Tag: Cost of Future Care

Pharmacare Benefits Non-Deductible From Cost of Future Care Award

Written by admin on August 4, 2011. Posted in Cost of Future Care Cases.

Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, addressing whether a Plaintiff’s award for cost of future care in a personal injury claim should be reduced by the availability of Pharmacare benefits. In short the Court held that these benefits are non-deductible.
In yesterday’s case (Harrington v. Sangha) the Plaintiff suffered severe and disabling injuries following a collision with a tractor-trailer. Her injuries resulted in future care costs of $488,495 including medication costs of $118,000. The Defendant argued that this portion of the award should be reduced because British Columbia’s Pharmacare program may cover some of the expenses. Mr. Justice Willcock rejected this argument and in doing so provided the following useful reasons:

[158] The short answer to that argument is that where the benefit in question is not available to individuals, because they have a remedy against a tortfeasor, where there is a provision in the plan for subrogation, or where there is an obligation on the recipient of the benefit to repay the benefit from the proceeds of litigation, an award will not result in double recovery. The availability of benefits paid on such terms should not reduce the award.

[159] As this court noted in MacEachern v. Rennie, 2010 BCSC 625 at para. 422:

Medication costs required as a result of a motor vehicle accident must be paid for by a motor vehicle insurer, and in such a case, PharmaCare is the insurer of last resort.

[160] It was the evidence of Mr. Moneo that the PharmaCare programme is not intended to be available to persons who have a tort claim for the cost of their medications. Counsel seeking to have the deduction made from the award was reduced to arguing that there will be double recovery if the plaintiff recovers an award for the cost of her medications and conceals the award from PharmaCare or if she squanders her award and again becomes dependent on the state to pay for her drug expenses.

[161] The award in this case is made in the expectation that Ms. Harrington will report the outcome and use the award as intended. The judgment cannot be founded upon the presumption that the plaintiff will make a fraudulent PharmaCare claim. In any event, PharmaCare will be aware of this judgment, having made submissions and having been given standing to address the issue.

[162] There is no real risk of double recovery in this case and no basis for an award other than that which is necessary to ensure the plaintiff will be in a position, without relying upon the state, to pay the cost of the drugs she requires.

Medical Marijuana Costs Deemed Recoverable in BC Personal Injury Claim

Written by admin on June 21, 2011. Posted in Uncategorized.

In what I believe is the first award of its kind, damages of $30,000 were recently allowed in a BC personal injury claim for the purchase medical marijuana to help manage the consequences of chronic pain.
In reasons for judgement released earlier this month (Joinson v. Heran) the Plaintiff sued the Defendant surgeon for medical malpractice. The Plaintiff’s claim was in part successful and damages of just over $310,000 were awarded including a $30,000 cost of future care assessment for medical marijuana. Mr. Justice Brown provided the following reasons setting out his legal analysis in allowing this claimed damage:

[420] As a judge of the law, I cannot make orders that directly or indirectly endorse unsanctioned accessing of medical marijuana. At the same time, my role is now to assess medical needs and necessities. It is the responsibility of Dr. Surgenor and Dr. Bright, as Mr. Joinson’s treating physicians, to address professionally these medical questions and to ensure Mr. Joinson’s medical use of marihuana complies with the rules and regulations. Ultimately, however compensation claims for medical use of marihuana, either as a special damage claim or as a future cost of care claim, must be assessed based on recommended guidelines and on costs charged by legally authorized dispensaries. All said, the foundational principle for an award of a cost of future care is that the expense must be both medically justifiable and reasonable on an objective basis. It is not enough to show merely that it is beneficial; the medical evidence must show it is reasonably necessary:Andrews v. Grand and Toy Alberta Ltd., [1978] S.C.J. No. 6, at para. 120; Aberdeen v. Langley (Township), Zanatta, Cassels, 2007 BCSC 993, at para. 198; Strachan v. Reynolds et al., 2004 BCSC 915, at para. 632.

