Tag: Zawadzki v. Calimoso

Multiple Defence Medical Exams: The Prohibition of "Belt and Suspenders" Applications


While the Rules of Court permit Defendants to compel a Plaintiff to attend multiple medical exams in certain circumstances, there is a general prohibition in having multiple exams to address the same topic.  Reasons for judgement were recently released by the BC Supreme Court, Vancouver Registry, dismissing an application in these circumstances calling it a “belt and suspenders application“.
In today’s case  the Plaintiff was injured in a motor vehicle collision.  In the course of the claim she attended numerous ‘independent‘ medical exams with physicians selected by the Defendant.   Some of these physicians opined that the Plaintiff’s difficulties were not from the collision but due to “opioid dependencies“.
The Defendant asked that the Plaintiff attend a further exam with Dr. Baker, a so -called “addictionologist“.  The Plaintiff refused and an application was brought.  Master Baker dismissed the application noting the general prohibition of multiple exams to bolster a previous opinion.  In dismissing the application the Court provided the following helpful reasons:

[7] To get back to the point, the defence’s position is that some or much of these difficulties relate to, they say, opioid dependencies that have arisen in advance of this motor-vehicle accident.  This is denied or contradicted by the report of her family physician, Dr. Singhal.

[8] Dr. Baker a specialist, in this area, not just of addiction and addiction parameters or aspects of that, but also chronic pain management, I understand.  Even the brief c.v. to which I was referred was impressive.  His membership in various societies, the committees he serves on, all of which impressed me.

[9] Having said all that, I cannot see that this case is in any significant way distinct from that decided by Mr. Justice Voith, to which I just referred.  With greatest respect, at least two specialists for the defence have commented on, concluded, and been quite specifically direct that they regard (the Plaintiff) as having been either habituated, as one — Dr. Smith, I think, said it — or dependent, euphemistically perhaps, addicted to opioids.  This has had consequences for her recovery, or her response to the accident.

[10] I agree entirely, with greatest respect, with Mr. Justice Voith and his impression of the case that he decided.  I agree that there’s no doubt that Dr. Baker has greater expertise on that particular point.

[11] But as Mr. Justice Voith says, that’s not the measure of whether or not to direct an I.M.E.  The phrase — I know it has a pejorative ring to it — but it was used at least a couple of times, once by me — that this is a “belt and suspenders application” by the defence.  They already have expert opinion on the subject.

[12] They were met, from the plaintiff’s perspective, by opposition to Dr. Hashimoto opining on that aspect.  The view, as taken by the plaintiff, that Dr. Hashimoto is not qualified to give this opinion that’s outside his expertise.  They have not taken that perspective in respect of Dr. Smith.

[13] It doesn’t really matter to me whether they did or didn’t, because whether or not a second or subsequent I.M.E. should be ordered does not rely upon the plaintiff’s opinion as to the admissibility of an expert’s opinion, or in fact any other evidence.  That is for the court to decide; and it is, with respect, for the defence to structure its case and its strategies.

[14] I am satisfied, on the circumstances and facts before me, that this does constitute a situation in which the defence is wishing to bolster the opinion of Dr. Smith at least, and possibly Dr. Hashimoto, with the further and yes, more focused opinion of Dr. Baker.

[15] The law in this area does not support that course.  That is sufficient, in my respectful view, to decide the issue.

For the sake of convenience I should point out that the decision of Mr. Justice Voith that Master Baker referenced was Zawadzki v. Calimoso which was recently transcribed and can be found here.

Post Accident Alcoholism Deemed Compensable in BC Tort Claim


Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing an interesting issue: whether alcoholism following accident related chronic pain is compensable in a tort claim.  In short, Mr. Justice Voith held that it could be.
In today’s case (Zawadzki v. Calimoso) the Plaintiff pedestrian was struck by a U-Haul truck driven by the Defendant.   The Defendant was found fully at fault for the collision.  The Plaintiff sustained various physical injuries the most serious of which was an elbow joint fracture which required three surgeries and resulted in a permanent partial disability.
Following the collision the Plaintiff began to drink in excess.  This turned into clinical alcoholism the extent of which caused serious health consequences.  In his lawsuit the Plaintiff claimed compensation not only for his physical traumatic injuries but also for the consequences of his alcoholism.  The Defendant argued that the Plaintiff cannot be compensated for this as it is ‘too remote‘.
Mr. Justice Voith addressed this issue at length and paragraphs 99-123 are worth reviewing in full for the Courts analysis.  Ultimately Mr. Justice Voith held that the Plaintiff’s alcoholism was caused in part by the consequences of the crash and was therefor compensable.  The Court provided the following reasons:

[99]         Shortly after the Accident, the plaintiff began to drink heavily. The results of blood tests performed on the plaintiff in late December 2004 indicated that certain liver enzyme levels were extremely elevated. The medical evidence uniformly establishes that such elevated results are directly referable to alcohol consumption. Dr. Smith confirmed that such elevated enzyme levels would not arise as a result of binge drinking, but rather reflected weeks or months of drinking.

[100]     The plaintiff admits he began to drink excessively after the Accident and that his alcohol consumption reached the point where he was drinking 26 ounces of vodka on a nightly basis. ..

[117]     In this case, Mr. Zawadzki’s original physical injuries were foreseeable. So too, the defendants concede, were his depression and anxiety. It was the combination of pain and mood that Drs. Shane and Smith said gave rise to the plaintiff’s excessive drinking. Dr. Smith also confirmed that Mr. Zawadzki had a “genetic predisposition”, by virtue of the alcoholism of his parents, to alcohol abuse. A genetic vulnerability to alcohol abuse is the very type of pre-existing susceptibility that the “thin skull” rule addresses.

[118]     It is clear that both a susceptibility to physical harm and to psychological harm fall within the ambit of the “thin skull” rule: Hussack at para. 143; Yoshikawa v. Yu (1996), 21 B.C.L.R. (3d) 318 (C.A.) at para. 19. I can see no principled reason why a similar vulnerability to an addiction disorder should be treated or viewed differently…

[123] I find that Mr. Zawadzki’s alcohol abuse was caused by the Accident and that such alcohol abuse was reasonably foreseeable.

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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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