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$75,000 Pain and Suffering Awarded for Headaches and Chronic Pain

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

Reasons for judgement were released today awarding a Plaintiff just under $150,000 damages in total as a result of two ICBC claims.
One thing I’ve been meaning to point out for some time on this blog is that in BC tort claims (which include car accident claims), ICBC is almost never named as a party to the lawsuit. There are a few circumstances when it is appropriate to name ICBC directly but these are few and far between. It is a safe bet that if a case goes to court in BC involving a BC car accident it is more often than not an ICBC claim. I know that this case involves ICBC (despite them not being named as a party) because the defence lawyer is an ICBC in house lawyer from Kamloops. When you are looking at precedents to help you value your ICBC case to determine what a fair settlement, you should know that most any BC car accident case serves as a valuable precedent because even if ICBC is not mentioned or is not the insurer in any given case, each BC case serves as an example of how our courts value injuries in BC.
Getting back to the case – here the Plaintiff was injured in 2 car accidents for which others were at fault. The first in 1998, the second in 2004. In the first accident the Plaintiff was a passenger in a pick-up truck involved in a roll-over accident. In the second the Plaintiff was a passenger in a vehicle that was T-boned. Both crashes were significant and resulted in injuries.
This case is a good example of how complex chronic pain ICBC claims can be when they head to trial. In this case the court heard from over 10 lay witnesses who could comment on their observations of the Plaintiff’s injuries (or lack thereof by the witnesses called by the ICBC defence lawyer). The court also had access to medical evidence from over 6 doctors and other specialists.
The Plaintiff presented a case of chronic pain affecting every single aspect of her life. The defence case was one of injury which significantly improved after 2 years.
The court concluded that, although the Plaintiff ‘exaggerated her claim to some extent‘ she ‘has suffered to some degree from headaches and chronic pain over the past 10 years, and will continue to suffer these in the future, over some limited period of time. Some of her complaints are psychosomatic and she may benefit from counselling‘.
The court awarded damages as follows:
The plaintiff shall recover damages as follows:

– general damages: $75,000

– past income loss: $680

– cost of future care: $4,271.72

– diminished future earning capacity: $60,000

– special damages: $7,753.60

In doing so the court recited some good quotes from previous BC judgements addressing the assessment of damages. These precedents are worth knowing for anyone advancing and ICBC injury claim. Particularly the court referred to a great BC Court of Appeal case summarizing the principles used in the assessment of damages in personal injuries, the key quote being:

The most basic of those principles is that a plaintiff is entitled to be put into the position he would have been in but for the accident so far as money can do that. An award for loss of earning capacity is based on the recognition that a plaintiff’s capacity to earn income is an asset which has been taken away. Where a plaintiff’s permanent injury limits him in his capacity to perform certain activities and consequently impairs his income earning capacity, he is entitled to compensation. What is being compensated is not lost projected future earnings but the loss or impairment of earning capacity as a capital asset. In some cases, projections from past earnings may be a useful factor to consider in valuing the loss but past earnings are not the only factor to consider.

Because damage awards are made as lump sums, an award for loss of future earning capacity must deal to some extent with the unknowable. The standard of proof to be applied when evaluating hypothetical events that may affect an award is simple probability, not the balance of probabilities. Possibilities and probabilities, chances, opportunities, and risks must all be considered, so long as they are a real and substantial possibility and not mere speculation. These possibilities are to be given weight according to the percentage chance they would have happened or will happen.

The trial judge’s task is to assess the loss on a judgmental basis, taking into consideration all the relevant factors arising from the evidence … [The factors] include:

[1] whether the plaintiff has been rendered less capable overall from earning income from all types of employment;

[2] whether the plaintiff is less marketable or attractive as an employee to potential employers;

[3] whether the plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to him, had he not been injured; and

[4] whether the plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market.