[421] There is no bright line distinguishing mere benefit and reasonable necessity in this case. But with basic reasoning and application of the above stated legal principles it can be drawn, if roughly. Pain control and its contribution to Mr. Joinson’s ability to function to his maximum potential are core considerations here. Without use of medical marihuana or a synthetic substitute, Mr. Joinson would have to increase his use of morphine, which is detrimental, particularly to his functioning: he does not function as well, physically or mentally, without use of medical marihuana. His treating physicians endorsed this treatment option, supporting him in his use of medical marihuana. Other physicians may disagree, but his family physician and psychiatrist see him on a regular basis and, in this particular instance, are in the best place to consider what is medically necessary.

[422] The issue remains controversial and is one which more research and clinical experience must ultimately decide, or at least reveal clearer parameters for the safe and effective use of medical marihuana or its synthetic derivatives. Meanwhile, I find the medical evidence supports a finding that compensation for some medical use of marijuana is reasonably necessary in this case. However, I cannot find for compensation based on the quantity used by Mr. Joinson in his claim for exemption or on amounts he has been paying to purchase products from the TAGGS dispensary. The award will based on a maximum of 5 grams per day, and priced as if purchased from a Health Canada legally authorized source, or, alternatively, at the cost of the medically equivalent amount of a synthetic substitute such as Cesamet.

[423] Ultimately of course, any award must make allowance for the fact Dr. Heran’s errant surgery is not responsible for providing Mr. Joinson with a lifetime supply of medical marijuana, certainly not for the portion Mr. Joinson would have used for recreational purposes, irrespective of any of his surgeries. Moreover, I need to account for the medically beneficial effects of his participation in a chronic pain program, notably anticipated benefits that should help reduce his need to use pain medications….

[431] Therefore, I award $30,000 for costs of medical marihuana.

BC Court of Appeal Advises Litigants Not to get Carried Away With Future Care Claims

Written by admin on April 15, 2011. Posted in Cost of Future Care Cases, Uncategorized. 60 Comments on BC Court of Appeal Advises Litigants Not to get Carried Away With Future Care Claims

Reasons for judgment were released this week by the BC Court of Appeal addressing damages for cost of future care following long term non-catastrophic injuries.
In today’s case (Penner v. ICBC) the Plaintiff was injured in a 2005 collision. Most of his injuries resolved however he was left with long-term difficulties as a result of a post-traumatic chronic patellar tendinopathy (a knee injury).
At trial the Plaintiff was awarded just over $550,000 in total damages. ICBC appealed several aspects of the judgement without success. The Plaintiff’s award for cost of future care, however, was reduced by the Court of Appeal.
The Trial Judge made the following award for future care needs:

Future home maintenance	$14,600.00
Yard maintenance	$39,200.00
Housekeeping assistance	$38,000.00
Cold packs, heating pads and bath mats	$1,825.00
Safety bars in the bathroom	$200.00
Psychotherapy treatments	$3,000.00
Attendance at a fitness centre or community centre	$13,500.00
Medication	$10,000
TOTAL:	____________ $120,325.00

The BC Court of Appeal reduced this assessment by about $80,000 and in doing so provided the following reasons reminding litigants not to get carried away when dealing with future care costs:

[13] Ms. Katalinic drew our attention to the Court’s comments in Travis v. Kwon, 2009 BCSC 63, where Johnston J. said this about claims for damages for future care costs:

[109] Claims for damages for cost of future care have grown exponentially following the decisions of the Supreme Court of Canada in the trilogy of decisions usually cited under Andrews v. Grand & Toy, Alberta Ltd., [1978] 2 S.C.R. 229, [1978] 1 W.W.R. 577.

[110] While such claims are no longer confined to catastrophic injury cases, it is useful from time to time to remind oneself that damages for future care grew out of catastrophic injuries and were intended to ensure, so far as possible, that a catastrophically injured plaintiff could live as complete and independent a life as was reasonably attainable through an award of damages.

