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Tag: Rule 7-6(2)

Speculation No Reason for Second Defence Medical Exam

Written by admin on . Posted in BCSC Civil Rule 7, independent medical exams, Uncategorized. 61 Comments on Speculation No Reason for Second Defence Medical Exam

Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, confirming that a second Court ordered defense medical exam is inappropriate solely in anticipation of an event which may not occur.
In the recent case (Litt v. Guo) the Plaintiff was involved in two collisions and sued for damages.  In the course of the lawsuit the Plaintiff consented to a defence medical exam with a physician that addressed the Plaintiff’s injuries.  As trial neared the Defense applied for a further exam with a new physician arguing that the initial report was dated and further that “the plaintiff might file a newer report” and the Defendant wished to respond to this anticipated development.  In noting that both arguments were insufficient for a Court ordered second defense medical exam Madam Justice Fenlon provided the following reasons:

[10]         The second ground raised by the defendants, and the ground that Mr. McHale referred to as the primary basis supporting the application for another IME by a different specialist, is that the most recent report of Dr. Bishop will be two years old at the date of trial in October 2014. The defendants fear that the plaintiff might file a newer report before the August 4 deadline for delivery of such reports, and the defendants say they would then be at a disadvantage because the plaintiffs will have a fresher report, a report based on a more recent assessment of the plaintiff.

[11]         The defendants submit that they would wish to put before the Court the best evidence, the evidence of an examination of the plaintiff at a time more recent than October 2012. There are, in my respectful view, two weaknesses with that submission. The first is that it anticipates what has not yet occurred.  If the plaintiff does submit a report prepared by one of her experts based on a recent examination of the plaintiff and if something new comes out of that report, then presumably Dr. Bishop could be invited to comment on it and the defendants would be in a position to file a rebuttal report. There is nothing in the record before me to suggest that he would not be able to comment on such a report or that there would be a need for further examination should he, in fact, be faced with such a report.

[12]         The second weakness is that passage of time alone is not a basis for ordering a second medical examination of a plaintiff. Dr. Bishop’s report is very clear in terms of his diagnosis, prognosis and his description of the pattern of symptoms Ms. Litt will experience into the future. He describes a likely aggravation of symptoms on activity, which it seems is exactly what is reflected in the medical reports which initially led to this application.

[13]         In short, despite Mr. McHale’s able submissions, I cannot find that a further examination is necessary to ensure reasonable equality of the parties in preparing for this trial.

Lack of Doctor's Affidavit Thwarts Independent Medical Exam Application

Written by admin on . Posted in BCSC Civil Rule 7, independent medical exams, Uncategorized. 52 Comments on Lack of Doctor's Affidavit Thwarts Independent Medical Exam Application