The task of the court is to assess damages, not to calculate them according to some mathematical formula. Once impairment of a plaintiff’s earning capacity as a capital asset has been established, that impairment must be valued. The valuation may involve a comparison of the likely future of the plaintiff if the accident had not happened with the plaintiff’s likely future after the accident has happened. As a starting point, a trial judge may determine the present value of the difference between the amounts earned under those two scenarios. But if this is done, it is not to be the end of the inquiry. The overall fairness and reasonableness of the award must be considered taking into account all the evidence.

The court then did a great job of summarizing the two approaches when addressing future wage loss and ICBC claims, summarizing the law as follows:

There are two methods of assessment under this head of damages, although both have the same outcome. The court can either use the “real possibility” approach, and compare the plaintiff’s likely earnings, had she not been injured, with the income she likely now earns, factoring in the positive and negative contingencies; or the court can value the loss of earning capacity as a capital asset (as Finch J.A., as he then was, suggested in Pallos v. ICBC (1995), 100 B.C.L.R. (2d) 260 (C.A.)).

Disc Herniation, Nerve Damage and ICBC Claims

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, ICBC Spine Injury Cases, ICBC Whiplash Cases, Uncategorized.

Reasons for judgement were released today compensating a Plaintiff injured in three separate BC car accidents, the first in August, 2002, the second in December, 2002 and the third in June 2003. At trial the issues were the extent of the plaintiff’s injuries and whether these were caused by the car accidents or other life events.
A frequent tactic of ICBC defence lawyers is to call evidence to cast doubt on the connection between motor vehicle accidents and trauma and find other explanations for injuries. In this case the defence lawyer pointed to a car accident that the plaintiff was at fault for and a work incident where the plaintiff aggravated his back as potential causes for the Plaintiff’s problems.
In ICBC claims a Plaintiff has the burden of proving the extent of his injuries and their connection to the car accident. If defence evidence can effectively point to another explanation an ICBC claim can be dismissed.
In this case the injuries were fairly serious. An MRI revealed a ‘tear in the annulus at L5/Ss and a disc bulge at L4/5 wit impingement of the L5 nerve root‘.
The court found that in cases where there are multiple potential causes of injury ‘it is most helpful to have the opinion of (the Plaintiff’s family doctor) who treated the plaintiff throughout and has a long history and detailed knowledge of the Plaintiff as a patient.’ The court found the GP’s findings of objective injury persuasive including ‘muscle spasm, reduced range of motion, and visible hypertonicity of the musculature following each of the three motor vehicle accidents’.
The court assessed damages for all three accidents globally. The court concluded that “the Plaintiff has, since December 7, 2002, experienced functional limitations due to his low, mid back, and neck pain with referral pain from the low back to his leg. The Plaintiff is unlikely to achieve a substantial improvement in future, but exercises and care will assist in controlling pain and flare-ups‘. As a result of this finding the court awarded $70,000 for non-pecuniary damages (pain and suffering).
Addressing past wage the court found that there was some failure of mitigation on the Plaintiff’s part. The Plaintiff’s claim for past wage loss exceeded 5 years. The court found that he could have returned to work in some capacity during this time. In all $50,000 was awarded for this loss.
The court also awarded $75,000 in damages for ‘loss of future earning capacity’ finding that

[50] There is no doubt that the plaintiff’s income earning capacity is affected by his chronic pain and physical limitations and disabilities. The plaintiff is by education and experience limited to low income, minimum wage types of employment, although that is reflective of his actual earnings history prior to his injury and disability.

[51] The pool of low income jobs available to the plaintiff is however much diminished as he can no longer work at jobs with a physical component which he can no longer meet. The plaintiff is 49 years old and increasing age will combine to impede access to the work for which he remains qualified.

[52] The plaintiff’s health may be stressed more than the average person requiring that he take more time off work. He may in future be more suited to only part time or work of a sporadic nature.

