The ICBC adjuster required that the claimant attend at a medical examination with an orthopedic specialist following her car accident injury claim. The claimant attended and a medical report was ordered under Part 7, ICBC accident benefits. The defendant then wanted the claimant to attend a SECOND doctor, a physiatrist (Physical Medicine and Rehabilitation) for the tort claim. The claimant refused to attend the second examination(Dippel v. Kraus,2016 BCSC 2238).
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This injury case involved a motor vehicle accident in which the defendant was represented by ICBC, who was also responsible for administering the claimant’s accident benefits, often called Part 7 benefits.
The claimant agreed to attend the first ICBC orthopedic specialist but took the position that this would constitute the defendant’s first medical examination in the tort claim as well. While that was not agreed to at the time, ICBC conceded at this application that ICBC’s initial medical examination and report was considered the first IME in the tort action.
Although an orthopedic surgeon is a different specialty than a physiatrist it is established by case law that there is significant overlap between these two specialties.
The inquiry in the personal injury case was largely to determine the prognosis and ongoing treatment for the claimant. There was no doubt that Physical Medicine and Rehabilitation is an appropriate specialty for this kind of opinion; however, that is not the end of the test. ICBC must also show that an updated opinion from the initial ICBC medical examination doctor would not be appropriate.
In this case there was no evidence of a new diagnosis or any injury of a different nature or character to when the first ICBC physiatrist saw the claimant, only an increase in the ongoing symptoms.
In the absence of any evidence that the first ICBC doctor would not be able to provide the evidence as to the claimant’s rehabilitation; or alternatively any evidence from the proposed second doctor as to what he could bring to the analysis; or that he could opine on something that the first doctor could not, the judge was unable to conclude that the defendant has established on the evidence that a second medical examination was required in the circumstances.
The ICBC court application to force the claimant to attend a second medical examination was dismissed.