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Why the Government Could (And Should) Put Me Out of Business

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With New Year’s around the bend one can’t help but think about the future.
I am a personal injury lawyer.  I sue people for a living.  The more people that are injured through the carelessness of others, the more potential business I have.
The vast majority of my business comes from car crashes.  The reason is simple, crashes cause serious injuries and there are insurance companies to fight over fair compensation.  A person drives carelessly and kills or injures another.  Those victims hire me to represent them.  That is my business.  Take away careless driving and you take away my root business, and from the perspective of the road using public that is a good thing.
So how can the government put me out of business (or at least drastically reduce it)?  Eliminate car crashes.  From here we have to look at the root cause of crashes.  Be it speeding, impaired driving, driving unsafely for the conditions, distracted driving, you name it, all of these categories fit into the umbrella of ‘human error‘.  Eliminate human error from the equation and you eliminate the vast majority of crashes.
Enter technology.  Enter Google’s driver-less cars.  These cars seek to take human error out of the driving equation.  They have been under development for a few years and now have been cleared for the road in California, Nevada, Florida, Michigan and Washington, DC.   Once perfected this technology can put a serious dent in roadway injuries/fatalities and collaterally my business.
Technology has put a lot of people out of business.  Lawyers generally feel immune from such threatened  changes but recent history has demonstrated that no professions are safe in the face of exponential technological innovation.  I have been addressing this topic for over a year, be it on twitter, at the office, at seminars, wherever.  Apparently I am not the only one with New York personal injury lawyer Eric Turkewitz authoring an article on his blog addressing this which even caught the Wall Street Journal’s attention.
To date no Canadian Provincial government has cleared the way for testing such technology on our roads.  Presently ICBC is focused on creating an ‘Anti Fraud Solution‘  Now I hate insurance fraud and so should you, but you know what’s better than tackling insurance fraud?  Tackling the root causes of crashes.  Food for thought for 2015.
 

Road Rage Intimidation Incident Leads to Liability for Subsequent Crash

Written by admin on . Posted in ICBC Liability (fault) Cases, ICBC Pelvis Injury Cases, Uncategorized.

Reasons for judgement were released earlier this week demonstrating liability after a motorist intimidated a cyclist who subsequently crashed.
In this week’s case (Davies v. Elston) the Plaintiff was an experienced cyclist.  As he a passed parked truck whose mirror extended into the bike lane the Plaintiff’s son who was riding with him commented about the truck.  The truck’s owner heard this, jumped in his vehicle and drove after the cyclists to confront them.  Words were exchanged during which time the truck came close enough that the Plaintiff placed his hand on the passenger side window of the vehicle. As the truck drove away the Plaintiff lost control of his bicycle and fractured his pelvis.
The Defendant argued the Plaintiff was solely at fault for the incident.  Madam Justice Griffin disagreed and found the defendant fully responsible.  In reaching this conclusion the Court provided the following reasons:

[167]     As for whether Mr. Elston’s conduct was negligent, I find that the defendant fell below the standard of care of a reasonable and prudent driver, in driving alongside the two cyclists and yelling at them, while so close to the bike lane that it made it intimidating, threatening and unsafe for the cyclists; and then in addition in pulling away quickly, without warning, with Mr. Davies so close by and with his hand on the truck. 

[168]     It is obvious as a matter of common sense that such driving conduct was without reasonable care for the safety of the cyclists and was negligent.

[169]     No matter how aggravating a cyclist’s behaviour might be, and I find there was nothing aggravating about the Davies’ conduct, a driver of a motor vehicle can never be justified in deliberately using a motor vehicle to confront a cyclist who is riding a bike.  Confrontation creates a serious risk of harm to the cyclist which is way out of proportion to anything the cyclist might have done.  A driver of a motor vehicle is not entitled to impose a penalty of death or serious bodily harm on a cyclist just because the cyclist was rude or broke a traffic rule. 

[170]     It has to be remembered that motor vehicles have four wheels, automatic brakes, seatbelts, and the driver is nicely encased in a heavy steel cage and that a person on a bicycle is not in a situation which is the least bit comparable, even if going the same speed as a vehicle.  A cyclist cannot stop on a dime, is vulnerable to losing balance, and can be seriously injured or killed if he or she makes contact with a motor vehicle or falls at a high speed. 