TMJ Muscular Injury and ICBC claims

Written by admin on . Posted in ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

In reasons for judgement released today the Honourable Mr. Justice Meiklem of the BC Supreme Court awarded a Plaintiff $25,000 for non-pecuniary damages (pain and suffering) as a result of a 2004 BC car accident.
The Plaintiff was 15 years old by the time of trial. He was born with cerebral palsy and is confined to a wheelchair because of that condition.
In 2004 he was in an accident when his mother’s van was struck on the driver’s side by another vehicle in an intersection crash. Liability (fault) was admitted on behalf of the other driver.
The Plaintiff testified that the impact caused his body to move to the left with his head hitting the window and his left leg and hip hitting the inside of the door of the van. He was injured in this crash.
The court heard expert medical evidence from 2 physiatrists (specialists in physical medicine and rehabilitation). While one physiatrist testified on behalf of the Plaintiff and the other on behalf of the defendant, both had largely similar opinions.
After an 18-A trial (a summary trial where witnesses do not testify orally in court, rather evidence is given by way of affidavit’s and medico-legal reports) the court concluded that “both specialists agree that the plaintiff suffered soft tissue injuries to the muscles of the jaw area and the neck and shoulders, and that recovery has been protracted because of his cerebral palsy condition…I find that while the plaintiff has not yet fully recovered from his soft tissue injuries sustained in the accident, because his recovery has been prolonged by his pre-existing cerebral palsy condition, he has suffered no permanent injury or disability, and suffered no period of total disability‘.
In addition to the $25,000 for pain and suffering the court awarded just over $4,000 for special damages (out of pocket expenses as a result of the defendant’s wrong-doing) largely comprising of massage therapy expenses, medications and transportation costs.
I have previously blogged that one of the best ways to get a sense of the pain and suffering value of an ICBC claim is to review BC cases with similar injuries. This case is worthwhile because , while there are many ICBC cases with temporomandibular joint injuries (TMJ injuries), this case involves something slightly less serious. Here the Plaintiff suffered injuries to the ‘major muscles overlying the temporomandibular joints’ as opposed to injury to the actual joint. This case sets a precedent worth reviewing for anyone suffering a similar muscular injury around the TMJ’s in an ICBC claim.

$40,000 Pain and Suffering for "Very Unique' Ankle Injury

Written by admin on . Posted in ICBC Ankle Injury Cases, ICBC Back Injury (soft tissue) Cases, ICBC Knee Injury Cases, ICBC Whiplash Cases, Uncategorized. 98 Comments on $40,000 Pain and Suffering for "Very Unique' Ankle Injury

Reasons for judgement were released today awarding a Plaintiff a total of$71,060.06 as a result of personal injuries which were caused by a 2004 BC car crash.
This was a left-turn intersection case involving a semi-truck and a mini-van. The semi truck turned left in front of the mini-van at an intersection causing a collision. The Plaintiff was a passenger in the mini-van. She ‘braced herself (for the collision) by holding the sides of the seat and placing her feet on the dash’.
Fault for the accident was admitted. The issue at trial was the extent of the injuries sustained and their value.
The court concluded that the Plaintiff suffered from soft tissue injuries to her neck back and jaw which ‘had all effectively cleared up within some 6-7 months after the accident‘.
The Plaintiff also suffered injuries to her knee and ankles which ‘progressed to the point where she could return to work in July, 2005‘. The exact nature of these injuries were ‘bilateral ankle bone contusions and patellofemoral discomfort‘. The court found that these injuries were chronic and that ‘she will have continuing pain from time-to-time (in her ankle) of more likely on a diminishing basis‘.
The court awarded $40,000 for non-pecuniary damages (pain and suffering).
This case focused largely on credibility. The court concluded that the plaintiff ‘has exaggerated her ongoing pain’. This case is worth reviewing for anyone advancing an ICBC injury claim as an example of how BC courts deal with the credibility (truthfulness) of a witness.
Here the court found that the Plaintiff was not truthful when describing the extent of her pain and that she misled the court when addressing past wage loss.
Specifically, the court found that:

[56] Following the adjournment of the trial to October, it became clear from the evidence led by the defence from West Jet’s representatives and employment records that the plaintiff’s position on picking up shifts was not true. In fact, the employment records in evidence confirm that the plaintiff began picking up more work than she was scheduled within a month of returning to regular hours of employment in July of 2005. From the evidence of the West Jet supervisor the plaintiff could routinely work 30 hours a week or less simply by working the hours that she was scheduled but it is clear from the employment records she chose to work more than 40 hours per week by picking up shifts from fellow agents following her return to work in July 2005 and commencing in August 2005.

