This injury claim ( Kim v. Lin) arises out of a car accident that occurred at the intersection of Dunsmuir and Hornby Streets in Vancouver, British Columbia. The Insurance Corporation of British Columbia, ICBC, denied fault on behalf of the other driver. In this court application ICBC applies to force the injury claimant to attend a medical examination to be conducted by an orthopaedic surgeon of their choice.
The injury claimant says she sustained various injuries which have caused and continue to cause her pain, suffering, loss of enjoyment of life, physical disability, loss of earnings, past and prospective, and out of pocket expenses. In her Notice of Civil Claim, she says that she sustained various injuries, including headaches, and injuries to her shoulders, back and neck.
The ICBC lawyer cross examined the injury claimant before trial and she said she sustained various injuries from the accident, including problems with her eyes, ringing in her ears, neck pain, problems with her shoulders and shoulder blades, her upper back, her hip, her lower back, bruising to her hips, leg, knee and ankle pain, as well as headaches, dizziness, hair loss, weight problems and a variety of emotional problems, including impaired memory and concentration, sleep, fatigue and decreased energy levels.
Before this ICBC court application, the injury claimant had already consented to two medical examinations at the request of ICBC with Dr. Bernard Tessler, a neurologist, and Dr. Kevin Solomons, a psychiatrist.
Judge Voith referred to the case of Hamilton v. Pavlova, 2010 BCSC 493 (Chambers) but did not refer to paragraph 16 of Hamilton were it is stated, “… subsequent independent medical examinations should be reserved for cases where there are some exceptional circumstances: Wildemann v. Webster, supra, at p. 3.”
ICBC argued that the two other ICBC medical experts had different qualifications therefore, despite no reports from the injury claimant, the physical and psychiatrist medical examinations conducted for ICBC and the reports to follow put ICBC on an equal footing to the injury claimant.
As the court stated, “The qualifications and professional focus of competing experts are routinely advanced as the basis or justification for according a particular opinion greater weight. Limiting the third party[ ICBC ] to the report or work of Dr. Tessler is not consonant with seeking to “ensure reasonable equality between the parties”.
Indeed, ICBC was found by Judge Voith to require what seems to be a battery of three medical experts to put themselves on equal footing to respond to this injury claim. The judge did not consider whether there existed exceptional circumstances.
Finally, the judge considered the relevance of the severity of the claimant’s injuries and the alleged impact of those injuries:
“These issues were said to be germane to the injury claimant’s argument that “proportionality” should influence the outcome of the application. While Civil Rule 1-3(2) establishes that “proportionality” is an over-arching consideration which informs the interpretation and implementation of the Rules, its significance, however, is greater for some Rules than for others.”
The court found that if it can be established that claimant’s injuries were caused by the Accident, the “amount involved” in her claim has the prospect of being quite significant, a relevant consideration under Civil Rule 1-3(2)(a). Similarly, the “issues in dispute”, a relevant consideration under Civil Rule 1-3(2)(b), are important for both parties.
The court found that that considerations of “proportionality” indeed supported the appropriateness of multiple medical examinations as requested by ICBC.
In an odd way this may be a blessing in disguise for personal injury claimants that were worried the change in the rules meant they would be entitled to fewer experts. However the courts failure to consider an “exceptional circumstances” analysis may open this case up to being overturned on appeal or simply ignored by the court in the future. Posted by Mr. Renn A. Holness
Issue: Should ICBC be allowed to send injury claimants to multiple medical experts?