Tag: norsworthy v. Greene

More on ICBC Injury Claims and Independent Medical Exams

Ok, second post of the day on this topic.
Typically ICBC (on behalf of their insured defendant) are able to send a Plaintiff to an Independent Medical Exam in the course of a BC Supreme Court lawsuit in order to level the playing field.  In certain cases they are entitled to more than one exam.
Reasons for judgement were released today (Norsworthy v. Greene) dismissing a defence applicaiton for a second examination in an ICBC Injury Claim.
In this case the Plaintiff obtained several medico-legal reports including the report of a physical medicine specialist and a Functional Capacity Evaluation.  ICBC had the Plaintiff examined by Dr. Schweigel.  Dr. Schweigel provided the opinion that the Plaintiff had soft tissue injuries and that she “could have been off work for roughly 3 months.  After that she should have been able to return to work in a graduated fashion.  Within five to six months, she should have been able to return to full time work.  This lady is not disabled now from all the activities she was doing prior to the two MVA’s“.
The Plaintiff’s experts disagreed and provided opinion that her injuries were more severe and disabling that opined by Dr. Schweigel.  ICBC applied for a second ‘independent’ exam on the basis that they should be entitled to reply to the Functional Capacity Evaluation opinion obtained by the Plaintiff.  In rejecting the applicaiton Master Caldwell of the BC Supreme Court gave the following summary of the law regarding requests for multiple Independent Medical Exams:

[22] It should be obvious to any reader of these two reports that each was prepared by two persons with two completely different disciplines and approaches; yet there was a noticeable crossover in some of the observations made by each of them.

[23] In Christopherson v. Krahn, 2002 BCSC 1356, Madam Justice Smith made the observations at para. 9 that the test of reasonable equality does not mean that for each specialist relied upon by the plaintiff, the defendant is entitled to an IME from a similar specialist.  Smith J. went on to deal with this proposition when she quoted from Henry v. Derbyshire, [1997] B.C.J. No. 1750, a decision of Master Nitikman where, at para. 13, the master stated:

A third applicable principle is that the party seeking the examination is not limited to one independent examination but

The court will not order a second examination merely to permit the defendant to get a second opinion on the same matter.  [She went on to say] A second examination may be appropriate where there is some question which could not have been dealt with on the first examination.  The applicant must show a reason why it is necessary for the second examination.

[24] I take the view that in the case at bar the defendants are seeking a second examination pursuant to Rule 30(2).

[25] The IME sought by Dr. Schweigel was conducted after the defendants had knowledge of the earlier functional capacity evaluation of the plaintiff by an occupational therapist retained by the plaintiff, yet the defendants chose to have an IME conducted by an orthopedic surgeon.  That opinion seems to be firm.  Now the defendants seek an opinion of an occupational therapist which may undermine the opinion of Dr. Schweigel, their own expert.

[26] Respectfully, in my view, although the defendants point to the different purposes of the reports, I do not believe that those differences alone provide a valid reason for a second report pursuant to Rule 30(2).

[27] Accordingly, I dismiss the defendants’ application and award the plaintiff her costs for preparation for and attendance at the hearing of this matter.

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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