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Part 7 examination deemed first IME

If I have already attended a medical examination at ICBC’s request, can they compel me to attend another? What if it is the same type of expert, and my circumstances haven’t changed?

In reasons provided last week by Master Wilson of the Kelowna registry (Huppee v. Nowlin, BCSC 2018 27), the court considered an application by the tort defendant in an ICBC action to have the injured Plaintiff attend a vocational assessment. Counsel for the Plaintiff had refused to permit the Plaintiff’s attendance absent a court order – pointing to ICBC’s previous vocational assessment performed 18 months prior. Importantly, in ICBC matters there are often two defendants: ICBC in the Plaintiff’s claim for Part 7 benefits, and the defendant driver in the negligence (or tort) claim. In this matter, ICBC had sent the Plaintiff to the vocational assessment for the purpose of the Part 7 claim (permitted by section 99(1) of the Insurance (Vehicle) Regulations), and argued that the defendant in the tort action should have opportunity for an assessment.

Master Wilson first considered whether the first assessment was an independent medical examination for the tort defendant. In reviewing all of the surrounding circumstances, including the fact that the defence counsel and the ICBC adjuster in the tort action were unaware of the assessment until after it was performed, he concluded that the detailed 19 page report was a first independent medical examination. Having made that decision, he turned to whether a second medical examination should be ordered. In deciding that no further examination was required to ensure a fair trial on the merits of the case, and observing that there was no evidence that a further examination was required to achieve reasonable equity, he made the following findings:

[54]         The evidence here does not satisfy me that a further medical examination is required to accomplish the objective of putting the parties on a level playing field because the defendant has not met its onus of establishing that there is a question or matter that could not have been dealt with at the previous examination.

[55]         I do not know why the adjuster did not know of the Assessment in advance or that the Wallace Report had been prepared. Perhaps she did not review the file or perhaps Meridian did not keep her informed. However, it is clear the adjuster was not fully aware of what had transpired on the file because she was unable to provide defence counsel with a copy of the Wallace Report when she was asked for it in October 2017. However, ICBC’s lack of attention or failure to communicate does not mean that it is entitled to proceed as if the previous examination never happened.

[56]         As I said above, the defendant has had plenty of time to ask Dr. Wallace to address whatever issues it might wish to have addressed and to provide him with further medical documents the were either not provided to him or were unavailable at the time of his report. There is no evidence that Dr. Wallace was or is unwilling or unable to answer any additional questions, or review additional documents, and provide the defendant with a supplemental report, even now.

[57]         Although the Assessment was 18 months ago, there is no evidence of any change in the plaintiff’s medical circumstances to justify a subsequent examination of the plaintiff – 18 months is not so long ago, absent more, so as to render that Assessment as clearly outdated or the test results obsolete.