In this ICBC medical examination denied case (Soczynski v. Cai,2011 BCSC 1299)a personal injury claimant in a car crash was making a claim against ICBC and had already accessed no fault accident benefits following the car accident, pursuant to Part 7 of the Insurance (Vehicle) Regulations. ICBC sent the claimant to one of their doctors to allegedly assess the accident benefit claim and 2.5 years later ICBC wanted the claimant to attend other medical examination.
In denying ICBC’s request for the second medical examination Master McDiarmid found that,
“[3] On August 9, 2011, defendants’ counsel wrote to plaintiff’s counsel as follows:
We write to advise we have arranged an appointment for a medical examination of your client with Dr. Simon Horlick, Orthopaedic Surgeon.
[4] In response, plaintiff’s counsel succinctly set out the plaintiff’s position by a letter written the next day, in which counsel wrote:
The IME you have arranged for September 29, 2011 with Dr. Simon Horlick is a duplication as the Plaintiff has already attended an IME with Dr. Paul Bishop.
[5] This was in reference to a medical examination carried out by Dr. Paul Bishop on January 23 2009. Following that examination, Dr. Bishop wrote an eleven-page report dated that day which set out his qualifications, a detailed history of the plaintiff, physical examination of the plaintiff, and a review of clinical records with comments about some of what was written in those records by the plaintiff’s family physician. Dr. Bishop’s report concluded with sections entitled “Impression” and “Discussion”. In this latter section, Dr. Bishop responded to questions put to him by Wendy Mulligan, a claims representative with the Insurance Corporation of British Columbia (“ICBC”) who was responsible for handling the plaintiff’s claims arising from the April 9, 2008 MVA. His report is, in my view, more comprehensive than what would be needed to deal solely with Part 7 issues. In my view, it is a report which could assist the trier of fact in this (tort) action. The report sets out the author’s qualifications and facts, and assumptions on which the opinion was based. The way the report is written makes it obvious that Dr. Bishop was personally (i.e. “primarily”) responsible for its content. The report was, therefore, in compliance with the requirements of Rule 40A, predecessor to Rule 11-6(1).
[6] If Dr. Bishop’s report was solely for the purpose of an examination pursuant to s. 99, there would be no need to request the expert’s qualifications and experience. Ms. Mulligan understood, as at December 9, 2008, that Dr. Bishop was an orthopaedic surgeon. The need for a statement containing qualifications and experience is to ensure compliance with the requirements for admissibility in accordance with Rule 40A.
[7] I recognize that no actions had been started as of January 2009. It is conceivable that an action for Part 7 benefits could have been initiated, but ICBC was paying Part 7 benefits. The probable reason for compliance with Rule 40A was to enable the report to be admissible in the anticipated tort action.”
The ICBC adjuster ignored a letter that the claimant’s lawyers sent confirming his understanding that this was a first medical examination for the lawsuit but the adjuster did not reply. The Court therefore further found that,
“[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.”
Posted by Mr. Renn A. Holness
ICBC is so complex (and might I say tricky) to deal with. Your post here shows very clearly why it is important to retain a lawyer. Otherwise the claimant would probably have complied not knowing any better – and who knows what that would have done for their case. Good article, thanks!