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Vancouver ICBC Independent Medical Examination Lawyers

Vancouver ICBC Independent Medical Examination Lawyers

Vancouver ICBC  Motor Vehicle Accident and Car Injury lawyers -Importance of Independent Medical Examination 604-602-9000

Vancouver ICBC accident and car injury lawyers at MacLean Personal Injury know the importance of properly documented and supported expert medical report evidence to ensure our clients get the proper money for their unfortunate ICBC car injury claims. An Independent Medical Examination is also known as an IME for short.  ICBC can seek to have an injured party submit to a medical examination by one of their own medical experts to counter medical evidence of the injured party. ICBC cannot abuse the p[rocedure as there are rules to protect last minute examinations to ensure your right to a fair trial or to ensure a fair settlement that gets you a generous award for you pain and suffering and financial loss.

A recent case rejected a last minute ICBC request for an independent medical exam within the 84 day rule by which expert reports had to be delivered by both sides. The court found that rebuttal reports can be filed up to 42 days befiore trial but that independent medical exams after the 84 day expert report deadline faced a significant hurdle to succeed. In Jackson v. Yusishen,  Mr Justice Barrow summarized the leading cases on last minute examinations that are claimed necessary to level the playing field for trial:

[1]             THE COURT:  This is an application brought by the defendant for an order compelling the plaintiff to attend for a functional capacity evaluation to be carried out over the course of two days on August 12 and 13, 2013. [2]             The asserted purpose of requiring the plaintiff’s attendance to undergo the evaluation is to allow the occupational therapist to prepare a report responding to a functional capacity evaluation and cost of care report prepared by an expert the plaintiff has retained. [18]         In the context of a personal injury action, meeting that evidentiary threshold where the object of the examination is the eventual production of a fresh or new expert report will not usually be difficult. On the other hand, where the time limited for serving fresh or new expert reports has passed, and thus the only purpose of an independent medical examination is in furtherance of the production of a responsive expert report, the evidentiary burden will generally be more difficult to meet. [19]         Several cases have addressed this issue. The earliest authority decided under the new Rules is that of Wright v. Brauer, 2010 BCSC 1282. In that case, Savage J. noted that the purpose of Rule 7‑6 is the same as the purpose of the former Rule 30 which was, according to Finch J.A. in Stainer v. I.C.B.C., 2001 BCCA 133, where at para. 8 he wrote: [8]        …the purpose of Rule 30 [the predecessor Rule 7-6] is to put the parties on an equal footing with respect to medical evidence…
[20]         In Wright, the defendant applied for an order requiring the plaintiff to submit to a medical examination by an orthopedic surgeon. The application was made after the time limited for serving new or fresh expert reports, but before the time for serving responsive reports. Savage J. alluded to the parameters of what Williamson J. referred to as “truly responsive rebuttal evidence” in Kelley v. Kelley (1995), 20 B.C.L.R. (3d) 232 (S.C.). He held that an application for an independent medical examination must be assessed in light of the parameters that govern responsive expert reports. Because of that, he held that the issue on such an application is, assuming the application is brought before the time limited for the serving of responsive reports, not one of notice “but whether the Examination should be ordered to enable the defendant to file responsive evidence” (paragraph 18). In the matter before him, the only evidence touching on that question was from a paralegal in the defendant’s legal counsel’s office, who simply deposed that “[it] is necessary to properly defend this action and to respond to the reports of [the other doctors]”. Savage J. held that a bare assertion of that kind in the circumstances of the case before him was insufficient to warrant the making of an order under Rule 7‑6.

[21]         The issue arose again in Luedecke v. Hillman, 2010 BCSC 1538 on an appeal from an order by a master, in which she required the plaintiff to attend for an examination by a physiatrist nominated by the defendant. Cullen J. (as he then was) reviewed a number of authorities that have considered the parameters of truly responsive expert reports and made reference to Savage J.’s decision in Wright. He agreed with the reasoning in Wright, noting in para. 54: [54]      I agree with the conclusion of Mr. Justice Savage in Wright v. Brauer…to the effect that there is an evidentiary threshold to be met before an order under Rule 7-6(1) should be made in contemplation of an expert’s report under Rule 11-6(4). That threshold is different from that for ordering an expert’s report under Rule 11-6(3). To reach the requisite threshold under Rule 11-6(4) the applicant must establish a basis of necessity for the examination to properly respond to the expert witness whose report is served under subrule (3) by the other party. It is not simply a matter of demonstrating a need to respond to the subject matter of the plaintiff’s case.

