After a March 2010 accident, the claimant had received one week of disability benefits from ICBC. At that point, she started receiving EI Disability payments. When her EI ran out, she re-applied for the ICBC benefits, but ICBC refused to pay them.
ICBC's adjuster based the denial on a report by DR. Malloon, an orthopaedic surgeon regulalrly retained by ICBC. Dr. Malloon found that she was not totally disabled, eventhough her family doctor and a rheumatologist had both indicated that she was totally diabled from work.
In making the decision to re-instate the benefits, the judge noted that Dr. Malloon's opinion was restricted to his speciality, i.e. musculoskeletal problems, but that he could say nothing of her ligament injuries.
The judge also made a comment that adjusters should not overstate what is in a medical report:
- "I close by noting, once again, the grounds on which ICBC terminated benefits. The claims representative did fairly describe Dr. Maloon as finding that there was no further disability, and that may very well have been the case within Dr. Maloon's limited field as a specialist in orthopaedic medicine opining only on musculoskeletal as opposed to musculoligamentous injuries. That was all fair on the part of ICBC. However, the claims representative, in his denial letter, also stated that Dr. Maloon felt that much of the claimant’s complaints may relate to a pre-existing degenerative condition. As I have noted, that is not what Dr. Maloon’s report says. Claims representatives should read their independent medical reports carefully before citing them as grounds for denying coverage."
The case of Derbyshire v. ICBC can be found at: http://www.courts.gov.bc.ca/jdb-txt/SC/11/01/2011BCSC0170.htm