When a person is injured in a motor vehicle accident and has already attended a medical assessment set up by the Insurance Corporation of British Columbia, ICBC, does ICBC have a further right to require the claimant to attend more medical assessments in the personal injury lawsuit against the other driver?
Supreme Court Civil Rule 7-6(2) permits the court to order subsequent medical examinations. However, the common law has taken a holistic view of multiple medical assessments as opposed to the old atomistic view for parsing the ICBC insurance examination from the tort examination.
As is often the case when a person applies for ICBC benefits, the claimant may be required to attend at an ICBC doctor. And when the lawsuit is filed ICBC may want the claimant to attend another medical exam if ICBC is the insurance company for the defendant. This does not always put the claimant on an equal footing and as Master Keighley explained in Rathgeber v. Freeman, 2013 BCSC 2117:
[19] More recently, and in particular since the decisions of Barrow J. in Teichroab v. Poyner, 2008 BCSC 1130, 62 C.P.C. (6th) 101, and Master McDiarmid in Soczynski v. Cai, 2011 BCSC 1299, the court may be said to have adopted a more holistic view of the circumstances leading up to the application.
[20] In Teichroab, Barrow J. noted that the “further examination” contemplated by Rule 7-6(2) meant an examination in addition to one already ordered pursuant to Rule 7-6(1). Thus, he said, a Part 7 examination conducted as a result of a contractual obligation to submit to an examination on the part of the insured could not be considered a “first” examination in the context of Rule 7-6(2).
[21] What was essentially before him, then, was, as here, an application for an examination ab initio under Rule 7-6(1), but the Part 7 examination, its resulting report and the circumstances under which it was obtained, were, the learned justice said, properly matters to consider in determining whether to exercise the discretion conferred by the Rule.
[22] At para. 24, Barrow J. said, in part:
…It may be that this is a distinction which will make little difference to the analysis in most cases because the same factors which are to guide the exercise of the discretion under Rule 30(2) now Supreme Court Civil Rule 7-6(2) will inform a decision to be made under Rule 30(1), now Supreme Court Civil Rule 7-6(1)when there has been an earlier assessment. Approaching the matter in this way serves to focus the inquiry on the exercise of the discretion with a view to the purpose of the Rule and obviates the need to guess as to whether, and if so when, a first assessment not ordered under the Rule may have evolved into such an assessment. Generally, the more closely an examination performed under a contractual obligation or for purposes of a claim for Part VII benefits resembles an independent medical examination under Rule 30(1), now Supreme Court Civil Rule 7-6(1) the more relevant it will be to the exercise of the discretion conferred by the Rule, and the less likely it may be that an order under that Rule will be made. That is so because the purpose of Rule 30 is, in part, to put the parties on an equal footing in terms of their ability to explore the issues in the case (see Milburn v. Phillips (1963), 44 W.W.R. 637 (B.C.S.C.), Wildemann v. Webster (1990), 50 B.C.L.R. (2d) 244 (C.A.), and Guglielmucci v. Makowichuk (1996), 18 B.C.L.R. (3d) 68 (C.A.) [Guglielmucci]). To the extent an assessment prepared under a contract of insurance or in relation to a claim for Part VII benefits puts a defendant on an equal footing, the need for an assessment under Rule 30(1) now Supreme Court Civil Rule 7-6(1) will be mitigated.
Given the new approach to medical assessments it is clear that many comprehensive ICBC medical reports commissioned for Part VII benefits have actually been addressing issues more relevant to the tort claim than the Part 7 ICBC benefits claim. ICBC will either have to change this practice or accept that these reports will be considered “first reports” for the purpose of tort litigation.
The good news for claimants is that ICBC will no longer be allowed a second medical examination if there is nothing in the evidence to show why a further examination, rather than a review of the available materials by a qualified specialist, is necessary to achieve reasonable equality with respect to medical evidence.
Posted by Personal Injury Lawyer in Vancouver Mr. Renn A. Holness, B.A. LL.B.
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