Tag: fibula injury

CPP Benefits Deductions in UMP Claims Discussed – The Likelihood of Payment Test

Section 148.1 of the Insurance (Vehicle) Regulation requires “an amount to which an insured is entitled to under the Canada Pension Plan” to be deducted from UMP claims.  Continuing in my efforts to summarize ICBC UMP decisions, reasons were released addressing this deduction following a serious injury caused by an uninsured motorist.
In SPW v. ICBC the Claimant suffered various injures due the carelessness of an uninsured motorist.  Following arbitration the Claimant’s diminished earning capacity (future wage loss) was assessed at $575,000.  The Claimant was receiving CPP disability payments and if these were continued to be received the present value of the future payments equalled $123,500.  Arbitrator Boskovich had to determine what amount of these benefits should be deducted pursuant to section 148.1.  In deducting 50% of these benefits the Arbitrator provided the following reasons:
165.  In order to determine if future payments should be considered as “applicable deductible amounts” under the Regulations the law is quite settled that there has to be some evidentiary foundation to determine likelihood of the continuance and certainty of such future payments.  The onus of proof that these payments will continue is on the Respondent (ICBC).  While the evidence given with respect to payments having been received in the past is of assistance, it does not provide conclusive evidence that the payments will continue in the future.
166.  That being said, having regard to the submissions delivered by counsel and the admissions made by the Claimant and his counsel and my own findings that the Claimant does have some residual earning capacity, which may or may not translate into income depending on what the Claimant does vocationally, I find there is a 50% contingency of the likelihood that his CPP payments will continue in the future and in this regard 50% of the net present value of the future payments should be deducted from the award.
This case is also worth reviewing for the assessment of non-pecuniary damages for the Claimant’s serious injuries.  In assessing this loss at $175,000 the Arbitrator made the following findings:

23  ….he had suffered multiple injuries, including a complex pelvic fracture with separation of the symphysis pubis and fracture of the right sacrum, a left tibiofibular fracture, a fractured right humeral shaft, fracture of his left second rib, as well as a large laceration to his right thigh and multiple cuts and abrasions.
74.  …those injuries have impacted his ability to walk, his gait and balance and have resulted in neck and lower back pain.  He has been left with chronic discomfort, restricted mobility and reduced ability to participate in physical activities.  I find that his present disability is entirely related to the motor vehicle accident…
77.  After considering the authorities submitted I find, having regard to the horrific circumstances of this accident, the nature of the injuries, the ongoing pain and the residual permanent disability which has resulted in a devastating change in the Claimant’s quality of life, that he is entitled to non-pecuniary damages of $175,000.

$155,000 Non-Pecuniary Damages Agreement for Serious Knee Injury


Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing compensation for a serious knee injury following a motor vehicle collision.
In last week’s case (Stevanovic v. Petrovic) the Plaintiff was struck by a vehicle driven by the Defendant.  The Plaintiff was standing in the middle of a residential road when the Defendant approached in his vehicle.  The Plaintiff was friends with the Defendant and was expecting the Defendant to pick him up.  The Defendant attempted to show off and drive his vehicle dangerously close to the Plaintiff.  He miscalculated and struck the Plaintiff causing injury.  The Defendant denied fault but Mr. Justice Sigurdson found him entirely liable for the collision.
The parties were able to agree on several heads of damages including the claim for non-pecuniary loss (pain and suffering and loss of enjoyment of life).   The balance of the trial focused on the Plaintiff’s damages for cost of future care and diminished earning capacity.
The parties settled the value of the pain and suffering claim at $155,000.   Since the issue was privately settled this case is not a true ‘precedent‘.  Despite this I thought this case would be worth summarizing given the relatively few precedents dealing with unique and complex knee injuries.  The Court made the following findings with respect to the severity and extent of the Plaintiff’s physical injury:

[88]         The purpose of the review of the injuries that the plaintiff suffered is not to revisit the issue of non-pecuniary damages, which was agreed, but for the purpose of the assessment of his loss of earning capacity and cost of future care.

