ICBC’s “Independent” Doctors

Think maybe I am biased?  After all, I am a Plaintiff lawyer, so by definition I am against ICBC.  Let’s see what judges have said about some of ICBC’s “independent” doctors.  Usually when a judge does not believe a witness, she or her simply comments that they “prefer” the evidence of one witness over another.  It takes a lot for a judge to say strong words.  Below are just a few examples of the most explicit comments by judges about some of ICBC’s most frequently-used experts.  After reading these, you may want to think twice about ICBC calling their hired doctors “independent”.

Dr. Maryana Apel (physiatrist) – 2007 ICBC payment $37,953

Madge v. Meyer [1999] A.J. No. 1566 (Mr. Justice Brooker, Alberta Queen’s Bench)

It appeared to me that Dr. Apel was overly eager to deflect blame for the plaintiff’s symptoms toward almost anything but the brain injury.

Dr. Hymie Davis (psychiatrist) – 2007 ICBC payments $164,755

Grewal v. Brar [2004] B.C.J. No. 1819 (Mr. Justice Cole)

Throughout the cross-examination of Dr. Davis, he was argumentative and refused to consider material facts which might detract from his opinion.  This is not the proper role of an expert, who must provide an unbiased opinion and consider material facts which are put to him or her….  I am satisfied that Dr. Davis was an advocate for the defence and his opinion should be given very little weight.

Dr. Johnathon Fenton (orthopaedic surgeon)

Chiacig v. Chiacig [2001] BCJ 2599 (Mr. Justice Cole)

In my view, the suggestion that evidence has been tainted because of motives of economic reward [of] the defendant’s expert, Dr. Fenton. Dr. Fenton has been receiving a substantial amount of referral work from ICBC for many years. In 1999 he received $338,510 from ICBC, and in 2000 he received $315,734 from ICBC. These monies were received as payment for the preparation of what Dr. Fenton classifies as independent medical reports, which he says he prepares for the Court. The fees he collects from ICBC amount to approximately three-quarters of his total annual income. … I find that Dr. Fenton was argumentative and condescending. His interaction with plaintiff’s counsel was akin to sparring, indicating that he was more of an advocate than an independent professional. I give his evidence very little weight.

— AFTER THIS JUDGMENT, ICBC’s payments to Dr. Fenton dropped from $216,355 in 2001 to only $43,352 in 2002.  In 2007, he only shows $49,802 from ICBC.  How low are the lofty fallen!

Dr. Paul Janke (psychiatrist) – 2007 ICBC payments $53,538

R. v. Robinson [1997] B.C.J. No. 1845 (Madam Justice Baker).

However, he was, notwithstanding these obvious limitations, quite prepared to express sweeping and virtually unqualified statements about Mr. Robinson’s personality and motivation, and to predict behaviour based on his opinions about Mr. Robinson’s personality.  He was willing to express his opinion about what Mr. Robinson could have understood, thought, believed and felt, and why he would have said and did what he did say and do, during his interactions with police.  Dr. Janke was prepared to go further and did ‑ he expressed his opinion as to what Mr. Robinson had understood, thought, believed and felt while being interviewed by police.

Dr. Duncan McPherson (orthopaedic surgeon) – 2007 ICBC payments $277,685

Schnare v. Roberts 2009 BCSC 397 (Madam Justice Adair)

In my view, Dr. McPherson’s close and lengthy association with I.C.B.C. reflected negatively on his impartiality, and Dr. McPherson lacked the independence the court is entitled to expect from an expert witness.  … I found Dr. McPherson to be unhelpfully dismissive of opinions other than his own …  In my view, Dr. McPherson approached his one and only examination of Ms. Schnare in January 2006 with a closed mind, and he was not prepared to accept even the possibility that mobility in Ms. Schnare’s sacroiliac joints was the source of her pain.  Instead, Dr. McPherson described Ms. Schnare’s complaints as “very unusual,” and, although he was unable (or unwilling) to identify a cause, he was firm that her complaints were unrelated to the accident.

Dr. Allan Posthuma (psychologist) – 2007 ICBC billings not available

Reilly v. Lynn [1999] BCJ No. 2551 (Mr. Justice Coultas) .

Dr. Posthuma did seem to take on the role of advocate.  His explanations for departing from the opinions he had expressed in his written Report, were tortured and unconvincing

Dr. Joseph Schwieigel (orthopaedic surgeon) – 2007 ICBC payments $924,253

Qiao v. Buckley 2008 BCSC 172 (Madam Justice Sinclair Prowse):

Dr. Schweigel, on the other hand, was evasive and argumentative in his evidence.  He gave opinions in this trial that were inconsistent with opinions that he had tendered in other trials, demonstrating that he was not impartial but, rather, tailored his evidence to favour the party that had called him.  For example, in this trial he opined that arthritis could not be triggered by trauma whereas in another action he gave the opposite opinion.

Henri v. Seo 2009 BCSC 76 (Madam Justice Boyd)

I am not persuaded that Dr. Schweigel’s rigid classification of soft tissue injuries and his insistence that a myofascial pain syndrome may only arise in the case of a moderate to severe soft tissue injury case are reliable.  …    His categorization of soft tissue injuries struck me as both rigid and simplistic.  No peer reviewed journals or other medical literature were produced to support his analysis.  Nor did he demonstrate any in depth appreciation of the characteristics of a “trigger point”