12 Dec ICBC Seeks Order for Plaintiff to Have X-Ray

ICBC will often request that a Plaintiff see a doctor hired by ICBC.  This is called an independent medical exam (“IME”).  If the Plaintiff does not cooperate, ICBC can apply to the Court to order the Plaintiff to attend.

The law with respect to medical appointments is set out in the Supreme Court Civil Rules.  The Rules state that the Court can order an examination by a medical practitioner or other qualified person if the mental or physical condition of a person is at issue in an action.  The Rules provide that a person being examined may be asked any relevant questions concerning their medical condition or history, but there is no mention of other testing that might be performed.

In the case of Tani v. Baker, 2017 BCSC 1684, the Plaintiff was a pedestrian who was allegedly struck by the Defendant’s vehicle. The Plaintiff had surgery to both a broken leg and a broken shoulder.  At that time, she had four x-rays taken of her right knee, two of her right shoulder, two of her right tibia and right fibula, two of her chest, and a CT scan. She had not had any x-rays since then.

The Plaintiff agreed to attend an IME by an orthopedic surgeon hired by ICBC.  The IME doctor wanted the Plaintiff to have an additional x-ray before he examined her. The Plaintiff objected to this because she had health concerns regarding cumulative x-rays.

ICBC applied to the Court for an order that the Plaintiff undergo another x-ray of her legs and right shoulder. ICBC agreed that there was some danger to cumulative x-ray examinations but argued that the testing was required so that the Defendant could be on an equal footing with the Plaintiff in investigation of her ongoing injuries.

The orthopedic surgeon’s affidavit made no specific reference to this Plaintiff. He simply noted that in order to conduct a useful IME and give an informed medical opinion, he would require “updated and thorough medical records, including x‑ray image of the relevant injured area taken at a date no earlier than six months before a given IME appointment”. He did not say why and did not provide any basis for needing updated x-rays.

The Plaintiff opposed the application, arguing that intrusive investigation or intrusive testing were not included under the Rules. The Plaintiff noted that they had no updated x-rays.  Since the Plaintiff’s expert’s and family physician’s reports did not lead to the necessity for further imaging, then there was no basis for an order for the Defendant to have any. The Plaintiff argued that there was an onus on the Defendant to show that there was a specific need in this case.

The Court noted that if there was a proper basis for it, such testing may be ordered.  However, the circumstances in this case did not show a proper basis or need for the x-rays.  As a result, ICBC’s application was dismissed.