Tag: icbc claims lawyer

Disc Herniation, Nerve Damage and ICBC Claims

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.

$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…"

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

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

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, 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!

Show Me the Money 2! 2007 Doctors' ICBC Billings Revealed

Further to my previous post on ICBC and high billing doctors I am pleased to report that ICBC has now published their 2007 “statements and schedules of financial information which reveal, amongst other things, the “amounts paid to suppliers of goods and services in 2007“.
One of the ‘goods and services’ often purchased by ICBC is the “Independent Medical Exam”. This is done either to get an ‘independent’ opinion of the medical condition of someone seeking ‘no-fault benefits’ from ICBC, or, further to the Rules of Court which permit one side of a lawsuit to get an ‘independent’ exam addressing the medical condition of a plaintiff involved in an ICBC injury tort claim.
As an ICBC claims lawyer I find it interesting to see which doctors ICBC routinely uses to conduct these independent medical exams. From reviewing these annual reports it becomes clear that there is a small number of doctors who do a significant amount of work on behalf of ICBC.
As promised in my earlier blog, below are some of the highlights of the 2007 report of doctor billings:
Dr. Kevein Favero (Orthopedic Surgeon, Langley, BC): $188,814
Dr. N. K. Reebye (Physical Medecine and Rebabilitation, New Westminster): $339,243
Dr. Peter M. Rees (Neurologist, Burnaby): $215,788
Dr. J. F Schweigel (Orthopedic Surgeon) : $924,243
Dr. D. M. Laidlow: (Physical Medicine and Rehabilitation, Westbank) $165,657
Dr. Robert W. McGraw: (Orthopedic Surgoen, Vancouver) $224,375
Dr. T O’Farrell: (Orthopedic Surgoen, Kelowna) $147,003
Dr. James Warren: (Orthopedic Surgoen, Victoria) $111,041
Dr. O. M. Sovio: (Orthopedic Surgeon, Abbotsford) $252,916
Dr. H. Davis: (Psychiatrist, Vancouver) $164,755
Dr. Marc Boyle (Orthopaedic Surgeon, North Vancouver) $353,822
Dr. Paul Bishop (Vancouver, BC) $357,358
Dr. Mark Crossman (Physical Medicine and Rehabilitation, Vancouver) $83,577
Dr. I. G. Dommisse (Orhopaedic Surgoen, New Westminster) $156,650
Dr. H. E. Hawk (Orthopedic Surgeon, Vancouver) $280,000

Car Accidents, Post Trauma Headaches and ICBC Claims

Short clear reasons for judgment were released by Mr. Justice Savage of the BC Supreme Court yesterday awarding a Plaintiff compensation for car accident related headaches.
This is one of the crispest judgements I have read in quite some time.  I recommend reading the full judgment for anyone advancing an ICBC pain and suffering claim for headaches as the issues are succinct in this case and it does not get bogged down in legalese.
The Plaintiff was injured when she was 4 years old.    She was in a proper infant car seat in her family van when it was broadsided by the defendant who failed to stop at a stop sign.  The accident was in 2002 and the claim finally went to trial in 2008.  For those of you not well versed in ICBC injury claims I should point out that there is nothing unusual about this timeline.  In infant injury claims in BC, most limitation periods are delayed until the infant’s 19th birthday.  One of the reasons for this is because doctors often can’t give a prognosis for an infant’s injuries until they reach adulthood.
In this case most of the Plaintiff’s injuries were not disputed.  She suffered from a broken tooth, some injury to her legs which healed in a few months, soft tissue injuries to her neck and back which took about one year to heal.
What was at issue was headaches.  The Plaintiff claimed that she had on-going headaches over 5 years after the accident and that these were caused by the accident.  The defendant said there are other potential causes for the headaches such as migraines or other trauma.  It is worth pointing out that such a ‘causation’ argument is typical in most ICBC injury claims that go to trial.  Usually the court hears competing theories about the extent of injury and the cause of injury.  (click here to see an example of just how far apart 2 sides can be in an ICBC injury case involving headaches)
The court accpeted that the ongoing headaches were indeed caused by the accident and summarized the accident related injuries as follows: “very mild injuries post-accident that have completely resolved with ongoing significant but somewhat sporadic headaches continuing requiring the occasional use of Tylenol.”
Mr. Justice Savage noted that the headaches have persisted for some six years althogh there has been some improvement.  He went on to value the non-pecuniary loss (pain and suffering) for these headaches at $35,000.