While the BC Supreme Court does have the ability to compel a Plaintiff to attend a defence medical exam a proper evidentiary foundation must be established before the Court will be prepared to exercise this power.  Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, dismissing an application due in part to a lack of evidence from the proposed physician.
In last week’s case (Rathgeber v. Freeman) the Plaintiff was injured in a collision and sued for damages and also sought Part 7 benefits from ICBC.  ICBC sent the Plaintiff to an independent medical exam with an orthopedic surgeon who provided a report addressing the Plaintiff’s injuries.  Some four years later the tort claim was still ongoing and the Defendant brought an application for a further exam with the same physician.  The Court dismissed this noting that the previous exam covered tort issues and even if there was a change of circumstances making a further report necessary there was nothing in the evidence justifying a further physical examination.  In dismissing the application the Court provided the following reasons:
[23]         In some respects, Dr. Kousaie’s November 9, 2009 report “resembles” a report in a tort claim. The doctor sets out his qualifications, for example, as well as facts and assumptions. He includes details of the accident, the plaintiff’s recreational history and comments on the possibility of academic impairment. He indicates that the examination involved a comprehensive physical examination. Those aspects of the report appear to be more consistent with a comprehensive report prepared to address the plaintiff’s complaints in a tort action.
[24]         On the other hand, the report is now four years old and while Dr. Kousaie makes reference to the neck injury, he appears to have focused on low back pain as the plaintiff’s major complaint at the time of his 2009 assessment. Dr. Kousaie’s review of the then available imaging and x-rays did not indicate any trauma to the spine although some minor disc bulges were noted in the lumbar area.
[25]         More recent assessments, and that of Dr. Twist in particular, suggest an increasing focus on the neck injury and indeed the CT scan referred to earlier shows a small circumferential disc bulge in the cervical spine, a condition not evident at the time of Dr. Kousaie’s first examination.
[26]         Taking a holistic view of the circumstances, Dr. Kousaie’s 2009 report is comprehensive and to some extent addresses issues more relevant to a tort claim than a Part 7 claim. The results of the CT scan and the shift in focus to the plaintiff’s neck injury, however, are issues which the defence may need to address. There is, however, nothing in the evidence before me to show why a further examination, rather than a review of the available materials by Dr. Kousaie or some other qualified specialist, is necessary to achieve reasonable equality with respect to medical evidence. While I do not wish to be taken as suggesting that the proposed examiner should, in all cases, provide an affidavit with respect to the necessity for a further examination, such an affidavit would have been of significant assistance to me in this case.
[27]         On the basis of the material before me, the application is dismissed.

An IME "Should Not Be Ordered Simply To Allow The Defendants To Ask the Same Questions Asked in Discovery"

Written by admin on . Posted in BCSC Civil Rule 7, independent medical exams.

Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, dismissing an application for an independent medical exam noting the Defendant’s could have obtained the sought information through the discovery process.
In this week’s case (Foster v. Chandel) the Plaintiff was injured in a 2009 collision.  The Plaintiff agreed to attend a Defense medical exam.  Subsequent to this the Defendant requested a second exam with a psychiatrist.   The Defendant argued that this was necessary because “the plaintiff is taking the maximum dosage of anti-depressant medication; has been seen by a psychiatrist (but not for treatment); and is suggested [by her family doctor] to be suffering from a mood disorder related to chronic pain.“.
Master Bouck dismissed the application noting all of this could be explored through the discovery process.  In reaching this conclusion the Court provided the following reasons:
[18]         There is no evidence from any medically-trained person suggesting that a psychiatric examination is necessary or useful to either diagnose or treat the plaintiff. The plaintiff is taking medication in the dosage recommended by physicians with no suggestion of prescription abuse. The emotional symptoms are said by the medical experts to emanate from the plaintiff’s physical pain, not from any alleged psychiatric condition or disorder.
[19]         The defendants submit that the psychiatric examination may reveal other causes for the plaintiff’s anxiety and depression. It may also reveal the nature and extent of these conditions.
[20]         Such information can be sought at the plaintiff’s examination for discovery. A psychiatric examination should not be ordered simply to allow the defendants to ask the same questions asked in discovery but in a different manner and venue.
[21]         The nature and extent of the plaintiff’s pain disorder and resulting symptoms is revealed in the records and reports of the treating physicians. There is no evidence to suggest that a psychiatrist could offer a “better” diagnosis or prognosis on that condition.
[22]         The facts of this case have many parallels to those discussed in Wocknitz v. Donaldson, 2010 BCSC 1991. As in that case, the defendants do not have the necessary evidentiary foundation to support an order for “this particularly invasive form of examination”: para. 20.

