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Accident Claimant Suffers Whiplash But Not Fibromyalgia as Her Doctor Found to be a Biased Advocate


This personal injury case(Warkentin v. Riggs)  involved a claim for losses due to injuries that the claimant sustained in a motor vehicle accident . The injury claimant  was driving west on Old Clayburn Road near the intersection of Old Clayburn Road and Immel Street in Abbotsford.  A  pickup truck struck the claimant’s vehicle on the passenger side and the force of the impact propelled the vehicle  to the south, across the eastbound lanes of traffic.  The driver of the pickup truck admitted he was at fault.  
The main issue was whether the claimant’s  injuries and continuing symptoms, including chronic pain, were caused by the accident.   To  help prove the case the claimant was referred to Dr. Hunt by her personal injury lawyer. Dr. Hunt’s primary diagnosis was: (1) Whiplash Associated Disorder with associated cervicogenic tension headaches and myofascial pain syndrome; (2) status post right shoulder arthroscopic acrominoplasty; (3) primary fibromyalgia syndrome (post traumatic); (4) mood disorder (dysphoria), sleep disorder and cognitive disorder secondary to chronic pain condition; and (5) inflammatory bowel disease. Dr. Hunt was of the opinion that the claimant’s  injuries from the accident were the cause of the conditions which he diagnosed.
The court found that  Dr. Hunt was not a neutral and impartial expert providing assistance to the court, but rather an advocate on behalf of the injury claimant. Dr. Hunt’s reports were therefore not admitted as evidence a trial and Judge Gropper went on to find that,

” The report is argument, not opinion. He did not provide a balanced discussion of fibromyalgia and its possible application to the plaintiff’s case. His discussion of the medical principles and their application to the plaintiff’s case is biased, argumentative and contrary to the requirements for the admissibility of an expert report.

[82]        Dr. Hunt’s own description of his role as an “Expert Medical Legal Consultant providing opinions on behalf of patients with chronic pain who are seeking legal remedies with respect to their condition” indicates that he does not consider his role as an expert to be that of an objective advisor to the court.

[83]        Dr. Hunt’s perceived role is amply demonstrated in his report. The format he uses is designed to emphasize matters which support the plaintiff’s claim and his diagnosis.

[84]        Dr. Hunt presents the medical literature in a manner that suggests that there is consensus about the causal connection between motor vehicle accidents and the onset of fibromyalgia. He attempted to mislead the court regarding the medical literature upon which he relies by referring only to portions which support his diagnosis and prognosis and omitting portions which do not. He does not refer to the cautions and qualifications in the medical literature. He is not current with the medical literature, notably the 2006 prospective longitudinal study by Tischler, which was conducted specifically in order to test the conclusions of the Buskila study.

[85]        Dr. Hunt’s testimony, particularly in cross-examination, supports my conclusions about his report; he acted as the plaintiff’s advocate rather than as an independent expert.

[86]        Dr. Hunt’s report of March 27, 2009 is likely to distort the fact-finding function of the trier of fact, and therefore its prejudicial effect far outweighs its probative value. I find that it is inadmissible. Because the rebuttal report is a reiteration, it is also inadmissible. I specifically reject Dr. Hunt’s diagnoses as expressed in the report and his medical opinion that they were caused by the accident. I reject Dr. Hunt’s diagnosis and prognosis of fibromyalgia and his opinions about the plaintiff’s functional limitations associated with fibromyalgia.”

Applying the principles of Athey and Resurfice,  the court could not find that but for the accident the claimant would not have developed fibromyalgia and/or chronic myofascial pain syndrome. There  was simply  too long a period between the accident and the onset of the symptoms and the claimant’s own experts  acknowledged that the connection was debatable in any event, but suggested that 18 months between the accident and the onset of fibromyalgia symptoms may demonstrate a connection. The claimant’s symptoms were not observed until three years after the accident.
The judge therefore concluded that the claimant suffered only soft tissue injuries causing ongoing symptoms to her neck and right shoulder. She also suffers from ongoing headaches which are attributable to the injuries she sustained in the accident.  None of these injuries were found to be disabling and the claimant was awarded $50,000.00 for her pain and suffering, $1,500.00 for her loss of earning and her out of pocket expenses. The claimant was not compensated for fibromyalgia or chronic myofascial pain syndrome. Posted by Mr. Renn A. Holness

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"Renn A. Holness is a gifted lawyer and author to over 1000 legal blog articles. Married father of two daughters, son of a neurosurgeon and founder of Holness Law Group."

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