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Subsequent ICBC medical exam where first expert opined on all injuries

During your lawsuit, ICBC can send you to an expert for medical opinions on your injuries. Sometimes they can send you to more than one. But what if the first expert provides an opinion on all of your injuries? Is ICBC entitled to have another expert corroborate the first?

In reasons released earlier this month in the case of Monahan v. Yang, 2015 BCSC 999, at issue was whether the content of a neurological report disqualified ICBC from compelling the plaintiff to attend a subsequent medical exam. ICBC counsel sought this subsequent medical exam with an orthopaedic expert because the plaintiff was alleging neurological and musculoskeletal injuries. In dismissing the application, Mr. Justice Tindale made the following comments and concluded that the comprehensive nature of the initial expert’s report disqualified ICBC from compelling an exam by an orthopaedic expert:

[21]        In Hamilton v. Pavlova, 2010 BCSC 493, Mr. Justice Bracken, in reviewing the principles associated with this type of application, stated the following at paragraphs 10 through 16:

 [10]      Rule 30(1) provides discretion to the court to order an independent medical examination, and under Rule 30(2), more than one examination may be ordered.  Counsel, in their helpful submissions, have thoroughly canvassed the relative authorities on this point.  From those authorities, certain principles emerge.  The case law is against a background of the rules of court, and in particular, the principle that the rules are designed to secure a just determination of every proceeding on the merits and to ensure full disclosure, so the rules should be given a fair and liberal interpretation to meet those objectives…

 [11]      Rule 30(2) is a discretionary rule, and the discretion must be exercised judicially.  An independent examination is granted to ensure a “reasonable equality between the parties in the preparation of a case for trial” …

 [12]      Reasonable equality does not mean that the defendant should be able to match expert for expert or report for report…

 [13]      A second exam will not be allowed for the purpose of attempting to bolster an earlier opinion of another expert.  That is, there must be some question or matter that could not have been dealt with at the earlier examination…

 [14]      There is a higher standard required where the defendant seeks a second or subsequent medical exam of the plaintiff…

 [15]      The application must be timely.  That is, the proposed examination should be complete and a report available in sufficient time to comply with the rules of admissibility and to allow enough time for the plaintiff to assess and respond if necessary…

 [16]      Finally, subsequent independent medical examinations should be reserved for cases where there are some exceptional…

 [22]        In my view, Dr. Moll did fully opine on all of the physical injuries alleged by the plaintiff.  Dr. Moll gave his opinion with regard to a diagnosis, prognosis, and the causation of not only the plaintiff’s neurological complaints, but her musculoskeletal injuries.  The opinion of an orthopedic surgeon would only go to bolster the opinion of Dr. Moll.

 [23]        While I appreciate the defendants may not have specifically requested the opinion that they received from Dr. Moll, he is their expert and he opined on all of the plaintiff’s physical injuries.

 [24]        Dr. Moll did raise the new issue of a psychological injury.  However, an orthopedic surgeon cannot address that issue.

 [25]        For all of the abovenoted reasons, the defence application is dismissed.

Authored by Jill Bishop

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