"Belt and Suspenders" Exam Denied in Face of Previous Opinion on Plaintiff's Medical Condition

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As previously discussed, while the BC Supreme Court Rules permit multi-disciplinary defence medical exams in appropriate circumstances.  Once a Defendant obtains an opinion from a properly qualified expert with respect to the Plaintiff’s alleged injury, a further exam will not be ordered to bolster the opinion of the initial expert.  This is sometimes referred to as the “Belt and Suspenders” principle.  Reasons for judgement were recently published by the BC Supreme Court, Victoria Registry, further addressing this issue.
In the recent case (Knowles v. Watters) the Plaintiff alleged she suffered from balance issues including imbalance, dizziness and light-headedness due to a motor vehicle collision.  In support of her case the Plaintiff tendered reports from a neurologist  psychologist, an otolaryngolosit and a general practitioner    The Plaintiff’s otolaryngologist opined that the dizziness issues were “multifactoral” in origin   .
The Plaintiff agreed to see a defence expert who opined that “there was nothing in my evaluation to suggest that she has sustained any injury to her peripheral balance mechanisms, including the inner ear vestibular mechanisms“.  The Defendant then sought  an additional exam with an ENT to further address this issue.  Master McCallum dismissed the application finding the Defendant already had an opinion on the issue and a further expert was not warranted in the circumstances   In dismissing the application the Court provided the following reasons:
[8]             The defendant says that Dr. Moll’s report is restricted to neurological functions, and is not a complete answer or a complete response, if it were looked at in that way, to what Dr. Noel had to say. The defendant says that can only be accomplished by an examination by Dr. Bell.
[9]             In this case the defendant has had the opportunity the authorities require to essentially balance the playing field. Counsel are agreed that the authorities I have been cited are to that effect. The court’s job is to ensure that there is a so-called level playing field or that the parties have the opportunity to deal with the case fairly on the merits.
[10]         The plaintiff here has, as is always the case, the opportunity to visit various specialists and get various reports. The defendant’s opportunity is limited to reports necessary to ensure that a fair trial can be obtained on the merits. In this case it is too fine a distinction to make to say that Dr. Moll, who made a comprehensive examination and gave a comprehensive report on the plaintiff’s balance complaints, can be distinguished from what Dr. Bell might or might not do as an otolaryngologist. There is no evidence to say that Dr. Moll was unable to make the report he did, that if he had had more information he might have made a different report, or indeed that if he had seen Dr. Noel’s report that he might have come to a different conclusion. None of that is the case. The plaintiff has disclosed its reports to date. The defendant has had a fair opportunity to respond to those reports. Dr. Moll’s report is indeed a complete response to Dr. Noel’s report. The plaintiff’s own report from Dr. Noel does not suggest that there is an underlying otolaryngological cause to the plaintiff’s symptoms. He says that the ENG test was normal except for one abnormality that he says is most likely due to other causes. Dr. Noel says the symptoms were multifactorial, not related to one issue. That is at odds with what Dr. Moll has to say, but that is what the jury will have to decide when the case comes to trial.
[11]         This is not a case where the defendant has made out the burden on him to demonstrate that this application is necessary. The application is dismissed. Costs should go as costs in the cause. There is no reason to depart from the usual rule.

Multi-Disciplinary Medical Assessment Denied In ICBC UMP Claim

Written by admin on . Posted in BCSC Civil Rule 7, ICBC UMP Cases, independent medical exams, Uncategorized. 61 Comments on Multi-Disciplinary Medical Assessment Denied In ICBC UMP Claim

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:
49…
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.


Defence Psychatric Exam Request Dismissed for Being Brought Too Late

Written by admin on . Posted in BCSC Civil Rule 11, BCSC Civil Rule 7, independent medical exams, Uncategorized.

Reasons for judgment were released last month dismissing an ICBC request to have a Plaintiff examined by a psychiatrist finding that the application was brought too late in the litigation and would unfairly balance the playing field should the Plaintiff need to respond to the examination.
In last month’s case (De Corde v. De Corde) the Plaintiff was injured in a 2007 collision.  She alleged physical injuries, a head injury and also “emotional distress“.
In the course of the lawsuit the Plaintiff agreed to be assessed by three physicians chosen by the Defendant (or their insurer ICBC).  Specifically a general practitioner, a neurologist and an orthopaedic surgeon.  The Defendant brought an application for the Plaintiff to also be assessed by a psychiatrist.  The application was brought with just barely sufficient time to have a report generated to comply with the time lines set out in the Rules of Court.
Master Bouck dismissed the application finding the medical playing field was already balanced and an additional report by a psychiatrist served on the cusp of the deadline set by the Rules of Court would be prejudicial to the Plaintiff.  The Court provided the following reasons:

[37] The overriding principle is that an independent medical examination ought to be permitted if necessary to ensure reasonable equality between the parties in their preparations for trial.