[171]     Mr. Elston and Jim Davies knew this at the time that Mr. Elston was confronting Jim Davies.  This is what made the situation so unnerving for Jim Davies and this was entirely foreseeable to Mr. Elston who wished to intimidate him.

[172]     I conclude that but for Mr. Elston’s aggressive and negligent conduct, Jim Davies would not have fallen from his bike.  Mr. Elston’s negligence therefore caused the accident and resultant injuries.

 

Multiple Medical Exams When Initial Experts Come up Short

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There is wide discretion for the BC Supreme Court to order a plaintiff to be examined by multiple defence expert witnesses where the alleged injuries call for it.  While the law does not allow multiple exams to be conducted simply to get “the best expert” on each area in dispute, where initial experts come up short due to limitations in their area of expertise further examinations may be allowed.  This was demonstrated in reasons released today.
In today’s case (Garford v. Findlow) the Plaintiff was injured in two collisions.  In the course of her lawsuit she agreed to be examined by three defence physicians, namely an orthopedic surgeon, a dentist and a neurologist.  When the Defence asked for a further exam with a psychiatrist the Plaintiff drew the line.  The Court found, however, despite the multiple exams a further expert was warranted as the existing experts pointed to psychiatric issues playing a role in the Plaintiff’s condition and conceded this was an area out of their expertise.  In allowing the exam Master Bouck provided the following reasons:

[37]         In this case, I find that Dr. Miller’s examination is not an attempt to bolster an earlier opinion of another expert. Neither Drs. Piper, Gershman nor Dost provide a medical opinion on the plaintiff’s mental health, nor do any of them address the cause of the mental health complaints. These physicians comment on Ms. Garford’s mental health condition but no diagnosis is made with deference given to a psychiatrist to make such findings. It is pure speculation that Dr. Stewart-Patterson will provide a diagnostic opinion. Regardless, Dr. Stewart-Patterson’s credentials do not closely resemble those of a psychiatrist.

[38]         Given these findings, I am not at all certain that the defendants are required to meet the higher standard stipulated in Hamilton v. Pavlova. None of the authorities suggest that there is an absolute limit on the number of independent medical examinations that may be ordered under Rule 7-6(2). More to the point, all other assessments or examinations have been directed towards the plaintiff’s physical rather than mental condition.

[39]         On the question of timeliness, the defendants say that they will be in a position to serve any expert opinion by February 2, 2015. Whether the plaintiff will be able to assess and respond to any report remains to be seen. Obviously, the court was persuaded in De Corde that the timeliness factor weighed against granting the IME order. However, as the court determined in Critchley v. McDiarmid, 2009 BCSC 28, the order requiring a plaintiff attend an IME relatively close to trial does not necessarily mean that the trial will be adjourned or the plaintiff prejudiced: paras. 11?14.

[40]         In my view, the defendants are not required to show any exceptional circumstances as this is not an application for a subsequent examination by an expert in the same field or a multidisciplinary assessment as was the case in Wildemann v. Webster.

[41]         In terms of proportionality, the plaintiff has been out of the workforce for four years and is not expected to return to her pre-accident employment as a dental assistant. It is apparent that there will be a significant claim for both past and future income loss. The plaintiff’s claim for special damages is also indicative of the amount involved. I accept defence’s unchallenged submission that Ms. Garford will be seeking damages well in excess of $100,000 at trial. As with the court in Kim v. Lin, I find that the SCCR 1-3 factors in this case favour the order being made.

[42]         The plaintiff may not be pursuing a psychiatric opinion at this time, but she clearly blames the accidents for her mental health condition and necessity for psychological counselling. In my view, the task of identifying let alone proving other causes or sources for these mental health issues cannot be accomplished by simply cross-examining the plaintiff at trial.

[43]         In conclusion, I find that the plaintiff’s attendance at an IME with Dr. Miller will put the parties on an equal footing in terms of addressing diagnosis and causation of the plaintiff’s mental health condition. The examination may also address the interplay of the plaintiff’s mental and physical complaints.

