ICBC Law

BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Archive for April, 2008

Plaintiff Awarded $96,970 For a Disc Herniation

April 15th, 2008

In a case that can be characterized as “the straw the broke the camel’s back”, a Plaintiff was awarded over $90,000 soft-tissue injuries and a L5-S1 disc herniation which were caused (at least in part) as a result of a 2003 car accident.

The Plaintiff was a 47 year old with a long history of back injuries. She had pre-exsting low back pain, neck pain and a bilateral facet-joint arthropathy.

She was involved in a fairly serious car accident in 2003. Her vehicle sustained damage which took close to $5,000 to repair.

At trial both a neurosurgeon and an physiatrist testified on behalf of the Plaintiff. The neurosurgeon’s opinion was that “(the Plaintiff’s) disk herniation was caused by small tears to the annular fibres surrounding the disc which eventually ruptured due to the ongoing stresses from day to day living” and that “(since the car accident) was the last major trauma before (the Plaintiff) experienced the disc herniation, it was a significant contributor to the problem.” The Plaintiff’s physiatrist largely shared this opinion.

ICBC lawyers defending claims often retain orthopaedic surgeons who disagree with treating physicians. This common insurance defence step was followed in this case as the defence lawyers retained an orthopaedic surgeon who testified there was “no objective evidence of ongoing injury to explain the Plaintiff’s ongoing pain“.

The Defence also showed video surveillance of the Plaintiff doing various activities including getting in and out of her car on many occasions with minimal difficulty. I have previously blogged about surveillance evidence and ICBC claims and don’t intend to re-visit this subject at length but will point out that this is a common tactic ICBC lawyers take when defending injury claims and Justice Fenton, at paragraph 10 and 11 of the judgement canvasses the position that many ICBC lawyers take at trial when they have surveillance evidence which shows a Plaintiff potentially overstating injuries.

After hearing all the medical evidence the court accepted the opinions of the Plaintiff’s physiatrist and neurologist and stated that “(the Plaintiff’s) earlier accidents, along with degenerative changes to her spine, made her more vulnerable to lower back injury. Accordingly, while I cannot find the defendant’s negligence was the only cause of the Plaintiff’s problems after February 13, 2003, on a balance of probabilities, I find that the defendant’s negligence materially contributed to the occurrence of those injuries

The court assessed the Plaintiff’s damages as follows:

1. Pain and Suffering: $65,000

2. Special Damages (out of pocket expenses): $3,118

3. Past Wage Loss: $88,000

4. Cost of Future Care: $5,000

Justice Fenlon then reduced the total award by 40% to account for the risk that the Plaintiff’s pre-existing condition in her spine and her psychological fragility would have detrimentally affected her in the future, regardless of the car accident.

Justice Fenlon did a great job in canvassing the applicable law in determining whether the car accident caused the Plaintiff injury. This case is worth reading to get insight into the factors courts consider when addressing pre-existing injuries that were aggravated by a car accident, and further to see the “thin-skull” legal principle in action which is well canvassed at paragraphs 42-44 of the judgement.


Police Officer Awarded $87,231.53 for Back and Neck Injuries

April 14th, 2008

In reasons for judgement released by the BC Supreme Court today, The Honourable Madam Justice Griffin awarded a police officer, who was 26 at the time, a total of $87,231.53 as compensation for her injuries from a 2004 rear end motor vehicle accident.

The Plaintiff was diagnosed with back and neck soft tissue injuries.

The trial judge found that “it is now unlikely that (the Plaintiff) will recover completely from her injuries. She has recovered considerably….however, she is likely to have flare-ups of her symptoms from time to time“.

The Plaintiff called a total of 5 medical witnesses in support of her claim. The medical evidence in support of the claim included:

1. The Plaintiff’s former GP who testified that the Plaintiff did not complain of back or neck pain prior to the car accident.