[38] In this case, there are at least two considerations that compelled the dismissal of the application.

[39] First, there is no basis to suggest that the defendant is at a disadvantage in terms of evidence.

[40] Second, the application is brought so close to trial that the plaintiff might be prejudiced (by the adjournment of the trial) if the order was granted.

[41] This is not a case where a new diagnosis or symptom has arisen since the last independent medical examination. Indeed, much of the information that is relied on by defence in this application was in that party’s possession before the plaintiff attended the examinations by Drs. Wahl and Moll.

[42] The plaintiff’s mental health is commented upon in all of the reports presented to the court. None of the various medical professionals have recommended psychiatric treatment or diagnosis. It is appreciated that the diagnosis of the plaintiff’s symptoms differs as between these medical professionals. However, regardless of the diagnosis, all of these professionals suggest a treatment plan. That plan ranges from simple reassurance to medication to counselling to future neuropsychological reassessments…

[45] In short, there is simply no basis to suggest that the evidence presented to date requires a psychiatric opinion in order to “level the playing field”. Experts on both side of this case make certain treatment recommendations that will probably lead to some resolution of the plaintiff’s mental health symptoms. Whether the plaintiff follows those recommendations goes to the question of mitigation.

[46] Another important factor to consider is the timeliness of the defendant’s request, particularly when the opinions of the three defence experts (let alone those of the plaintiff) have been known for several months.

[47] I accept the submission that given the type of specialist involved, the plaintiff would have been hard pressed to answer Dr. Solomon’s opinion in time for trial. Thus, the plaintiff may be compelled to seek an adjournment of the trial which is scheduled to occur nearly five years after the accident. Such a result would hardly be in keeping with a speedy resolution to the claim: Rule1-3.

[48] In considering the question of prejudice, I presumed that Dr. Solomons would be able to comply with the 84-day deadline. But that deadline is not really the issue. It is the deadlines that the plaintiff must meet that leads to the possible prejudice.

[49] The plaintiff need only demonstrate that an adjournment of the trial is a possibility: Critchley v. McDiarmid, 2009 BCSC 134 at paras. 21 and 22…

[62] Given the timelines that must be met under SCCR together with the common acknowledgment that psychiatric assessments are not so easily obtained on short notice, there appeared to be a real possibility that the trial would be adjourned to allow the plaintiff to address the defence’ s new expert evidence.

[63] Thus, an order requiring the plaintiff’s attendance at a psychiatric independent examination would result in an inequality of evidence favouring the defence. I have already made the same finding in the case at bar.

More on the DME Prohibition of Bolstering Previous Opinions

Written by admin on . Posted in BCSC Civil Rule 7, independent medical exams, Uncategorized.

While Plaintiff’s in personal injury lawsuits sometimes have to be subjected to multiple defence medical exams (DME) one well-settled principle is that subsequent exams to bolster a previous defence opinion are not permitted.  Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, demonstrating this principle in action.
In last week’s case (Dillon v. Montgomery) the Plaintiff was involved in two motor vehicle collisions.  He sued for damages with both claims set for trial at the same time.   In the course of the lawsuit he agreed to attend a defence medical exam with an orthopaedic surgeon.  The examination included a neurological assessment.
The Defendant then applied for a second exam, this time with a neurologist, arguing this was necessary “to ensure reasonable equality between the parties in the preparation of a case for trial“.  Master Bouck disagreed finding a further exam was not necessary in the circumstances and amounted to an effort to “bolster” the previous opinion.  In dismissing the application the Court provided the following reasons:

[17] Dr. McGraw reviews the findings contained in the neurological consult report in his own report. In additon, Dr. McGraw conducted a neurological examination.

