MEDICAL EXAMS AND REPORTS IN ICBC CASES

If you’re injured in a car accident, expert medical testimony is often crucial in helping the court decide on compensation for damages.

To prove your case, you usually want to call your doctor as a witness in support of your claim to address the nature and extent of your injuries. In fact, not doing so may allow the court to assume that the doctor would say something negative.

The defendant in the lawsuit generally has the right to request that you attend an “independent” medical exam by a doctor or specialist chosen by them. This is in line with our adversarial system, which assumes that a more balanced picture will emerge when each side puts their own best case forward and also has the chance through cross-examination to test weaknesses in the other side’s position.

If you’re hurt in a car crash in BC, ICBC is most often the insurer defending the claim on behalf of the defendant. Several rules both benefit and place limitations on ICBC’s use of medical reports.

One that may surprise you is that ICBC can force your own doctor who treated you after the crash to provide ICBC with a medical report of your injuries, covering the doctor’s diagnosis, treatment and prognosis. This is despite any doctor-patient confidentiality you may think applies, and even though you don’t consent to the release of this information.

As for requesting an independent medical exam, ICBC has a couple of ways to get you to submit to an exam by a doctor of its choice when it insures both you and the defendant driver (which is the typical case).

The first is when you apply to ICBC for “no-fault” benefits. These benefits are typically available if you’re injured in an accident in BC, even if you were responsible for the crash. You can receive up to $150,000 for medical and rehabilitation expenses, up to 75% of your lost gross wages to a maximum of $300 a week, and up to $145 a week in homemaker benefits if you can no longer perform most household tasks.

The second way ICBC can get an independent medical exam is when you sue for damages, in which case the court can, at ICBC’s request, order an exam to “level the playing field” and counter balance the testimony of your expert medical evidence.

Interestingly, both sides’ medical experts must now explicitly certify that their duty is to assist the court and not to be an advocate for either you or ICBC.

If ICBC has gotten an independent medical exam when you applied for no fault benefits, can it also insist that you see a different doctor or specialist once you start your lawsuit? Sometimes. For example, the court may allow a second independent medical exam if there has been a demonstrable change in circumstances which couldn’t have been foreseen or addressed by the doctor or specialist who did the first exam. But a court won’t allow a second exam/report for the purpose of ICBC attempting to bolster the opinion of its first medical expert.

Also, you cannot be forced to sign a waiver releasing the doctor arranged by ICBC from liability.

As there can be a fair amount of money at stake in a personal injury action, and every case is different, make sure that you follow your lawyer’s advice as well as your doctor’s recommended treatment.

 

This column has been written by Janice Mucalov LL.B as part of “You And The Law”. It provides information only and must not be relied on for legal advice. Names of the parties in reported cases have been changed or removed to protect their identity. Lawyer Janice Mucalov is an award-winning legal writer.

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