[57] From a review of her employment records relating to her employment before the accident it became crystal clear that since she began working at West Jet Ms. Polson has routinely lobbied her fellow agents for more work as evidenced from commentary in work reviews directed to her in 2005 and 2006.

[58] Primarily relative to these inconsistencies relating to her employment following the accident, I have, regretfully, come to the conclusion that the plaintiff, in her direct evidence, led the court to believe that she was unable to work additional hours that she had worked prior to the accident and wanted fewer hours of employment because of the pain working additional hours caused her when, in fact, she volunteered for and obtained additional hours notwithstanding the additional pain she asserts.

[59] Likewise, with respect to the medical evidence and her contention that the pain levels at the time of trial were in the ranges she described, this level of pain is inconsistent with her attendances at her treating physician’s office. As indicated previously, following her return to work in July 2005 I can count, from the clinical records, only one occasion prior to her attendance for a medical/legal report to be provided by Dr. Gorman some 13 months after returning to work. While there are complaints of depression, as already indicated, there is ample clinical notations to indicate pre-existing problems with depression and fatigue which cannot be causally connected to this motor vehicle accident without more.

[60] Although the plaintiff testified that she routinely suffers from pain in her neck at a 7 out of 10 pain level when at work, and frequently rubs her neck as a result, only one witness testified that she had seen the plaintiff sometimes stretching her neck, perhaps once a week, and only occasionally sitting on an exercise ball provided by her employer. With respect to rolling her ankle at work and the resulting limp thereby occasioned, Ms. Polson described herself rolling her ankle frequently at work and limping frequently at work for approximately 3 or 4 times a day, but no witness testified to having seen Ms. Polson limping or rubbing her ankle. While her co-worker Amanda Fraser-Doyle testified that Ms. Polson had slowed down since the accident, this would be inconsistent with the actual hours worked and voluntarily picked up by Ms. Polson after returning to work.

[61] One other matter of evidence also needs to be dealt with. Tricia Spencer, the administrative assistant for West Jet at the Prince George operations, testified to having observed the plaintiff at the Christmas party in December 2006 where she described the plaintiff as “enjoying herself on the dance floor for a relatively substantial time and was unable to notice any pain behaviour while she was dancing”. While Ms. Spencer agreed that she did not have much casual conversation with the plaintiff at this time, she maintained her observations of the plaintiff’s abilities on the dance floor.

Credibility of a Plaintiff is vital in all ICBC injury claims, particularly those where the injuries cannot be verified through objective measures such as X-rays or MRI findings. In such cases courts are very careful in assessing a Plaintiff’s credibility prior to awarding damages for injuries. Cases such as this one are worth reviewing if you are proceeding to trial in an ICBC injury claim to see what kinds of factors the court can consider when weighing a person’s credibility.

"Your's truly, ICBC Team 1, 2, 3…"

Written by admin on . Posted in Tort Reform, Uncategorized.