[18] This expert’s opinion is that the plaintiff’s “back pain is of muscular origin and not related to intervertebral disc disease, arthritis of the apophyseal joints, or nerve root irritation”…

[28] In the case at bar, I determined that an examination by Dr. Moll is not necessary to put the parties on equal footing.

[29] First, there was nothing new in the medical evidence since the examination by Dr. McGraw that might justify an examination by a neurologist. The only alleged new information is the plaintiff’s ongoing complaints of tingling in his arms and legs. These complaints are of long standing and even pre-date the accidents.

[30] Second, a neurological opinion has been obtained [by the plaintiff] which negates any correlation between the plaintiff’s symptoms and the motor vehicle accidents. Indeed, Dr. Shtybel’s resident made no findings of neurological impairment whatsoever. In other words, the only purpose of an independent medical examination by a neurologist would be to prove a negative, or, perhaps bolster Dr. McGraw’s opinion. This circumstance is different than the one considered in Kim v. Lin where there had yet to be any medical opinions proferred to explain ongoing (and even worsening) accident related complaints.

[31] Finally, the fact that the plaintiff has ongoing complaints that may be considered neurological symptoms does not warrant this second examination. The defence is “not entitled to pursue every potential medical possibility” to address the plaintiff’s subjective complaints: Lowry v. Spencer, (10 December, 1990) Vancouver Registry No. B883909 as cited in Trahan v. West Coast Amusements Ltd., 2000 BCSC 691 at para. 49.

For more on this topic you can click here to access my archived posts summarizing the judicial application of Rule 7-6(2).

Why Physical Examination Is Not Always Necessary for a "Balanced Playing Field"

Written by admin on . Posted in BCSC Civil Rule 7, independent medical exams, Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating that a physical examination is not always necessary for parties to put themselves on a ‘balanced playing field‘ in a personal injury claim.
In this week’s case (De Sousa v. Bradaric) the Defendant appealed from a Master’s decision refusing to permit a second psychiatric independent medical exam of the Plaintiff.  You can click here for my original post discussing the initial applicaiton.
As previously summarized, the Plaintiff was injured in a 2003 collision which allegedly caused physical and psychiatric consequences.  In the course of the lawsuit the Defendants had the Plaintiff assessed by a psychiatrist of their choosing.  This psychiatrist (Dr. Davis) concluded that there was “no psychosis“.
Shortly after this the Plaintiff was admitted in hospital on multiple occasions.  She was ultimately diagnosed with “chronic paranoid schizophrenia” by her treating physicians.  These records were shared with Dr. Davis but despite the diagnosis from treating specialists he “rigidly and categorically rejected any diagnosis of a psychotic conditions“.  For this reason the Master refused to order a second examination.
In the appeal Mr. Justice Smith allowed the introduction of new evidence, specifically a further report from Dr. Davis indicating that he had a terminal illness and will not be able to participate in trial.  The Defendant’s argued that in these circumstances a further exam should be ordered.  Mr. Justice Smith found that while that could be the case, here it was not necessary because the Defendant had already received a report from their second psychiatrist who opined about the Plaintiff’s condition despite not physically examining her.   In dismissing the application the Court provided the following reasons:

[16] The question that arises on the new evidence, given the unavailability of Dr. Davis for trial, is whether the defendant needs a new psychiatric examination to be placed on that all important equal footing. For that purpose I turn to the report of Dr. Vallance that was before the master. This is of course a report that the defendant has, can rely upon at trial, and presumably Dr. Vallance will be available to be cross-examined on it.

