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BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Posts Tagged ‘part 7 medical exams’

Lack of Doctor’s Affidavit Thwarts Independent Medical Exam Application

November 25th, 2013

While the BC Supreme Court does have the ability to compel a Plaintiff to attend a defence medical exam a proper evidentiary foundation must be established before the Court will be prepared to exercise this power.  Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, dismissing an application due in part to a lack of evidence from the proposed physician.

In last week’s case (Rathgeber v. Freeman) the Plaintiff was injured in a collision and sued for damages and also sought Part 7 benefits from ICBC.  ICBC sent the Plaintiff to an independent medical exam with an orthopedic surgeon who provided a report addressing the Plaintiff’s injuries.  Some four years later the tort claim was still ongoing and the Defendant brought an application for a further exam with the same physician.  The Court dismissed this noting that the previous exam covered tort issues and even if there was a change of circumstances making a further report necessary there was nothing in the evidence justifying a further physical examination.  In dismissing the application the Court provided the following reasons:

[23]         In some respects, Dr. Kousaie’s November 9, 2009 report “resembles” a report in a tort claim. The doctor sets out his qualifications, for example, as well as facts and assumptions. He includes details of the accident, the plaintiff’s recreational history and comments on the possibility of academic impairment. He indicates that the examination involved a comprehensive physical examination. Those aspects of the report appear to be more consistent with a comprehensive report prepared to address the plaintiff’s complaints in a tort action.

[24]         On the other hand, the report is now four years old and while Dr. Kousaie makes reference to the neck injury, he appears to have focused on low back pain as the plaintiff’s major complaint at the time of his 2009 assessment. Dr. Kousaie’s review of the then available imaging and x-rays did not indicate any trauma to the spine although some minor disc bulges were noted in the lumbar area.

[25]         More recent assessments, and that of Dr. Twist in particular, suggest an increasing focus on the neck injury and indeed the CT scan referred to earlier shows a small circumferential disc bulge in the cervical spine, a condition not evident at the time of Dr. Kousaie’s first examination.

[26]         Taking a holistic view of the circumstances, Dr. Kousaie’s 2009 report is comprehensive and to some extent addresses issues more relevant to a tort claim than a Part 7 claim. The results of the CT scan and the shift in focus to the plaintiff’s neck injury, however, are issues which the defence may need to address. There is, however, nothing in the evidence before me to show why a further examination, rather than a review of the available materials by Dr. Kousaie or some other qualified specialist, is necessary to achieve reasonable equality with respect to medical evidence. While I do not wish to be taken as suggesting that the proposed examiner should, in all cases, provide an affidavit with respect to the necessity for a further examination, such an affidavit would have been of significant assistance to me in this case.

[27]         On the basis of the material before me, the application is dismissed.


ICBC Insurance Benefits, Independent Medical Exams and Witness Immunity

March 1st, 2010

Further to my many previous posts discussing Independent Medical Exams in the context of ICBC Injury Claims, reasons for judgement were released today highlighting a very interesting issue; the ability to sue an Independent Medical Examiner.

When a person is seeking medical benefits from ICBC under their own policy of insurance (Part 7 Benefits) ICBC has the right to send that person for a “medical examination“.  ICBC gets this power from s. 99 of the Insurance (Vehicle) Regulation which holds as follows:

Medical examination

99 (1)  An insured who makes a claim under this Part shall allow a medical practitioner, dentist, physiotherapist or chiropractor selected by the corporation, at the expense of the corporation, to examine the insured as often as it requires.

(2)  The corporation is not liable to an insured who, to the prejudice of the corporation, fails to comply with this section.

When ICBC obtains a medical exam under s. 99 they often base their decision of what Part 7 benefits to pay based on the physician’s recommendations.

For a variety of reasons ICBC tends to use a handful of doctors over and over again for these independent examinations.  In turn the business of independent medical exams is quite profitable for some BC doctors.

It is not uncommon for a medical examiner to author a report to ICBC which contradicts the opinions of a person’s treating physicians.  When this happens ICBC sometimes cuts off benefits from an insured even when the treating physicians feel further funding of therapy is appropriate.  When ICBC and an insured differ as to what benefits should be paid the insured can sue ICBC and the Court’s can offer a binding resolution.  What about the independent medical examiners?  Can they be sued?  Reasons for judgement were released today by the BC Supreme Court addressing this very interesting issue.