[22]         Cullen J. dismissed the appeal. He did so on the basis that the evidence before the master included an affidavit from the physiatrist before whom the defendant sought to have the examination take place. The physiatrist deposed, among other things, that: 9.         I would need to conduct the same type of in-person assessment in order to provide my opinion in response to the opinions provided by [the other doctors]. One cannot properly give responsive rebuttal opinions on a patient’s movement, functioning, diagnosis, prognosis, distribution of symptoms, recommendations, suitability for work, and etiology without examining (including, where appropriate, palpating) the patient. Without examining the patient in person, I would be limited to critiquing the methodology or the research or pointing out facts, apparent from the records, which the other examiners may have overlooked.

[23]         In Labrecque v. Tyler, 2011 BCSC 429, Master Bouck dismissed an application to have a plaintiff submit to an independent examination for purposes of preparing a rebuttal or responsive report. The application was made less than a month before trial in the context of litigation subject to the fast track regime. The proposed examiner provided an affidavit in which he deposed that he needed to “physically examine the plaintiff and ask him the questions a doctor would ask in order to elicit information upon which to ground my opinions.”

[24]         Master Bouck concluded that this evidence was insufficient to justify ordering an independent medical examination (para. 37). She also concluded that in the event the doctor’s evidence might be considered sufficient, she would decline to make such an order because of the prejudice that would flow from it, having regard to the fact that, among other things, the trial was less than a month away.

[25]         Finally, in Becker v. Zetzos (May 2, 2013), Vancouver Registry M121679 (S.C.), Master McCallum dealt with an application in a personal injury action. Again, the issue was whether the plaintiff should be required to attend for an independent medical examination, supplemental to or in support of the preparation of a responsive report. The application in Becker was made after the time limited for filing new or fresh expert reports, but before the deadline for responsive reports. There was affidavit evidence from the doctor who was proposed to carry out the independent medical examination. Interestingly, it closely tracked the evidence that was before Cullen J. in Luedecke. The doctor in Becker deposed as follows: In order for me to assist the court and properly prepare a rebuttal to the expert report of [the other doctor] I must physically examine the Plaintiff and ask him the usual questions that a doctor would ask in order to elicit any information upon which to ground my expert rebuttal report. I could not give a proper rebuttal opinion report of the Plaintiff which assists the court and opines on the movement, functioning, diagnosis, prognosis, distribution of symptoms, recommendations, suitability for work, and etiology of the Plaintiff without physically examining the Plaintiff and where appropriate palpating the Plaintiff.

[26]         Master McCallum referred to Luedecke v. Hillman but concluded that the evidentiary threshold had not been met in the matter before him. At paragraphs 17 and 18, he said: [17]      In this case I say the evidentiary threshold has not been crossed. [The doctor’s] letter is simply saying that he cannot give a proper rebuttal opinion report to assist the court without examining the plaintiff. In support of that position he goes through what seems to me to be simply a description of the work he would do if he were preparing a report in the first instance. [18]      He has [the other doctor’s] report. He does not say, as he could have, what there is about that report that would lead him to think that he himself needs to examine the plaintiff. The defendant has not met the evidentiary threshold to support the request for a physical examination of the plaintiff prior to preparation of a rebuttal report.

[27]         Other factors, aside from the evidentiary threshold, influence the discretion the court has to order an independent medical examination for purposes of the preparation of a responsive expert report. In fact, it appears that those other factors were influential in the different outcomes in Luedecke and Becker. In Luedecke, the responsive expert report was sought to address a report obtained by the plaintiff and served at or near the deadline for the service of expert opinion evidence. The plaintiff’s report addressed the plaintiff’s ability to continue his employment as a pilot. Although passing reference had been made to that issue at the plaintiff’s discovery, it appears that it was not an issue that the defendant ought to have reasonably anticipated, and thus while the report sought was a responsive report, it would play a significant role in “levelling the playing field”, which is, as was pointed out by Finch J.A. in Stainer, the primary purpose of Rule 7‑6.

[35]         In all of these circumstances, it does not seem to be necessary to order an independent medical examination to level the playing field. I also note that the defendant has had the plaintiff examined by its expert: an expert who, as noted above, has a particular interest in and an expertise on issues relating to employment disability or abilities. Although the defendant has not served a report from that expert, it cannot be said that he has been unable to explore the question.[36]         In all of these circumstances, I am not persuaded that the order should go, and the application for an independent medical examination is dismissed.en unable to explore the question.[36]         In all of these circumstances, I am not persuaded that the order should go, and the application for an independent medical examination is dismissed.

Hire our Personal Injury Department who knows who the best medical experts are.  Our focus is to ensure your case gets the result it deserves either through settlement, mediation or at trial. Call us now to meet for a free initial consultation. 604-602-9000.

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