ICBC Criticized For Not Practicing What It Preaches

In recent months both ICBC and the Provincial Government have been vocal in criticizing the use of medico-legal reports in injury litigation resulting in rule changes restricting the rights of litigants in relying on such evidence. In reality ICBC has no reservations seeking out numerous expert reports when it suits their interests in litigation. This inconsistency resulted in critical comments today from the BC Supreme Court.

In today’s case (McNeill v. Saunders) the Plaintiff was injured in a collision and sued for damages. The plaintiff has consented to being examined by a neurologist chosen by the defendant. The Defendant went on to request a further medical exam with a psychiatrist despite the Plaintiff not relying on a psychologist or psychiatrist in their claim. The Court raised concerns about this request and provided the following critical comments about ICBC’s practices versus their public stance on the utility of experts:

[23]         I am concerned about the potential for overlap with the neurologist’s opinion and for the bolstering of that opinion by the psychiatrist. I also accept that a psychiatric assessment is invasive. I also consider proportionality. The fact that the plaintiff is not at this time retaining a psychiatrist or psychologist expert strongly suggests that these injuries are not her main concern. However, the pleadings and the discovery evidence tip the balance here.

[24]         I order that the plaintiff attend the IME as sought in paragraph 1 of the Notice of Application. It is a discretionary order. Rule 11-5(7)(b), where the court is appointing an expert, specifically sets out that the expert can be given appropriate directions. I use that as a guide to my discretion here.

[25]         I direct that the IME must be limited to considering the psychiatric issues in the plaintiff’s pleaded claims of irritability, poor mood and depression, together with any psychiatric component to the sleep disorder, and together with any other evidence respecting psychiatric matters taken at the examination for discovery.

[26]         I order that the IME be limited to considering the psychiatric issues in the plaintiff’s pleaded claims of irritability, poor mood and depression, and any psychiatric component to the sleep disorder claim.

[27]         I order that all notes and any other primary evidence taken at the IME must be promptly provided to the plaintiff, within seven days of completion of the IME.

[28]         I have concerns that this IME will not be of much assistance. It flies in the face of the insurer’s stated public opposition to too many expensive medical reports. It is odd that the defendant, through its insurers, focuses on what would appear to be a relatively minor component of the plaintiff’s claim. However, that is the defendant’s choice.

[29]         I am adjourning the application for costs. That is to be dealt with by the trial judge after the conclusion of the trial.