More on LVI's, ICBC Claims and Soft Tissue Injuries

There is no shortage of opportunity to blog about ICBC LVI (Low Velocity Impact) cases as these seem to go trial frequently.   While each case is unique and have varying outcomes based on the severity of injury, the courts reactions to the ‘no crash no cash’ position often advanced on ICBC’s behalf seems to end in a predictable result.  It is typically rejected.
The issue always is, on a balance of probabilities, does the evidence establish that the Plaintiff was injured in the crash?  Not “how significant was the vehicle damage”.
In yet another example of BC courts reactions to LVI crashes, reasons for judgment were released today awarding a Plaintiff $12,000 for various soft tissue injuries.
The accident happend in 2005.  It was a rear-end crash.  The defendant gave evidence that the crash was so minor that ‘he did not hear any impact’.  The Plaintiff, on the other hand, stated that the impact was ‘a jolt that threw her forward although she was restrained by her seatbelt‘.
As is often the case in ICBC LVI cases, the lawyers put into evidence the photographs of the vehicles.  The pictures showed minor damage to the Plaintiff vehicle and no visible damage to the Defendant vehicle.
The court accepted that the Plaintiff was injured in this crash.  The Plaintiff complained of headaches, neck pain, upper back pain, lower back pain, right shoulder pain and right ankle pain.
The Plaintiff suffered injuries in previous car accidents and also in a subsequent fall.  This complicates the courts job somewhat in assessing the extent of the injuries suffered in this LVI trial.
The medical evidence was that the Plaintiff, while injured in this LVI crash, should not have any permanent consequenses as a result of her injuries.  In other words, she should get better.  The Plaintiff’s doctor also testified that ‘a lot of her symptoms arise from ‘something else’ (something other than the crash)… She has an underlying condition of depression and alcohol consumption which makes her depression worse’.
One thing that should come to no surprise to ICBC injury lawyers is the position taken by the defence lawyer in this case.  It was argued that ‘there should be no award as the symptoms are not reasonably attributable to the accident’.  In support of this argument the defence lawyer cited Mustapha v. Culligan of Canada Ltd.   For full background you can read my former blog on this case but for the sake of this blog here are the broad strokes:
In Mustapha the Plaintiff claimed to suffer psychological injury due finding flies in a bottle of water supplied by Culligan.  The Supreme Court of Canada dismissed the lawsuit claiming that such an injury was not ‘foreseeable.’.   Just last week I was discussing Mustapha with a senior colleague ICBC claims lawyer and we concluded it was only a matter of time before an ICBC defence lawyer would bring Mustapha to a court’s attention claiming that injuries from an LVI crash are not ‘forseeable’.  Fortunately, Mr. Justice Savage, rejected such an argument at paragraph 39 of the judgment.
All was not rosy for the Plaintiff, however.  The court found that she ‘tended to exaggerate her symptoms, which, expecially laterrly, are probably not attributabel to the accident.  I accpet, however, that she was injured in the accident but her ongoing symptoms after one year post accident are a result of her failure to mitigate her damages, or other causes’.
For the soft-tissue injuries with headaches and other symptoms which the court found lasted for only one year (at least in terms of being related to the accident) the court awarded non-pecuniary damages (pain and suffering) of $12,000.

BC Supreme Court Awards $75,000 Pain and Suffering for Soft Tissue Injuries – Disc Herniation Claim Dismissed