[111] This is worth mentioning because the passage of time has led to claims for items such as, in this case, the present value of the future cost of a long-handed duster, long-handed scrubber, and replacement heads for the scrubber, in cases where injuries are nowhere near catastrophic in nature or result.

This is a reminder that a little common sense should inform claims under this head, however much they may be recommended by experts in the field.

Future Care Claims: What Expert Evidence Is Needed?

Written by admin on March 30, 2011. Posted in Cost of Future Care Cases, Uncategorized. 52 Comments on Future Care Claims: What Expert Evidence Is Needed?

Useful reasons for judgement were released this week by the BC Court of Appeal discussing the type of expert evidence necessary to prove damages for cost of future care in a BC injury claim.
In this week’s case (Gregory v. ICBC) the Plaintiff was injured in a 2006 collision. At trial the Plaintiff sought damages including an award of $123,000 for cost of future care. In support of this claim the Plaintiff relied on the opinion of an occupational therapist. This aspect of the claim was largely rejected with the Court awarding just over $8,000 for this head of damage.
The Plaintiff appealed arguing the trial judge erred in rejecting the evidence of the occupational therapist suggesting a medical doctors evidence was necessary for this aspect of the claim. The BC Court of Appeal agreed in part and increased the assessment by $30,000. In doing so the Court provided the following useful reasons addressing the type of expert evidence needed to advance a future care claim:

[38] Courts do accept testimony from a variety of health care professionals as to necessary and reasonable costs of future care: Jacobson v. Nike Canada Ltd. (1996), 19 B.C.L.R. (3d) 63, 133 D.L.R. (4th) 377 (S.C.) at para. 182; in which Levine J. (as she then was) said:

[182] The test she enunciated does not, in my view, require that the evidence of the specific care that is required by the plaintiff be provided by a medical doctor. In Milina v. Bartsch, McLachlin J. accepted the evidence of a rehabilitation expert as to the type of care that should be provided.

See also: Aberdeen v. Zanatta, 2008 BCCA 420 at paras. 43-53, 63; Rizzolo v. Brett, 2010 BCCA 398 at paras. 72-83.

[39] I do not consider it necessary, in order for a plaintiff to successfully advance a future cost of care claim, that a physician testify to the medical necessity of each and every item of care that is claimed. But there must be some evidentiary link drawn between the physician’s assessment of pain, disability, and recommended treatment and the care recommended by a qualified health care professional: Aberdeen at paras. 43, 63…

[46] And, there was a consensus among the physicians that Ms. Gregory has difficulty lifting above shoulder height, difficulty with prolonged heavy or repetitive motion above shoulder level, and that in general she will continue to have persistent pain and weakness.

[47] The evidence of the physicians does therefore provide some evidentiary basis for the recommendations for assistance with heavy housework, and yard maintenance. In my view the trial judge fell into error by failing to consider these claims on the basis only that, “there are no recommendations from the medical practitioners for housekeeping assistance, or home and yard maintenance … ”.

[48] Rather than remit this question to the trial judge, I am of the view that it is appropriate for this Court to substitute an appropriate award under this head of damages.

[49] That part of Ms. Percy’s recommendations in which she estimated assistance for heavy home and yard maintenance is set out above. I would substitute an award of $30,000 over and above the amount already awarded under this head of damages. This represents a reasonable assessment of the present value of the cost of some modest assistance with the housework, and yard maintenance, that Ms. Gregory could not perform herself in a reasonable manner, as a consequence of the impairment in her shoulder.

Cost of Future Care Awards and Tax Gross Ups: Can Tax Planning Strategies Be Considered?

Written by admin on February 25, 2011. Posted in Uncategorized.

