More on ICBC and "Independent Medical Examinations"
When you sue another motorist in BC Supreme Court for car accident related injuries, they are entitled to ‘level the playing field’ by having you assessed by a so-called ‘independent medical examiner’.
This right is given to Defendants by Rule 30 of the BC Supreme Court Rules. Rule 30 reads as follows:
Rule 30 — Physical Examination and Inspection
Order for medical examination
(1) Where the physical or mental condition of a person is in issue in a proceeding, the court may order that the person submit to examination by a medical practitioner or other qualified person, and if the court makes an order, it may make
(a) an order respecting any expenses connected with the examination, and
(b) an order that the result of the examination be put in writing and that copies be made available to interested parties.
Questions by examiner
(3) A person who is making an examination under this rule may ask any relevant question concerning the medical condition or history of the person being examined.
Order for inspection and preservation of property
(4) Where the court considers it necessary or expedient for the purpose of obtaining full information or evidence, it may order the production, inspection and preservation of any property and authorize samples to be taken or observations to be made or experiments to be conducted on or with the property.
Entry upon land or buildings
(5) For the purpose of enabling an order under this rule to be carried out, the court may authorize a person to enter upon any land or building.
Application to persons outside British Columbia
(6) Rule 27 (26) applies to examinations and inspections ordered under this rule.
On behalf of Defendants, ICBC has a handful of doctors that they use regularly to conduct these ‘rule 30’ medical exams.
What if ICBC has already sent you to a doctor? Can they send you to a second? The answer is it depends on the circumstances. As you can see above, Rule 30(2) permits a court to order a second examination. Our courts have held that, depending on the circumstances, ICBC can send a Plaintiff to a second examination with a doctor with different qualifications than the first. There are numerous cases interpreting this rule and the specific cases either allowing, or disallowing, multiple medical examinations are too numerous to count. Reasons for judgement were released today permitting a Defendant to have Plaintiff injured in a 2004 BC Car accident assessed by a neurologist when that Plaintiff had already been assessed by an orthopaedic surgeon on behalf of the Defendants.
Some of the factors courts consider when deciding whether they should order a ‘further’ examination under Rule 30(2) were laid out in the recent BC Supreme Court case of Walch v. Zamco. In Walch, the court summarized the factors that ought to be considered as follows:
The court’s discretion must be exercised judicially on the basis of the evidence;
A second examination may be appropriate where there is some question which could not have been dealt with on the first examination;
A second examination will not be allowed simply because the magnitude of the loss is greater than that previously known;
A passage of time alone is not a sufficient reason to order a second examination;
Where a diagnosis is difficult and existing assessments are aged, the court may consider a second examination;
Differences of opinions between medical professions is not sufficient reason to order a second examination where the first examiner could have discovered the issue on the first examination.
The overriding question is whether a second medical examination is required to ensure reasonable equality between the parties in their preparation for trial: Wildemann v. Webster.
Reasonable equality does not mean that the defendant must be able to match expert for expert and report for report: McKay v. Passmore.
In order to obtain an order for a subsequent medical examination, the defendants must satisfy the courts that there is some question or matter of which could have been dealt with at the first examination: Jackson, supra.
When considering whether to grant a subsequent medical examination the court should take into account the timing of the application in light of the requirements of Rule 40A and practical issues relating to trial preparation: McKay, supra. The authorities do not require that the application be supported by medical evidence indicating that a subsequent medical examination is required: McKay, supra.
When deciding whether to consent to a second ICBC medical examination it is good to consider the above factors. Last, but not least, it is important to know that such an examination is ‘discretionary’ and certain judges/masters of the BC Supreme Court may grant an application in circumstances where others may deny.