As an ICBC claims lawyer I noticed a change in ICBC’s practices lately.
One of the first things I do for my ICBC claims clients is obtain the records ICBC keeps regarding the claim. It used to be that the correspondence from ICBC to the client was signed by a human being. Now I see the letters clients receive are often signed by ‘teams’ such as ICBC Team 1, ICBC Team 2, ICBC team 3, ICBC Team 4, ICBC Team 5. What’s this all about?
It seems to me that this ‘team’ approach is a way to make the ICBC claims process less personal. When ICBC sends out letters to those injured in BC car accidents telling them that their claim is denied due to the LVI program or some other such other form letter it is much less inviting to follow up if you are responding to some faceless ‘team.’
If a personal ICBC adjuster sends a letter and you have questions it’s easy to follow up. You can call the person, make an appointment, establish a relationship and try to work together to resolve the claim. Not that this always works but it is at least a more dignified process.
When ICBC sends a letter signed by some faceless ‘team’ of people follow-up becomes less attractive. You may get passed around from person to person. It’s more difficult to strike up a personal connection with a ‘team’ and this may make some people willing to simply accept ICBC’s position and walk away from the claim. The ‘team’ approach probably makes it easier for ICBC adjusters to stick to ICBC’s policies such as the ‘LVI program‘ or ICBC’s ‘soft tissue injury assessment guidelines‘. If the ICBC ‘team’ tells you your claim is denied I would think it is easier for an ICBC adjuster to stick to this position if he / she remains faceless.
The less human the process the greater the desire to walk away from an ICBC claim.
If you have received a letter from an ICBC ‘team’ and disagree with ICBC’s position, be it the value of your claim, the determination of fault or an LVI claim denial don’t be discouraged. Follow up no differently than if you had the name of a personal claims adjuster to deal with. Make sure you are looked after properly in your ICBC claim.

More on Soft Tissue Injuries, ICBC, and Expert Evidence

Written by admin on . Posted in Civil Procedure, ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

Reasons for judgement were released today awarding a Plaintiff $12,000 for ‘pain and suffering and loss of amenities‘ (non-pecuniary damages) for ‘a mild soft tissue injury which had essentially cleared within 3 months or so. ‘.
The Plaintiff was rear-ended in 2006 in North Vancouver. The court found that the impact was significant. The Plaintiff complained of headaches, neck pain, low back pain, mid back pain, left elbow and forearm pain and occasional pain shooting to his knees.
In what can be described as a very unusual occurrence, the trial proceeded without any medical opinion evidence addressing the extent of injury. The Plaintiff attempted to have his GP testify but the court would not permit it as proper notice of the ‘expert opinion’ was not provided per Rule 40-A.
The court admitted the doctor’s clinical notes into evidence. The Plaintiff then tried to treat these as notice of what the doctor was going to testify to. The court found this improper and did not permit the doctor to give opinion evidence stating that:

During the trial and following submissions on the issue, I ruled that medical/clinical records cannot be said to meet what was meant by the above-quoted Rule.

[12] In my view, the basis of Rule 40A is to provide adequate notice of evidence which is to be tendered by way of an expert’s opinion to avoid trial by ambush, to avoid unnecessary delays, and to generally permit trials to be run in an orderly fashion. Use of clinical records in the manner suggested by counsel for the plaintiff does not approach, let alone meet, that objective. Rarely is a concise and clear expression of any opinion capable of being gleaned from such records, provided that they can even be deciphered, which is indeed problematic in this case. Further, there is usually nothing in those records that might clearly identify what, if any, of the facts contained therein are being relied upon for any such opinion. Finally, clinical records often contain consultation reports which, while they may be evidence of their existence, most probably cannot be relied upon without proof of the facts or opinions contained in them. I am sure that there are other objections as well.

[13] To have permitted Dr. Marcos to testify as to his opinion on the basis that his clinical records amounted to compliance with Rule 40A would, in my view, have been impermissibly prejudicial to the defendant. In that regard I note that in this case none of the grounds enumerated in Rule 40A(16) had been met. Thus, I am faced with the task of assessing damages due to Mr. Murray based upon his largely uncorroborated testimony alone. I am obliged to be mindful of the observation of Chief Justice McEachern in Price and Kostryba where he said the following:

I am not stating any new principle when I say that the Court should be exceedingly careful when there is little or no objective evidence of continuing injury and when complaints of pain persist for long periods extending beyond the normal or usual recovery.

