Tag: section 99 insurance vehicle regulation

ICBC Part 7 Exam Once Again Thwarts Defence Medical Exam Request

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

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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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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