When Personal Injury Plaintiffs are awarded damages for costs associated with future medical care they are expected to invest the money and draw from this fund to pay for their future care needs over their lifetime. The difficulty is that while personal injury damage awards are not taxable, investment income is. To account for this Trial Judges have the ability to award further damages to set off these tax consequences. This is called a “tax gross up” award. Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, addressing this area of law.
In today’s case (Sartori v. Gates) the Plaintiff was awarded damages by a Jury which included $41,000 for cost of future care. The Plaintiff applied for a tax gross up and presented an actuarial report which concluded that approximately $10,000 would be necessary to offset the investment tax consequences from the cost of care award. ICBC presented contrary evidence arguing that an award of $3,000 would be appropriate.
The main reason for the difference in the economists opinions was whether the Court could consider tax minimizing strategies in quantifying a tax gross up award. Ultimately the Court held that these can be considered, however, the whole of these strategies are not to be applied solely to the damage award for cost of future care. Mr. Justice Wilson provided the following practical reasons:

[20] In result, I find the tax free savings account benefits to be a lawful consideration in defining the tax gross up amount. That said, however, Townsend is also authority (among many, many others) for the principle that, “compensation aims at restoring the victim to the position that person would have been in had no loss been incurred”.

[21] A cost of future care award is founded on the theory that the tortfeasor must provide a fund from which the victim may draw to meet future expenses as they occur. It is a presumption of law that the fund will be invested and will earn income. According to the theory, as I understand it, the fund and its income, is a separate stand-alone phenomenon. It appears to me that Mr. Szekely has treated it as such in his analysis. Therefore, the tax benefits available to the plaintiff, by virtue of a tax free savings account, are exhausted in this separate stand-alone account.

[22] Commencing 1 January 2009, the plaintiff has been entitled to the tax benefits of a tax free savings account. It seems to me that if I assign all of the tax benefits, from a tax free savings account, to this stand-alone account, then I will not be restoring the plaintiff to the position he would have been in had no loss been incurred. To put it in Mr. Wickson’s terms, adopting Mr. Szekely’s approach, fails to recognize the plaintiff’s right to use the tax free savings account for his “first slice” income.

[23] I have considered the tax benefits of a tax free savings account as a legitimate factor in determining the tax gross up and having done so, I conclude that in this particular case, Mr. Szekely’s calculations are not applicable in the determination of the tax gross up amount…

[31] Finally, the fund available to meet the plaintiff’s costs of future care is $41,333.33. I find it is more probable than not that the income to be earned from the investment of this fund will be interest income. Therefore, I make no allocation for capital gain or dividend income and assess the tax gross up at $10,025.

Recognizing the Real Financial Toll of Catastrophic Injuries

Written by admin on December 13, 2010. Posted in Cost of Future Care Cases, ICBC Brain Injury Cases, ICBC Chronic Pain Cases, ICBC Spine Injury Cases, Uncategorized. 53 Comments on Recognizing the Real Financial Toll of Catastrophic Injuries

(UPDATE: February 3, 2012 – The below cost of care award was reduced somewhat in reasons for judgement released by the BC Court of Appeal)
Important reasons for judgement were released this week by the BC Supreme Court, Chilliwack Registry, recognizing the real financial toll that catastrophic injuries can cause.
In today’s case (O’Connell v. Yung) the Plaintiff was seriously injured in a 2007 motor vehicle collision. Her car was struck by a tractor-trailer pinning her vehicle against the Massey Tunnel. The injuries were extensive and these included traumatic brain injury, a cervical spine fracture, fractures to her right femur, ankle, tibia, fibula, toes, ribs, nose and sternum. The Plaintiff also sustained injury to her spleen and liver. These left the Plaintiff with chronic pain and serious dysfunction requiring a high level of daily supervision and care.
The Plaintiff initially received such care from a ‘personal care worker’, however she was uncomfortable having strangers tend to her for prolonged periods and eventually her husband of many years took over the role as primary caregiver. This amounted to full time work.
The biggest issue at trial was the Plaintiff’s accident related future care needs. The Plaintiff sought compensation for the fair value of hiring individuals to provide her with the care she needed. The Defendant argued that “any award for the future cost of personal care must be reduced to take into account the fact that Mr. O’Connell is present in the household to provide supervision and guidance and a contingency can be factored in to address the possibility that he will at some point be unable or unwilling to continue to provide this care“.
Madam Justice Fisher rejected this argument and went on to award the Plaintiff $2.25 million dollars to compensate her for her future care needs. In doing so the Court provided the following useful reasons:

