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More Criticism on ICBC’s Choice of Experts

What kind of expert will my lawyer hire to opine on my injuries?  Are orthopedic surgeons really a good choice in chronic pain cases?

Recently, I summarized a personal injury case that referred to ICBC’s practice of hiring orthopedic surgeons as experts in chronic pain cases as being akin to bringing a knife to a gunfight.  Today’s case is a further scathing commentary on the inadequacy of orthopedic surgeons in these kinds of court cases (Palangio v Tso 2017 BCSC 1573).  The ICBC lawyer had hired Dr. Sovio, an orthopedic surgeon, to comment on the Plaintiff’s symptoms.  The court found that Dr. Sovio’s report and testimony were lacking – as an orthopedic surgeon, he just wasn’t particularly qualified to opine on legitimate chronic pain and further, the court found him to be deliberately presenting the plaintiff in a negative light:

[222]     I did not find Dr. Sovio to be a reliable and credible witness in this case. With regard to reliability I find that Dr. Sovio was quick to assume that the Plaintiff was trying to conceal facts that could be material to his examination, for example, in relation to the subsequent accident, whereas had he read the letter of instruction he was sent prior to his examination of the Plaintiff he would have appreciated there was nothing secret about the Subsequent Accident and that the Plaintiff had disclosed it to other medical experts. Furthermore, I note that certain turns of phrase Dr. Sovio used in his report created a negative or false impression of the Plaintiff, like “he seems to be convinced he needs these [the lidocaine injections administered by Dr. Caillier] on a regular basis or he gets more discomfort.” This statement by Dr. Sovio creates the impression that the Plaintiff determines that he needs these injections, completely overlooking Dr. Caillier’s involvement as the pain treatment specialist who administers them. His choice of language is designed to imply that the Plaintiff is malingering or exaggerating his pain in terms of continuing to need the injections. This is contrary to the impartiality the Court expects from an expert witness.

[223]     I also note that Dr. Sovio is not qualified to provide opinion evidence on chronic pain and pain management. He admitted that he has no training with regard to the treatment of headaches, and that he has had no clinical training regarding the treatment of pain.

[224]     In addition, Dr. Sovio was quick to assume that the First and Second Accidents were very minor accidents involving relatively minor forces. Initially he was evasive about his sources, and then when referred to a portion of the record that did not necessarily support such a conclusion, he resorted to his overall impression gleaned from the records. It is also to be noted that Dr. Sovio had no criteria as to what informed his opinion that an accident was minor, relatively minor, or moderate. I find his assessment of the nature of the accidents and the forces involved to be purely subjective and outside his area of expertise.

[225]     Dr. Sovio neglected to refer to the pain he had noted the Plaintiff to have at his C2-3 vertebrae in the “Impressions and Discussion” section of the report, referring only the Plaintiff experiencing mild discomfort on palpation of the paravertebral muscles. I find that he was inaccurate in summarizing his findings, or he was careless. I do not accept his evidence as he tried to explain this oversight away. Either way, the reliability of his report and his testimony was further undermined.

[226]     Where the opinions of Dr. Sovio as to the causes, extent, or treatment of the Plaintiff’s injuries arising from the First and Second Accidents conflicts with the opinions of Dr. Caillier, Dr. MacInnes, and/or Dr. Sidhu, I reject Dr. Sovio’s evidence without hesitation. Even Dr. Sovio acknowledged that an orthopedic examination may not reveal findings in relation to individuals experiencing legitimate pain and chronic pain, and in my view the Plaintiff is precisely such an individual.

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