Demand for Neurological Examination of Plaintiff Goes Too Far in ICBC Injury Case

In the recently published case of Dillon v. Montgomery, 2011 BCSC 1417, ICBC’s lawyer sought an order that the plaintiff in a motor vehicle accident case attend an independent medical examination with a neurologist, a Dr. Moll.  Master Bouck denied ICBC’s application as not being required to put the defendant on an “equal footing”.  In that regard, he noted that the plaintiff had already seen an orthopaedic surgeon hired by ICBC in their defence of the plaintiff’s case, and further noted that the plaintiff had already obtained a neurological opinion which ruled out any correlation between the plaintiff’s symptoms and the motor vehicle accident.  Despite that, ICBC sought a further neurological opinion to “properly investigate the plaintiff’s apparent neurological complaints and limitations.”  This objective made little sense to Master Bouck who said the following:

 

[30]  …the only purpose of an independent medical examination by a neurologist would be to prove a negative, or perhaps to bolster Dr. McGraw’s opinion.

 

[31]  Finally, the fact that the plaintiff has ongoing complaints that may be considered neurological symptoms does not warrant this second examination.  The defence is “not entitled to pursue every potential medical possibility” to address the plaintiff’s subjective complaints. [emphasis in original]

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