More on ICBC Injury Claims and Independent Medical Exams
Reasons for judgement were released today dismissing an ICBC application for a second independent medical exam in a tort claim and granting an ICBC application for a ‘work capacity evaluation’.
Applications for ‘independent medical examinations‘ under Rule 30 of the BC Rules of Court arise frequently in ICBC claims when the Defendant claims that they need such an examination to ‘level the playing field‘. These applications are discretionary and given the frequency of such applications being adjudicated in our courts there is no shortage of useful precedents reported. Today’s case doesn’t create any new law, I report it nonetheless to give my readers insight into the types of procedural disputes sometimes arising in ICBC claims.
The Plaintiff in this case had been assessed by a variety of physicians in a medico-legal context. The Defendant wished to have the plaintiff assessed by a physiatrist and a work capacity evaluator.
In dismissing the application for an assessment by a physiatrist the court states as follows:
[4] It was submitted by defendant’s counsel that Dr. Maloon is an orthopedic surgeon, whereas Dr. Hirsch is a physiatrist, and it is important to have a rebuttal report, if you will, from a physiatrist in order to put the defendants on equal footing. I disagree with that submission. I disagree because as has been pointed out to me, Dr. Maloon had extensive clinical and consultation reports from a number of practitioners, including Dr. Jaworski, who was a treating physiatrist. As well, he had the clinical records and notes from Mr. Haleta’s treating general practitioner, among others. There comes a time when the parties can no longer seek to usurp the function of the court or the jury by asking for continuous expert reports from various specialists. These are matters for counsel to deal with by way of cross-examination, especially when there are conflicting opinions. There is nothing new here that has arisen that would give the plaintiff an unfair advantage over the defendant. Nothing of concern should arise merely by the fact that the defendants chose to have the plaintiff examined by an orthopod and only sometime later find out that counsel for the plaintiff had their client seen by a physiatrist. Accordingly, I dismiss paragraph 1 of the applicants’ notice of motion.
In granting the order compelling the Plaintiff to attend a work capacity evaluation the court held as follows:
[5] A number of specialists/physicians who saw Mr. Haleta for other matters have recommended that he be seen by experts in functional and vocational capacity. In particular Dr. Reid, who is a psychologist, recommended, and I believe that Dr. le Nobel — correct me if I’m wrong — made a similar recommendation. It would seem to me that it would be appropriate for both parties to have the plaintiff seen by somebody to make a vocational capacity evaluation of Mr. Haleta, which would be of assistance to the court and to the jury in this particular case. Accordingly, I order that Mr. Haleta do attend the offices of Mr. Christopher Cook for the purposes of a work capacity evaluation to be performed by Mr. Cook, and that is to be held on Tuesday, the 18th of November, commencing at 9:00 a.m. at suite 202, 20689 Fraser Highway, Langley, British Columbia.