Rheumatoid Arthritis Claim Rejected Following Low Velocity Collision

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Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, rejecting the allegation that a collision caused a Plaintiff to suffer from rheumatoid arthritis.
In today’s case (Kabani v. Lee)  the Plaintiff was involved in a relatively modest collision in 2010.  The Defendant was responsible for the crash.  The Plaintiff argued that the collision caused her to develop rheumatoid arthritis, a “painful auto-immune disease that bilaterally attacks the joints in the human body“.  In rejecting this argument Mr. Justice Ball provided the following reasons:

[25]         In Hunt v. Ugre, 2012 BCSC 1704 at para. 121, Justice Dardi notes that the court must be cautious when inferring causation from a temporal sequence (i.e. from a consideration of pre-accident and post-accident condition). Dardi J. states:

In cases where causation is asserted primarily on a temporal relationship between the negligent conduct and [the] injury in question, the authorities mandate that a “close scrutiny of the evidence is required because the inference from a temporal sequence to a causal connection is not always reliable”.

[26]         The potential for a link between trauma and rheumatoid arthritis was canvassed in a medical discussion paper (mentioned above) entitled “Trauma and Inflammatory Arthritis” prepared by the Ontario Workplace Safety and Insurance Appeals Tribunal in September 2008 by Dr. Dafna D. Gladman, an acknowledged expert in rheumatology and internal medicine with a particular interest in inflammatory arthritis (filed as Exhibit 7 at trial). Dr. Gladman’s publications and teachings were referred to and relied upon by Dr. Yorke in his evidence. At page 2 of the paper, Dr. Gladman discusses the etiology and pathogenesis of the disease. Dr. Gladman notes at the outset that “[t]he cause of rheumatoid arthritis is unknown.”  At page 5, under the heading “Role of Trauma”, Dr. Gladman states “… a specific role for trauma in the development of rheumatoid arthritis has not been proven.”

[27]         Dr. Yorke presents a clear opinion against trauma being capable of causing rheumatoid arthritis. It is of some interest that his scientific opinion in this regard has changed over the years, evidenced by the expert opinion he rendered in Charbonneau v. ICBC, 1991 New Westminster Registry C890102 (B.C.S.C.), where Justice Mackinnon stated that Dr. York was “emphatic” that the plaintiff had rheumatoid arthritis and that it was precipitated by an accident.

[28]         The only medical evidence suggesting a link between the Accident and the onset of rheumatoid arthritis is Dr. Watterson’s opinion that the trauma from the Accident played a “possible role” in the development of rheumatoid arthritis. A “possible role”, when considered alongside the other medical evidence indicating that a link between trauma and rheumatoid arthritis has not been proven, does not satisfy me that the Accident caused or contributed to Ms. Kabani’s rheumatoid arthritis.

[29]         Regardless of any temporal link, there is simply no medical opinion upon which the Court can rely in this case to establish on a balance of probabilities the necessary causal link between the Accident and Ms. Kabani’s rheumatoid arthritis. The reports received by Dr. Witherspoon from Dr. Kelsall support the conclusion that the Accident did not cause Ms. Kabani’s rheumatoid arthritis.

$75,000 Non-Pecuniary Damages For Chronic Pain Following Three Collisions

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Soft Tissue Injury Cases, Uncategorized. 58 Comments on $75,000 Non-Pecuniary Damages For Chronic Pain Following Three Collisions

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing fault and damages following a series of collisions.
In today’s case (Shinzay v. McKee) the Plaintiff was involved in three collisions.   The Defendants were found liable for each of these.  The Plaintiff suffered chronic soft tissue injuries which persisted to the time of trial and resulted in chronic pain symptoms which were expected to need continued management.  In assessing non-pecuniary damages at $75,000 Madam Justice Sharma provided the following reasons:

[93]         Based on all of the above, I make the following findings on the balance of probabilities:

a.               Mr. Shinzay continues to suffer pain that affects, but does not disable him;

b.               Mr. Shinzay will more likely than not require physiotherapy, massage therapy, and pain medication in the future to manage flare-ups of his pain;

c.               Mr. Shinzay needs to follow a conditioning program which will improve his pain management;

d.               Mr. Shinzay had a degenerative spinal condition that pre-existed the First Accident;

e.               The accidents caused Mr. Shinzay to suffer soft tissue injuries; and

f.                The accidents materially contributed to his pain because it trigged his pre-existing spinal degeneration to become symptomatic.