2. The Plaintiff’s current family physician who testified that the Plaintiff’s injuries cause her to remain vulnerable to aggravated symptoms with physical activity

3. A chiropractor

4. An occupational and sports medicine physician who testified that the Plaintiff had Post Trauamtic Myofascial Pain Syndrome and Mechanical Low Back Pain. He went on to state that “it is my opinion that (the Plaintiff) now has a permanent impairment of her mid back and low back.”

5. A specialist in physical medicine and rehabilitiation (commonly referred to as a physiatrist). He diagnosed the Plaintiff with mechanical low back pain and mechanical neck pain.

The Defense hired an orthapoedic surgeon to assess the Plaintiff. (This is a common step taken by ICBC lawyers in defending soft tissue injury claims). He testified that the Plaintiff had a resolving cervical sprain, that her complaints were minimal and that they would resolve with the passage of time and a continuing exercise program.

The defence doctor’s evidence was challenged in cross-examination and he made some useful admissions including that “the chance of spontaneous recovery is less with the passage of time“.

The trial judge assessed damages as follows:

1. $30,000 for pain and suffering

2. $5,112.60 for past loss of income

3. $2,391 for cost of future care

4. $5,227.93 for special damages (out of pocket expenses incurred as a result of the accident)

5. $70,000 for loss of earning capacity (future wage loss).

The damages awarded for pain and suffering and future wage loss were then reduced by 25% by the trial judge. The reasons provided for this were that “because (the Plaintiff) had a vulnerability to back injury due to her earlier accidents, there was a measurable risk prior to the July 2004 accident that if (the Plaintiff) was to suffer a work injury in her position as a police officer the effects would be serious.”

This reduction of damages is an example of a basic legal principle (that a Plaintiff is not to be over-compensated) in action. The court heard evidence that the Plaintiff suffered previous injuries and the Plaintiff’s own physician testified that “(a previous accident) directly caused her complaints of mid and low back pain and that July 2004 accident aggravted her symptoms”.

This case is a great illustration of the fact that previous injuries do not disentitle a person for compensation if these injuries are aggravated in a later accident.  The extent of the pre-existing injuries simply have to be taken into account when properly valuing the damages of the subsequent accident.

Are you looking for an ICBC Lawyer to discuss a similar ICBC injury claim? If so feel free to contact the author for a free consultation.


BC Court of Appeal Increases Pain and Suffering Award to $42,000

April 9th, 2008

In reasons for judgement released today, the Honourable Madam Justice Newbury of the British Columbia Court of Appeal increased the pain and suffering award for a BC auto accident victim from $15,000 to $42,000.

The Plaintiff was a 70 year old female. At trial in the British Columbia Supreme Court, the trial judge found that the Plaintiff suffered a soft tissue injury, namely a muscle strain to the trapezius area but concluded that “the evidence was not sufficient to establish a causal connection between the accident and the increase in frequency and intensity of (the Plaintiff’s) dizziness“.

On appeal, counsel for the Plaintiff argued that the trial judge was simply wrong in saying there was ‘no medical evidence’ that supported the causal connection between the accident and the Plaintiff’s increase in frequency and intensity of dizziness.

At trial an ENT specialist testified that “in my opinion the increased dizziness (experienced by the Plaintiff )subsequent to the accident in 2004 is probably from the accident in 2004“. Given this evidence the BC Court of Appeal agreed with the submission of Plaintiff’s counsel and concluded that the appeal must be allowed.

Normally when an appeal is allowed a new trial is ordered.  Running a second trial is obviously time consuming and costly.  Fortunately for the Plaintiff, the trial judge stated that he would have awarded between $40,000 and $45,000 for pain and suffering had he found that the Plaintiff’s dizziness was related to the 2004 car accident. Given this helpful finding, and to save the parties from the expense of another trial, the BC Court of Appeal exercised their discretion to substitute the higher award of $42,000 for pain and suffering.


