Do I Have to See My Doctor If My Painful Injuries Haven’t Changed?

The Court of Appeal in Edmondson v. Payer, 2012 BCCA 114 recently addressed a series of issues often raised as a defence in personal injury actions where there are ongoing complaints of pain. The issues in the case were as follows. The issues in the case were described as follows by Madam Justice Kirkpatrick:

[1] The central issue in this appeal concerns the assessment of credibility and the reliability of on-going complaints of pain. Credibility was a crucial issue at trial because proof of the extent of the plaintiff’s soft tissue injuries suffered in a motor vehicle accident depended on her subjective reports of pain. On appeal, the appellant emphasizes the reliability of the plaintiff’s self-reports of on-going pain in the face of an unexplained gap of 31 months during which there were no records of any complaints of pain, which gap was never explained by Ms. Edmondson. In the appellant’s submission, the trial judge erred in failing to consider this relevant evidence and thus failed to draw the available inference that the plaintiff had no on-going symptoms and had recovered from any injury caused by the accident.


Approving a Common Sense Approach:

The Court made the follow comments on this aspect of the appeal:

[29] … In my view, the “legal principles” articulated by the judge are simply propositions – that the absence of a reference in a clinical record to a symptom is not determinative of the non-existence of the symptom; a plaintiff whose condition does not change is “not obliged to constantly bother busy doctors with reports that nothing has changed”; and a plaintiff who sees a physician for an unrelated condition is not obliged to recount the circumstances associated with the motor vehicle accident when the plaintiff is not seeking from that physician treatment for the motor vehicle accident injuries.

[30]I agree with the appellant that these propositions do not amount to legal principles applicable in every case. Nevertheless, the propositions reflect a common sense approach to the arguments raised by the defendant in this case and address the appellant’s real argument – that Ms. Edmondson never offered an explanation as to why, five years after the accident and in the face of objective evidence that she had substantially or fully recovered from her injuries, she continued to say she experienced pain.

Bias in Expert Reports:

The Court also addressed the issue of assessing bias in expert reports tendered at trial. The Court said the following on that issue:

[40]The decision to admit expert opinions is clearly a matter of discretion to be exercised judicially…

[41]The judge in the instant case considered the defendant’s submissions that Drs. Iriarte and Stewart were biased by reason of their professional connection to the plaintiff’s bar and that their opinions should therefore be excluded. He provided extensive reasons for rejecting the submissions. His findings are reasoned and in accord with the law he applied…

[42]I am not persuaded that the judge erred in admitting into evidence the impugned reports.There were undoubtedly troubling aspects of Dr. Iriarte’s reports. For example, without having seen Ms. Edmondson for almost two years, she produced a medical legal report in February 2008 in which her diagnosis and prognosis supported Ms. Edmondson’s legal claims.

[43]However, the judge heard Dr. Iriarte’s cross-examination on that issue, and while he did not specifically refer to it in his reasons, I do not consider that evidence would render Dr. Iriarte’s report inadmissible. It would, if significant, go to the weight the judge would accord to Dr. Iriarte’s opinion.


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