…

[98]         As already noted, I find Mr. Shinzay has not exaggerated his symptoms. His resilience for work should not be mistaken for a sign that his injuries were mild. In particular, the Second and Third Accidents required emergency personnel to extract him and he was taken away on a stretcher.

[99]         Overall, I find that Mr. Shinzay’s circumstances justify an award at the moderate level of the appropriate range. Among the cases referred to me, I discuss below the most helpful ones because of the similarity of some of the facts or circumstances to this case. These cases identify a range of $60,000 (the defendants’ assessment) to $90,000 (the plaintiff proposed $100,000)..

[100]     In these circumstances, I find $75,000 to be an appropriate award.

Brain Injury Claim Dismissal Upheld Following Credibility Concerns

Written by admin on . Posted in ICBC Brain Injury Cases, Uncategorized.

Reasons for judgement were released today (Minhas v. Sartor) by the BC Court of Appeal upholding a trial judgement which rejected a claim for an alleged “severe and permanent brain injury” following concerns about the Plaintiff’s credibility.
In upholding the trial judgement the BC Court of Appeal provided the following reasons demonstrating how the negative credibility finding impacted the injury claim:
[18]        In the main, the assumptions relied upon by the doctors in reaching their opinions derive from Mr. Minhas’s account of himself. However, the judge found that Mr. Minhas was dishonest, that his evidence was not to be believed, and that the history he provided to the doctors was inaccurate. She said:
[111]    I am satisfied that all of Mr. Minhas’s testimony – with the possible exception of statements against interest – must be regarded with scepticism and given little or no weight. I am also satisfied that to the extent any expert’s opinions are based in whole or in part on information provided to the expert by Mr. Minhas, the opinions of that expert must be carefully scrutinized and are likely to be unsupported.
[112]    I am reminded of the statement made by Justice Southin, as she then was, in Le v. Milburn, [1987] B.C.J. 2690, as follows:
When a litigant practices to deceive, whether by deliberate falsehood or gross exaggeration, the court has much difficulty in disentangling the truth from the web of deceit and exaggeration. If, in the course of the disentangling of the web, the court casts aside as untrue something that was indeed true, the litigant has only himself or herself to blame. (para. 2).
[19]        The judge’s conclusion of Mr. Minhas’s veracity and reliability, with respect, was not surprising given the many instances of dishonesty on his part evident in the record. That evidence includes different versions given by Mr. Minhas at different times as to his education, different versions advanced by him of his work history in Alberta, his routine filing of false tax returns with Revenue Canada, an account made by him to an insurance adjuster (in a previous motor vehicle accident) that he had been working when his tax return did not reflect any employment, his admission that he was prepared to threaten physical harm to get what he wanted, his filing a false claim (or claims) with Workers’ Compensation, his travel outside the country while claiming he was entitled to disability benefits, his testimony he received a generous dowry from his wife’s family in contradiction to his wife’s evidence that her family did not pay a dowry, his preparation of a false resume, and his provision of false employment references. This is only a partial listing of the inaccuracies and untruths that riddle Mr. Minhas’s account of his pre-accident life and his personal history.
[20]        Also germane to the assessment of the existence of brain injury is evidence that Mr. Minhas was not the easy-going person before the trial he and others testified he was. The pre-accident evidence demonstrates incidents in which Mr. Minhas was threatening or aggressive to others…
[24]        There is no real challenge taken to any of the judge’s descriptions of the evidence, although there is explanation proffered. But it was up to the judge whether to accept the explanation, and it is not up to us. As this was a case highly dependent on credibility findings, it seems to me that if the claim of brain injury was to be won, it was to be won at trial. Without the finding of fact that Mr. Minhas had suffered a brain injury, it is simply premature to analyze the theories of causation.
[25]        I see no basis upon which we may interfere with the judge’s conclusion that Mr. Minhas did not prove he had sustained a brain injury in, or caused by, the accident. I would dismiss the appeal.

