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.

Cross Examination of a Neurosurgeon - Part 1

A number of years ago,  I had a case that was about 3 weeks out from a three week trial.  My client was involved in a relatively small accident in a parking lot. The driver of a jacked up truck jumped into the truck and backed up into the side of my client's car.  Unfortunately, my client was looking in the opposite direction for a parking spot.  Immediately after the impact, my client developed sharp shooting pain radiating down her arm.  She had numbness and tingling in her hands along with very bad headaches.  The symptoms persisted.  Various medical testing demonstrated a disc protrusion in her neck.  Six years after the accident the doctors were still trying to decide if neck surgery was going to be beneficial.

To defend the case, ICBC hired a neurosurgeon who wrote an opinion that he thought that my client's disc protrusion was not caused by the accident.  He saw a reference to a disc protrusion in her records 15 years before the accident and said that the accident was not the cause of her symptoms.

The neurosurgeon's opinion presented quite a problem for my client's case.  If he was to be believed, then my client's claim would be very small and she was very likely to owe ICBC money following a trial as ICBC had made her an offer that was less than the value of her claim but more than the value if this neurosurgeon were to be believed. (In BC if you reject a reasonable offer, the party making the offer can show the judge the offer after the trial and if the judge awards less than the offer then the injured person owes ICBC the costs and expenses of defending the claim.)

My client was heading into a 3 week trial with considerable risk.   I knew that if I could knock out the neurosurgeon's opinion, my client's risk would be minimized.  The problem, of course, is that outcomes of trials are difficult to predict and I would not know until the middle of the trial how much I was able to undermine the neurosurgeon's opinion.

As luck would have it, the neurosurgeon was unable to attend the trial and the lawyer for ICBC asked us if we would agree to a video deposition, where we would videotape his evidence before trial and present it at trial.  We, of course, agreed to the video deposition.

Look for the story to continue in Cross Examination of a Neurosurgeon - Part 2!

I've got a green light, I can just go, right? Wrong!

Green does NOT mean that you have the right of way over all other vehicles.  Before you enter an intersection, even on a green light, you have obligations as a driver.

Section 127 of the Motor Vehicle Act requires drivers facing a green light to let vehicles or pedestrians lawfully in an intersection to clear.  That is, vehicles lawfully in the intersection have the right-of-way over vehicles with the green light.  It states:

127  (1) When a green light alone is exhibited at an intersection by a traffic control signal,

(a) the driver of a vehicle facing the green light

(i)  may cause the vehicle to proceed straight through the intersection, or to turn left or right, subject to a sign or signal prohibiting a left or right turn, or both, or designating the turning movement permitted,

(ii)  must yield the right of way to pedestrians lawfully in the intersection or in an adjacent crosswalk at the time the green light is exhibited, and

(iii)  must yield the right of way to vehicles lawfully in the intersection at the time the green light became exhibited, and

As a personal injury lawyer in Vancouver, I have seen too many accidents where a driver of a vehicle approaching a series of vehicles stopped at a red light.  The driver moves into the curb lane as he approaches the light it turns green.  The driver then accelerates to pass the vehicles stopped in the intersection.

The problem is that when one is passing on the right there are some blind spots where an unwitting driver will not notice a danger ahead.  The danger usually takes the form of a pedestrian, bicyclist, or slow driver trying to clear the intersection when the light turned red on them. [In "Jaywalker hit, driver blamed", I discussed the importance of s.158 of the Motor Vehicle Act (Passing on the Right).] http://personal-injury-lawyer-vancouver.blogspot.com/2011/08/jaywalker-hit-driver-blamed.html

The driver making no attempt to determine if it is safe to pass on the right, blindly speeds into the intersection failing to yield the right of way as required by s. 127 completely unaware of the various driving provision that have been violated and the danger that is about to be caused by his negligence.

PT Health Medical and Wellness

A last summer, I did a trial for a client where she received an outstanding judgment.  While preparing her case for trial, I met Jill Renowitzky my client's physiotherapist.  I was fully impressed with her ability to explain what was wrong with my client.  I learned that Jill had a special interest in preparing meaningful clinical records and she works with all of the physiotherapist on her team to develop a good system to record the treatments.

My client was impressed with Jill's skills as a physio and it was clear that Jill went above and beyond to get my client the resources she needed to help her recover.

For these reasons, I have absolutely no hesitation in recommending Jill Renowitzky or her team to anyone looking for a good physiotherapist.

For our clients at McComb Witten the PT Medical and Health clinic has an added benefit as it is located about 3 blocks from our office just across Broadway at Commercial.

To find out more about PT Medical and Wellness, just click on the logo on the side of my blog under Preferred Service Providers.

Just so it is clear, I am NOT receiving a financial benefit from anyone at PT Health or any of my preferred service providers.  I just want to highlight professionals who I have met and respect.

Gift From the Heart Foundation Golf Tournament

I had the opportunity to meet a number of wonderful people from the Filipino/Canadian community at a charity golf tournament that McComb Witten was proud to be a title sponsor.  It is wonderful to hear about the great work being done by this charity to provide resources to underprivileged children in the Phillipines to help them with their education.

Congratulations to all of those that participated and helped a good cause.

ICBC claim goes sideways

The following post contains enough important information that I am reposting it here on this blog.  It was originally posted in June 2011 at Vancouver Personal Injury Lawyer:

As I was getting my news (Canucks) hit from the Vancouver Sun, I saw a link to an article titled:

B.C. woman rear-ended in accident may lose driver's licence

www.vancouversun.com/technology/woman+rear+ended+accident+lose+driver+licence/4832794/story.html

The story is essentially about a woman who was injured in an accident that wasn't her fault, but she still owes money to ICBC to the tune of about $42,000.

The issue this woman faces is that, according to the judge, she seemed to have sued the wrong person.  The person that ran into her said she slipped on an oily substance on the road.  The owner of the vehicle leaking the oily substance was not discussed by the judge, but it seems that she did not sue the "John Doe" or ICBC.  I don't know when she hired her lawyer, but the person that was negligent was not known to her and the hit and run provisions would have applied to her.

If you have a hit and run situation, you have very, very strict obligations - failing which your claim could be dismissed and you would owe money just like this poor lady.  It highlights the importance of hiring a lawyer for your ICBC claim.

If you have questions call me at McComb Witten at 604-255-9018.