Taxi Driver found 10% At Fault For Leaving High Beams On

April 8th, 2008

In a judgement released today by the British Columbia Supreme Court, Madam Justice Humphries concluded that a taxi driver was 10% at fault for 2 young girls’ injuries because he left his high beams on thus obstructing the view of on-coming traffic in the early morning of September 6, 2003 in Langley, BC.

The taxi did not hit the girls, rather, the taxi driver’s fault rested with the fact that he stopped his taxi on the side of the highway to engage some potential passengers in conversation with his high beams on. The passengers were a group of 5 young people who had left a party and were looking for a taxi ride home. The taxi driver declined to give this group of 5 people a ride because his vehicle only had 4 available seatbelts.

After being rejected by the taxi driver the young people headed back across the street into the lane of westbound traffic. Unfortunatley the driver of a vehicle driving in the westbound lane failed to see the people and struck 2 young girls with her vehicle.

The court found that the girls, the taxi driver, and the westbound vehicle were all partly at fault. In assessing 10% of the blame to the taxi driver Madam Justice Humphries stated “He did not keep a lookout for oncoming traffic and he left his high beams on. This constitutes a departure of the standard of care expected of a prudent driver and was a contributing cause of the accident.

If a person in British Columbia is partially to blame for an accident, it is important to seek compensation from all others who are at fault. Failing to do so will result in the Plaintiff receiving less than full compensation for injuries caused by the fault of others. This is called “several liability”. This decision is a great illustration of Plaintiff’s counsel seeking compensation from all those responsible for car accident related injuries. Had the taxi driver not been sued, on this reasoning, the young girls would have had the value of their claim reduced a further 10 percent.

Feel free to contact the author if you have questions about several liability and a current ICBC claim.


Buckle Up Or Pay the Price

April 4th, 2008

Failing to wear a seatbelt can not only hurt you physically, it can hurt financially and I’m not referring to a traffic ticket.

A person advancing an ICBC claim who is injured through the fault of another motorist may be found “contributorily negligent” for failing to wear a seatbelt if it can be proven that injuries would have been prevented (or lessened) by the use of a seatbelt.

If a person advancing an ICBC claim is found contributorily negligent, the value of the ICBC claim goes down.

In these cases BC courts must apportion those injuries due to the failure to wear a seatbelt and deduct their value in compensating the injured person. Generally failing to wear a seatbelt results in reduction of the value of the claim by 15% – 25%, although the range of apportionment varies and can exceed this range.

When dealing with ICBC, it is important to keep in mind that failing to wear a seatbelt does not automatically reduce the value of the claim. It is for ICBC (or the insurance company / lawyer for the at fault driver) to prove that failure to wear a seatbelt caused or contributed to the injuries. Justice Fulton, the case Gagnon v. Beauliew, summarized the law as follows “In the case of this particular form of contributory negligence, the onus is on the defendant to satisfy the court, in accordance with the usual standard of proof, not only that the seat belt was not worn but also that the injuries would have been prevented or lessened if the seatbelt had been worn”

Also, there are some limited circumstances where failing to wear a seatbelt does not amount to negligence such as when a person has medical reasons making wearing a seatbelt unreasonable.

Circumstances excusing people from wearing seatbelts are the exception, not the norm so consider buckling up, failing to do so can not only add to your injuries, it can subtract from your pocket-book.


Who's That in the Bushes? ICBC Surveillance and You

April 3rd, 2008

A concern many BC personal injury clients have is the threat of surveillance when they are advancing an ICBC injury claim. Video surveillance is legal in British Columbia so this threat is real.

The thought of video surveillance is unsavory to say the least.  What concerns me, however, is not that ICBC may be conducting video surveillance, rather the misconseption that some BC personal injury claimants have regarding their behaviour and potential surveillance. I have been asked many times “Should I watch out because there may be surveillance” or “Should I limit my activities out in public because if I get filmed being active that will hurt my claim“.