[124] I do not accept the defendants’ submission that an award for the cost of future personal care must be reduced to take into account the role Mr. O’Connell plays in providing supervision and guidance to Ms. O’Connell. Ms. O’Connell is entitled to be compensated for the cost of care that is medically required. As Groves J. held in Cojocaru, the law does not permit the defendants to pass off their responsibility to provide appropriate future care by suggesting that Ms. O’Connell can and should rely on her husband to take care of her. A husband is not expected to care for his injured wife on a gratuitous basis: see Andrews at p. 243.

[125] The same principle was expressed in Vana v. Tosta, [1968] S.C.R. 71, where one of the issues involved an award for the cost of future housekeeping services. The majority of the court stated at p. 75:

It is trite law that a wrongdoer cannot claim the benefit of services donated to the injured party. In the present case it amounts in my judgment to conscripting the mother and mother-in-law to the services of the appellant and his children for the benefit of the tortfeasor and any reduction of the award on this basis is and was an error in principle.

[126] In McTavish v. MacGillivray, 2000 BCCA 164, the court was also dealing with an award for the loss of housekeeping capacity, both past and future, and interpreting and applying the principles set out in Kroeker v. Jansen. At para. 43, Huddart J.A. stated:

.. the majority in Kroeker quite clearly decided that a reasonable award for the loss of the capacity to do housework was appropriate whether that loss occurred before or after trial. It was, in my view, equally clear that it mattered not whether replacement services had been or would be hired.

[127] While Kroeker was restricted to housekeeping services and, as Huddart J.A. noted, the court did not adopt the analogy with future care as a general rule, it is my opinion that the same principle can be applied in the circumstances of this case with respect to personal care services that may or may not be hired in the future.

$5.2 Million Dollar Assessment For Cost of Future Care for Cyclist Struck by Tractor-Trailer

Written by admin on May 5, 2010. Posted in Cost of Future Care Cases, ICBC Brain Injury Cases, ICBC Liability (fault) Cases, Uncategorized.

In what is one of the biggest personal injury trial awards in Canadian History, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing losses and damages of over $5.5 million dollars as a result of a BC motor vehicle collision.
In today’s case (MacEachern v. Rennie) the Plaintiff suffered a “severe brain injury when her head struck a passing tractor-trailer…in Surrey, BC. She was 27 years old at the time. “. The court found that as a result of her serious injuries “she will now require care for the rest of her life. ”
The trial was hotly contested and went on for many months starting back in March of 2009 (You can click here to read my archived posts documenting some of the contested interlocutory trial applications) Ultimately the driver of the tractor trailer was found 80% responsible for the crash for not keeping a proper lookout. The Plaintiff herself was found 20% at fault for “making the careless decision to proceed (around a pickup truck) when she did, instead of waiting for traffic to clear“.
Given the Plaintiff’s catastrophic injuries she was found to require care for the rest of her life. $5,275,000 was awarded to take care of these expenses. The Plaintiff was also awarded the maximum Canadian law allows for negligently caused personal injuries for non-pecuniary damages (money for pain and suffering and loss of enjoyment of life).
The parties to the lawsuit agreed that this upper limit was an appropriate award. In reaching this assessment Mr. Justice Ehrcke made the following comments:

[673] Following the accident, the plaintiff had a Glasgow Coma Score of 3. She was intubated and taken by ambulance to Royal Columbian Hospital, where she required emergency surgery upon admission. Dr. Lee, a neurosurgeon, performed a craniotomy to treat her depressed skull fracture and inserted a monitor for her intracranial pressure.

