13 Oct ICBC’s Request for Fifth Independent Medical Exam Denied

The case of Gennings v. Lum, 2020 BCSC 1196, involved a Plaintiff who suffered injuries in two motor vehicle accidents. He sustained a brain injury, fractures and soft tissue injuries in the first and more serious of these accidents.

ICBC wanted the Plaintiff to attend for a functional capacity evaluation by an occupational therapist. This would be the fifth independent medical examination or “IME” of the Plaintiff attended at ICBC’s request. The Plaintiff’s position was that, having regard to the medical examinations and reports already obtained by ICBC, the proposed further examination was unnecessary. ICBC brought this application to require the Plaintiff to attend the IME.  The Plaintiff opposed the application.

Supreme Court Civil Rule 7-6(1) authorizes the court to order an independent medical examination of a plaintiff in a personal injury action. The purpose of an IME is to put the parties on an equal footing with respect to the medical evidence.

Where the defendant has already obtained an IME and the question is whether a further IME should be ordered, the court must assess the questions already addressed, the differing specialties of the assessors, and the often uncertain path taken in the development of a differential diagnosis in a difficult case.

The judge viewed the circumstances of this case as quite different from those faced by the court in other cases. There was no evidence that the Plaintiff was now asserting a marked and significant worsening of his condition. This was not a case in which ICBC could point to a substantive gap in the expert reports that should be filled to put the parties on an equal footing.

The judge did not accept ICBC’s submission that it could not address, through its experts, how the Plaintiff’s medical conditions may affect his physical and cognitive abilities to function in his work and domestic life. While ICBC may not have been happy with the substance of some of the advice and reports it had obtained from its experts, that was not a proper basis for ordering a further IME.

Taking everything into account, the judge was not persuaded that the further IME sought by ICBC was necessary to put the parties on an equal footing in this case. In his view, ICBC was in a position to fairly defend the case at trial with the opinions and advice already obtained.  Accordingly, ICBC’s application was dismissed.