My answer to this question is as follows: Video surveillance does not hurt a personal injury claim, overstating the effects of injuries does. It does not matter if you’re painting your house, lifting weights, or doing any number of physical activities that are caught on film. If you can be active and not aggravate your injuries that is a good thing. If, on the other hand, a personal injury claimaint tells others that they are limited and video surveillance shows otherwise, that could be very damaging. This goes to a person’s credibility. If a person is caught in a lie with respect to the effect of their injuries that will have a very negative effect on the value of an ICBC claim.

I like to assure people advancing ICBC claims that they need not live life any differently because of an ICBC claim or because of the threat of video surveillance. It is lies and lies alone that have the most damaging impact on a personal injury claim. If you are honest about your injuries and their impact on your life video surveillance should not be a concerning threat.  In fact, with an honest plaintiff, video surveillance should appear as nothing more than an unsavory insurance tactic.


Expert Witness Crosses the Line

April 3rd, 2008

Expert witnesses play a vital role at the trial of ICBC injury claims. Often judges or juries require the input of a qualified expert to help make sense of technical facts. No where is this more obvious than in ICBC injury claims where doctors give the court opinion evidence with respect to injuries, their causes, their treatment and prognosis.

Expert witnesses, doctors included, have a fundamental duty to be neutral and independent. It has been held that “expert evidence presented to the court should be, and should be seen to be, independent product of the expert uninfluenced as to form or content by the exigencies of litigation. An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters withing his expertise.”

Experts owe the same duty to the court whether they are testifying on behalf of the Plaintiff, the Defendant or if they have judicially appointed. However, in some cases, experts hired by one side of a lawsuit forget or ignore their duty and engage in active advocacy. In other words, they go out of their way to fight for one side in the lawsuit. This is indeed a shameful development which does nothing but cloud the issues in a lawsuit.

When experts cross the line, they run the risk of having their opinions totally disregarded or declared inadmissible. A great illustration of this can be found in the recent judgment of The Honourable Madam Justice Martinson in which she declared that the report of a psychiatrist hired by the Defendants in a lawsuit was inadmissible.

She concluded that the expert stepped into the shoes of the jury while advocating for the Defendant. He “stepped outside of his area of expertise, commented on matters of general knowledge that the jury can determine, provided many opinions on credibility and made editorial comments, did not seperate his opinions from the fracts and assumptions he relied on, and engaged in advocacy“.

The judge went on to exclude the psychiatrists report from trial on the basis that he crossed the line and engaged in advocacy. In ruling the psychiatrist’s evidence inadmissible Madam Justice Martinson concluded that the doctor had a “lack of understanding of his role as an expert witness“.

Has ICBC sent you to a doctor that was not impartial and ‘crossed the line”? If so you can contact the author of this article for a free legal consultation.


"When Should I Go Back To Work?"

April 1st, 2008

A frequent question I encounter as a British Columbia personal injury lawyer is “when should I go back to work?” or “If I go back to work now will I hurt my ICBC claim?”.

The short answer is that going back to work rarely hurts an ICBC claim. Working is a good thing. Plaintiffs in personal injury claims have a duty to mitigate their damages. This means that they are required to take reasonable steps to minimize their losses as a result of an accident.

Keeping in mind the duty to minimize losses, the question of returning to work is best directed at a physician. The answer it seems, comes down to “Hurt vs. Harm“. Returning to work can be unreasonable if doing so aggravates accident related injuries. That is, if the physical or psychological demands of a job actually aggravate accident related injuries then returning to work is typically not recommended. If, on the other hand, working with your injuries causes pain but your physician tells you to work through the pain as best you can tolerate then returning to work (or at least trying to) seems like a sensible option.

A personal injury claim should never motivate a person to miss time from work. Unreasonably missing time from work can actually hurt a claim. Returning to work while still injured, if medically approved, not only demonstrates a good work ethic but can also fulfill a legal duty to “mitigate damages” and that certainly does not hurt a claim.

Do you have questions about a wage-loss claim? You can click here to contact the author for advice.