As discussed in prior blog posts, ICBC medical experts who are hired to provide opinions are required to be impartial, independent and absent of bias. If this does not occur, then the court may refuse to take into consideration the opinion of the ICBC expert because it is considered faulty or unreliable.
In Davidson v. 0969446 BC Ltd. 2021 BCSC 609, the 36 year-old injured claimant was injured in a 2013 motor vehicle accident. At the time of the collision, she was employed as a script supervisor in the entertainment industry. A script supervisor is essentially a one-person department on every movie or television series. The script supervisor coordinates with the directors and editors. He/she keeps track of the scenes, assists the actors with their dialogue and oversees all continuity consideration for a production. It is a job which clearly requires continuous attention to detail and requires one to focus on the entirety of the production surroundings.
The injured claimant suffered numerous injuries as a result of the motor vehicle accident. Her most problematic injury was to left shoulder. She was referred to an orthopedic surgeon who performed surgery. Despite the surgery, she was left with permanent pain which was aggravated by her job duties. Her experts, which included her surgeon and a physiatrist, were of the opinion that her injuries impacted her ability to continue working as a script supervisor.
ICBC’s expert, Dr. Gabriel Hirsch, provided an expert opinion and testified at trial for ICBC. In his testimony, the trial judge was highly critical of his evidence. He was noted to have “clearly intended” to leave the court with the suggestion that the left shoulder injury was not caused by the motor vehicle accident. Instead, he suggested that there was some intervening or alternative cause for this injury despite the fact that there was no evidence to support his theory. In fact, there was ample evidence to indicate otherwise in support of the collision causing the injury. On this basis, the trial judge did not place any weight on Dr. Hirsch’s evidence stating:
[81] Upon reflection, Dr. Hirsch was a modestly aggressive witness. Though his report does not seem to suggest, on balance, that there was some intervening event or alternate cause for Ms. Davidson’s shoulder injury, at trial he clearly intended to leave that suggestion with the court. In fact, as I interpreted his evidence, and contrary to anything suggested in his opinion, he opined that her continuing shoulder pain is not related to the accident. He does so while admitting that he had no evidence of an intervening act or action which would have caused the shoulder complaint, that there were no medical records to suggest a pre-existing shoulder condition, and he reluctantly, in a partial way, conceded that there was a complaint of shoulder pain right after the accident.
[82] It is this discussion about shoulder pain and diagnosis of shoulder injuries which is particularly concerning about Dr. Hirsch’s opinion. Dr. Hirsch opined that somewhere between 80% and 90% of family doctors note shoulder pain as a reported pain, when in fact the pain is in the back or lower neck and not, in fact, the shoulder. This somewhat surprising opinion was not supported by any literature or empirical study, and seems to be a deeply held, yet anecdotal, belief. This suggestion was provided by Dr. Hirsch in response to his opinion noted only at trial that there has to be an alternate explanation for her shoulder pain.
[83] He commented that there was a massage therapist note at some point which did not record shoulder pain. This note was one day after an attendance at Dr. Dhingra’s office where left shoulder pain was noted.
[84] In fact, Dr. Dhingra, on July 31, 2013, the day after the accident, and Ms. Davidson’s family doctor, Dr. Bacchus, on November 23, 2013, both noted complaints of left shoulder pain. The evidence suggests that the plaintiff attended at Dr. Dhingra, who was a more local doctor, at first, and that once her work responsibilities post-accident on the Bates Motel project ended, she then attended at her regular family doctor in the Fraser Valley, Dr. Bacchus.
[85] At trial, Dr. Hirsch casts doubt upon the causation of the shoulder injury being related to the accident, despite it being reported to Dr. Dhingra at the first medical attendance post-accident and Dr. Bacchus on November 27, 2013. Rather, Dr. Hirsch prefers the clinical notes of a massage therapist that does not mention shoulder pain, as the source of his new conclusion that the pain in the shoulder was not related to the accident.
[86] Additionally, in evidence, Dr. Hirsch casts doubt on the operative decision of Dr. Samler about conducting the surgery that she did, even though that doubt as to an operating decision was not in fact put to Dr. Samler in cross-examination.
[87] On balance, I do not place any weight on the evidence of Dr. Hirsch. His evidence at trial is seemingly inconsistent with the evidence in his medical report, for no apparent reason. He demonstrated in his evidence a sense of superiority of knowledge and an ability to interpret in a way which is supportive of his “new” conclusion, the reports of and the language used by general practitioners. It is somewhat arrogant, dare I say, to opine to the court that 80% to 90% of general practitioners do not understand or properly use the word “shoulder” in noting a complaint of pain.