Court Ordered "Independent Medical Exams" and the Standard of Review – A Second Kick at the Can


When a court orders a Plaintiff to attend an independent medical exam (click here to read some related posts on this topic) in an ICBC or other Injury Claim and the parties appeal what is the standard of review used in the appellate hearing?
Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, addressing this issue.
In today’s case (Barbosa v. Castillo) the Plaintiff attended an Independent Medical Exam (IME) with an Orthopaedic Surgeon chosen by the Defendant.  He gave an opinion that the plaintiff did not have a “functional problem” with respect to any neurological complaints.  The Plaintiff then served expert reports outlining  that he had nerve root irritation which negatively impacted his ability to work.
The Defence asked for a second medical exam, this time with a neurologist.  On application to Court the presiding Master rejected the motion.  The Defendant appealed the ruling.  On hearing the appeal Mr. Justice Schultes had to decide, amongst other things, what the legal test was on these types of applications.  He ruled that the appeal can be a rehearing (as opposed to requiring proof that the Master was ‘clearly wrong’) in essence giving the appellant a second kick at the can.  Specifically the Court held as follows:

[14] Before proceeding further, it is necessary to establish the applicable standard of review of the learned master’s decision.  It is well established that on purely interlocutory matters, it must be demonstrated that the master was “clearly wrong” in his or her decision. However, when the ruling raises questions that are vital to the final issue in the case, the reviewing court approaches the matter as a rehearing.  When the master’s decision deals with a question of law, the standard of review is correctness:  Abermin Corp. v. Granges Exploration Ltd., [1990] B.C.J. No. 1060 (S.C.), and Joubarne v. Sandes, 2009 BCSC 1413 at para. 14.

[15] A decision to deny a defendant the opportunity to have an independent medical examination conducted of the plaintiff can raise questions that are vital to the final issue in the case.  In Belke v. Bennett, 2006 BCSC 536, Mr. Justice Barrow provided the following helpful approach at para. 5:

If the Master’s order amounts to a refusal, whether in whole or in part, of an application to have the plaintiff submit to an independent medical examination, it may deprive the defendant of discovering evidence necessary for a full examination of the plaintiff’s claim or of a defence advanced.  It is in that sense that a decision may be said to go to an issue vital to the trial. […]  If, on the other hand, the Master’s order simply sets terms on which the independent medical examination is to be conducted or directs that such an examination not be performed by a particular professional, the defendant is not deprived of potential evidence, and the order cannot be characterized as going to an issue that may be vital to a final issue at the trial.

[16] I adopt this analysis.  I think the master’s decision in this case fell within the first situation envisioned in Belke.  Denying the defendant’s application effectively foreclosed any exploration of Dr. Hunt’s opinion, let alone any rebuttal of it, on behalf of the defendant by an expert with the specific expertise necessary to cope with the report on its own terms.

[17] If uncontradicted, Dr. Hunt’s opinion could be determinative of several of the kinds of damages claimed by the plaintiff, in particular as to the true nature and extent of his injuries and their impact on his future earning capacity.  These questions appear to be vital to several final issues.  Accordingly, I will treat this appeal as a rehearing.

Mr. Justice Schultes went onto allow the appeal and order the second defence medical exam.  In doing so the Court provided the following useful summary of the law discussing factors courts can consider in applications for multiple independent defence medical exams:

[19] Turning to the actual merits of the defendant’s application on the rehearing, an excellent summary of the applicable law in this area was provided by Madam Justice D. Smith, then a member of this court, in McKay v. Passmore, 2005 BCSC 570 at paras. 15 – 19:

15.       The principles to be followed in deciding whether the defendants have shown an adequate basis for a second IME are set out in Trahan v. West Coast Amusements Ltd.[2000] BCSC 691 (CanLII), [2000] BCSC 691, at para. 48:

The authorities establish that additional medical examinations are in the discretion of the court …  (citations omitted).

That discretion is to be exercised judicially, considering the evidence adduced.  A second examination to permit the defendant a second opinion on the same subject matter will not be allowed.  A second examination may be appropriate where there is some question which could not have been dealt with on the first examination … (Citations omitted).

That the magnitude of the loss is greater than previously known is not in and of itself sufficient to permit a second examination … (Citations omitted).