[17] Dr. Vallance prefaces his report by stating:

I have not personally examined Ms. De Sousa. Consequently such opinions as I offer in this report are offered only on the understanding that such opinions are significantly limited in the weight that can be given to them absent such an examination.

As a general statement, that is undoubtedly true. However, it must be reviewed in the context of this case and the issues that will be before the court on which medical opinion evidence will be necessary.

[18] Dr. Vallance states that, based on his review of the records, there is no doubt about the fact that the plaintiff now suffers from paranoid schizophrenia. So he does not suggest that he needs to conduct an independent medical examination to confirm or exclude that diagnosis.

[19] The real issue in this case is whether that condition was caused or contributed to by the accident. On that point Dr. Vallance gives a firm opinion. He states:

I believe that if her physical condition and such anxiety as she had arising from the traumata that she experienced had been significant stressors timing the onset of that first episode, then her psychotic illness would have developed sooner rather than later. I believe that her psychosis began out of the blue, as it usually does, and at an age that is usual for the appearance of a first episode.

He then says:

Such diagnoses as paranoid schizophrenia often reveal themselves slowly over time, and therefore, based on the longitudinal history rather than cross-sectional examination, earlier episodes are often diagnosed as other conditions until the full picture is revealed.

[20] Thus on the crucial causation issue, Dr. Vallance’s own report does not support the suggestion that an independent medical examination is needed to place the parties on an equal footing. Indeed he specifically questions the usefulness of a single medical examination and stresses the need to review the entire history, as he has already done, based on the records.

[21] There is also evidence before me from the plaintiff’s family physician that in light of the plaintiff’s present psychiatric condition, a further medical examination at this time will actually be harmful to her health. That prejudice to the plaintiff must, in my view, be considered, although if I thought that a further psychiatric examination was necessary to put the parties on an equal footing, I would have said that means would need to be devised to manage that risk, perhaps with the assistance of the treating psychiatrist.

[22] However, that is not the case here. It appears to me from the evidence of Dr. Vallance that the defendants are in as good a position as they are likely to be to advance their position that this severe psychiatric condition is causally unrelated to the motor vehicle accident. I am not satisfied that a further psychiatric examination will add anything to the matter or will be of any further assistance for the court.

ICBC Part 7 Exam Once Again Thwarts Defence Medical Exam Request

Written by admin on . Posted in BCSC Civil Rule 7, independent medical exams, Uncategorized.

Earlier this month I discussed a case dismissing a defence application for an ‘independent’ medical exam where the Plaintiff already attended an ICBC arranged medical examination.  Further reasons for judgement were released by the BC Supreme Court, Vancouver Registry, with the same disposition.
In this week’s case (Soczynski v. Cai) the Plaintiff was injured in a 2008 collision.  Both she and the Defendant were insured by ICBC. As is the usual practice in BC, the same ICBC adjuster was handling the Plaintiff’s claim for no-fault benefits and also her tort claim.
The adjuster arranged an independent medical exam with an orthopaedic surgeon.  The Plaintiff attended.  In the course of the lawsuit the Defendant brought a court motion to compel the Plaintiff to be examined by a second surgeon.  The motion was dismissed, however, with the Court finding that the previous ICBC exam created a ‘level playing field’.  Master McDiarmid provided the following useful reasons:
[21] In reviewing the facts in this case, and keeping in mind the main principle to be looked at here, the principle of keeping the parties on an equal footing, I find that in the circumstances of this case, and in particular, the fact that the ICBC adjuster was handling both the Part 7 and tort claims, and did not respond when she knew that the plaintiff’s position was that the examination in front of Dr. Bishop was to deal with both those claims, I find that the examination which took place at the behest of ICBC on January 27, 2009 by Dr. Paul Bishop constituted the first medical examination as contemplated by Rule 7-6(1). The defendants want a further examination by another medical practitioner who practices in the area of orthopaedics. The plaintiff is not relying on any orthopaedic specialists. Keeping in mind the “level playing field” principle, it is not appropriate to order a further examination of the plaintiff by a medical practitioner having expertise in the area of orthopaedics.
For an example of a recent case where an ICBC Part 7 exam which went beyond Part 7 matters did not prohibit a tort Defence Medical exam you can click here to read Master MacNaughton’s recent reasons for judgement in Assalone v. Le.

