This was a personal injury case appeal from Master Taylor(Scott v. Ridgway, 2011 BCSC 1552), who ordered the claimant to attend for a second medical examination regarding her functional capacity. I have reviewed several prior personal injury cases where ICBC has been denied second medical examinations. Anyone being asked to attend more than one medical examination for for ICBC should contact a lawyer before agreeing to attend.
In this case it was agreed that the report could not be served within the 84-day requirement of Rule 11-6(3). Instead ICBC planned to serve it under Rule 11-6(4), which allows a response report to be filed no later than 42 days before trial.
Therefore the issue before the court was whether it was “necessary” for the injury claimant to be functionally tested by an ICBC expert in order to properly respond to the claimant’s report. The judge refused to put the claimant through another barrage of tests stating,
“[5] I am not satisfied on basis of the affidavit evidence filed that it is necessary for this plaintiff to undergo another full day of testing at the hands of another vocational expert. I can place no reliance on Dr. Cook’s affidavit because the salient wording has been lifted from another affidavit sworn by another expert in another case with other expertise than that of Dr. Cook. The letter from Dr. Banks is more useful, but as counsel for the plaintiff submits, Dr. Banks is not an expert in the matter of fresh evidence masquerading in the disguise of response.
[6] I am not persuaded that the plaintiff is required to attend before Dr. Banks in order for the defendant to file a responsive report. I am aware of the prejudice claimed by the defendant that their expert’s opinion may be given less weight because of a lack of examination of the plaintiff. However, if they are prejudiced, it is of their making and not the result of any conduct by the plaintiff.
[7] The rules are clear. They must be obeyed in the absence of special circumstances. There are no special circumstances here that would allow the defendant to file a report containing a fresh opinion. The defendant will be restricted to analysing and responding to the plaintiff’s report.
[8] The appeal is allowed. The order of Master Taylor will be set aside, and that effectively dispenses with the cross-appeal.”
Posted by Mr. Renn A. Holness