ICBC has a right to retain their own doctor to assess you for injuries in an ICBC claim. This right comes about if you make a Part VII benefit claim (i.e. disability and medical benefits through ICBC) and/or if you are bringing an ICBC claim in a lawsuit (a “tort claim”).
Over time, ICBC has generated a list of doctors who are more likely to provide a favourable opinion to them than other doctors. The most common type of doctor used by ICBC for physical injuries is an orthopedic surgeon. The reason being, many orthopedic surgeons tend to focus on the need for clear objective signs of injuries and if an individual does not have these objective signs, then the outcome for full recovery is very positive.
If you are making a claim for Part VII benefits, Section 99 of the Regulations of the Insurance (Vehicle) Act gives ICBC virtually unlimited access to sending you to their own doctors:
99 (1) An insured who makes a claim under this Part shall allow a medical practitioner, dentist, physiotherapist or chiropractor selected by the corporation, at the expense of the corporation, to examine the insured as often as it requires.
(2) The corporation is not liable to an insured who, to the prejudice of the corporation, fails to comply with this section.
As a result, if your claim is more than a straightforward personal injury matter, ICBC, early on after the accident, will likely use this section of the Regulations to force you to go see their own doctor. In most cases, the doctor ICBC chooses will provide an optimistic outlook for your recovery or otherwise, ICBC would not be using that doctor. Therefore, ICBC often uses this medical assessment to cut you off of Part VII benefits or to limit your entitlement to Part VII benefits. ICBC then uses the medical opinion they received under Part VII in your tort claim to say that your damages are less than otherwise claimed.
When faced with an early medical assessment request by ICBC, it is highly recommended that you get legal advice if you have not already retained a lawyer. At the very least, your lawyer should be imposing terms for your attendance at the medical assessment such as payment of travel expenses, production of the expert report to you, and requesting that the medical assessment also be for the tort claim.
The current strategy at ICBC is to use this Part VII medical assessment in the tort claim and then use their rights under the Supreme Court Rules to obtain another medical assessment under the tort claim later on in the case. Unfortunately, the law as it currently stands, allows ICBC to basically have more medical assessments for the tort claim than they would otherwise receive under Supreme Court Rules because of this Part VII right to a medical assessment. As a result, you should be very cautious about agreeing to an early medical assessment for the Part VII action without terms of attendance because it will no doubt affect your overall claim with ICBC.
In summary, ICBC does have a right under Section 99 of the Regulations and under the Supreme Court Rules to send you to their own doctors for an assessment. The only real defense you have is to try to minimize the number of times you have to go for an assessment on the request of ICBC because chances are, the assessment will not be favourable to your ICBC case given that ICBC generally uses more conservative doctors who tend to provide them with good, optimistic reports.
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