Applications For Responsive Reports Ought to be “Extremely Rare”

Today’s guest post comes from B.C. injury claims lawyer Erik Magraken

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, criticizing the volume of applications the Court is seeing with Defendants arguing that they need to subject plaintiff’s to physical examinations in order to obtain ‘responsive’ expert opinion evidence.

In today’s case (Falbo v. Ryan) the Plaintiff was injured in a collision and sued for damages.  In the course of the lawsuit the Plaintiff attended several defence medical appointments, specifically with a physiatrist, a psychiatrist, a dental expert, and a rheumatologist.  The Plaintiff then served two functional capacity reports outlining vocational limitations.  The Defendant argued they needed a further evaluation to obtain a ‘responsive’ report.  In dismissing the application Master Harper provided the following reasons :

[10]        There are numerous cases that have dealt with these types of applications.  The plaintiff in fact produced a binder of 21 case authorities.  One of the cases that I find most persuasive in this matter is Timar v. Barson, 2015 BCSC 340.  In that case, Mr. Justice Smith said that IMEs for responsive reports should be rare.  I agree.

[11]        In my view, the defendants cannot reasonably claim to be surprised by the subject matter of the report, and further, it is my view that it is not necessary in order to provide a responsive report for the plaintiff to be subjected to a physical examination.  These types of orders are discretionary.  They ought to be rare.  There is, unfortunately in my view, what seems to be an acceleration of these types of applications.  They should be extremely rare, and in my view the defendants do not require a physical examination of the plaintiff in order to properly respond to Ms. Craig’s two functional capacity evaluations.

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

Today’s guest post comes from B.C. injury claims lawyer Erik Magraken

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 Court of Appeal – Jury Trial OK in Case With 40 Expert Reports

Today’s guest post comes from B.C. injury claims lawyer Erik Magraken

Reasons for judgement were released today by the BC Court of Appeal finding a personal injury lawsuit with 40 expert reports totaling over 700 pages was not too complex for a jury to determine.

In today’s case (Rados v. Pannu) the Plaintiff alleged serious injuries as a result of a motor vehicle collision including “a traumatic brain injury; a vestibular injury that has impaired the appellant’s balance and induced bouts of nausea, dizziness and vomiting; various musculoligamentous and other physical injuries; and, a major depressive disorder”.

The Defendants elected a jury trial and the Plaintiff objected arguing the case was ‘too complex’ and pointed to the sheer volume of competing expert evidence.  The Plaintiff pointed to many cases where discretion was exercised to strike a jury in similar cases.  In finding that judicial discretion does allow for competing results and more than ” adding up the number of experts and medical issues or the number of pages of documents or the length of trial” is needed the Court provided the following reasons:

[22]         As I turn to consider the appellant’s argument, it is useful to remember that a decision whether to strike a jury notice is not only discretionary, but also engages important issues of trial management. The determination of such issues is properly a matter for the trial court. Furthermore, the onus is on the applicant to displace the presumptive right to a jury: MacPherson v. Czaban, 2002 BCCA 518 at para. 17, leave to appeal ref’d [2002] S.C.C.A. No. 480. Accordingly and appropriately, decisions of this kind attract considerable deference from this Court. These decisions turn critically on an assessment by the trial court of multiple factors bearing ultimately on the question whether a matter can be conveniently tried with the jury or should be heard without one.

[23]         The appellant points to numerous cases in which jury notices have been struck which share similarities with this case in terms of the number of medical issues, the number of experts, the nature of the issues and the length of trial. He suggests the result in this case cannot be reconciled with the results in those cases. Thus, he argues that the bar for striking a jury notice has been raised to a level beyond anything that can be accounted for by the inevitable variability of outcome inherent in the exercise of discretion.

[24]         I accept that, as was pointed out in Cochrane v. Insurance Corp. of British Columbia, 2005 BCCA 399 at para. 28:

It is unassailable that decisions under Rule 39(27) are driven by the particular facts of the case.  Even so, the facts in prior decisions are helpful in determining whether the discretion to grant or refuse an order to strike a jury notice has been exercised judicially.

[25]         It follows from this that, even allowing for the inevitable variation in outcomes arising from exercises of discretion, one would expect decisions with broadly similar facts to produce broadly predictable outcomes if discretion is being exercised judicially…

[30]         In my opinion, while other similar cases can assist in assessing whether discretion has been exercised judicially, broad and general similarities may mask material differences. The analysis does not begin and end with adding up the number of experts and medical issues or the number of pages of documents or the length of trial. Those factors may be indicative of whether the trial may be conveniently heard with a jury, but they are not necessarily the last word. They were not here because the judge delved deeply into an analysis of the factual circumstances engaged in the trial and exercised his discretion based on his assessment of those circumstances.

