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.

Posts Tagged ‘icbc wage loss claim’

ICBC Claims, Wage Loss, and Loss of Overtime Opportunities

July 3rd, 2008

In reasons for judgement released today Madam Justice Dillon of the BC Supreme Court awarded an injured Plaintiff just over $200,000 in damages as a result of a ‘hit and run’ accident.

The Plaintiff was 56 at the time of the BC car crash. He was on his way to work when he was rear-ended. The crash was significant enough to push the Plaintiff’s car the length of a city block prior to coming to a stop. The Defendant ‘took off around a corner” after the collision.

The Plaintiff is an apparently stoic man who returned to work despite being injured in this crash. He continued to work for several days ‘before (his) neck and back pain, headaches and dizziness steadily increased to the point that (he) was unable to perfrom the heavy work of a millwright.’

The Plaintiff was off work for almost 6 months prior to returning to work full time. Once returning he struggled and needed assistance from his work partners. He also struggled in taking advantage of over-time opportunities.

As in many ICBC injury claims that go to trial, the court heard from various doctors including an orthopaedic surgeon, a physiatrist, a neurologist and the Plaintiff’s GP. Again, as is common in ICBC injury claims, the doctors testifying had varying takes on the nature and severity of the Plaintiff’s injuries and their connection to the car accident.

No issue was taken a trial as to who was at fault for this rear-end accident. The trial focused on quantum of damages (value of the injuries). The theory advanced by ICBC’s expert was that, while the Plaintiff was injured, the Plaintiff ‘probably would have had these problems regardless of the accident because of his underlying degeneration of the cervical and lumbar spine‘.

The court heard evidence from the Plaintiff’s doctors that he had various injuries that would likely impact him well into the future.

The court’s key finding as to the extent of injury can be found at paragraph 28 where Madam Justice Dillon noted that:

[28] There is no medical opinion that the plaintiff would have suffered from chronic neck or back pain, to the extent and severity that he has incurred, but for the accident. Gold has developed severe and disabling chronic neck and back pain, which significantly limits movement. He continues to have headaches. His condition plateaued within two years after the injury and has not improved despite reasonable effort on his part. This has had a significant effect on his ability to work overtime to the extent that he did before the accident and requires cooperation with his work partners to fulfill the mandate of his job without formal accommodation being made. He has suffered a loss of lifestyle and recreational activity.

The court awarded $80,000 for ‘general damages’ (pain and suffering).

The court also made an award for past wage loss, past loss of overtime opportunities and loss of future earnings.

This case raised some common issues which often arise in ICBC claims. Particularly the amount of past loss income when a Plaintiff returns to work but is not able to work as many overtime shifts. I recommend this case for anyone involved in an ICBC injury claim who has missed overtime work as a result of injuries. This case gives an example of how this issue can be dealt with at trial. The personal injury lawyer representing the Plaintiff capably called evidence addressing wage loss and overtime and in the end the court addressed this loss fairly.

In awarding money for loss of future wages, the court noted that “there is more than a substantial possibility that the plaintiff will be unable to work overtime at his historical pre-accident rate into the future.’ and also that, given the Plaintiff’s age and injuries, that he would have ‘a difficult time finding work if his (current) job ended‘, As a result of this the court awarded $70,000 for loss of future earnings / loss of earning capacity.

Lastly, the ICBC lawyers argued that “damages should be reduced by 25% because the plaintiff failed to start an exercise programme as recommended by his general practitioner, his physiotherapist, and the rehabilitation medicine specialist

This argument is known in law as ‘failure to mitigate’. If a person injured in an ICBC claim does not take reasonable steps to recover from their injuries the value of compensation can be reduced.

