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ICBC Claims and Multiple 'Independent Medical Exams'

Written by admin on . Posted in Civil Procedure, independent medical exams, Uncategorized.

As I’ve previously posted, ICBC can typically arrange an ‘independent’ medical exam (IME) in one of two ways.  The first is when an ‘insured’ applies for first party no-fault benefits.  Section 99 of the Insurance (Vehicle) Regulation gives ICBC the power to compel an IME in these circumstances.  The second is under Rule 30 of the BC Supreme Court rules which allows the court to order an independent exam to level the playing field.
As a monopoly insurer ICBC often has one adjuster assigned to look after a person’s claim for no-fault benefits and at the same time look after the defendant’s interests in the Plaintiff’s tort claim.  Often times ICBC will obtain a no-fault benefits medical exam and then once a tort claim is launched seek a second exam with a different physician pursuant to the BC Supreme Court Rules.  Can ICBC do this?  The answer is sometimes yes but is highly factually dependent and reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with such a fact pattern.
In today’s case (Deacon v. Howe) the Plaintiff was injured in a motor vehicle collision.  The Plaintiff and Defendant were insured with ICBC.  The same ICBC adjuster was looking after the Plaintiff’s no-fault benefits claim and acting on behalf of the defendant in the tort claim.  ICBC sent the Plaintiff for an IME with an orthopaedic surgeon (Dr. Pisesky) as part of the no-fault benefits application process.  In the course of the tort claim the Defendant then sought an order sending the Plaintiff for an IME with a physiatrist.  The Plaintiff opposed this motion.  Master Taylor, in dismissing the motion, discussed and applied the law as follows:

[15] The issues I have to determine are:

(1) whether the report of Dr. Pisesky is a report pursuant to Part 7, or whether it is a first IME report based upon the extent and content of the report; and

(2) If the report of Dr. Pisesky is considered a first IME, would the defendants be entitled to seek a further examination pursuant to Rule 30(2).

[16] Madam Justice Dillon considered these very issues in Robertson v. Grist, 2006 BCSC 1245.  In relation to the first issue, she said this at paragraph 14:

Whether the Part 7 examination constitutes a first independent medical examination depends upon the scope of the examination, given the rest of the circumstances here.  There was no limitation on Dr. Jaworski’s examination and the request letter covered matters that would solely be relevant to a tort action.  The doctor’s report was not limited to a rehabilitation opinion about whether the injuries sustained in the accident totally disabled the plaintiff from work within 20 days of the accident and for a period of 104 weeks or less, the criteria in section 80 of the Part 7 benefits Regulations. The examination was a first independent medical examination within the meaning of Rule 30.

[17] There is evidence that this particular claims adjuster was acting in both the Part 7 and tort claim.  At the time of the examination of the plaintiff by Dr. Pisesky on July 16, 2006 the plaintiff was represented by counsel and the writ and statement of claim had been issued and served on ICBC.  Accordingly, I have formed the opinion, following upon the analysis of Dillon, J. that the report of Dr. Pisesky is a first report based on the nature and content of the report.

[18] In relation to whether the defendants would be entitled to a further examination pursuant to Rule 30(2), Dillon, J. said this at paragraph 15:

Should a second independent medical examination be ordered?  The test for a second opinion was recently re-stated by Master Hyslop in Shaw v. Koch (2004), 4 C.P.C. (6th) 271, 2004 BCSC 634 at para. 25 [Shaw], from the decision in Jackson v. Miller, [1999] B.C.J. No. 2751 at para. 12 (S.C.) (QL) [Jackson], to the effect that a second opinion on the same matter cannot be obtained unless something has occurred since the first examination which was not foreseeable or for which could not have been addressed by the examiner on the first occasion.  The defendant has conceded that there are no grounds to justify a second examination. In these circumstances, the second independent medical examination by an overlapping specialty doctor should not be ordered.

[19] In the instant case, the defendants, as earlier indicated, contend that they are entitled to have an IME from a physiatrist in order to put the parties on an equal footing.  The defendants’ argument is that if the plaintiff has the opinion of two physiatrists then the defendants should be entitled to an IME by a physiatrist in order to put the parties on an equal footing.  As well, the defendants have successfully sought an order to have the plaintiff examined by Dr. Solomon, a psychiatrist.  That examination occurred on May 14, 2009.

[20] In Guglielmucci the defendant provided an opinion from a psychiatrist as to the necessity of an IME by a psychiatrist.  In the case at bar no such opinion has been provided for the benefit of the court and no evidence has been provided that there has been a change in the plaintiff’s condition since Dr. Pisesky’s last medical report.  The affidavit of a paralegal was provided by the defendants in which the deponent says at paragraphs 9 and 13:

[9] The plaintiff had attended the IME with Dr. Pisesky at the request of the then handling adjuster, David Burdett, which was arranged under Part 7 of the Regulations with respect to the plaintiff’s application for Part 7 benefits, and prior to defence counsel being retained on or about July 10, 2006.

[13] I have been advised by John Hemmerling, and verily believe to be true, that Dr. Coghlan is his referred choice of medical examiner to conduct an IME of the plaintiff in the tort action due to his expertise in the field of physiatry and the thoroughness of his assessments and his willingness and ability to read and interpret the medical information sent to him in order to form a reasoned opinion for the court and that this IME is required to assess the opinions of Dr. le Nobel and Dr. Vallentyne.

[21] I am of the view that the affidavit of this deponent is of no assistance to the application of the defendants.  As was said by the court in Haleta v. Jehn and Others, 2008 BCSC 1522, “there is nothing new here that has arisen that would give the plaintiff an unfair advantage over the defendant.”

[22] Dr. Pisesky’s report of July 16, 2006 was thorough.  It addressed issues far beyond a basic Part 7 report.  In my view there is no need for a physiatrist to examine the plaintiff, especially in view of the plaintiff’s agreement to be seen and assessed once again by Dr. Pisesky.  Accordingly, the defendants’ application for an IME by Dr. Coghlin is dismissed.

[23] The plaintiff shall have her costs of this application.

deacon v. howe, icbc injury claims, ime, independent medical exams

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