An injured person is entitled to be fully and properly compensated for any injury or disability caused by a wrongdoer. But no one can expect his fellow citizen or citizens to compensate him in the absence of convincing evidence — which could be just his own evidence if the surrounding circumstances are consistent — that his complaints of pain are true reflections of a continuing injury.

The court went onto award $12,000 for pain and suffering and $180 for special damages.
This case is a great reminder of the need to comply with Rule 40-A if you are advancing an ICBC injury claim in Supreme Court and wish to call expert evidence to give the court an opinion about injuries, causation, future treatment, and prognosis. Failure to do so can result in the court not admitting the evidence which can badly damage an ICBC claim. Here the court expressly stated that “although an opinion of a medical expert such as a medical/legal report from (the Plaintiff’s) GP may have provided a foundation for a factual finding of continuing pain and discomfort, I unfortunately do not have the benefit of such an opinion.”
Another note-worthy result of this judgement is the apparent ‘cost’ consequences.
From reading paragraphs 25-29 of the judgement it appears that the lawyer for the defendant made a formal offer of settlement prior to trial which was greater than the judgement. In such circumstances a defendant can be awarded ‘costs’ for the trial. In this case the court awarded $4,400 in costs which would have to be subtracted from the judgement amount prior to the Plaintiff getting paid. In addition, the Plaintiff would not be reimbursed disbursements for the trial and would be responsible for the Defendant’s trial disbursements. After taking all this into account the true value of the judgement may in fact be $0. When considering ICBC claim settlement it is very important to consider the likelihood of beating ICBC’s formal offer at trial.

ICBC Can Do That!?!? What You Need to Know About Part 7 Benefits

Written by admin on . Posted in ICBC No-Fault (Part 7) Benefits, Jury Trials, Uncategorized.

OK, imagine this:
You are injured in a car accident that is not your fault. You incur medical expenses and send ICBC (your own insurer) the bill. Your ICBC adjuster does not to pay.
You sue the driver that injured you (who also happens to be insured by ICBC). The same ICBC adjuster hires the lawyer to defend the driver and tells that lawyer what to do (that’s the way it often works).
At trial you claim the medical expenses as special damages (special damages are expenses related to the other person’s wrong-doing). The Judge agrees these are reasonable special damages and awards you compensation.
(Thanks for bearing with me, here’s where it gets interesting)….The ICBC hired lawyer then says, “Your Honour, the Plaintiff should have been reimbursed this expense by ICBC so you should not award this money to the Plaintiff” The Judge, in his most eloquant voice responds, “you’re right counsel, I have no choice but to make this deduction”.
That’s exactly what can happen! ICBC can refuse to pay for an expense then the lawyer hired by ICBC in the ‘tort trial’ can argue that the court should not award reimbursement of the expense because you should have had ICBC pay for the expense.
When you sue someone for car accident related injuries in BC, the defendant (most often times insured by ICBC) can argue that due to the operation of s. 83 of the Insurance (Vehicle) Act,he should not have to pay any money covering benefits you could have received from ICBC as your own insurer. (Whether or not you received the benefits is an entirely irrelevant consideration… the deduction can be used even if you applied for these benefits and ICBC refused to pay…click here to read Sovani v. Jin, a case where almost $100,000 in damages were deducted from the jury’s verdict).
Section 83 reads as follows:
83 (1) In this section and in section 84, ‘benefits” means benefits

(a) within the definition of section 1.1, or

(b) that are similar to those within the definition of section 1.1, provided under vehicle insurance wherever issued and in effect,

but does not include a payment made pursuant to third party liability insurance coverage.

(2) A person who has a claim for damages and who receives or is entitled to receive benefits respecting the loss on which the claim is based, is deemed to have released the claim to the extent of the benefits.

(3) Nothing in this section precludes the insurer from demanding from the person referred to in subsection (2), as a condition precedent to payment, a release to the extent of the payment.

(4) In an action in respect of bodily injury or death caused by a vehicle or the use or operation of a vehicle, the amount of benefits paid, or to which the person referred to in subsection (2) is or would have been entitled, must not be referred to or disclosed to the court or jury until the court has assessed the award of damages.