ICBC's Part 7 Exam Thwarts Defence Medical Exam Application

Written by admin on . Posted in BCSC Civil Rule 7, ICBC No-Fault (Part 7) Benefits, independent medical exams, Uncategorized. 48 Comments on ICBC's Part 7 Exam Thwarts Defence Medical Exam Application

As previously discussed, when a Defendant is insured with ICBC their ability to set up an ‘independent‘ medical exam can be compromised if ICBC exercised their rights to have the Plaintiff examined under section 99 of the Insurance (Vehicle) Regulation and if that exam went beyond what was required for a ‘part 7’ opinion.  Reasons for judgement were recently released by the BC Supreme Court, Rossland Registry, demonstrating such an outcome.
In the recent case (Wocknitz v. Donaldson) the Plaintiff was injured in a 2008 collision.  Both the Plaintiff and Defendant were insured by ICBC.  Before litigation got underway ICBC had the Plaintiff assessed by a physiatrist.   As is not uncommon with these types of examinations, the report generated exceeded the narrow scope of Part 7 Benefit needs.
In the course of the lawsuit the Plaintiff obtained their own expert opinion from a physiatrist.  The Defendant’s brought an application to compel the Plaintiff to be assessed by another physiatrist and by a psychiatrist.  They argued this was necessary to ‘level the playing field’.  Mr. Justice Pearlman disagreed and dismissed the application.  In doing so the Court provided the following helpful reasons:

[14] In Robertson v. Grist, 2006 BCSC 1245, at paragraph 14, Madam Justice Dillon addressed the question of whether a Part 7 examination constitutes a first independent medical examination for the purposes of a tort claim. She said this:

[14]      Whether the Part 7 examination constitutes a first independent medical examination depends upon the scope of the examination, given the rest of the circumstances here.  There was no limitation on Dr. Jaworski’s examination and the request letter covered matters that would solely be relevant to a tort action.  The doctor’s report was not limited to a rehabilitation opinion about whether the injuries sustained in the accident totally disabled the plaintiff from work within 20 days of the accident and for a period of 104 weeks or less, the criteria in section 80 of the Part 7 benefits Regulations.  The examination was a first independent medical examination within the meaning of Rule 30.

[15] In this case, the letter from the adjustor instructing Dr. Findlay has not been put in evidence.  However, it is clear from Dr. Findlay’s report that it deals with matters which go beyond an inquiry restricted to Part 7 benefits, and deals with matters directly relevant to the tort claim. ..

[19] In this case, there have been no subsequent unforeseeable events which would, in my view, warrant a second examination by a physiatrist.

[20] With respect to the application of the defendants for an order for an independent medical examination by a psychiatrist, again this is not a case where such an examination is required in order to level the playing field.  This is not a case where the plaintiff has obtained or intends to obtain a psychiatric report.  An independent medical examination by a psychiatrist is a particularly invasive form of examination and, in the circumstances of this case, it is not one that I would be prepared to order.

[21] With respect to the defendants’ submission that because Dr. Findlay provided his report some nine months after the accident, he was not in a position to pronounce in any definitive way with respect to a prognosis, in my view the timing of Dr. Findlay’s examination was a matter that was entirely within the control of the defendants.  That does not provide a basis which would justify an order for a second independent examination by a physiatrist.  As counsel for the plaintiff has pointed out, it would still be open to the defendants to have Dr. Findlay review the report of Dr. Valentine, and the clinical records that have been produced, and to provide a rebuttal report for use at trial.

[22] The application of the defendants for the two independent medical examinations sought is dismissed.

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