Where diagnosis is difficult and existing assessments are aged, further assessment may be required …

And in Roberge v. Canada Life Assurance Co. [2002] BCSC 1500 (CanLII), [2002] BCSC 1500 at paragraph 9:

The distinction is quite important.  Simply put, when a person in litigation makes a claim for a personal injury, the defendant is, without oversimplifying the matter, almost always entitled to a medical examination of the plaintiff.  A much higher standard is imposed when the defendant seeks a second medical examination of the plaintiff.

16.       The overriding question is whether a second medical examination is necessary to ensure reasonable equality between the parties in their preparation of a case for trial: Wildemann v. Webster [1990] CanLII 206 (BC C.A.), [1991] 50 B.C.L.R. (2d) 244 (C.A.).

17.       Reasonable equality does not mean that the defendant must be able to match expert for expert or report for report.  I refer to Trahan v. West Coast Amusement Ltd. and toMacNevin v. Vroom [21 December 2004] New Westminster S072995 (S.C.).

18.       The defendants must satisfy the court that there is some question or matter that could not have been dealt with at the first examination:  Jackson v. Miller [1999] B.C.J. No. 2751 (S.C.).

19.       In considering how to exercise the discretion to grant a second IME, the court should take into account the timeliness of the application in the light of Rule 40A and the practicalities of trial preparation… [citations omitted.]

Barbosa v. Castillo, Defence Medical Exams, DME, ime, independent medical exams, Mr. Justice Schultes, multiple independent medical exams, standard of review for IME's

Comments (49)

  • Wrongfull Death ,is as I view the death of young man.Thank you for your comments,as expected, Erik you have a warm heart and as always on top of truth and the law at all times, God bless thoes who give a …. Bless you, you are rare in todays legal system.You are a lawyer worth your weight in gold. Irene Carlson ,A GREATFULL CLIENT!

  • Wrongfull Death ,is as I view the death of young man.Thank you for your comments,as expected, Erik you have a warm heart and as always on top of truth and the law at all times, God bless thoes who give a …. Bless you, you are rare in todays legal system.You are a lawyer worth your weight in gold. Irene Carlson ,A GREATFULL CLIENT!

  • Thank you, I have just been searching for info about this subject for a long time and yours is the greatest I’ve found out so far. But, what about the conclusion? Are you positive concerning the source?

  • certainly like your website but you have to check the spelling on quite a few of your posts. Several of them are rife with spelling issues and I find it very troublesome to tell the truth nevertheless I’ll definitely come back again.

  • Someone essentially lend a hand to make significantly posts I’d state. This is the very first time I frequented your web page and up to now? I surprised with the analysis you made to create this actual post incredible. Wonderful task!

  • That is really attention-grabbing, You are a very skilled blogger. I’ve joined your rss feed and sit up for looking for more of your magnificent post. Additionally, I have shared your web site in my social networks!

  • It’s in point of fact a great and helpful piece of information. I’m glad that you shared this helpful info with us. Please keep us up to date like this. Thank you for sharing.

  • Wow that was strange. I just wrote an very long comment but after I clicked submit my comment didn’t appear. Grrrr… well I’m not writing all that over again. Anyhow, just wanted to say superb blog!

  • Unquestionably believe that which you stated. Your favorite reason appeared to be on the net the simplest thing to be aware of. I say to you, I certainly get irked while people consider worries that they just don’t know about. You managed to hit the nail upon the top as well as defined out the whole thing without having side-effects , people can take a signal. Will probably be back to get more. Thanks

  • I just could not depart your web site before suggesting that I really enjoyed the standard information a person provide for your visitors? Is gonna be back often to check up on new posts

  • Hi! This post couldn’t be written any better! Reading this post reminds me of my previous room mate! He always kept chatting about this. I will forward this post to him. Pretty sure he will have a good read. Thanks for sharing!

  • Hey, you used to write wonderful, but the last several posts have been kinda boring… I miss your super writings. Past several posts are just a bit out of track! come on!

  • My brother recommended I might like this web site. He was entirely right. This post actually made my day. You cann’t imagine simply how much time I had spent for this info! Thanks!

  • Hi there! Would you mind if I share your blog with my twitter group? There’s a lot of people that I think would really enjoy your content. Please let me know. Thank you

  • I have realized that online education is getting favorite because accomplishing your degree online has developed into popular choice for many people. Quite a few people have definitely not had a chance to attend a normal college or university nonetheless seek the elevated earning potential and career advancement that a Bachelor’s Degree grants. Still other individuals might have a qualification in one discipline but would want to pursue one thing they now have an interest in.

