion.  The opinion was adverse to the plaintiff father, and the court found the psychologist owed no duty of care, no fiduciary duty to the father and concluded that witness immunity applied, stating the following at para. 57:

If professionals in the field of health care are exposed to the threat of law suits when they intervene on behalf of persons to whom they clearly owe a duty and have determined are vulnerable individuals, there will be a chilling effect on the willingness of health care providers to deliver their necessary assistance to the Court, and to be full and frank in their opinions when doing so.

[73] Similarly, Dr. Sovio, in providing assessments pursuant to s. 99, must not be exposed to the threat of lawsuits for delivering his opinion, even if those opinions or actions are contrary to those of Mr. Mund…

Dr. Sovio is not a public official, but an expert retained by ICBC.  His position is similar to that of Dr. Klassen in Howatt and Ms. Froberg. …

[79] For these reasons, Mr. Mund’s ASC is struck out and the claim dismissed for failure to disclose a reasonable cause of action.

Can ICBC Talk to my Doctors About my Injuries?

When you are injured by another motorist in British Columbia and advance an injury claim does ICBC have access to your treating physicians to receive information about the nature and extent of your injuries?
If you are seeking no-fault benefits from ICBC under Part 7 of the Insurance (Vehicle) Regulation the answer is yes.  Section 98 of the Regulation reads as follows:

98 (1)  An insured shall, on request of the corporation, promptly furnish a certificate or report of an attending medical practitioner, dentist, physiotherapist or chiropractor as to the nature and extent of the insured’s injury, and the treatment, current condition and prognosis of the injury.

(1.1)  The certificate or report required by subsection (1) must be provided to the corporation

(a) in any form specified by the corporation including, without limitation, narrative form, and

(b) in any format specified by the corporation including, without limitation, verbal, written and electronic formats.

(2)  The corporation is not liable to an insured who, to the prejudice of the corporation, fails to comply with this section.

What if you are injured by a person insured with ICBC and make a tort claim  in the BC Supreme Court against them for your pain and suffering and other losses?    In the course of defending the Claim can the lawyer hired by ICBC have access to your treating physicians to discuss the nature and extent of your accident related injuries?  

Reasons for judgement were released today (Scott v. Erickson) by the BC Supreme Court, Victoria Registry, dealing with this issue.

In today’s case the Plaintiff was injured in a 2004 motor vehicle collision.  In the course of her recovery she was treated by a neuropsychologist.  The injury lawyer defending the claim brought an application to speak with the Plaintiff’s treating neuropsychologist.  In dismissing this application, Master McCallum of the BC Supreme Court summarized the law relating to defendants access to treating physicians in injury litigation as follows:

[8]                The Defendant applies for two orders.  The second application for permission to speak to a doctor may be disposed of summarily.  I refer to the decision of Wilkinson J. in Swirski v. Hachey, [1995] B.C.J. No. 2686 where the court held that there was no necessity for an application for permission to speak to plaintiff’s treating doctors concerning information relevant to the claims made in the action.  The court suggested that notice should be given of an intention to seek informal discussions with plaintiff’s treatment providers and confirmed that treatment providers were not compelled to participate in such meetings.

[9]                The Plaintiff in the case at bar knows of the Defendant’s intention to speak to Dr. Martzke and Dr. Martzke will know that he is free to participate or not as he pleases.  No order is necessary.  As the court said in Demarzo v. Michaud, 2007 BCSC 1736, if the Defendant’s counsel wishes to compel the treatment providers to participate in discussions, an application under Rule 28 is the appropriate vehicle.

In other words, there is no property in a treating physician and a court order is not required for a defendant to approach a Plaintiff’s treating physicians.  However, the treating physicians are under no duty to participate in discussions initiated by the defendant in a lawsuit.  As a result of the professional obligations of treating physicians in British Columbia, many decline to participate in such discussions.

Lawyers involved in the defence of BC injury claims should also keep their professional duties as set out in Chapter 8, section 14 of the Professional Conduct Handbook in mind which states as follows with respect to cotacting opposing expert witensses:

 

Contacting an opponent’s expert

14. A lawyer acting for one party must not question an opposing party’s expert on matters properly protected by the doctrine of legal professional privilege, unless the privilege has been waived.

[amended 12/99]

15. Before contacting an opposing party’s expert, the lawyer must notify the opposing party’s counsel of the lawyer’s intention to do so.

[amended 12/99]

16. When a lawyer contacts an opposing party’s expert in accordance with Rules 14 and 15, the lawyer must, at the outset:

(a) state clearly for whom the lawyer is acting, and that the lawyer is not acting for the party who has retained the expert, and

(b) raise with the expert whether the lawyer is accepting responsibility for payment of any fee charged by the expert arising out of the lawyer’s contact with the expert.

[amended 09/06]

17. In Rules 14 to 16, “lawyer” includes a lawyer’s agent.

In situations where treating physicians refuse to particiapte in an interview set up by the defence lawyer in an injury claim today’s case appears to indicate that Rule 28 of the BC Supreme Court Rules is the proper tool to use to compel the witness to share any relevant facts he/she may have knowledge of.  Rule 28 states as follows:

Order for

(1)  Where a person, not a party to an action, may have material evidence relating to a matter in question in the action, the court may order that the person be examined on oath on the matters in question in the action and may, either before or after the examination, order that the examining party pay reasonable solicitor’s costs of the person relating to the application and the examination.

Expert

(2)  An expert retained or specially employed by another party in anticipation of litigation or preparation for trial may not be examined under this rule unless the party seeking the examination is unable to obtain facts and opinions on the same subject by other means.

