If ICBC has already sent me to an expert, can their defence lawyer send me to another? What if the first expert was very thorough?
This question came before Master Wilson of the Kelowna registry earlier this month (unreported – .pdf of the judgment here: Dippel v. Kraus 2016). The plaintiff had seen an orthopedic specialist at ICBC’s request in the first year after the crash (2014) to determine entitlement to Part 7 benefits, and his report was comprehensive, including an opinion on surgical outcomes. After the orthopedic assessment, the plaintiff underwent surgery, but she remained largely confined to a wheelchair.
Defence counsel requested that the plaintiff attend an assessment with a physical medicine specialist in fall 2016. On behalf of the plaintiff, her counsel did not consent to the appointment with a new expert, but said she would consent to a subsequent examination with the orthopedic expert. Counsel did so on the basis that ICBC’s entitlement to a second medical exam is restricted – and should be reserved for cases of exceptional circumstances. Defence counsel applied to the court to compel the plaintiff’s attendance at the physical medicine appointment.
In assessing the parties’ positions, Master Wilson summarized the law with regard to second medical examinations, concluding that while a physical medicine expert would be appropriate to opine on the main issue of prognosis and treatment, the “defendant must show that an updated opinion from the initial defence medical examination doctor would not be appropriate” (para 11). He denied ICBC’s application, saying the following:
[13] In the absence of any evidence that Dr. Richardson would not be able to provide the evidence as to the plaintiff’s rehabilitation, or alternatively any evidence from Dr. Hirsch as to what he could bring to the analysis, or that he could opine on something that Dr. Richardson could not, I am unable to conclude that the defendant has established on the evidence that a second medical examination with Dr. Hirsch is required in these circumstances.
[14] As such, the application to attend the appointment with Dr. Hirsch is dismissed.
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