This ICBC medical examination case (Assalone v. Le,2011 BCSC 1348)arises as a result of injuries the claimant suffered in a two car accidents filed in Vancouver and fault was admitted. The Insurance Corporation of British Columbia sought an order that the injury claimant attend an ICBC medical examination to be conducted by Dr. Andrew Hepburn. ICBC had already sent the claimant to a medical examination with Dr. Peter J. Kokan, an orthopaedic surgeon, but Dr. Kokan has since retired and may be unavailable for trial.
Rule 7-6 provides for the medical examination of a person where their physical or mental condition is an issue in a car accident claim. The rule provides:
Order for medical examination
(1) If the physical or mental condition of a person is in issue in an action, the court may order that the person submit to examination by a medical practitioner or other qualified person, and if the court makes an order under this subrule, the court may also make
(a) an order respecting any expenses connected with the examination, and
(b) an order that the result of the examination be put in writing and that copies be made available to interested parties of record.
The Court ordered the second examination and reasoned as follows starting at para 14:
In Teichroab v. Poyner, 2008 BCSC 1130, Mr. Justice Barrow, sitting on an appeal from an order of Master Young, set out the conflicting case law at para. 23. He concluded at para. 24 that in his view:
… the wording of the Rule and the weight of authority supports the conclusion that the “further examination” contemplated by Rule 30(2) means an examination in addition to one ordered under Rule 30(1). To the extent that is so, there can be no question but that the examination ordered by the master was a first examination for purposes of the Rule. The examination carried out by Dr. Laidlow was not ordered under Rule 30(1). Thus, it cannot be that the examination ordered by the master was a “further” examination which fell to be decided under Rule 30(2).
Applying that reasoning, I conclude that the initial examination by Dr. Kokan cannot be considered a first examination for the purposes of Rule 7-6(2) and that what is before me is a request for an examination under Rule 7-6(1).
…In the circumstances of this case, while I accept the Dr. Kokan’s report has some characteristics of a medical‑legal report as opposed to a report strictly for the purposes of assessing entitlement to Part VII benefits, and that, in some respects, the report may not be helpful to the defence, I have concluded that I should exercise my discretion to order an examination by Dr. Hepburn.
The Court found that the determining factor was the uncertainty about whether Dr. Kokan will be available to provide a supplementary report or to appear at trial. In Master MacNaughton’s view, that uncertainty may result in ICBC being hampered in their ability to defend this car accident case. As a result, the defendant’s application is allowed and claimant was be required to attend for an examination before Dr. Hepburn at a date and time to be arranged.
For a completely different result read my review of a case where the court refused ICBC a second medical examination. Posted by Mr. Renn A. Holness