Future Income Loss Awards Immune From Creditors via Bankruptcy Protection

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Reasons for judgement were released today by the BC  Supreme Court, Victoria Registry, addressing whether a Plaintiff’s funds for ‘future income loss’ in a personal injury lawsuit, where the Plaintiff has made an assignment into bankruptcy, are ‘property’ that creditors can access.  In short the answer was no.
In today’s case (Kuta (Re)) the Plaintiff was injured in a 2008 collision.  In 2010 the Plaintiff made an assignment into bankruptcy.  Following his discharge he settled his personal injury claim which included $248,000 for ‘future wage loss’.    Appriximatley $200,000 would have satisfied all of the claims of the Plaintiff’s creditors.  The Court was asked whether the creditors can go after these funds.  In finding they were immune Master Bouck provided the following reasons:

[16]         Central to the court’s analysis in Bell (Re) is the characterization of future income loss as the loss or impairment of property, being the capacity to earn income. The court declined to adopt the contrary analysis made by the Ontario Court of Justice in Lang v. McKenna, 1994 CarswellOnt 295 (Ct. J. (Gen. Div.)). In Lang, the court found that monies paid to an individual while he is incapacitated from earning a living for himself and his family do not form part of the bankrupt’s estate.

[17]         Bell (Re) has been followed in at least two other reported cases: Mostajo (Re), 2006 CarswellOnt 6421 (S.C.J.), and MacLeod (Re), 2008 CanLII 32835 (Ont. S.C.J. (Bank. & Ins. Div.)).

[18]         In contrast, the court’s characterization of a future income loss as found in Lang has been followed in Re Anderson, 2004 ABQB 349, Conforti (Re), 2012 ONSC 199, and Re Snow, (ONSC, unreported). In Gurniak v. Royal Bank of Canada, 2011 CarswellSask 507 (Q.B.), the court found it “debatable” as to whether a future income loss award falls within s. 68 but declined to include any such award in the bankrupt’s estate: para. 49.

[19]         In Conforti (Re), the court addresses whether an award for “loss of competitive advantage” is the property or income of a bankrupt. While the semantics differ, the loss which the court was asked to characterize is “distinct but related to” a future income loss award: para. 36. In a most thorough analysis of both the case law to date as well as the statutory provisions which apply, the court decided that:

a. the concept of a capital loss as discussed in Andrews should not be imported into the bankruptcy context. This is particularly so given the subsequent Supreme Court of Canada ruling in Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701 (following Marzetti v. Marzetti, [1994] 2 S.C.R. 765, a decision regarding the application of s. 68 but one which is not mentioned in Bell (Re)). Wallace determined that s. 68 applies to an award for damages for wrongful dismissal. The Court found that a broad and purposive approach is necessary when determining whether a particular receipt is income for the purposes of s. 68: Conforti (Re) at paras. 12-13. Thus, the broadest definition of income ought to be made by the court before any monies received by the bankrupt are deemed to fall within s. 67;

b. In any event, “it is abundantly clear” on a reading of Andrews that the description by the Court of the “capitalized loss” was intended to avoid income tax consequences on the award at that time. That does not mean that “capital” loss translates to “property” under s. 67 in the bankruptcy context: para. 20; and

c. the essential nature of the monies paid for the future loss of income must be considered. The monies are intended to compensate an individual for lost income due to a reduced capacity to earn that income, or to replace income that will never be made as a result of the tortious act. As such, the monies are “akin to income” and fall within the definition of s. 68(2) (a) of the Act: paras. 25-28. As Wallace decided, a damages award that is “filling the pocket that would otherwise have been filled by salary or wages” is not property available to a bankrupt’s creditors: Wallace, para. 69. See also Julyan (Re), 2009 SKQB 321 (Registrar) where workers’ compensation income loss replacement monies were found to fall within s. 68.