[89]         The injuries suffered by the plaintiff were summarized by Dr. Anton, a physiatrist, in his medical report of August 21, 2008:

1.         multiple injuries to the right knee including

(a)        a patellar dislocation with a residual osteocondral defect in the articular (joint) surface of the patella;

(b)        an impacted fracture of the lateral femoral condyle;

(c)        evulsion of the anterior cruciatr ligament from the tibial spine;

(d)        a lateral tibial-plateau fracture, and

(e)        a bucket handle tear in the anterior portion of the lateral meniscus;

2.         a closed head injury including a laceration, nasal fracture, and probable mild traumatic brain injury;

3.         a fracture of the proximal fibula of the right leg;

4.         an injury to the left shoulder involving the supraspinatis tendon of the rotator cuff and anterosuperior glenoid labrum; and

5.         multiple soft tissue injuries including a probable soft tissue injury to the cervical spine.

[91]         The plaintiff’s most serious physical injury was the damage to his right knee, which required surgery on four occasions by Dr. Pierre Guy, an orthopaedic surgeon.  The plaintiff also required shoulder surgery in 2008 by Dr. Gilbert, which surgery was successfully completed.  In more recent times, the plaintiff has developed and has complained of hip pain.

[92]         The knee injury was described by the doctors as serious and complex, and is significant for the loss of earning capacity claim, because it affects and continues to affect his ability to bend his knee, go up or down stairs, or crouch, squat, kneel, or run without pain.  As a result of his knee injury, notwithstanding the successful surgeries, it is now apparent, with his knee pain, and difficulty crouching and bending, that he would not be able to continue employment as a copier repair person, which was what he had done at RISO before the accident.

[93] I find that the plaintiff continues to suffer from pain to his knee and that further surgical options are limited until much later.  A total knee replacement at a much later age appears to be the only possible surgical solution to deal with ongoing pain and discomfort.

BC Injury Claims, Expert Evidence and The Duty to the Court

One of the Rules regarding the conduct of expert witnesses in the BC Supreme Court is that they owe a duty to the court to be ‘independent’ and ‘unbiased’ in their opinions.  If experts fail to discharge this duty their evidence can be given little weight or even held inadmissible.
Reasons for judgement were released today by the BC Supreme Court demonstrating this principle of law.
In today’s case (Rizzolo v. Brett) the Plaintiff was injured in a 2005 motorcycle accident when a left turning driver proceeded in front of the Plaintiff in an intersection in Maple Ridge, BC.  The defendant was found fully liable for this collision (the case contains a good discussion of the duties of left turning motorists and is worth reviewing for anyone interested in this area of the law).
The Plaintiff suffered significant fractures of his tibia and fibula which required surgical intervention.  Damages of over $560,000 were awarded including $125,000 for non-pecuniary damages (pain and suffering) for the injuries which were summarized by Madam Justice Allan as follows:

[41] Mr. Rizzolo`s altered position, arising from the Accident caused by the defendant’s negligence, is characterized by continuing pain, changed mood, loss of ability to work effectively and happily, and a much-reduced capacity to engage in recreational sports.  He must take pain killers and anti-inflammatories although they upset his stomach, requiring him to take additional medication.

[42] At present, Mr. Rizzolo experiences constant pain in his left ankle, which is exacerbated by his work activities.  His left foot swells and he experiences occasional pain in his left knee.  He limps when he is tired or in severe pain.  He takes the following medication: Advil once or twice a week for pain management; Celebrex, an anti-inflammatory, daily; and amitriptylene, an antidepressant, twice a week to help him sleep.  He receives periodic cortisone injections from Dr. Dhawan.

[43] Mr. Rizzolo’s injuries are permanent and they affect his entire life – his job, his recreational and family life, and his sense of well-being.  I do not find that he exaggerated his symptoms and he is highly motivated to be as active as possible.

In advancing his claim the Plaintiff called evidence of an expert witness, an occupational therapist, who had conducted a functional capacity evaluation of the Plaintiff to assist the court in determining a fair award for cost of future care.  The expert employed a ‘unique motion capture system known as the Functional Assessment of Biomechanics System [FAB] to measure biomechanical forces.’  In cross examination evidence came out that this expert was ‘an inventor of FAB‘.  Having this fact revealed in cross examination (as opposed to being revealed up front) appaears to have caused the presiding judge to reject all the evidence of this expert.

In rejecting the evidence of this occupational therapist Madam Justice Allan summarized and applied the law of objectivity of expert witnesses as follows:

[104] In R. v. Mohan, [1994] 2 S.C.R. 9, the Court reiterated that expert witnesses have duties and responsibilities.  In particular, an expert witness is expected to provide an independent, unbiased opinion that is adequately researched and falls within his or her ambit of experience.

