At some point during your ICBC claim, you may be sent by your lawyer to an independent medical examination (IME) with a specialist doctor such as a physiatrist, psychiatrist, orthopedic surgeon, etc.. At the IME, the specialist doctor will interview you, review your medical records and examine you. Following this, an IME report is prepared which will set out the specialist’s opinion on your injuries including a diagnosis, prognosis (chance of recovery), disability and treatment recommendations. An IME report is often considered crucial evidence of your injury which is required by the courts to prove your injuries.
ICBC is given the opportunity to also send you to an IME with a doctor they have chosen. This is to level the “playing field” between the parties and by allowing ICBC to defend the claim. In most circumstances, you cannot refuse to attend. ICBC must, however, give reasonable notice of the IME and, if you are not available or if the travel to the IME is onerous, ICBC must find an alternative date.
In Johnson v. Giblin 2020 BCSC 2281, ICBC applied for an order that the injured claimant attend an IME with a physiatrist. The date and location of the IME was inconvenient for the injured claimant and she provided ICBC with alternative dates. ICBC refused to reschedule and instead brought this application. One of the reasons ICBC argued that the IME must proceed on the date set was because the expert was not available until a later date that would allow ICBC to abide by the 84-day deadline for the report to be served on the injured claimant before trial.
The master dismissed the application and refused to order that the injured claimant attend the IME due to a lack of evidence from ICBC justifying the order. ICBC was criticized for bringing this application late and it was also criticized overall for commonly bringing these applications at the last minute. Special costs were awarded to be paid to the injured claimant as punishment.
The master’s criticisms of ICBC and these types of applications is as follows:
[7] There is no evidence before me that there are not other physiatrists available to conduct IMEs that would be timely in that they would result in a report being available before the 84-day deadline. There is no evidence before me that the plaintiff could not be accommodated by another physician on a Monday or a Friday in a location closer to her residence, which is in Merville, which, for anyone unfamiliar with Vancouver Island, is actually between Courtenay and Campbell River. Probably an hour’s drive from Qualicum where the IME before Dr. Letcher is proposed.
[8] The defendants sought to make submissions that IMEs were hard to schedule. That was objected to, for good reason. There is no evidence of that before me.
[9] The defendants also sought to submit that it was not a practice to seek available dates from the plaintiff before scheduling IMEs as that would be a practical impossibility.
[10] Be that as it may, it would seem simple enough to inquire whether there were days that were better than others for the plaintiff and to see if that could be accommodated by one doctor or another in what has been referred to by plaintiff’s counsel as the stable available to defendants in these cases.
[11] In all of the circumstances, I am not satisfied that the defendants will suffer prejudice as a result of this application being denied, simply because there is no evidence that there is not another available physician that is more able to accommodate the plaintiff’s schedule, or that is closer to her. And even, frankly, if the plaintiff had to come to Vancouver, the proximity of Merville to the Campbell River airport might make that more agreeable to her than driving to Qualicum and having to take a day off work.
[12] In any event, it will be clear from my comments that these types of applications brought at the 11th hour are not favoured by the courts, and in this circumstance I am not satisfied that the application is appropriate. It is denied. I will hear you on costs.