[31]         The appellant is not able to point to any relevant factors the judge failed to take into consideration in exercising his discretion, nor can he point to any irrelevant factors he did consider. He is not able to point to any consideration receiving too much or too little weight. In short, the appellant was not able to direct us to any specific error in the exercise of discretion that would warrant this Court interfering with the order.

[32]         The appellant suggested that if this order is not set aside, this Court would be endorsing a much higher bar for striking a jury notice than has previously been the case in this province. I do not accept that submission. In my view, this case turned on its specific and particular factual circumstances as they stood at the time of the application and as they were analyzed by the judge.  The judge then properly applied the relevant considerations to the exercise of his discretion. The case turned on its facts and does not represent a departure of principle or a resetting of the height of a bar.

[33]         Finally, it should be pointed out, as the chambers judge did, that when this matter comes on for trial, the trial judge “may order the trial to proceed without a jury if the interests of justice then require the making of such an order”. It may be that the case that goes to trial may be quite different to what now appears to be the case. As noted by Seaton J.A. in Ball v. Novlesky, [1981] B.C.J. No. 677 (C.A.) at para. 16, we and the chambers judge can examine the issue only on the basis of the record before us. The case at trial may be different and the trial judge would be free to deal with the issue then, if necessary.

[34]         In my opinion, the submissions of the appellant do not rise above an attempt to reargue the case that was rejected by the chambers judge. I do not think that the appellant has identified any error in principle in the exercise of the chambers judge’s discretion. Accordingly, I would dismiss the appeal.

ICBC Request for Photos of Dancing, Vacationing and Socializing Dismissed

Today’s guest post comes from B.C. injury claims lawyer Erik Magraken

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, dismissing a request for a Plaintiff to produce various photographs.

In today’s case (Wilder v. Munro) the Plaintiff was injured in a 2010 collision and sued for damages.  In the course of the lawsuit ICBC reviewed the Plaintiff’s social media accounts and obtained “ten separate videos of the plaintiff dancing in rehearsals or shows in 2013, 2014 and 2015, photographs of the plaintiff performing dance moves, Facebook status posts discussing upcoming dance shows and auditions in 2011, photographs and posts about Ms. Wilder’s attendance at music festivals in 2014, travel related to the home based business and socializing with friends.“.

The Defendant brought an application requesting that

The plaintiff, within 7 days, deliver an amended list of documents:

a. identifying the photographs and video in her possession and control in which she is featured, identifying them by location, date and time, if available:

1. participating in dance training, rehearsals, auditions or competitions from 29 July 2008 to present;

2. attending music festivals since 29 July 2010;

3. socializing between January 2011 and September 2012;

4. on vacation since 29 July 2010;

ii. The plaintiff may edit the photographs prior to disclosure to protect the privacy of other individuals;

In rejecting this request Master Bouck provided the following reasons:

[16]         A party’s obligation to disclose social media content has been addressed in a number of decisions under the Supreme Court Civil Rules, including Fric v. Gershman, 2012 BCSC 614; Cui v. Metcalfe, 2015 BCSC 1195; and Dosanjh v. Leblanc, 2011 BCSC 1660. Generally speaking, the considerations for the court on this type of application include the probative value of the information sought, privacy concerns, potential prejudice to the plaintiff and proportionality: Cui at para. 9.

[17]         All three of the noted cases were personal injury actions. In all three, the plaintiff’s post-accident physical capabilities were in issue as was the impact of alleged injuries on the particular plaintiff’s social life. In the first two cases, disclosure of the plaintiff’s social media content was ordered; in Dosanjh it was not. While the plaintiff’s circumstances as described in Cui bear some resemblance to the case at bar, the result can be distinguished. Like the case at bar, the defence had obtained photographs, postings, and the like from the plaintiff’s social media platforms. However, unlike here, the defence was unable to identify the dates of the photographs or videos and thus correlate the content to either the pre or post-accident period. The court ordered the plaintiff to disclose additional social media content and identify the date or time frame of content’s creation. Of note is that this additional disclosure may not have been ordered had Ms. Cui provided the dates of the videos, photographs pursuant to the defendants’ notice to admit: para. 33. Instead, the plaintiff declined to make any such admissions thus necessitating the chambers application.

[18]         In terms of the proportionality factors, the plaintiff’s claim is not complex. There is no debate that this action will proceed to trial under Rule 15-1. The defendants filed the fast track notice and the plaintiff has no intention of having the action removed from the rule’s operation. The parties appear to agree that the trial can be completed in three days. While the plaintiff’s damages are not limited to $100,000, the evidence on this application suggests that the claim will not greatly exceed that figure, if at all.

[19]         The plaintiff is employed with no limitations on her ability to function at that job. It will be up to the trial judge to decide what compensation, if any, Ms. Wilder deserves for an overall reduced earning capacity. However, the defendants’ submissions on this application presume that a career in dance is financially lucrative and thus the potential award for this capital asset loss justifies the breadth of the order sought. If this theory was reasonably accurate, it would be expected that one or both of the parties would wish to remove the proceeding from fast track.