The court summarized the law of ‘failure to mitigate’ as follows:

[44] To succeed in this submission, the third party must prove, on a balance of probabilities, that the plaintiff failed to undertake the recommended treatment; that by following that recommended treatment he could have overcome or could in the future overcome the problems; and that his refusal to take that treatment was unreasonable (Janiak v. Ippolito, [1985] 1 S.C.R. 146, 16 D.L.R. (4th) 1; Maslen v. Rubenstein, [1994] 1 W.W.R. 53 at 57-58, 83 B.C.L.R. (2d) 131 (C.A.); Fox v. Danis, 2005 BCSC 102 at para. 37). The remedial programme must be likely to achieve resolution of the problem or at least have a positive effect on the plaintiff’s injury arising from the accident (Hepner v. Gill, [1999] B.C.J. No. 1755 at paras. 5 and 7 (S.C.) (QL); Briglio v. Faulkner and Reichel, 1999 BCCA 361, 69 B.C.L.R. (3d) 122 at para. 44; Wong v. Stolarchuk, [1997] B.C.J. No. 2837 at para. 48 (S.C.) (QL)). The reasonableness of a refusal to undertake a recommended programme depends upon the risk that such a programme would impose, the gravity of the consequence of refusing to participate, and the potential benefits to be derived from it (Janiak v. Ippolito, supra).

The court rejected ICBC’s failure to mitigate arguments.

This case illustrates just how important credibility is in ICBC injury claims. The court clearly liked the Plaintiff and he made a good impression on the judge. His stoic attitude certainly helped. Contrary to what some believe, having a tough attitude in the face of injuries does not hurt the value of an ICBC case, as this case illustrates, this postitive attribute can in fact add to the credibilty of an injured person and help result in a good trial result.


BC Supreme Court Awards $50,000 Non-Pecuniary Damages for Dislocated Elbow

May 20th, 2008

In reasons for judgement released today, Mr. Justice Wilson awarded a total of $180,995.90 plus Court Costs in compensation to a young man who was injured as a passenger in a 2004 motor vehicle collision in Ucluelet, BC.

The Plaintiff was a back seat passenger. His vehicle left the road and hit a tree.

The court made its findings of fact addressing injuries at Paragraph 26 of the judgement where the court held that:

[26] In the result, then, I conclude that Mr. Thorp sustained a minor injury to his wrist which had cleared up within two weeks. I also conclude that he sustained a posterolateral dislocation of the right elbow. Although Mr. Thorp did well in his recovery in the initial period, he continues to have some restriction on range of motion and ongoing discomfort, particularly in performing physical activities. Although the pain may be due to the calcification in the elbow which might go away over time, he can expect to have that for a considerable period of time. I accept the opinion of Mr. Vanderboer that Mr. Thorp does have pain-related limitations in the strength of his right arm, and his endurance and tolerance for activity. I thus accept Mr. Vanderboer’s opinion that he is not physically capable of manual labour-type occupations, and the opinion of Dr. Gutmanis that if he chose to pursue more physical work, he would have greater likelihood of the development of post traumatic arthritis. I also accept Mr. Thorp’s evidence that, as a result of the ongoing pain, he has restricted many of his previous physical activities.

The court did a great job reviewing applicable case law addressing loss of future earning capacity at paragraphs 53-68 of the reasons for judgement.  This was necessary because the Plaintiff was a young man with a potentially permanent elbow injury.  The effects of this closed the door to certain employmnet opportunities thus giving rise to a claim for future wage loss.  After applying the facts to the law Mr. Justice Wilson awarded a total of $50,000 for Loss of Future Earning Capacity.

Damages of $50,000 were awarded for Pain and Suffering and a further $80,000 was awarded for past wage loss.

This is one of the few recent BC court cases addressing fair compensation for non-pecuniary loss (pain and suffering) for a dislocated elbow.  The difficulty the lawyers had finding similar elbow injury cases to help guide the court is acknowledged at paragraph 29 of the judgement.  If you are engaged in settlement negotiations with ICBC for pain and suffering for an elbow injury this case is worth a quick read.

Do you have questions you would like answerd by an ICBC Claims Lawyer regarding an elbow injury? Click here to contact Erik Magraken for a free consultation to discuss your claim.