The Unhelpful Doc: Judicial Treatment of Medical Evidence from ICBC doctors

The Insurance Company of British Columbia has the right to retain their own doctor and assess a plaintiff in relation to injuries in a Part 7 or Tort claim. Although the doctors that ICBC uses are meant to provide an “independent” assessment, they are often almost certain to provide a medical opinion which minimizes a plaintiff’s injuries and disabilities.

For the opinion evidence of a medical expert to be admissible, four criteria must be met (R. v. Mohan, [1994] 2 SCR). The evidence given by the expert must be relevant, necessary, and the witness must be properly qualified. Furthermore, the British Columbia Supreme Court Civil Rules state that an expert appointed by one or more parties has a duty to assist the court and is not to be an advocate for any party. Experts who advocate for or against the plaintiff may find their evidence being given little or no weight.

An example of this was recently seen in Ferguson v. McLaughlin, 2015 BCSC 2432.  A 21 year old man was injured in a car accident. Although the injuries were not catastrophic, he had some lasting symptoms. Both the plaintiff and the defence referred the young man to independent medical specialists for an assessment. Both doctors testified at trial.

The plaintiff’s doctor was of the opinion that the plaintiff was suffering from chronic pain, myofascial tissue injury, lower back and lower limb pain, as well as possible lumbar facet joint pain arising from the accident. The doctor for the defence testified that in his opinion, the plaintiff had no chronic pain injury to his back. Madam Justice Griffin found that the doctor testifying for the defendant to be a very unhelpful medical witness and that the evidence provided by the defendant’s doctor was of no value in deciding the case.

In dismissing much of the expert’s evidence, Madam Justice Griffin cast doubt on the qualifications of the doctor in holding that the doctor in question had not practiced medicine for many years and that it was difficult to assume that he is up to date on medical studies regarding soft tissue injuries and pain.

Madam Justice Griffin also noted that the doctor was wholly reliant on ICBC for his income and has been for years. Madam Justice Griffin also took issue with the method in which the doctor assessed the plaintiff, finding that the doctor’s logic was at best simplistic and superficial. More damning, Madam Justice Griffin concluded that the doctor holds such a degree of cynicism regarding patients advancing claims against ICBC that he is not independent and his evidence is unreliable.

Ferguson is a cautionary tale of the consequences that may befall an expert witness, acting for either the defence or plaintiff, who fails to meet the admissibility criteria for expert evidence set out in Mohan.

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