[20]         On the question of probative value, the defendants already have in their possession dozens of photographs and more than ten videos which show the plaintiff’s physical abilities and social activities in the years following the accident. I am not persuaded that adding to this collection is necessary to disprove the plaintiff’s claims. Moreover, the defendants have other evidence in the form of Dr. Winston’s report to also disprove the plaintiff’s claim of a lost dancing career.

[21]         Finally, I agree with the plaintiff that the defendants have failed to demonstrate the probative value of any photographs or videos depicting the plaintiff socializing or on vacation. If I am wrong on the question of probative value, then I find that the production of this information, including all that would be entailed in protecting the privacy rights of third parties, is not proportionate to the issues to be determined at trial.

$131,250 Non Pecuniary Assessment for Chronic TMJ Injury

Today’s guest post comes from B.C. injury claims lawyer Erik Magraken

In today’s case (Williams v. Gallagher) the Plaintiff, who was 20 at the time, was involved in a 2010 vehicle collision caused by the Defendant.  The Plaintiff suffered a variety of injuries the most serious of which was an injury to the temporomandibular (TM) joints in his jaw.  This required surgical intervention which did not cure his pain and the Plaintiff  was expected to have chronic lingering problems.  In assessing non-pecuniary damages at just over $130,000 after factoring in some contingencies Madam Justice Warren provided the following reasons:

80]     For the past five years, Mr. Williams has suffered from very severe, debilitating pain. The ongoing neck, back and shoulder pain is significant but the jaw pain is excruciating. He testified that he wakes up in pain every morning. He takes 10 to 12 Percocet each day which reduces the pain but does not eliminate it. The Percocet leaves him feeling foggy and impairs his ability to focus. If he does not take the Percocet, the pain is unbearable. He has attended at the emergency department of the hospital on several occasions because he cannot bear its intensity. He testified that he feels trapped in his jaw pain and it controls his life.

[181]     Dr. Courtemanche explained that facial pain is qualitatively different from pain in other parts of the body. As he put it, people think of themselves as living in their heads. A person may be able to distance or dissociate themselves from pain in an extremity, such as foot, but may find it impossible to do the same with pain in the head or face. Also, unlike an injured knee or hip, it is almost impossible for a patient not to use an injured jaw, which is engaged each time the patient speaks or eats. Dr. Courtemanche explained that injured TM joints often result in severe muscle spasm, which he has observed repeatedly when examining Mr. Williams, and this prevents the joint from finding any comfortable rest place.

[182]     Mr. Williams has undergone extensive, invasive, painful orthodontic treatment including two surgeries. In addition to the neck, back and shoulder pain, which alone is significant, and the excruciating jaw pain, he now suffers from significant psychological conditions that are debilitating.

[183]     Mr. Williams testified that as each jaw treatment failed, he became more anxious and his feelings of hopelessness increased. He has spent his savings on living expenses and medical treatments. He is overwhelmed by worry about his inability to work. On several occasions when his testimony turned to his future, he broke down in sobs.

[184]     Dr. Courtemanche agreed, at trial, that the surgery he is now recommending is rarely indicated but, in the circumstances of this case, he continues to be of the view that it is worth trying. However, he said that, at best, the surgery will temporarily alleviate the pain, that Mr. Williams will likely continue to suffer TMJ pain for the rest of his life, and that his TMJ disorder cannot be cured. He also said that, eventually, Mr. Williams will probably require a TM joint replacement, which is likely to last 15 years, after which the replacement would have to be repeated.

[185]     Mr. Williams testified that the prospect of living with no hope of pain relief causes him such despair that he wishes to end his life. He said he hides the severity of his symptoms from his mother because he does not want her to know that her son would rather die than live with the pain.

[186]     Mr. Williams’ symptoms have very significantly affected all aspects of his life. He can no longer play soccer. He has no interest in going to movies or sporting events. He is restricted in what he can eat. His personality has been affected. He has become isolated and socially withdrawn. He now spends most of his time alone at home or going for drives. He does still go out with friends for meals or drinks, as often as once a week, but sometimes he does not socialize at all for several weeks in a row. Mr. Webber and Mr. Kreklewetz testified that sometimes they go to Mr. Williams’ house and force him to go out.

[187]     The injuries Mr. Williams suffered have prevented him from working. 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. He has had to live with the likelihood that his injuries will preclude him from working in any physical job, which has caused him to despair about his future. Given his limited academic success to date, and now limited functionality, he fears that his options for more sedentary work are few even if he manages to develop strategies for dealing with the pain. It is apparent that this reality has weighed very heavily on him, and is a significant contributing cause of his psychological conditions.

