Mussio Goodman Law Prevents Second ICBC Medical Examination of the Plaintiff

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Mussio Goodman Protects Client’s Rights and Privacy Against ICBC

There are two ways ICBC can compel an injured claimant to attend an examination by a doctor of ICBC’s choosing. The first is pursuant to a claim for Part VII or “no-fault” benefits, whereby a claimant is receiving reimbursement for treatment expenses or ongoing wage loss, regardless of who was at fault for the accident.

The second is in response to a tort claim; that is, after a plaintiff files a lawsuit against the other driver.

The law generally prevents ICBC from compelling a plaintiff to attend an examination by a doctor of the same specialty more than once. To do so would allow ICBC to “doctor shop”, that is, to send a claimant to, for instance, several orthopaedic surgeons until ICBC finally receives a medical report that serves their interests.

In Socynski v. Cai, ICBC sought a court order to send the plaintiff to an examination with a second orthopaedic surgeon. ICBC argued that the first examination was only with respect to the no-fault benefits claim and not the lawsuit, and it therefore did not count towards the “one doctor per specialty” rule.

The Court ruled as follows:

[14] In this case, [ICBC adjuster] Ms. Mulligan has deposed that on July 31, 2008, the claim file regarding the plaintiff’s claims [emphasis added] arising from the MVA was transferred to her for handling. This obviously referenced both the Part 7 and the tort claims. By the fall of 2008, Ms. Mulligan was aware that the plaintiff had retained counsel with respect to both her tort claim and her claim for benefits under Part 7…

[16] [Wes Mussio] sent Ms. Mulligan an email on December 10, 2008, which contained the following:

I have your letter of December 9, 2008…
The letter suggests that the
assessment is for Part VII issues only.

I take the view that the assessment is
for the tort claim so you are using your
opportunity for a tort IME at this stage.

Ms. Mulligan did not respond to that email. At Court, Eric Goodman argued that Ms. Mulligan’s decision not to respond to, or in any way indicate disagreement with Wes Mussio’s position should be deemed as an implied acceptance thereof.


The Court’s Decision

The Court held:

[21]  In reviewing the facts in this case, and keeping in mind the main principle to be looked at here, the principle of keeping the parties on an equal footing, I find that in the circumstances of this case, and in particular, the fact that the ICBC adjuster was handling both the Part 7 and tort claims, and did not respond when she knew that the plaintiff’s position was that the examination in front of Dr. Bishop was to deal with both those claims, I find that the examination which took place at the behest of ICBC on January 27, 2009 by Dr. Paul Bishop constituted the first medical examination as contemplated by Rule 7-6(1)…

Keeping in mind the “level playing field” principle, it is not appropriate to order a further examination of the plaintiff by a medical practitioner having expertise in the area of orthopaedics.

Mussio Goodman Law Defeats ICBC Low Velocity Defense at Trial

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ICBC’s Biased Policy Was Defeated Against Our Client in Court

Nobody truly understands the impact of whiplash until they have experienced it for themselves. This painful and often debilitating injury can arise from even a relatively mild collision, and can result in chronic pain lasting from months to years to the rest of the victim’s life.

In spite of this, ICBC has instituted a strict “Low Velocity Impact” (LVI) Program, the purpose of which is to deny any injury claim arising from collisions that result in minimal physical damage to the vehicle.

As argued by Eric Goodman before the Supreme Court of British Columbia in Sun v. Sukhan, there is no scientific or medical support for ICBC’s LVI Program, and the Court should not discount the extent of the Plaintiff’s injuries merely by virtue of the limited damage sustained by his rear-ended vehicle. The Court agreed:

[23] From the pictures that were put in evidence on the summary trial, the vehicle appeared to have sustained only minor damage, but again that does not mean that the plaintiff did not suffer genuine injuries, nor is it the case that with soft tissue injuries there is always a physical presentation that can be seen or felt. The pain remains real to the victim of the accident, and his credibility is not an issue on this application.

In finding that the Plaintiff’s injuries largely resolved after one year and nine months, the Court awarded $20,000 in damages for pain and suffering.

Mussio Goodman Wins BC Court of Appeal Decision on Injury Causation

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Mussio Goodman Successfully Wins a BC Court of Appeal Connected to Our Client’s Accident

In Wahl v. Sidhu, the Plaintiff, who sustained soft-tissue and psychological injuries resulting from a car accident in June 2006, was awarded $165,233 at trial. However, the trial judge cut off compensation at June 2009, finding that the Plaintiff would have completely recovered by that time had he been more motivated to mitigate his damages and attend a pain clinic.


The British Columbia Court of Appeal Judge’s Decision

On appeal, Wes Mussio argued in the Court of Appeal that the trial judge’s reasoning was not supported by the medical evidence. The Court of Appeal agreed:

[52] …[T]he basic problem here is that there is no evidence that the appellant’s symptoms would have either been reduced or resolved had he undergone the needle test or attended at the pain clinic as recommended by his assessors.

The Court of Appeal found that, since the Plaintiff’s ongoing symptoms were causally connected to the accident, the trial judge had no basis to cut off compensation for pain and suffering and lost wages at June 2009.