ICBC has generated a list of doctors who are almost certain to provide a favorable opinion
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. a claim for disability and medical benefits through ICBC) and/or if you are bringing an ICBC injury claim in a lawsuit (i.e. a “tort claim”).
Over time, ICBC has generated a list of doctors who are almost certain to provide a favorable opinion minimizing a claimant’s injuries and disability. 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 (i.e. fractures, dislocations, herniated discs, etc.…) and if a claimant does not have these objective signs, the ICBC oriented doctors almost always find little injury or disability from a motor vehicle accident. These ICBC oriented doctors simply do not believe in chronic pain and lasting soft tissue injuries.
If you are making a claim for Part VII benefits, Section 99 of the Regulations gives ICBC wide 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 will use this section of the Regulations to force you to go see their own doctor especially if there is an extended period off work or extensive treatment. If you do not agree to attend the medical assessment, ICBC can cut you off Part VII benefits.
In most cases, the doctor that ICBC chooses will minimize any injury, any need for treatment or any disability. Otherwise, ICBC would not be using that doctor. Therefore, ICBC often uses this medical assessment to cut you off 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 tort claim is minimal.
In the result, you are faced with a catch 22 situation. If you do not go to the medical assessment you get cut off Part VII benefits. If you go to the medical assessment, chances are the doctor won’t support your claim of injury and disability anyways, although you have an outside chance the doctor will not be ruthless in his/her assessment.
When faced with an early medical assessment request by ICBC, it is 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 ensuring payment of travel expenses, facilitating 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 if the case lingers on without settlement. If you do not establish terms of attendance for the ICBC medical assessment under Part VII, ICBC will be able to “double team” you with two of their defense-oriented doctors who will likely find you have minimal injury. Then, you will be behind the eight-ball trying to prove your injuries are serious and lasting.
In bigger injury claims, ICBC will seek multiple assessments in the tort claim. The Courts tend to rule in ICBC’s favor in allowing multiple assessments so long as the doctors are of a different discipline and can assess you for a slightly different medical issue/ concern.
In summary, ICBC does have a right under Section 99 of the Regulations and under the Supreme Court Rules to send you to a defense-oriented doctor(s) 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 favorable to your injury claim given that ICBC generally uses known experts that downplay injuries and disability that can arise from a motor vehicle accident.