ICBC doctor's appointments - Do I have to go?

As a Vancouver personal injury lawyer, I regularly get asked whether you have to go to an appointment that ICBC sets up.  The question is straightforward, the answer is not!

ICBC is entitled to some medical evidence if you are looking for some of the "no fault" benefits.  A report for that purpose may or may not count towards the medical evidence that the defendant (through ICBC) is entitled to in the Tort claim.

Once a lawsuit is started, there is a big different between a first assessment and a subsequent assessment.  Sometimes an injured person has to go to multiple ICBC doctors.  Other times, ICBC is just trying to send a person to a different doctor to unfairly bolster their case or get a new opinion.

In Dillon v. Montgomery, 2011 BCSC 1417, the ICBC appointed lawyer for the defendant sent the injured person (the plaintiff) to an orthopaedic surgeon for an assessment.  The defendant's lawyer then wanted to send the plaintiff to a neurologist.

The Plaintiff resisted saying that they provided an opinion from a neurologist confirming that the plaintiff has some neurological symptoms, but these symptoms were NOT related to the accident.

The Master (essentially a judge of interlocutory or pre-trial matters) agreed with the plaintiff.  Looking at the defendants arguments, it appeared that they wanted the opinion to confirm that the symptoms were NOT related.  Given the evidence of the plaintiff's expert, they would only need this assessment to confirm a negative.  Doesn't make much sense does it?  Well the Master didn't think so either.

Often these arguments are thinly veiled attempts at getting new opinions.  Could be that ICBC didn't like the opinion they had and wanted to used this opportunity to get some new evidence.

Cross-examination of a neurosurgeon - Part 2

The devil, they say, is in the details and it is very true for cross-examination.   

The video deposition started as expected.  The lawyer for ICBC introduced the neurosurgeon with his very lofty credentials.  He then went over the doctor's report with him.  The neurosurgeon confirmed that he did not think that my client's symptoms were caused by the accident rather from a disc protrusion following two accidents some 15 years earlier.  He confirmed that my client did not require surgery.  He was then turned over to me.

As a Vancouver personal injury lawyer I have a few tools in my toolbox to deal with witnesses.  The most used tool is a stick.  Most often the better tool is the carrot.  Some witnesses require the stick, but I suspect we use the stick because it makes us feel like a lawyer (the sad reality is that most lawyers feel like paper pushers rather than lawyers).  We are not immune from popular culture and good T.V. shows.  The reality is that one can be much more cagey whilst being kind than mean.  I, thankfully, resisted my urge to be mean and took a pleasant tone with the ICBC doctor.

I had three goals I wanted to accomplish with my cross-examination: get the doctor to comment that vehicle impact is not critical (I had a fender bender as you will recall), get the doctor to change his opinion on causation, and get the doctor to confirm that my client was disabled from her injuries - no small task I set for myself!!!

I started by summarizing what I understood the doctor's analysis to be.  He listened carefully and agreed that he basically was saying that the earlier accidents caused the disc protrusion and that the accident that I represented my client for was not responsible for her symptoms.  I confirmed that he came to the later conclusion because the first record of complaints in the family doctor's records was some 4 months post-accident.

Goal 1 - impact not important

I then asked the doctor what speed the vehicles were going in the first accident 15 years ago. He, of course, did not know.  I asked about direction...vehicle damage.  He didn't know. He didn't know.  I cycled through the same questions for the second accident 15 years ago with, predictably, the same results.

I then confirmed that vehicle speed, direction and damage were all not important for determining the cause of a disc protrusion.  He happily agreed.  I suggested that all that was really important was to look at the medical records.  He, again, graciously agreed.

Goal 1 - accomplished

Goal 2 - Getting the doctor to fold on causation - ducks lined up and ready for knocking down

Leave a comment if you think you know how the ducks are lined up by this stage.

Look for Cross-examination of a Neurosurgeon Part 3 on a future post to see how this cross-examination played out.