In today’s case (Mund v. Sovio) the Plaintiff was injured in a 2007 motor vehicle collision.  The Plaintiff applied to ICBC for Part 7 Benefits.  In the course of processing the request for benefits ICBC sent the Plaintiff to Dr. Sovio for a medical examination under section 99.    Dr. Sovio authored an opinion which was apparently harmful to the Plaintiff’s interests in which he stated that:

a) the Plaintiff was “staying at home, not doing any exercise and appears to be content to carry on in this fashion”;

b) “there is nothing to suggest that” the Plaintiff “should be disabled to this degree” and the Plaintiff’s “medical care appears to be somewhat disjointed”;

c) “legal matters” were interfering with the Plaintiff’s case; and

d) the Plaintiff “has a history of [being] off work for an extended period of time in the past and seems content to continue with this role of disability at this time”.

After receiving this report the Plaintiff and ICBC could not agree as to what PArt 7 benefits ought to be paid.  The Plaintiff responded in a unique way, he sued Dr. Sovio directly arguing that Dr. Sovio failed to assess his injuries in “an objective, fair and even handed manner.“.

Dr. Sovio applied to dismiss the lawsuit arguing, despite any consequences the report may have had between the Plaintiff and ICBC with respect to Part 7 benefits, that he owed the Plaintiff “no duty in contract, no duty of insurer-insured good faith and no duty of care in negligence”.  Dr. Sovio went further and argued that even if there was such a duty that the lawsuit had to be dismissed because he had “witness immunity“.

Madam Justice Hyslop of the BC Supreme Court sided with Dr. Sovio’s arguments and dismissed the Plaintiff’s lawsuit.  In doing so the Court made the following critical findings:

[34] Dr. Sovio’s role and relationship with Mr. Mund cannot be greater than that of ICBC.  It is not within the power of Dr. Sovio to determine whether Mr. Mund receives Part 7 benefits.  The power and the exercise of that power is that of ICBC. ..

[37] I find that Dr. Sovio is not in a fiduciary relationship, nor in a doctor/patient relationship, nor is one created between Mr. Mund and Dr. Sovio as a result of the medical examination by Dr. Sovio of Mr. Mund…

[48] In British Columbia, ICBC may choose, pursuant to s. 99, the medical practitioner.  The sole purpose of the s. 99 examination is that the medical practitioner examine the insured.  It is entirely at the discretion of ICBC when, and if, there is an examination.  There is no requirement that the medical practitioner provide a plan of care for the insured such as the Ontario DAC.  The doctor’s opinion is not binding on anyone; neither the insured nor the insurer.  ICBC may use, for different claims, for different insureds, the same medical practitioner time and time again.  ICBC may reject the medical practitioner’s opinion in whole or in part.  It is simply not a process in which the insured participates in other than to present himself or herself to the medical practitioner designated by ICBC…

[71] In Howatt v. Klassen, 2005 CanLll 11191, Dr. Klassen was requested by the College of Physicians and Surgeons of Ontario to examine Dr. Howatt.  That was the extent of the relationship between Dr. Klassen and the plaintiff, Dr. Howatt.  The court concluded that Dr. Klassen acted as an agent and for an appointee of the college.  In dismissing Dr. Howatt’s action, the court stated:

[11]      In any event, I agree with the submission that Dr. Klassen is protected by the common law doctrine of witness immunity, which protects individuals from civil suit based on their status as witnesses or potential witnesses at judicial proceedings.  The case law establishes that this protection is absolute so that even allegations of bad faith are insufficient to exclude the application of the witness immunity doctrine.

[72] A similar situation occurred in N. (M.) v. Forberg, [2009] A.J. No. 253.  The court found a witness immunity applied to a psychologist who counselled children involved in a custody and access dispute.  In proceedings between the parents of the children, the mother of the children asked the psychologist to give an opinion.  The opinion was adverse to the plaintiff father, and the court found the psychologist owed no duty of care, no fiduciary duty to the father and concluded that witness immunity applied, stating the following at para. 57:

If professionals in the field of health care are exposed to the threat of law suits when they intervene on behalf of persons to whom they clearly owe a duty and have determined are vulnerable individuals, there will be a chilling effect on the willingness of health care providers to deliver their necessary assistance to the Court, and to be full and frank in their opinions when doing so.

[73] Similarly, Dr. Sovio, in providing assessments pursuant to s. 99, must not be exposed to the threat of lawsuits for delivering his opinion, even if those opinions or actions are contrary to those of Mr. Mund…

Dr. Sovio is not a public official, but an expert retained by ICBC.  His position is similar to that of Dr. Klassen in Howatt and Ms. Froberg. …

[79] For these reasons, Mr. Mund’s ASC is struck out and the claim dismissed for failure to disclose a reasonable cause of action.