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: 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.
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) Regulationand 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:
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:
 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.
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. ..
In this case, there have been no subsequent unforeseeable events which would, in my view, warrant a second examination by a physiatrist.
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.
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.
The application of the defendants for the two independent medical examinations sought is dismissed.
As previously discussed, ICBC can typically arrange an ‘independent’ medical exam (IME) in one of two ways. The first is when an insured applies for first party no-fault benefits. Section 99 of the Insurance (Vehicle) Regulation gives ICBC the power to compel an IME in these circumstances. The second is under Rule 7-6(1) of the BC Supreme Court rules which allows the court to order an independent exam to “level the playing field” in an injury lawsuit.
Two sets of reasons for judgement were recently brought to my attention from the BC Supreme Court, Campbell River Registry, discussing when a previous Part 7 Exam will prevent ICBC from obtaining a new expert under the Rules of Court.
In the first case (Robinson v. Zerr) the Plaintiff was injured in a motor vehicle collision. In the course of dealing with ICBC for his Part 7 Benefits the Plaintiff attended a medical appointment arranged by ICBC with an orthopaedic surgeon. In the course of the tort lawsuit ICBC attempted to get an opinion from a second orthopaedic surgeon. The Plaintiff opposed this. ICBC brought an application to compel the second exam but this was dismissed with the Court finding that the first report strayed beyond what was required for a Part 7 exam. In dismissing the Application Master McCallum provided the following reasons:  The authorities are clear that the Part 7 report can be treated, as it was in Robertson v. Grist, as a report in the tort action if it is shown that it effectively covered all of that ground, as I understand it. It is clear from Dr. Dommisse’s that it does cover all of what one may expect in a report. Dr. Dommisse did not have access to the pre-accident clinical records. However, it is clear he knew of the plaintiff’s history because he describes past treatments and past history…  Dr. Dommisse went through the examination and gave his opinion. His opinion is not qualified in any way. He does not suggest that there is more information he needs. He makes no recommendaiton for treatment. There is nothing to suggest that, if he had more information or that he wished more information before he could make the determinations he did.  The report, in my view, is the same of sufficiently similar to the report in Robertson v. Grist and obtained in circumstances that persuade me that this report is indeed the opportunity for the level playing field that the authorities call for. The defendant has had the opportunity to have the plaintiff examined by an examiner of his choosing. Although the adjuster references Part 7 claim and the disability benefits, Dr. Dommisse does not, in my view, treat the report as limited in any way and gives his opinion on every aspect of the claim…  In those circumstances the defendant’s application is dismissed.
In the second case (Lamontage v. Adams) a similar result was reached with a Court finding that a subsequent exam should be with the Part 7 physician as that examiner covered ground relevant in the tort claim.
The above cases are unreported but, as always, I’m happy to provide a copy of the reasons to anyone who contacts me and requests these.
As I’ve previously written, ICBC can typically arrange an ‘independent’ medical exam (IME) in one of two ways. The first is when an ‘insured’ applies for first party no-fault benefits. Section 99 of the Insurance (Vehicle) Regulation gives ICBC the power to compel an IME in these circumstances. The second is under Rule 7-6(1) of the BC Supreme Court rules which allows the court to order an independent exam to “level the playing field” in an injury lawsuit.
As a monopoly insurer ICBC often has one adjuster assigned to look after a person’s claim for no-fault benefits and at the same time look after the defendant’s interests in the Plaintiff’s tort claim. Often times ICBC will obtain a no-fault benefits medical exam and then once a tort claim is launched seek a second exam with a different physician pursuant to the BC Supreme Court Rules. Can ICBC do this? The answer is sometimes yes but is highly factually dependent and reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with this area of law.
In today’s case (Imeri v. Janczukowski) the Plaintiff was injured in a motor vehicle collision in 2005. The Plaintiff and Defendant were insured with ICBC. The same ICBC adjuster was looking after the Plaintiff’s no-fault benefits claim and acting on behalf of the defendant in the tort claim. ICBC sent the Plaintiff for an IME with an orthopaedic surgeon (Dr. Boyle) as part of the no-fault benefits application process. In the course of the tort claim the Defendant then sought an order sending the Plaintiff for an IME with a different orthopaedic surgeon (Dr. McGraw). The Plaintiff opposed this motion and argued that if ICBC is entitled to a second exam it should be with the the same doctor. Master Shaw sided with the Plaintiff. In doing so the Court provided the following useful reasons:
 Rule 7-6(1), which is the new Rule 30, provides as follows:
Order for medical examination
(1) If the physical or mental condition of a person is in issue in an action, 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 under this subrule, the court may also 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 of record.
 In Stainer v. Plaza, 2001 BCCA 133, Finch J.A. (as he then was) said at para. 8:
… the purpose of Rule 30 is to put the parties on an equal footing with respect to medical evidence.
 Although the first question would be whether the defence needs an IME of an orthopaedic specialist to put the parties on an equal footing with respect to medical evidence, counsel for the plaintiff did not oppose the plaintiff attending a defence IME with an orthopaedic specialist as long as it was Dr. Boyle. The plaintiff agrees to go back to Dr. Boyle for the IME.
 The plaintiff’s submission is that the plaintiff has already attended a first IME for tort purposes with Dr. Boyle and, if a further IME is appropriate, it should be a follow-up with the original expert for the defence.
 In Rowe v. Kim, 2008 BCSC 1710, Master Keighley at para. 14 states:
A party seeking to have a second examination preformed by a practitioner practicing in the same speciality or discipline as a practitioner who has already examined a person faces an uphill battle: Hothi v. Grewal,  45 B.C.L.R. (3d) 394 (SC); Hamada v. Semple,  B.C.J. No. 1307 (SC). Successful applicants are those who are able to demonstrate that something has happened since the first examination which could not have been foreseen or which could not, for some other reasons, have been addressed by the first examiner. It also seems to me that material filed in support of the application should indicate why a further examination by the doctor who performed the original assessment is not appropriate.
 The evidence submitted in this matter does not set out why it would not be appropriate to send the plaintiff back to Dr. Boyle. There was no evidence why Dr. McGraw should be preferred over Dr. Boyle.
 The plaintiff does not resist seeing Dr. Boyle. It is not necessary to find sufficient reasoning for the further examination by Dr. Boyle.
 I find the February 28, 2006 report of Dr. Boyle contains opinion relevant to both the Part 7 claim and the tort claim. The defence has not provided any evidence to explain the opinion content in the report relevant to the tort claim, other than the statement of the adjuster in her letter to the plaintiff setting the appointment that the IME is for the Part 7 claim purposes. It is not known what the request or instructions to Dr. Boyle were. Based on the content of the resulting report, there is opinion relevant to the tort claim. I find the IME by Dr. Boyle on February 28, 2006 is a first examination by an orthopaedic specialist in the tort claim as well as for a Part 7 claim.
If you would like further information or require assistance, please get in touch.
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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