[105] I consider Mr. McNeil’s failure to disclose the fact that he is the principal of Biosyn and that he was an inventor of FAB to represent a shocking lack of candour.  As he has testified in the courts on numerous occasions, he is well aware that the duty of an expert is to assist the court with an independent and objective opinion on a particular issue.  To withhold such relevant information misleads the court and, as I have no choice but to reject all of his written and verbal evidence, constitutes a substantial waste of time.   It is impossible to parse out Mr. McNeil’s evidence as a qualified expert from that as an undisclosed salesman for Biosyn.

[106] I do not fault counsel for the plaintiff as I accept Mr. Kazimirski’s statement that he was unaware of Mr. McNeil’s association with Biosyn before Mr. Joudrey’s cross-examination.  While the plaintiff will be entitled to his costs in the result, he may not claim any costs relating to Mr. McNeil’s reports or attendance in court.  Counsel may address the issue of whether the defence is entitled to costs for two days of trial.

Accident and Subsequent Fall Related, Plaintiff Awarded $72,231.88

Following a 3 day trial in Victoria, reasons for judgement were released today awarding an injured Plaintiff just over $70,000 in compensation as a result of 2 separate but allegedly related incidents.
The facts of this case are somewhat unique. The Plaintiff was injured in a BC car accident in August, 2005. Following an incident of ‘road rage’ the Defendant rear-ended the Plaintiff’s vehicle. Both the Defendant’s car and the Plaintiff’s van sustained significant damage in the impact. The Plaintiff sustained various injuries in this crash.
A few months later, the Plaintiff lost consiousness and fell and broke his leg while on a BC Ferry. The Plaintiff sued claiming the subsequent fall was related to the injuries sustained in the car accident.
Addressing injuries, Mr. Justice Metzger found that the Plaintiff suffered whiplash injuries as a result of the accident with associated severe headaches, neck and shoulder pain, limited right shoulder mobility, sleep disruption, nausea and some brief dizziness. He found that these symptoms “were improving at the time of his fall and loss of consciousness on the ferry, and but for the continuing headaches, were mostly resolved within 6 weeks of the motor vehicle accident“.
With respect to the fall the court found that the Plaintiff suffered a fractured right fibula and tibia. The court accepted that, as a result of this ankle injury, the Plaintiff was unable to enjoy skiing and curling anymore.
The court canvassed some important decisions in deciding whether the fall was in any way related to the car accident. The court reviwed 2 of the leading Supreme Court of Canada decisions often relied on by ICBC claims lawyers in advancing ICBC claims addressing the issue of ‘causation’, namely:
Athey v. Leonati
Resurfice Corp. v. Hanke
The court concluded that “the Plaintiff demonstrated that his MVA related symptoms contributed to his collapse on the ferry….I accept the Plaintiff’s testimony that he was overwhelmed with MVA related headache and neck pain immediately prior to the fainting incident…I find that the Plaintiff’s general fatigue and headach were significant factors in his loss of consciousness. There was a substantial connection between the injuries and the defendant’s conduct“.
The court went on the value the non-pecuniary loss (pain and suffering) for each of the events seperately.
For the Whiplash injuries the court awarded non-pecuniary damages of $12,000 and then reduced these by 15% to account for “(the Plaintiff’s) failure to pursue treatment, which most likely would have mitigated his damages and hastened his recovery”
For the broken leg (ankle injury) the court awarded $20,000 for non-pecuniary damages and then also reduced these by 15% for the Plaintiff’s failure to mitigate. The court concluded that the Plaintiff failed to follow sensible advice from his doctor (to attend physiotherapy after the ankle injury) and this is what resulted in the reduction of damages.
The Plaintiff also was awarded damages for past loss of income and special damages (out of pocket expenses incurred as a result of the injuries).
If you are advancing an ICBC claim involving a subsequent injury (intervening injury) this case is worth a read to view some of the factors courts consider in determining whether accident related injuries contributed to a future event that is compensible in law. This decision also shows the ‘failure to mitigate’ argument in action which resulted in the Plaintiff’s pain and suffering damages being reduced by 15% for failing to follow his doctors advice.
Do you have questions about this case or an ICBC claim involving an intervening injury that you wish to discuss with an ICBC Claims lawyer? If so click here to arrange a free consultation with ICBC Claims Lawyer Erik Magraken.

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If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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