Mussio Law Prevents Second Insurance Company Medical Examination of the Plaintiff

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 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.