In Chekoy Sr. v. Hall, the Plaintiff was injured in a motor vehicle collision, and consequently brought an ICBC claim for several heads of damages, including pain and suffering, income loss, diminished earning capacity, and the cost of future. An issue that arose was defence counsel’s refusal to produce a medical report from one of their own doctors that had examined the Plaintiff at at independent medical examination, despite the fact that defence counsel had previously agreed to produce it. Counsel for the Plaintiff asked the Court to a draw an adverse inference due to the failure of defence counsel to produce the report, which the Court did.
[85] In any event, the medical opinions all support objectively the fact that Mr. Chekoy has symptoms from cervical radiculopathy. As noted earlier the defence did not tender any medical evidence though it obtained an independent medical examination and report of the plaintiff. The failure of defence counsel to produce the medical report which counsel had agreed to provide to plaintiff’s counsel, without an adequate explanation, allows for an adverse inference to be drawn in this regard. The defence’s theory that the plaintiff’s neurologic problems relate to physiotherapy treatments, chiropractic treatments, or from the plaintiff lifting a tool box on the back of a pickup has not been established; I note Dr. Golin’s did not accept that theory. While the defence raised the question of the delay in symptoms, I accept the medical evidence that there is considerable variability in symptom onset.
[86] On balancing the totality of the evidence including the failure of the defence to produce its independent medical report, I find that the Accident is the cause of the plaintiff’s cervical radiculopathy and not from the natural progression of the plaintiff‘s pre-existing degenerative disk disease, subsequent treatments, or other events.
