Reasons for judgement were released last week in an ICBC UMP claim dealing with multiple defence medical exams in the context of a serious injury claim.
In last week’s case (G v. ICBC) the Claimant suffered a “severe traumatic brain injury” in a 2008 collision. The at fault motorist was underinsured and the Claimant applied for payment of damages under his own UMP coverage with ICBC.
In the course of arbitration the Plaintiff agreed to be assessed by five different physicians of ICBC’s choosing. These included two neuropsychologists, a neurologist, a psychiatrist and a physiatrist. ICBC then requested a further assessment, specifically a Multi-Disciplinary Fetal Alcohol Syndrome Disorder Assessment over the course of two days. The Claimant refused resulting in an ICBC application to compel attendance.
The parties agreed to apply the BC Supreme Court Rules in the course of the arbitration (click here to read an article discussing the lack of jurisdiction for an UMP Arbitrator to compel an independent medical exam when the BC Supreme Court Rules are not used). In dismissing the application Arbitrator Yule canvassed some of the well known authorities considering BC Supreme Court Rule 7-6(1) and (2). Arbitrator Yule provided the following summary of the applicable legal principles:
1. An order for a subsequent medical exam is discretionary but the discretion must be excercised judicially;
2. Independent medical exams are granted to ensure “a reasonable equality between the parties in the preparation of a case for trial”; reasonable equality does not mean that a defendant should be able to match expert for expert or report for report;
3. A second exam will not be allowed for the purpose of attempting to bolster an earlier opinion of another expert; there must be some question or matter that could not have been dealt with at the earlier examination; and
4. There is a higher standard required where the Defendant seeks subsequent medical exams.
Arbitrator Yule went on to rule that the playing field was reasonably equal after five ICBC directed medical exams such that a further exam was not warranted. He specifically pointed out that ICBC’s experts already opined on the issue of pre-existing fetal alcohol disorder without reservation and a further report would simply seek to bolster these opinions.
As of today’s date this judgement is not yet publicly available. As always, I’m happy to provide a copy to anyone who contacts me and requests one.