ICBC Claims and Multiple 'Independent Medical Exams'

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

Comments (49)

  • I simply want to mention I am just beginner to weblog and seriously loved this web page. Very likely I’m likely to bookmark your website . You absolutely have beneficial well written articles. Kudos for revealing your blog.

  • I¡¦m now not positive the place you’re getting your information, however great topic. I must spend a while finding out much more or working out more. Thanks for magnificent info I was searching for this info for my mission.

  • I’m really impressed with your writing skills as well as with the layout on your weblog. Is this a paid theme or did you customize it yourself? Either way keep up the excellent quality writing, it is rare to see a great blog like this one today..

  • You could definitely see your enthusiasm in the work you write. The world hopes for even more passionate writers like you who aren’t afraid to say how they believe. Always go after your heart.

  • It’s perfect time to make a few plans for the longer term and it is time to be happy. I have read this publish and if I may I want to counsel you few interesting things or tips. Perhaps you could write next articles relating to this article. I want to read more things approximately it!

  • I am really loving the theme/design of your website. Do you ever run into any web browser compatibility problems? A small number of my blog visitors have complained about my website not working correctly in Explorer but looks great in Chrome. Do you have any recommendations to help fix this issue?

  • Whats up very cool site!! Man .. Excellent .. Amazing .. I will bookmark your site and take the feeds additionally…I’m glad to search out so many useful information right here within the publish, we want work out more strategies in this regard, thank you for sharing.

  • One thing is that when you are searching for a education loan you may find that you’ll need a cosigner. There are many conditions where this is true because you might discover that you do not possess a past credit score so the financial institution will require that you’ve got someone cosign the money for you. Thanks for your post.

  • My brother suggested I may like this blog. He was entirely right. This put up actually made my day. You can not consider simply how much time I had spent for this info! Thanks!

  • Hey very nice blog!! Man .. Beautiful .. Amazing .. I’ll bookmark your web site and take the feeds also…I am happy to find so many useful info here in the post, we need work out more techniques in this regard, thanks for sharing. . . . . .

  • My wife and i were absolutely more than happy when Albert managed to do his survey through the entire precious recommendations he gained in your web pages. It’s not at all simplistic just to happen to be handing out instructions that many some people could have been selling. Therefore we acknowledge we now have the website owner to be grateful to because of that. The most important explanations you have made, the easy website navigation, the relationships you make it easier to foster – it is most fantastic, and it’s aiding our son in addition to the family reason why that situation is interesting, which is extraordinarily indispensable. Many thanks for everything!

  • Thank you for another informative blog. Where else could I get that type of info written in such an ideal way? I’ve a project that I’m just now working on, and I’ve been on the look out for such info.

  • I’m really loving the theme/design of your blog. Do you ever run into any web browser compatibility issues? A few of my blog readers have complained about my website not working correctly in Explorer but looks great in Chrome. Do you have any ideas to help fix this issue?

  • I learned more a new challenge on this weight loss issue. 1 issue is a good nutrition is vital when dieting. A massive reduction in fast foods, sugary ingredients, fried foods, sweet foods, red meat, and whitened flour products can be necessary. Holding wastes parasites, and toxic compounds may prevent ambitions for fat-loss. While a number of drugs momentarily solve the challenge, the unpleasant side effects are usually not worth it, and they never offer more than a short lived solution. It’s a known indisputable fact that 95 of diet plans fail. Many thanks for sharing your ideas on this blog.

  • Wonderful work! That is the kind of info that are supposed to be shared across the internet. Disgrace on Google for now not positioning this post higher! Come on over and consult with my web site . Thanks =)

  • Hiya, I am really glad I’ve found this information. Today bloggers publish just about gossips and internet and this is really annoying. A good blog with interesting content, this is what I need. Thank you for keeping this web-site, I’ll be visiting it. Do you do newsletters? Cant find it.

  • I intended to post you this tiny observation to thank you so much as before on your marvelous pointers you have featured on this website. This has been quite open-handed of you to provide without restraint just what many people could have offered for sale for an electronic book to get some profit on their own, specifically now that you might well have done it in the event you decided. The smart ideas in addition served to provide a good way to understand that the rest have the same zeal just like my very own to figure out a good deal more with respect to this condition. I know there are millions of more pleasurable opportunities in the future for folks who looked over your website.

  • I’ve been surfing online more than 3 hours today, yet I never found any interesting article like yours. It is pretty worth enough for me. In my opinion, if all website owners and bloggers made good content as you did, the net will be a lot more useful than ever before.

  • Thanks for sharing superb informations. Your website is so cool. I am impressed by the details that you have on this blog. It reveals how nicely you perceive this subject. Bookmarked this web page, will come back for extra articles. You, my pal, ROCK! I found just the info I already searched all over the place and simply could not come across. What a great site.

  • Attractive element of content. I just stumbled upon your weblog and in accession capital to say that I get in fact enjoyed account your blog posts. Anyway I’ll be subscribing on your feeds and even I success you get admission to consistently quickly.

  • Hey! I’m at work browsing your blog from my new iphone! Just wanted to say I love reading through your blog and look forward to all your posts! Keep up the outstanding work!

  • Generally I do not read article on blogs, however I would like to say that this write-up very forced me to try and do it! Your writing style has been surprised me. Thanks, quite nice post.

  • Its like you learn my thoughts! You appear to grasp so much approximately this, like you wrote the guide in it or something. I believe that you can do with a few to pressure the message home a bit, however other than that, that is excellent blog. An excellent read. I’ll definitely be back.

  • In these days of austerity along with relative stress and anxiety about running into debt, most people balk contrary to the idea of utilizing a credit card in order to make purchase of merchandise or maybe pay for a holiday, preferring, instead just to rely on this tried and trusted means of making payment – raw cash. However, if you possess the cash available to make the purchase completely, then, paradoxically, that is the best time for you to use the card for several good reasons.

  • With havin so much written content do you ever run into any issues of plagorism or copyright infringement? My website has a lot of unique content I’ve either authored myself or outsourced but it appears a lot of it is popping it up all over the internet without my agreement. Do you know any solutions to help protect against content from being stolen? I’d certainly appreciate it.

  • I do not even understand how I finished up right here, but I believed this post was good. I don’t recognise who you’re but definitely you are going to a famous blogger for those who are not already 😉 Cheers!

  • Wow that was odd. I just wrote an extremely long comment but after I clicked submit my comment didn’t show up. Grrrr… well I’m not writing all that over again. Anyway, just wanted to say great blog!

  • Interesting post made here. One thing I’d like to say is always that most professional job areas consider the Bachelor Degree like thejust like the entry level requirement for an online education. Whilst Associate Certification are a great way to get started, completing your current Bachelors uncovers many good opportunities to various occupations, there are numerous online Bachelor Diploma Programs available from institutions like The University of Phoenix, Intercontinental University Online and Kaplan. Another concern is that many brick and mortar institutions present Online editions of their diplomas but often for a drastically higher cost than the firms that specialize in online course programs.

  • I do consider all the ideas you’ve introduced for your post. They are very convincing and will certainly work. Nonetheless, the posts are very short for starters. Could you please prolong them a little from next time? Thank you for the post.

  • Just beneath, are a lot of entirely not connected web pages to ours, having said that, they may be certainly really worth going over.

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