(5) After assessing the award of damages under subsection (4), the amount of benefits referred to in that subsection must be disclosed to the court, and taken into account, or, if the amount of benefits has not been ascertained, the court must estimate it and take the estimate into account, and the person referred to in subsection (2) is entitled to enter judgment for the balance only.

(6) If, for the purpose of this section or section 84, it is necessary to estimate the value of future payments that the corporation or the insurer is authorized or required to make under the plan or an optional insurance contract, the value must be estimated according to the value on the date of the estimate of a deferred benefit, calculated for the period for which the future payments are authorized or required to be made.

This may seem like boring stuff but it could cost you well over $100,000 in your ICBC claim.
In another example of the s. 83 argument in action, reasons for judgment were released today that are well worth reading for anyone advancing an ICBC claim. After trial the Jury awarded damages including $32,000 for cost of future medical care. The defence lawyer then argued that a portion of the $32,000 should be reduced because of section 83. This argument is often made by ICBC defence lawyers after trial. In this case the deduction was not made but depending on the facts of any given ICBC claim such a deduction very well could be made.
The bottom line is that if you are advancing an ICBC ‘tort’ claim you must apply and follow up for all of the ‘no-fault’ benefits you may be entitled to. Failure to do so can result in a significant reduction of your award of damages.

ICBC Claims, Ruptured Discs and Causation

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Spine Injury Cases, Uncategorized. 60 Comments on ICBC Claims, Ruptured Discs and Causation

Reasons for judgment were released today involving a disc injury with 2 potential causes.
The Plaintiff was involved in 3 car accidents. This lawsuit involved the second accident. The Plaintiff was ultimatley diagnosed with a ruptured disc in her back. The issue at trial was whether the ruptured disc was caused by the first or second accident (apparently no-one blamed the third accident as a potential cause).
“Causation” is often a key issue at many ICBC claims and frequently ICBC takes the position at trial that while a Plaintiff is injured the injury would have existed even without the car accident as it was caused by previous or subsequent events.
In this case a physiatrist and a GP testified on behalf of the Plaintiff. No defence medical evidence was called, instead, the defence relied on their lawyer’s cross examination of the Plaintiff experts.
The Plaintiff had an MRI which showed a moderate sized diffuse disc bulge or protrusion at L-4/5 with associated disc desiccation or drying.
The court was not satisfied with the Plaintiff’s experts explanations linking the disc protrusion to the second car accident. The court instead found that it is more likely that the disc injury was caused by the first car accident and the second accident aggravated this injury for a period of time.
For the aggravation of this disc injury the court awarded general damages (pain and suffering and loss of enjoyment of life) of $30,000. The Plaintiff’s claim for loss of earning capacity and cost of future care were dismissed on the basis that the disc injury was not caused by the accident and any exacerbation of the injury caused by the accident ended in 2005.
This case shows that nothing should be taken for granted when taking an ICBC claim to trial.  Here both doctors seemed in agreement that the second car accident caused the disc injury and no medical experts disagreed with this finding.  After hearing this evidence first hand in court the trial judge did not agree with the Plaintiff’s experts and dismissed the allegation that the second car accident caused the disc injury.  Even where the medical evidence is not contradicted you cannot guarantee that a court will accept it!  This is the risk of trial and cross-examination.  Trial risks need to be accounted for when considering ICBC claim settlement and valuing fair payment for injuries.

