As discussed in a prior blog post, ICBC medical experts who are hired to provide opinions are required to be impartial, independent and absent of bias. Furthermore, all medical experts are to disclose all facts, assumptions and research as part of their expert file which formed the basis of their opinion.
In Barn v. Bird 2021 BCSC 389, the injured claimant was involved in 2 motor vehicle accidents. The trial concerned an assessment of damages for injuries he sustained to his right shoulder, neck, low back and upper back By the time of trial, most of his injuries resolved with the exception of the right shoulder injury. This injured claimant argued that his right shoulder injury continued to impact his ability his employment as a bus driver and a “pole puller”. A pole puller is responsible for pulling down the bus poles away from overhead electric wires and then reattaching them to a hook on the back of the bus.
The medical experts hired by the injured claimant and ICBC agreed on a diagnosis of the right shoulder injury and that this injury was caused by the motor vehicle accidents. The medical experts disagreed on the issue of prognosis and whether the injured claimant was expected to recover from this injury at some point in the future. They also disagreed on whether the right shoulder injury caused a disability in terms of his employment.
The injured claimant’s expert was of the opinion that the right shoulder injury was not expected to resolve and that it caused a partial disability in relation to his work “pole pulling”. This partial disability was due to the difficulties with overhead activities which would aggravate the right shoulder pain by causing further damage to his rotator cuff over time.
On the other hand, ICBC’s expert, Dr. Horlick, was optimistic in relation to the injured claimant’s prognosis for recovery. He was also of the opinion that his right shoulder injury did not impact him at work because he felt he had no restrictions or limitations for overhead activity.
In his testimony, the ICBC expert disclosed that he carried out his own internet research regarding the physical aspects of the injured claimant’s pole pulling duties. Despite this, he did not disclose this research in his expert reports which was required. From his own research, he understood that there was little physical effort with pole pulling because the poles were spring loaded and operated by a crank system. This research was found to be incorrect because the pole pulling that the injured claimant was responsible for required him to physically raise, lower, fix and detach the poles himself without any physical aids such as a crank system. Therefore, his job duties were much more physical than what the expert understood and relied upon in reaching his opinion that there was no impact on his employment due to his injury.
Based on the failure to disclose his research and the inaccurate assumptions he made resulting from this faulty research, the trial judge rejected ICBC’s expert’s opinion and preferred the opinion of the injured claimant’s expert who had a better understanding of the physical nature of pole pulling.
The injured claimant was victorious against ICBC where the trial judge awarded him $331,037.85 in damages:
- $85,000.00 for pain and suffering
- $103,169.59 for past wage loss
- $125,000.00 for loss of future earning capacity
- $6,440.00 for future care costs
- $11,428.26 for special damages