[20]         The bankrupt further submits that the analysis and conclusions in Bell (Re) have been overtaken by developments of the law in British Columbia on the characterization of a future income loss in the personal injury context. Specifically, the Court of Appeal has determined that a future loss of income award is not necessarily determined on a loss of capital asset approach. That same loss can be assessed on the “real or substantial possibility” that a future event will occur leading to loss of income: Perren v. Lalari, [2010] B.C.J. No. 455 (C.A.) at para. 7. Thus, the bankrupt submits, the importation of the “capital asset” concept from personal injury law into the bankruptcy context is no longer valid even if Bell (Re) was correctly decided at the time.

[21]         Furthermore, the objectives of the Act itself, being to balance the rights of the creditors and the integrity of the bankruptcy system with the bankrupt’s entitlement to make a fresh start in the financial world, must be considered. It is submitted that the Settlement monies for future income loss is not a financial windfall such as an inheritance. Rather, the monies represent the means of putting an individual back in the financial place that he would have been had the tortious act not occurred. It is submitted that a manifestly unjust result would occur if the bankrupt was compelled to pay current creditors with monies intended to compensate the bankrupt for future circumstances: see Lang at paras. 41-42.

[22]         In summary, the bankrupt says that the capital asset cases ought not to be followed, given developments in the law since Bell (Re). And further, that Marzetti, a case not cited in Bell (Re), is the guiding and binding judicial authority. As such, a lump sum future income loss payment must be “income” under s. 68 as the monies are intended to replace an individual’s lost income stream. By their very nature, these monies can never be considered property under s. 67 of the Act.

[23]         The preceding summary does not do justice to the complete submissions of the bankrupt. It does provide some basis for my decision to go against Bell (Re). In my respectful view, Conforti (Re) accurately reflects the proper approach to be taken by the court when asked to characterize “income” (or “property”, for that matter) under the Act. I also reiterate that Conforti (Re) references and follows Marzetti, a case which does not appear to have been considered in Bell (Re) despite the relevancy of the case to the question before the court.

[24]         In the result, I find that the monies which are intended to compensate Mr. Kuta for future loss of income do not vest in the trustee under s. 67 of the Act.

Medical Marijuana Cream Claim Fails at Trial

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To date I am aware of two cases in British Columbia that have awarded damages for the costs of medical marijuana to treat personal injuries (these can be accessed here and here).  Earlier this week reasons were released by the BC Supreme Court considering whether to award damages for the cost of medical marijuana cream to a Plaintiff who suffered from chronic pain following a vehicle collision.  In rejecting this aspect of the claim Madam Justice Duncan provided the following reasons:
[75]         In his May 2012, report Dr. Hershler noted that with 4.5 years having passed since the accident it was unlikely the plaintiff’s condition would improve. He classified the plaintiff as having a permanent partial disability with respect to his low back, which was likely to be symptomatic indefinitely. He recommended pulse signal therapy. He is one of only two service providers for this treatment. In a follow-up report dated October 11, 2012, he also recommended medical marijuana compounded in a topical cream. Dr. Hershler is aware of directives from the Canadian Medical Association and Health Canada about exercising restraint in prescribing medical marijuana. He views these directives to be aimed at smoked cannabis of a particular strain, not those he suggests as a cream or oral supplement. He agreed he is keen to use those types of applications of medical marijuana in the field to assist in the gathering of evidence about its efficacy and modality in pain management…
[98]         I agree with the defendant that Dr. Hershler’s opinion should be given little weight. I find he seized on the May 2008 MRI as the source of the plaintiff’s discomfort whereas the other experts, both Dr. Helper for the plaintiff and Dr. Paquette for the defence, had a very different view of the plaintiff’s MRI history. Similarly, I place no weight on Dr. Hershler’s recommendations for pulsed signal therapy or medical marijuana cream. The former is a service for which he is one of the only providers and the latter is a treatment in its very early experimental stage with minimal empirical evidence to suggest it will assist the plaintiff, if it is even permissible under Health Canada’s medical marijuana exceptions.
 