[674] Ms. MacEachern remained unconscious for weeks. She underwent further surgeries. When she eventually opened her eyes, she still did not recognize her family for months. Her coma slowly lifted, but she became severely agitated as a result of her brain injury.

[675] On June 20, 2006, she was transferred to the specialized Neuropsychiatric Program at UBC Hospital for three months, where she received one-on-one care, 24 hours per day. Through the care she received and through adjustments in her medications, she became stabilized and her behaviour dramatically improved. On September 15, 2006, she was discharged back to Royal Columbian Hospital, with a primary diagnosis of Disinhibited Frontal Lobe Syndrome. Although she remained severely disabled, she was now mobile and was able to speak and communicate.

[676] At Royal Columbian Hospital, her behaviour again deteriorated, and at times she required restraints and had to be locked in a padded room.

[677] In January 2007, Ms. MacEachern was transferred to Bear Creek Lodge. The upstairs part of this facility caters to geriatric patients, while the downstairs unit is a locked ward for persons with brain injuries. Ms. MacEachern currently lives there with 15-16 other persons ranging in age from 20-60 years. She has her own room. This facility has provided her with security, medications, and the basic necessities of life, but all parties are in agreement that Bear Creek Lodge is not suitable as a permanent placement for Ms. MacEachern.

[678] To summarize: as a result of the accident, the plaintiff suffered a depressed and comminuted skull fracture of the right front and parietal bones, shear hemorrhages from diffuse axonal injury, and focal hemorrhage to the left frontal and left temporal lobes of her brain. These injuries will have profound implications for the rest of her life. She has little short-term memory, and her behaviour is disinhibited. Mentally and socially, she presents much like a young child, yet in a mature woman’s body. She clearly will require a significant level of care for the rest of her life. She will never be able to work or earn a living….

[680] As mentioned above, in three 1978 cases (the “Trilogy”), Thornton v. School District No. 57 (Prince George) et al., [1978] 2 S.C.R. 267, Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229, and Arnold v. Teno, [1978] 2 S.C.R. 287, the Supreme Court of Canada set a rough upper limit of $100,000 for non-pecuniary damages in cases of catastrophic injury.

[681] All parties in the present case agree that the plaintiff suffered the kind of catastrophic injury that should attract the rough upper limit set by the Supreme Court of Canada, adjusted for inflation. The evidence of Mr. Carson is that the present value of the rough upper limit, as of the beginning of this trial, is $324,800.

[682] There shall be an award for non-pecuniary damages in that amount.

How Much Is My BC Injury Claim Worth? – A Video Discussion

Written by admin on March 28, 2010. Posted in BC Injury Claims Media Archives, Uncategorized. 53 Comments on How Much Is My BC Injury Claim Worth? – A Video Discussion

Here is a video I recently uploaded to YouTube discussing some of the factors that go into valuing a BC Personal Injury Tort Claim:

One of the most frequent questions I’m asked as a BC Personal Injury Lawyer is ‘how much is my claim worth?’.
This is an important question for anyone injured through the fault of another in British Columbia. When negotiating with ICBC (or another Insurance company) the playing field is typically imbalanced in that the Claims Adjuster has lots of experience in valuing personal injury claims. Unless you are an injury claims lawyer you understandably would have little experience in valuing these claims and may need help valuing your losses.
It is important to empower yourself for the negotiation because in tort claims the insurer is negotiating on behalf of the person that injured you. With this in mind, here is a brief video introduction discussing some of the common ‘heads of damages‘ that are frequently addressed in BC personal injury lawsuits. I hope this information is of some assistance and helps to balance the playing field.