In all ICBC personal injury claims, medical expert evidence is required in order to prove injuries and to justify the amounts claimed for different types of damage awards at trial. For instance, if you are claiming that you are permanently injured without any chance of full recovery, then you must have a medical expert’s opinion to confirming this. Furthermore, If you are claiming damages for future income loss, you must provide the court with a medical expert’s opinion confirming your injury is permanent and that it impacts your ability to work or your work capacity. If there is no opinion, then the trial judge will not accept this claim or will award minimal damages because it is unsubstantiated and unproven.
During trial, it is also important that your medical expert testifies. When you question your own expert about a medical report that he or she wrote, it is called a direct examination. When you are finished your direct examination, then the opposing party will have a chance to conduct a cross examination. There are rules about what questions can be asked of a medical expert on direct examination. The expert is not allowed to testify about anything that is not contained in the expert report. For example, if the medical expert does not provide an opinion on diagnosis of injuries, then when the expert is testifying he/she is not allowed to give an opinion on diagnosis. The other restriction is that you are not allowed to question the expert on all opinions or matters in the report. In other words, the expert is not permitted by the court to go through each and every aspect of the report in testimony. Instead, counsel is permitted on direct examination to have their expert clarify or expand upon terms used in the report to provide the court with a better understanding of the expert’s opinion. A cross examination of the opposing party’s expert is essential especially if your expert and ICBC’s expert have different opinions. With cross examination, you aim to show the trial judge what mistakes were made to undermine the report so that the court prefers you own expert over ICBC’s expert.
As you can see, expert medical expert is absolutely essential in any ICBC personal injury claim along with conducting proper expert direct and cross examinations.
Unfortunately the recent case of Djukic v. Geirsdottir,2022 BCSC 1026 highlights what happens when this does not happen.
In this case, the female injured claimant was injured in 3 motor vehicle accidents. At the time of the first motor vehicle accident, she was 24 years-old and pursuing education to become a counsellor. She earned her diploma in counseling and worked for several years in the medical setting. In September 2021, she enrolled and registered for 2 additional courses where she was granted medical accommodations. In early October 2021, she took a “medical leave of absence” from her employment.
At trial, there was no medical opinion regarding specifically why the injured claimant was on a “medical leave of absence” from work or if it was due to her injuries. There was also no explanation or expert opinion on why she needed the medical accommodations at school. Furthermore, neither the injured claimant’s medical expert or ICBC’s medical expert clarified any terms in their respective reports nor were they cross examined on their opinions. This was very problematic because the injured claimant’s medical expert used a number of technical terms in her report which went unclarified to the trial judge.
The effect of the lack of medical opinions and limited direct and cross examinations was to lower the amount of damages awarded due to lack of medical evidence. In her decision, the trial judge stated:
 In this case, neither medical expert was subjected to cross-examination despite the differences in their opinions on key points. To the extent the physiatrists’ opinions are the same and to the extent the factual foundation of those opinions has been established on the evidence or through admissions made by the defendants, I accept those opinions. To the extent their opinions differ, I am driven to conclude that Ms. Djukic has failed to meet the evidentiary burden on her to prove her losses, particularly with respect to the future.
 Despite her “acceptance” of Dr. Lipson’s opinion, Ms. Djukic’s counsel in closing submissions submitted that I should prefer the opinion of Dr. Waspe on the basis that she is a treating physician. In some cases, that might be a reason to prefer one expert’s opinion. However, in this case, Dr. Waspe did not have a significant advantage by virtue of her role as treating physician. Dr. Waspe assessed Ms. Djukic once in person on August 10, 2020, twice by telehealth, and once by video (using the Zoom platform). Dr. Lipson assessed the plaintiff once in person on June 3, 2021. I am not prepared to prefer Dr. Waspe’s opinion simply because she had three additional points of contact with the plaintiff. Again, the plaintiff’s acceptance of Dr. Lipson’s opinion is significant in my consideration of the expert medical evidence.
 Based on all of the evidence, including the expert reports, I accept that Ms. Djukic suffered soft tissue injuries to her neck and back, as well as cervicogenic headaches, due to the First Accident in July 2016. Ms. Djukic’s activities were limited as a result. She continued to have pain and headaches until her injuries were aggravated by the Second Accident in January 2018. Ms. Djukic’s injuries persisted until they were aggravated by the Third Accident in August 2018. The headaches in particular were aggravated by the Third Accident.
 Although there was some question about whether Ms. Djukic actually suffered a concussion in the Third Accident, Dr. Waspe and Dr. Lipson agree that if she did suffer a concussion, it was minor and any ongoing headaches are not attributable to a head injury or post-concussion syndrome.
 The defendant acknowledged in submissions that the plaintiff continues to suffer from injuries from the accident and those injuries continue to limit her vocationally. Beyond what might be inferred from the defendant’s submissions on the appropriate award of damages, the defendant’s admissions were not precise in terms of what injuries continue and what the impact of such injuries is.
 Based on Dr. Lipson’s opinion, I am not able to make any findings in terms of prognosis or likelihood that any injuries will continue to limit the plaintiff vocationally.