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Late physical assessments where ICBC prejudice is of own making

If my injuries are causing me difficulty at work, can ICBC send me for a functional capacity evaluation? What if they try to send me after the deadline for providing opinions, despite being alerted to my limitations a year beforehand?

In today’s case of Bains v. Antle (unreported, July 28, 2016 oral reasons, docket M144378 in Victoria Masters’ Chambers), ICBC counsel made an application that the court order the plaintiff attend a functional capacity evaluation with a kinesiologist. The evaluation was scheduled for AFTER the deadline for medical opinions. ICBC framed their request as an evaluation to enable their kinesiologist to respond to the opinions of the plaintiff’s occupational therapist, provided on July 11, 2016 – meaning that the rules would allow a late evaluation to respond to the recent opinions from the plaintiff’s experts.

To understand this issue, a few procedural items are significant:

  1. a) both sides regularly retain experts to give opinions on injuries and functioning;
  2. b) opinions must be provided to the other side at least 84 days before trial, to prevent trial by ambush; and
  3. c) after the 84-day-deadline, opinions can be obtained, but only to rebut the existing opinions – and it is frequently disputed whether the plaintiff need be physically assessed for a rebuttal opinion to be generated.

Important to the timeline was a June 9, 2015 opinion of the plaintiff’s orthopedic surgeon, which made it clear that her ability to work and her functional capacity were at issue at that time (over one year before the service deadline).

In evaluating ICBC’s entitlement to a late evaluation of the plaintiff’s functioning, Master Harper concluded that their application was squarely within the parameters of a “rebuttal report” (a report to address the plaintiff’s own expert’s opinions).  With regard to whether they were entitled to a physical evaluation, she concluded that if ICBC was prejudiced by their late decision to get an opinion on the plaintiff’s functioning, it was of their own doing, and she was not required to attend an evaluation:

[12] Further, in Scott v. Ridgway, 2011 BCSC 1552 at para. 6, which I quote as follows:

[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.

In my view, the Scott case also applies to the application before me.

[13] It might very well be that a much more valuable functional capacity evaluation could have been obtained before the 84-day time limit and the plaintiff might have had a difficult time opposing such an application.

[14] However, the defendants at their peril have waited until after the 84-day time limit to make this application. The defendants have chosen to obtain not a single report before the 84-day deadline. Such a practice is difficult to understand, in a case of this nature, given that the Insurance Corporation of British Columbia is a sophisticated institutional litigant who knows how to respond to plaintiffs’ claims for injuries.

[15] I do not find it necessary to review all of the cases that were put before me. I understand from Ms. Hurtig’s affidavit that she would find it most useful to conduct a physical examination. That is no doubt true, but in the circumstances of this case, given that the defendants cannot reasonably claim to be surprised by the subject matter of the plaintiff’s complaints that were assessed by Mr. Jackson, the defendants’ application is dismissed with costs.

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