The Supreme Court has prevented ICBC from Unfairly Examining Our Client
As previously discussed, there are two ways ICBC can compel an injured claimant to attend an examination by a doctor of ICBC’s choosing. The first is pursuant to a claim for Part VII or “no-fault” benefits, whereby a claimant is receiving reimbursement for treatment expenses or ongoing wage loss, regardless of who was at fault for the accident.
The second is in response to a tort claim; that is, after a plaintiff files a lawsuit against the other driver.
The law generally prevents ICBC from compelling a plaintiff to attend an examination by a doctor of the same specialty more than once. To do so would allow ICBC to “doctor shop”, or in other words, to send a claimant to, for instance, several orthopaedic surgeons until ICBC finally receives a medical report that serves their interests.
In Lee v. Ching, ICBC sought a court order to send our client to an examination with a second orthopaedic surgeon, Dr. Sovio. ICBC argued that the first examination with orthopaedic surgeon Dr. Yu was only with respect to the no-fault benefits claim and not the lawsuit, and it therefore did not count towards the “one doctor per specialty” rule.
We argued that since Dr. Yu’s report had already comprehensively addressed the medical issues with respect to the lawsuit, a subsequent assessment with Dr. Sovio was not necessary to establish equality between the parties.
We further argued that Dr. Yu’s conclusions were substantially similar to that of our own expert, Dr. McGraw, and that while it’s unfortunate for ICBC that Dr. Yu’s opinions were not as helpful as ICBC would like, this is not a reason to order another assessment.
Master Baker of the Supreme Court accepted our submissions, dismissed ICBC’s application, and awarded costs in our favour.Tweet