In this ICBC work assessment  personal injury case (Jackson v. Yusishen,2013 BCSC 1522) the defendant requested and was denied further physical examination of the injury claimant in order to respond to a functional capacity evaluation and cost of care report prepared by the claimants expert. Judge Barrow found that is was not necessary to order a medical examination to level the playing field.  The claimant had suffered a relatively minor soft tissue injury but one of the central issues at trial will be whether a subsequent hernia and rib fracture are factually and legally causally linked to the injuries sustained in the motor vehicle accident.
The 84th day before trial  is the last day for service of expert reports under Rule 11‑6(3).  On that day, the defendant served four expert reports on the claimants lawyer. One of those reports was from an engineer, another was from a radiologist, and the others were from two of the claimant’s treating physicians. The defendant also served an economist’s report. The lawyer for the claimant arranged a functional capacity evaluation completed by an occupational therapist in Kelowna and served a report on ICBC before the expert deadline
The ICBC argued that if the order was granted, they would have a report in advance of the 42‑day cut‑off for serving responsive reports as provided for in Rule 11‑6(4). If the issue was really whether that report would in fact be a responsive report as opposed to a fresh or new opinion. The Court found that the defendant did not require the further examination in order to be put on a level playing field and acknowledged that, “There is nothing in the evidence in this case as to why it would be necessary for an occupational therapist to conduct a comprehensive functional capacity evaluation in order to respond to the functional capacity evaluation and cost of care reports of the plaintiff’s expert.”
Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.

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