More on Part 7 Medical Exams Barring Tort Exams

As previously discussed, 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 7-6(1) of the BC Supreme Court rules which allows the court to order an independent exam to “level the playing field” in an injury lawsuit.
Two sets of reasons for judgement were recently brought to my attention from the BC Supreme Court, Campbell River Registry, discussing when a previous Part 7 Exam will prevent ICBC from obtaining a new expert under the Rules of Court.
In the first case (Robinson v. Zerr) the Plaintiff was injured in a motor vehicle collision.  In the course of dealing with ICBC for his Part 7 Benefits the Plaintiff attended a medical appointment arranged by ICBC with an orthopaedic surgeon.  In the course of the tort lawsuit ICBC attempted to get an opinion from a second orthopaedic surgeon.  The Plaintiff opposed this.  ICBC brought an application to compel the second exam but this was dismissed with the Court finding that the first report strayed beyond what was required for a Part 7 exam.  In dismissing the Application Master McCallum provided the following reasons:
[8]  The authorities are clear that the Part 7 report can be treated, as it was in Robertson v. Grist, as a report in the tort action if it is shown that it effectively covered all of that ground, as I understand it.  It is clear from Dr. Dommisse’s that it does cover all of what one may expect in a report.   Dr. Dommisse did not have access to the pre-accident clinical records.  However, it is clear he knew of the plaintiff’s history because he describes past treatments and past history…
[10]  Dr. Dommisse went through the examination and gave his opinion.  His opinion is not qualified in any way.  He does not suggest that there is more information he needs.  He makes no recommendaiton for treatment.  There is nothing to suggest that, if he had more information or that he wished more information before he could make the determinations he did.
[11]  The report, in my view, is the same of sufficiently similar to the report in Robertson v. Grist and obtained in circumstances that persuade me that this report is indeed the opportunity for the level playing field that the authorities call for.  The defendant has had the opportunity to have the plaintiff examined by an examiner of his choosing.  Although the adjuster references Part 7 claim and the disability benefits, Dr. Dommisse does not, in my view, treat the report as limited in any way and gives his opinion on every aspect of the claim…
[15]  In those circumstances the defendant’s application is dismissed.
In the second case (Lamontage v. Adams) a similar result was reached with a Court finding that a subsequent exam should be with the Part 7 physician as that examiner covered ground relevant in the tort claim.
The above cases are unreported but, as always, I’m happy to provide a copy of the reasons to anyone who contacts me and requests these.