Affidavit in support of application

(3)  An application for an order under subrule (1) shall be supported by affidavit setting out

(a) the matter in question in the action to which the applicant believes that the evidence of the proposed witness may be material,

(b) where the proposed witness is an expert retained or specially employed by another party in anticipation of litigation or preparation for trial, that the applicant is unable to obtain facts and opinions on the same subject by other means, and

(c) that the proposed witness has refused or neglected upon request by the applicant to give a responsive statement, either orally or in writing, relating to the witness’ knowledge of the matters in question, or that the witness has given conflicting statements.

Notice of application

(4)  The applicant shall serve notice on the proposed witness at least 7 days before the hearing of the application.

Subpoena

(5)  Where a party is entitled to examine a person under this rule, by serving on that person a subpoena in Form 21, the party may require the person to bring to the examination

(a) any document in the person’s possession or control relating to the matters in question in the action, without the necessity of identifying the document, and

(b) any physical object in the person’s possession or control which the party contemplates tendering at the trial as an exhibit, but the subpoena must identify the object.

[am. B.C. Reg. 95/96, s. 12.]

Notice of examination

(6)  The examining party shall give notice of examination of a person under this rule by delivering copies of the subpoena to all parties of record not less than 7 days before the day appointed for the examination.

Mode of examination

(7)  The proposed witness shall be cross-examined by the party who obtained the order, then may be cross-examined by any other party, and then may be further cross-examined by the party who obtained the order.

Application of examination for discovery rules

(8)  Rule 27 (15), (20) and (22) to (26) apply to an examination under this rule.

ICBC Claims and Recording 'Independent' Medical Exams

Reasons for judgement were released today dealing with several motions before the BC Supreme Court in a motor vehicle accident claim.
The Plaintiff was self represented in this Supreme Court action.  (This case is worth reviewing on this point alone as the judgment illustrates some of the challenges courts sometimes face when dealing with unrepresented parties in Supreme Court actions).
One of the motions before the court was to compel the Plaintiff to attend an independent medical examination with a doctor of ICBC’s choosing.  While the Plaintiff did not object to being examined, she wished for several conditions to be set including the right to record the examination.
In not granting this condition Master Young reviewed several authorities dealing with the issue of recording independent medical exams.  Master Young concluded that in this case there were no cogent reasons to permit audio recording.  She referred to the leading BC Court of Appeal case on this topic of  Wong v. Wong, 2006 BCCA 540 which discussed the the factors BC Courts should consider when hearing such applications, namely:

(a)        the absence of evidence that an audio tape recording would inhibit or impair the examination;

(b)        evidence that the plaintiff had a poor memory or was forgetful;

(c)        the absence of evidence that the examining doctor objected to the use of a tape recorder;

(d)        evidence that the plaintiff had difficulty communicating and understanding, perhaps related to lack of fluency in English or the language of the examining doctor;

(e)        the likelihood that a tape recording might lead to settlement short of trial; and

(f)         the likelihood that an audio tape recording would contribute to the fairness of the trial.

In the same case the Court of Appeal noted the following about recording independent medical exams:

While I am of the view that a master or judge has a discretion under Rule 30 to permit the use by a plaintiff of an audio tape recorder on an independent medical examination, it is in my opinion a discretion that should be exercised rarely and with restraint, and only in circumstances where there is cogent evidence that the use of an audio tape recording will advance the interests of justice.

Show Me The Money! ICBC and High Billing Physicians

One of the benefits of having a crown corporation monopoly insurer (ICBC) in BC is that they must file annual reports accessible to members of the public. These annual reports can be found on-line and contain volumes of information regarding ICBC and their financial status.
One of the most interesting facts published annually by ICBC is the amount of money they pay ‘expert physicians’ who do work on ICBC’s behalf. This information is known to most ICBC claims lawyers and I thought some of my readers would be interested in this data as well.
As of the writing of this post the 2007 annual report is not available but the 2006 report is. Below is a list of some of the physicians who billed significant amounts to ICBC for their services in 2006. I will be sure to publish the highlight physician billings from ICBC’s 2007 report once available.
Dr. Kevein Favero (Orthopedic Surgeon, Langley, BC): $245,483
Dr. N. K. Reebye (Physical Medecine and Rebabilitation, New Westminster): $275,336
Dr. Peter M. Rees (Neurologist, Burnaby): $225,330
Dr. J. F Schweigel (Orthopedic Surgeon) : $796,012
Dr. D. M. Laidlow: (Physical Medicine and Rehabilitation, Westbank) $101,539
Dr. Robert W. McGraw: (Orthopedic Surgoen, Vancouver) $253,240
Dr. T O’Farrell: (Orthopedic Surgoen, Kelowna) $111,162
Dr. James Warren: (Orthopedic Surgoen, Victoria) $87,207
Dr. O. M. Sovio: (Orthopedic Surgeon, Abbotsford) $203,892
Dr. H. Davis: (Psychiatrist, Vancouver) $113,950
Dr. Marc Boyle (Orthopaedic Surgeon, North Vancouver) $287,860
Dr. Paul Bishop (Vancouver, BC) $321,137
Dr. Mark Crossman (Physical Medicine and Rehabilitation, Vancouver) $111,441
Dr. I. G. Dommisse (Orhopaedic Surgoen, New Westminster) $194,612
Dr. H. E. Hawk (Orthopedic Surgeon, Vancouver) $336,650

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.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy

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