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ICBC Doctor Cannot Force Injury Claimant to Waive Right to Sue


As a personal injury lawyer in Vancouver I was not amazed that the claimant sued an ICBC hired doctor, his claim being dismissed. I was surprised that this ill conceived court application, to force the claimant to sign a release(Mund v. Braun) “agreeing” not to sue the insurance company doctor, made it past the courthouse steps. 
This injury claim arises from two motor vehicle accidents. The injury claimant  had not worked as a short haul truck driver since the first car accident injury and  as a result of the two accidents he suffered pain, disability and impairment of his ability and capacity to continue working. Learn more about court ordered medical examination in my post on that topic.
The claimant had  multiple symptoms chiefly involving the neck pain, right shoulder pain, numbness and tingling in his right arm and fingers.  The diagnostic medical-legal issues were complex and involved claims for  a post traumatic thoracic outlet syndrome; myofascial pain syndrome; frozen shoulder; ulnar nerve damage and  degenerative disc changes.
ICBC sought an  order pursuant to Rules 7-6 of the Civil Rules of Courtthat the claimant  submit to a medical examination by Dr. V. Makin, neurologist. The claimant consented to that, but objected to extending it to include electro-diagnostic testing Dr. Makin wishes to conduct, should his clinical examination and history taken from the plaintiff lead him to see it as necessary to form or confirm his diagnosis.
 Dr. Makin refused to proceed without the claimant’s signature on what could be best characterized as a release of a right of action brought outside the jurisdiction. The court could not force the claimant to sign the release and was  bound by Desjardins (Litigation guardian of) v. Huser, 2010 BCSC 977 (see my post on medical authorizations ); Kobzos v. Dupuis, 2006 BCSC 2047; Stead v. Brown, 2010 BCSC 312; Peel Financial Holdings Ltd. v. Western Delta Lands, 2003 BCCA 180; Rafferty v. Power (1993), 15 C.P.C. (3d) 48 (BCSC); and Allen-Trenholme v. Simmie, [2006] B.C.J. No. 720 (BCCA). The court did not have jurisdiction to order the claimant to sign the release.
ICBC wanted the claimant to pay the cancellation fee for the doctor but the court refused that request and further refused to force the claimant to sign a release of liability before being examined by the ICBC hired doctor.  Posted by Mr. Renn A. Holness
Issue: Should doctors hired by ICBC be immune from liability for their medical opinions?

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"Renn A. Holness is a gifted lawyer and author to over 1000 legal blog articles. Married father of two daughters, son of a neurosurgeon and founder of Holness Law Group."

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