Last week I highlighted reasons dismissing a defence application for a second independent medical exam where they had the benefit a first exam but no report was yet produced. Today similar reasons were published by the BC Supreme Court, Vancouver Registry.
In today’s case (Rong v. Yelland) the Plaintiff was injured in a collision and sued for damages. In the course of the lawsuit the Plaintiff consented to be assessed by an orthopedic surgeon of the Defendant’s choosing. After the assessment but prior to any report from the assessment being produced the Defendant requested that the Plaintiff also attend a functional capacity evaluation with a kinesiologist. The Plaintiff declined.
The Defendant brought an application to compel attendance. In dismissing this application the Court noted there is no way of knowing whether the medical ‘playing field‘ was even without the defence surgeon’s report. Master Cameron provided the following reasons:
Reasons for judgement were recently given by the BC Supreme Court, New Westminster Registry, dismissing a defence request for an independent medical examination of a Plaintiff where the Plaintiff already saw an expert of the Defendants choosing but the Defendants have yet to produce a report from that expert.
In the recent case (Khan v. Cabrera) the Plaintiff was involved in a collision and sued for damages. In the course of the litigation the Plaintiff consented to be explained by a neurologist of the Defendant’s choosing and “that report has not yet been disclosed by the defence to the plaintiff“.
The Defendant requested that the Plaintiff also be assessed by an orthopaedic surgeon arguing that such an exam is necessary to provide an opinion about a pre-accident orthopaedic injury the plaintiff had sustained and also to address collision related injuries.
The Court dismissed the application in large part because it was unclear what opinion the Defendants would already have the benefit of from the first appointment. In short the litigation ‘playing field’ may already be even. In dismissing the application Master Keighley provided the following reasons:
If you are involved in an ICBC injury claim you likely know that ICBC may have the right to send you to a doctor of their choosing. They can do this in one of 2 ways, either pursuant to the Insurance (Vehicle) Regulation which allows ICBC to set up an Independent Medical Exam for any ‘insured’ seeking no-fault benefits, or under the Supreme Court Rules where the Defendant has the right to ‘balance the playing field’ by obtaining an independent medical exam in many circumstances.
Experts hired in such a situation can play a significant role in an ICBC claim. Much weight can be attached to what an expert has to say with issues such as causes of injuries, prognosis, reasonable treatments and future disability. Appreciating this it is important for an expert to present any opinion in a fair and balanced way. However, expert witnesses sometimes cross the line and advocate for the side that hired them. Reasons for judgement were released today concluding that the orthopaedic surgeon hired by the Defence in a BC auto-injury case acted as an advocate.
In this case the Plaintiff was injured as a passenger in a 2003 collision. The crash was significant. The at fault driver was speeding, went through a stop sign and hit another vehicle head-on.
Just over $200,000 was awarded for the Plaintiff’s injuries and losses. In reaching this decision Madam Justice Martinson made the following findings in rejecting the evidence of the orthopaedic surgeon hired by the Defendant to assess the Plaintiff’s injuries:
[52]In my view the evidence of Dr. Schweigel should be given limited weight. He is no doubt a well-qualified orthopaedic surgeon. However, his opinion with respect to causation is based to a large extent on incorrect and incomplete information. His factual conclusions are, for the most part, inconsistent with the findings of fact made by the Court.
[53]Dr. Schweigel says in his report that (the Plaintiff) told him he had low back pain right after the accident. He rejected that statement and focused on the fact that (the Plaintiff) had not complained to his doctor about low back pain until several months later. For whatever reason, he did not have, then or later, the insurance adjuster’s notes showing that he had complained about low back pain shortly after the accident.
[54]In offering his opinion he downplayed the severity of the impact, though he agreed in cross-examination that the more severe a collision, the more likely is injury to the spine. He did not comment on the fact that (the Plaintiff’s) activities were curtailed after the accident but not before.
[55]He drew inferences from the brief clinical notes of Dr. Alderson that supported the conclusion that the pre-existing low back pain was significant. When summarizing the May 17th note, he put “less pain” when the note actually says “woke up in far less pain and is much more functional, bending without pain.”
[56]He was prepared to conclude, on very limited evidence, that the post accident incidents that were at issue likely caused the activation of the pre-existing condition.
[57]As I see it, Dr. Schweigel acted as an advocate for the defendants, not an expert whose sole purpose is to assist the Court. He highlighted all matters that would support the defence position and either downplayed or ignored those that would support the position of (the Plaintiff).
Further to my previous post on ICBC and high billing doctors I am pleased to report that ICBC has now published their 2007 “statements and schedules of financial information“ which reveal, amongst other things, the “amounts paid to suppliers of goods and services in 2007“.
One of the ‘goods and services’ often purchased by ICBC is the “Independent Medical Exam”. This is done either to get an ‘independent’ opinion of the medical condition of someone seeking ‘no-fault benefits’ from ICBC, or, further to the Rules of Court which permit one side of a lawsuit to get an ‘independent’ exam addressing the medical condition of a plaintiff involved in an ICBC injury tort claim.
As an ICBC claims lawyer I find it interesting to see which doctors ICBC routinely uses to conduct these independent medical exams. From reviewing these annual reports it becomes clear that there is a small number of doctors who do a significant amount of work on behalf of ICBC.
As promised in my earlier blog, below are some of the highlights of the 2007 report of doctor billings:
Dr. Kevein Favero (Orthopedic Surgeon, Langley, BC): $188,814
Dr. N. K. Reebye (Physical Medecine and Rebabilitation, New Westminster): $339,243
Dr. Peter M. Rees (Neurologist, Burnaby): $215,788
Dr. J. F Schweigel (Orthopedic Surgeon) : $924,243
Dr. D. M. Laidlow: (Physical Medicine and Rehabilitation, Westbank) $165,657
Dr. Robert W. McGraw: (Orthopedic Surgoen, Vancouver) $224,375
Dr. T O’Farrell: (Orthopedic Surgoen, Kelowna) $147,003
Dr. James Warren: (Orthopedic Surgoen, Victoria) $111,041
Dr. O. M. Sovio: (Orthopedic Surgeon, Abbotsford) $252,916
Dr. H. Davis: (Psychiatrist, Vancouver) $164,755
Dr. Marc Boyle (Orthopaedic Surgeon, North Vancouver) $353,822
Dr. Paul Bishop (Vancouver, BC) $357,358
Dr. Mark Crossman (Physical Medicine and Rehabilitation, Vancouver) $83,577
Dr. I. G. Dommisse (Orhopaedic Surgoen, New Westminster) $156,650
Dr. H. E. Hawk (Orthopedic Surgeon, Vancouver) $280,000