[188]     Mr. Williams has been transformed from a happy, social young man with an optimistic future, who was focussed on his work and was well on his way to achieving his life goals, into an anxious, fearful and isolated young man who is barely managing to get through each day and who is tormented by virtually constant, intense pain.

[189]     I accept the evidence of Dr. Adrian, Dr. Courtemanche and Dr. Smith concerning Mr. Williams’ prognosis. Mr. Williams’ neck, back and shoulder injuries are most likely permanent. The TMJ disorder cannot be cured. Even if Mr. Williams undergoes the surgery recommended by Dr. Courtemanche, the best case scenario is that he will experience some temporary alleviation of the pain. He faces the prospect of more than one jaw replacement surgery in his lifetime and the prospect of many years of ongoing pain and compromised lifestyle. Even if the pain improves, it is unlikely he will experience a full remission of the depressive and anxiety symptoms and he will remain vulnerable to developing those kinds of symptoms in times of stress…

[203]     On balance, I think an appropriate assessment, for non-pecuniary damages is $175,000, less:

·       a reduction of 10%, or $17,500, to account for the contingency that Mr. Williams would have undergone the orthodontic treatment in any event and, as a result, would have suffered some pain associated with the treatment itself;

·       10%, or $17,500, to account for the contingency that if he underwent the orthodontic treatment, it would have triggered chronic TMJ disorder in any event; and

·       5%, or $8,750, to account for the contingency that if he underwent the orthodontic treatment and if that treatment triggered the chronic TMJ disorder, the resulting pain and disability would have in turn triggered the psychological conditions.

After accounting for those contingencies I award non-pecuniary damages to Mr. Williams of $131,250. To be clear, this award reflects the positive contingency that Mr. Williams’ functionality and quality of life may improve, even if his pain does not, if he follows the recommendations of his physicians.

A Drunken Push Leads to Over $500,000 in Consequences

Today’s guest post comes from B.C. injury claims lawyer Erik Magraken

In a stark example of the profound consequences that can come from a modest confrontation, damages of $553,000 were ordered to be paid after an intoxicated groom to be pushed a man that was teasing him.

In today’s case (Robinson v. Bud’s Bar Inc) the Defendant, a groom to be who was “exotically dressed and wearing a ball and chain” following a bachelor party, was approached by the Plaintiff and teased about his upcoming marriage.  Both parties were intoxicated.  The Defendant responded by pushing the plaintiff who fell down, struck his head on the ground, and suffered a permanent brain injury.

The Court assessed damages at $790,000 but then reduced these by 30% for the Plaintiff’s contributory negligence and provocation.  In reaching this split of fault Mr. Justice Sigurdson provided the following reasons:

[140]     I find on the evidence that both men were intoxicated. I find that the plaintiff came up to the defendant Leelund Turner and teased him and persisted to do so despite being told to leave and being asked by his friend or friends to get going. I do not conclude that the defendant Leelund Turner held the plaintiff before pushing him as counsel suggested. I find the plaintiff had a reasonable opportunity to extricate himself from the situation. The plaintiff could easily have walked away but the plaintiff persisted to tease Leelund Turner. The push was sudden and careless but it followed the Leelund Turner’s plea to Mr. Robinson to leave him alone.

[141]     I find that in these particular circumstances the defendant Leelund Turner has satisfied me that the plaintiff was both contributorily negligent and provoked the negligent push. In these particular circumstances the concepts overlap to a degree. While I recognize that alcohol consumption is not itself negligence, here I find that the plaintiff was intoxicated to the extent that he persisted to be rude to the defendant Leelund Turner in close quarters despite being told to back away by Leelund Turner and being told by his friend that he should leave. I find that for Mr. Robinson to persist as he did to tease the defendant Leelund Turner at close quarters, he was partly at fault for the injury.

[142]     I think that the conduct of the plaintiff also amounted to provocation. While the plaintiff’s counsel says that the conduct does not meet the definition of provocation, I think in the circumstances of this case that it can easily be inferred from the evidence that the persistence of the plaintiff at close quarters that was rude and aggressive caused the defendant Leelund Turner to momentarily lose his power of self control and push the plaintiff abruptly, forcibly and carelessly away, resulting in the fall.

[143]     While I do not find that the defendant Leelund Turner has proven that had Mr. Robinson not been intoxicated, the drastic results of the fall would have been avoided, I think that Mr. Robinson must bear some responsibility because of his fault in approaching the defendant Leelund Turner and persistently teasing him at close quarters.

[144]     Accordingly although I find the defendant Leelund Turner liable, I find that both contributory negligence and provocation have been proven by the defendant Leelund Turner and that the damages incurred by the plaintiff as a result of the defendant’s negligence must be reduced by 30%.

Subscribe To Our Newsletter

Join our mailing list to receive the latest news and updates from ILSTV

You have Successfully Subscribed!

Pin It on Pinterest