In the course of litigating my action arising from a motor vehicles collision, I attended a defence medical examination and a subsequent report was produced and served. How can this report impact my case? What if it is favourable to my position?
In the case of Klein v Sangha (2016 BCSC 1864), Mr. Justice Jenkins was tasked with assessing the damages of a 39-year-old carpenter who was no longer able to work full-time hours as a result of the injuries he sustained in a motor vehicle collision. In order to determine the extent of the injuries, the plaintiff had a Dr. Oyama, a family physician, prepare a report on his behalf, and similarly, the defence had a report prepared by a Dr. Rickards, an orthopaedic surgeon, who had performed a defence medical examination of the plaintiff. The unique aspect of this case was that the report served by the plaintiff was actually very unfavourable to the plaintiff’s case, and even caused Justice Jenkins to question why the report had been included in the plaintiff’s case at all. On the other hand, the report served by the defendant was much more favourable to the plaintiff’s case and luckily for the plaintiff, Justice Jenkins found more credibility in the defendants report and decided to use it, as opposed to the plaintiff’s report, to guide his assessment of the plaintiff’s damages. Below are some of the comments Justice Jenkins made in regards to the medical reports rendered in this case, demonstrating that not all defence medical examinations/reports are detrimental to a plaintiff’s case:
[41] The plaintiff submitted a report prepared by Dr. Sonnie Oyama into evidence. Dr. Oyama was not required to attend at trial for cross-examination.
[42] Dr. Oyama examined Mr. Klein on December 21, 2015. He is a family physician practicing in Sherwood Park, Alberta, with a special interest in injury management and rehabilitation medicine. His report was not particularly favourable to the plaintiff’s claim. Considering the date of Dr. Oyama’s examination, almost four years after the first accident, it is difficult to assess the value of his opinions regarding Mr. Klein’s complaints about his injuries before December 21, 2015.
[44] Dr. Robin Rickards was the defence’s expert orthopaedic surgeon, who conducted an independent medical examination of Mr. Klein on January 6, 2016. In his January 24, 2016 report, he opined that Mr. Klein suffers from lumbar facet joint irritation in the low back area. He also found degenerative disease in Mr. Klein’s cervical spine.
[50] On cross-examination, Mr. Nundal was able to obtain the following admissions from Dr. Rickards in addition to the admission referred to above regarding Mr. Klein’s susceptibility to spinal degenerative disease:
- Dr. Rickards agreed that Mr. Klein was in “relatively good shape, was a reliable historian, he was in pain, a little overweight” and that his pain was consistent with his physical observations.
- Dr. Rickards acknowledged that strenuous activities are expected of a heavy and finishing carpenter and would create an expectation of pain. He also stated that Mr. Klein’s occupation was a major factor in his pain.
- Referring again to Issue Number 8 of the letter of instruction, regarding the extent of injuries attributable to the accident, Dr. Rickards acknowledged he was not surprised that Mr. Klein still suffers from low back pain, especially since Mr. Klein is a carpenter, that “yes’ it is possible the injury is debilitating” and that facet irritation was aggravated by twisting activities.
- When asked about alleviating some or all of the pain, Dr. Rickards stated that Mr. Klein had taken lots of physiotherapy and treatments by a kinesiologist and that treatment has not alleviated the pain to any significant degree. Also, Dr. Rickards acknowledged that an exercise program and other treatment can make life “a little bit more bearable but is not curative”.
[52] Dr. Rickards found Mr. Klein to be a good historian. This finding is consistent with Dr. Rickards’ physical findings about Mr. Klein’s pain. Dr. Rickards believed that his pain was possibly debilitating and that it could be aggravated by the twisting motions Mr. Klein would experience as a carpenter.
[53] Although Dr. Rickards did not opine on Mr. Klein’s ability to return to full time work as a carpenter, he stated that he was not surprised that Mr. Klein still suffered from low back pain at the time of the trial, especially considering the movements expected of a carpenter.
[54] Dr. Oyama’s evidence was not particularly helpful to Mr. Klein’s cause or to the Court. Additionally, certain inconsistencies between his report and Dr. Rickards’ were unusual. For example, Dr. Oyama stated that Mr. Klein was not in overt discomfort from his injuries and appeared comfortable throughout the examination whereas Dr. Rickards stated that Mr. Klein was in pain and that the pain was consistent with his physical observations and that an exercise program could relieve some of this pain. I conclude that it is unlikely that the proposed treatment will cure Mr. Klein’s back problems, but believe that it may provide some relief. I conclude from Dr. Rickards’ conclusions that Mr. Klein is unable to continue as a full time carpenter and that his pain is likely to continue and to be chronic.
[55] It is also apparent from reading the reports that Dr. Rickards’ examination and report were much more comprehensive than those performed by Dr. Oyama save that Dr. Oyama found that Mr. Klein suffered from chronic pain almost four years after the first accident.
[84] I give little weight to the statement by Dr. Oyama that “with appropriate management in a multidisciplinary pain setting, he should be fully able to do his pre-accident duties in two months” and am somewhat puzzled about why his report formed part of the plaintiff’s case. Dr. Oyama saw Mr. Klein on one occasion almost four years after the first accident and his assessment of injuries was less supportive of the plaintiff’s case than Dr. Rickards’. I doubt that Mr. Klein would have fully recovered within two months and been able to perform his pre-accident duties.
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