While there is no shortage of caselaw addressing the BC Supreme Court’s ability to order a Plaintiff to undergo an Independent Medical Exam in the course of a personal injury lawsuit, Arbitrators determining Claimant entitlement to Underinsured Mototist Protection (“UMP”) Compensaiton have no such authority. This was determined in an UMP decision released last year.
In last year’s case (Undisclosed v. ICBC) the Claimant was severely injured by an underinsured motorist in Washington State. The Plaintiff succeeded in her liability claim against the motorist and was awarded over $1 million in damages. The liability finding was binding against ICBC but the damage award was not as it was not determined under BC law.
In the course of the Claimant’s UMP arbitration (conducted under the Commercial Arbitration Act applying the Domestic Commercial Arbitration Rules of Procedure) ICBC applied to introduce into evidence an independent medical report obtained by another Defendant in the Washington litigation and further to compel the Plaintiff to attend three so-called ‘independent’ medical exams.
Arbitrator Camp ruled that while ICBC was entitled to introduce the report obtained in the previous litigation, the arbitrator had “no jurisdiction” to compel the Plaintiff to attend an independent medical exam. Arbitrator Camp provided the following reasons:
25. I have reviewed the Rules that govern this arbitration as amended in 1995 and 1998 and I again find no express or implied authority in an arbitrator to order that the claimant undergo an independent medical examination or evaluation. This lack of jurisdiction is underscored by the fact that the 1995 and 1998 amendments to the Rules expressly empowered an arbitrator, at his or her discretion, to order a pre-hearing oral examination of a party.
26. I am mindful of the argument by ICBC that I must treat ICBC fairly and I must give ICBC the full opportunity to present its case. I am also mindful of my obligation that I must strive to achieve a just, speedy and economical determination of this proceeding on its merits. See Rule 19.
27. This accident and the injuries to this claimant happened over 14 years ago and without being critical of any counsel, the wheels of justice in this case are grinding very slowly, some might say too slowly. This claimant has been examined by a host of medical practitioners, both treating physicians and independent medical examiners, as well as other medical oriented practitioners. She has been examined under oath on two occasions on the subject of her damages. All of this evidence is at hand. Certainly, it can be argued that there are outstanding uncertainties pertaining to her medical condition and pertaining to her future care and capacity to earn income but that will always be the case.
28. I conclude that I have no jurisdiction to order a form of independent medical examination. I also wish to add that if I did have such jurisdiction and if that jurisdiction was discretionary, in this case and in all of the circumstances pertaining to this case, I would not exercise my discretion in favour of ordering the independent medical examinations as requested by ICBC.