  • Thank you for sharing excellent informations. Your web-site is very cool. I’m impressed by the details that you have on this site. It reveals how nicely you perceive this subject. Bookmarked this website page, will come back for more articles. You, my friend, ROCK! I found just the info I already searched all over the place and simply couldn’t come across. What a perfect web site.

  • Along with everything that appears to be developing inside this specific subject material, all your viewpoints are actually relatively refreshing. Nevertheless, I am sorry, but I can not give credence to your entire strategy, all be it refreshing none the less. It looks to everybody that your opinions are not totally rationalized and in reality you are your self not really entirely convinced of your argument. In any event I did enjoy reading it.

  • certainly like your website but you need to take a look at the spelling on several of your posts. Several of them are rife with spelling issues and I find it very troublesome to inform the truth on the other hand I will surely come again again.

  • I’ve been surfing online greater than 3 hours lately, but I never discovered any attention-grabbing article like yours. It¡¦s beautiful worth enough for me. In my opinion, if all site owners and bloggers made just right content as you did, the internet can be much more useful than ever before.

  • Howdy! This is kind of off topic but I need some advice from an established blog. Is it tough to set up your own blog? I’m not very techincal but I can figure things out pretty quick. I’m thinking about making my own but I’m not sure where to start. Do you have any tips or suggestions? Thank you

  • You actually make it seem so easy with your presentation but I find this topic to be really something which I think I would never understand. It seems too complicated and extremely broad for me. I am looking forward for your next post, I will try to get the hang of it!

  • Whats up very cool blog!! Man .. Excellent .. Superb .. I’ll bookmark your website and take the feeds additionally¡KI’m satisfied to seek out so many useful info right here in the publish, we’d like work out more techniques in this regard, thank you for sharing. . . . . .

  • I’ve been absent for a while, but now I remember why I used to love this blog. Thank you, I will try and check back more frequently. How frequently you update your website?

  • My developer is trying to convince me to move to .net from PHP. I have always disliked the idea because of the expenses. But he’s tryiong none the less. I’ve been using WordPress on various websites for about a year and am nervous about switching to another platform. I have heard great things about blogengine.net. Is there a way I can transfer all my wordpress posts into it? Any kind of help would be greatly appreciated!

  • I also believe that mesothelioma is a scarce form of cancers that is normally found in those people previously familiar with asbestos. Cancerous tissues form in the mesothelium, which is a shielding lining which covers the majority of the body’s body organs. These cells usually form inside the lining on the lungs, mid-section, or the sac which actually encircles one’s heart. Thanks for expressing your ideas.

  • The next time I learn a weblog, I hope that it doesnt disappoint me as much as this one. I mean, I know it was my option to read, however I really thought youd have something attention-grabbing to say. All I hear is a bunch of whining about something that you can fix if you happen to werent too busy on the lookout for attention.

  • Do you have a spam problem on this site; I also am a blogger, and I was curious about your situation; many of us have created some nice practices and we are looking to exchange solutions with others, be sure to shoot me an e-mail if interested.

  • Another issue is that video gaming became one of the all-time greatest forms of fun for people of various age groups. Kids engage in video games, and adults do, too. The particular XBox 360 is amongst the favorite gaming systems for those who love to have a huge variety of activities available to them, along with who like to relax and play live with some others all over the world. Thank you for sharing your ideas.

  • Hello There. I found your blog using msn. This is a very well written article. I’ll make sure to bookmark it and come back to read more of your useful info. Thanks for the post. I will certainly comeback.

  • Amazing! This blog looks exactly like my old one! It’s on a totally different topic but it has pretty much the same page layout and design. Outstanding choice of colors!

  • I’ll right away take hold of your rss feed as I can’t to find your e-mail subscription hyperlink or e-newsletter service. Do you have any? Please permit me know so that I may just subscribe. Thanks.

  • Hi! I know this is kinda off topic but I was wondering which blog platform are you using for this site? I’m getting sick and tired of WordPress because I’ve had problems with hackers and I’m looking at options for another platform. I would be great if you could point me in the direction of a good platform.

  • Thanks for another informative web site. Where else could I get that type of information written in such an ideal way? I’ve a project that I am just now working on, and I have been on the look out for such information.

Comments are closed.

Contact

If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy

Disclaimer