ICBC Claims, Limitation Periods and Infants

Written by admin on . Posted in ICBC Brain Injury Cases, Uncategorized. 48 Comments on ICBC Claims, Limitation Periods and Infants

Let me begin by saying that when people talk about “ICBC claims” they typically refer to two different types of claims. The first has to do with ‘own insurance’ that is, you are insured with ICBC, something occurs that requires you take advantage of this insurance and you apply for your own insurance benefits. This is commonly referred to as a ‘first party claim’.
The second, and perhaps more frequently discussed, has to do with ‘third party insurance.’ That is, someone insured by ICBC injures you and you claim pain and suffering and other monies from that person, who in turn, is insured by ICBC and thus you deal with ICBC in that capacity.
The main focus of my blog has to do with ICBC third party claims, however, interesting reasons for judgment were released today by the BC Court of Appeal discussing limitation periods and ICBC first party claims.
The following facts are taken from the reasons for judgment based on the Plaintiff’s pleadings.
The Plaintiff was involved in a serious accident in 1995 when he was 6. His bicycle was involved in a collision with a motor vehicle. He suffered serious injuries including a head injury.
The Plaintiff was insured with ICBC and advanced a first party claim. In April 2003 ICBC refused to fund further services recommended for the Plaintiff’s brain injury ‘because Part 7 benefits were no longer available to the Plaintiff because legal action had not been commenced in a timely way‘.
This case focused on the Limitation Act (Which postpones certain limitation periods from running until a person’s 19th birthday in BC) vs. s. 103 of the Insurance (vehicle) Act which provides a 2 year limitation period in many circumstances to advance a claim against ICBC for first party insurance benefits.
I strongly recommend that this case be reviewed along with the applicable limitation periods for any parent involved in an ICBC claim on their children’s behalf. If you don’t have a lawyer for your child’s ICBC claim, it is vital that you are well aware of these potential limitation periods.
In this case the Plaintiff sued ICBC, not claiming his PArt 7 benefits, rather, claiming that ICBC was negligent ‘in adjusting the Plaintiff’s claim for PArt 7 benefits and that ICBC breached its duty to act in good faith‘.
ICBC brought an application to strike out portions of the Plaintiff’s statement of claim.  In other words, tried to dispose of the lawsuit even before it could go to trial.  The trial judge dismissed parts of ICBC’s application and ICBC appealed.
In this case the BC Court of Appeal held that “It is my view that section 103 does not apply to a non-contractual claim against ICBC as long as the claim is not an indirect attempt to enforce the contractual right to benefits. In this case, although ICBC’s alleged breach of duty resulted in the plaintiff failing to obtain Part 7 benefits, the loss of those benefits is not the damage claim being pursued by the Plaintiff. Rather, the plaintiff is seeking damages for his worsened condition as a result of his failure to obtain those Part 7 benefits.”
In terms of whether ICBC has to tell an injured ‘insured’ person about the limitation periods ICBC argued that ‘it is plain and obvious that (ICBC) did not owe a duty of care to the plaintiff to advise him or his mother regarding the coverage available to them under Part 7 of the Regulation (including advice about the kind of therapy and treatment that could be funded and the existence of the section 103 limitation period).”
Our BC Court of Appeal disagreed with ICBC and stated that “It is not plain and obvious that the present situation is not sufficiently analogous to Fletcher for the court to recognize the duty of care in the present case…..I would not give effect to ICBC’s submission that the court should strike out the allegation in the statement of claim that ICBC owed a duty of care to advise the Plaintiff or his mother of the plaintiff’s entitlement to benefits under Part 7 of the Regulation and of any limitations on his entitlement‘.
The Court of Appeal, however, did not go so far as to state that ICBC does owe a duty of care to tell it’s insured about limitation periods for first party claims. All that was decided was the Plaintiff was allowed to have his day in court to decide this issue.
The bottom line is that ICBC may not have to tell you your limitation periods (even if you are the parent of a brain injured child involved in an ICBC claim) and it is noteworthy that ICBC argued in court that ‘it is plain and obvious’ that ICBC does not have to advise this brain injured child’s parents of the limitation period. SO KNOW YOUR LIMITATION PERIODS OR GET LEGAL ADVICE!

ICBC Claims, Wage Loss, and Loss of Overtime Opportunities

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Dizziness Cases, ICBC Headache Cases, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Wage Loss, ICBC Whiplash Cases, Uncategorized.

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.