$75,000 Non-Pecuniary Assessment For Chronic and Disabling Neck and Back Injury

Written by admin on . Posted in ICBC Chronic Pain Cases, Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for chronic and largely disabling neck and back injuries.
In this week’s case (Mandra v. Lu) the Plaintiff was involved in a collision that the Defendant was found fully liable for.  The Plaintiff suffered chronic neck and back injuries as a result which disabled him from is occupation as a millwright and challenged him in lighter vocational options.  In assessing non-pecuniary damages at $75,000 Madam Justice Duncan provided the following reasons:

[121]     Mr. Mandra was 53 years of age when the accident occurred. He was transformed from a happy, healthy and hardworking man to one who lives in constant chronic pain. His lower, mid and upper back hurt on an ongoing basis. He has neck pain, headaches and pain in his legs. He is nervous, forgetful, miserable and depressed. Treatment and medication have not helped and there is no prognosis for improvement except as described by Dr. Helper and only in relation to his lumbar pain. Compendiously his pain is severe and chronic and disables him from the type of work he used to do. He was formerly employed as a millwright, a heavy duty job, but now has a hard time sitting or standing for prolonged periods and lacks the necessary physicality to work as he once did. The injuries render him unemployable in his past career as a millwright and only very marginally employable in lighter occupations, particularly given his challenges with English. The injuries have affected his social life and his relationship with his wife. He is not as active as he once was. He has suffered psychologically.

[122]     Balancing all these factors, I award the plaintiff $75,000 for non-pecuniary damages.

Addiction and Pain Management Programs Not Mandatory ICBC Benefits

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Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, finding that an addiction program and a multi-disciplinary pain management program are not mandatory ICBC No Fault benefits.
In today’s case (MacDonald v. ICBC) the Plaintiff was inured in three separate motor vehicle collisions.  She was insured with ICBC.  She suffered a variety of injuries which resulted in chronic pain and addiction issues.  Among the recommended treatments for the Plaintiff were an inpatient residential addiction treatment program along with a multi-disciplinary pain management program.
ICBC refused to fund these under the Plaintiff’s policy of insurance arguing that neither of these programs were ‘mandatory’ benefits covered under section 88(1) of the Insurance (Vehicle) Regulation.  Madam Justice Fitzpatrick agreed finding components of the programs (such as physiotherapy) may be covered individually and further that the programs may be covered as ‘permissive’ ICBC benefits, they could not be compelled under section 88.  In reaching this conclusion the Court reasoned as follows:
[83]         The mandatory provisions in s. 88(1) stand in contrast to those in s. 88(2) where ICBC may provide funds to an insured at its discretion and where ICBC’s medical advisor advises that funded benefits under this section are likely to promote the rehabilitation of the insured who was injured in an accident…

[95]         I am reluctantly driven to the conclusion that Ms. MacDonald’s position is not supportable. As ICBC argues, I think correctly, the Raguin decision has confirmed that the proper interpretation of the section is a more restrictive one in the sense that it is driven by the specific enumerated services that are described in s. 88(1). In accordance with that approach, I see no basis upon which services could be seen to be included as long as they are overseen or supervised by a medical doctor. Services provided by others do not become “medical services” simply because a medical doctor directs them or oversees or supervises them.

[96]         From a public policy perspective, this strict interpretation of the enumerated services presents some difficulties. It is unlikely that the Legislature intended to adopt a rehabilitation-in-pieces approach to legislation that exists to promote reasonable and necessary benefit coverage to injured persons. However, in the absence of clear guidance in the Regulation that s. 88(1) is capable of supporting multi-disciplinary programs, these programs cannot be read-in to include other services not specifically enumerated, such as the court did in Raguin.

[97]         Even accepting Ms. MacDonald’s proposition regarding medical supervision, there is no evidence that in fact, the services at Heartwood and the “other services” at Orion Health either were or would be under the supervision of a medical doctor (although I appreciate that Dr. Mead continued to treat Ms. MacDonald for pain and addiction issues throughout her stay at Heartwood).

[98]         The difficulty is that the argument for both Heartwood and Orion Health is an all or nothing proposition. Both are, as described above, multi-disciplinary treatment programs that bring in various disciplines in order to offer a team approach to dealing with a host of problems, such as Ms. MacDonald has. I have no hesitation in finding that some of the services, such as provided by a medical doctor, were or would be covered under s. 88(1) but it is equally apparent that some are not. In my view, this leads to the conclusion that the treatment programs, as a whole, are not covered under s. 88(1).