In reasons for judgment released today, the BC Supreme Court valued a Plaintiff’s pain and suffering at $75,000 for soft tissue injuries.
The Plaintiff was a nurse’s aid. She was injured in a BC car accident which occurred in 2004 in New Westminster. The crash occurred at an intersection and both liability (fault) and quantum (value of injuries) were in dispute at trial. This is often the case when ICBC injury claims resulting from an intersection crash go to trial.
The Plaintiff was making a right hand turn. When starting her turn she felt it was safe to do so. At about the same time the Defendant was proceeding through the intersection and had recently changed into the right hand lane. Both motorists failed to recognize the hazard they posed to each other until it was too late.
The court found that both drivers were at fault. The Plaintiff was liable for ‘not keeping a proper lookout’ and that she should have seen the Defendant travelling in the curb lane prior to the collision.
The defendant was also found at fault for changing lanes at an unsafe time. The key finding is made at paragraph 70 where the court held that:
I find that at the time that the defendant changed lanes on Braid from the eastbound inside lane to the curb lane, 80 feet west of the intersection of Garrett and Braid, the plaintiff had already left the stop sign on Garrett and was in the process of making a right hand turn into the eastbound curb lane on Braid. I find that in making his lane change at this point on Braid the defendant was in such close proximity to the plaintiff’s car that his lane change could not be made safely. The weight of the evidence leaves no doubt that the defendant’s van was far too close to the plaintiff’s car for the defendant’s change of lanes to be made safely.
When 2 or more people are responsible for a BC car accident the Negligence Act requires a court to apportion fault between the parties. In this case the court held that both the Plaintiff and Defendant were 50% at fault for the accident. In doing so the court stated that “I do not think it can be found that blame for the accident rests more with one party than the other. In my opinion, they are equally guilty of breaching the rules of the road.”
The Plaintiff was a nurse’s aid. She claimed that as a result of the accident she became disabled from not only that job but also from ‘any other employment at a competitive level’
The Plaintiff’s doctor diagnosed the following injuries:

1) New large left central parracentral disc herniation posterior to the L5 vertebral body secondary to new onset degenerative L5/S1 disc change. This would be rated severe.

2) Left L5/S1 nerve root compression, also rated severe.

3) Milder degenerative changes at L3/L4, L4/L5 levels with early neural foraminal stenosis at L4/L5 and L5/S1, which are rated moderate to severe.

4) New onset degenerative CT spine changes rated moderate.

5) Musculoskeletal changes within the left side of her body, left arm, left chest, left hip and left leg, resolved within a week or two after the motor vehicle injury, rated mild.

6) Iatrogenic hypertension secondary to COX-2 inhibitor use for the treatment of the patient’s back injuries.

The bulk of the reasons for judgement focused on causation, that is, whether the above injuries were related to the accident or to other causes. As with most ICBC injury claims, the court heard from several ‘expert witnesses’ who commented on the plaintiff’s injuries and their cause.
In the end the court found that the Plaintiff failed to prove that the accident caused her disc herniation. The key findings can be found at paragraph 317 where the court held that:

[317] In the result, I find that the evidence does not establish a temporal link between the accident and the onset of the plaintiff’s low back symptoms ultimately leading to the diagnosis of disc herniation and disc herniation surgery. In my opinion, the plaintiff has failed to prove on a balance of probabilities that the accident caused or contributed to the plaintiff’s disc herniation. She has failed to prove that her disc herniation would not have occurred but for the negligence of the defendants.

[318] In arriving at this conclusion I accept the opinion of Dr. Maloon, in preference to that of the plaintiff’s medical experts, that the soft tissue injuries the plaintiff sustained in the accident would not have been “significant enough to alter the natural history of her neck or low back condition” and that the “disc herniation would be the result of the natural history of the lumbar degenerative disc disease and not the result of injuries that she may have sustained in [the accident].”

Since the court did not find the disc herniation related to the accident damages were assessed for soft tissue injuries. The court made the following finding prior to valuing the injuries at $75,000 for pain and suffering:

[327] I find that the plaintiff sustained mild to moderate soft tissue injuries to her neck and back as a result of the accident which have had an affect on her personal, employment, social and recreational pursuits and activities. However, I also find that the plaintiff has failed to establish that the injuries sustained by her in the accident have caused her disability from employment.

[328] In the result, I find that the plaintiff’s award for general damages should be based on the fact that her condition had improved and recovered to the stage that by March 4, 2005 he felt well enough to return to work on a gradual basis. Moreover, I find that the fact her physical and emotional condition deteriorated after her fall on March 5, 2005 cannot be attributed to the injuries she sustained in the accident.

The Plaintiff’s award was then cut by 50% to reflect the fact that she was 50% responsible for the accident. This is the direct result of ‘contributory negligent’ in ICBC injury cases. If a Plaintiff is any percent at fault then the value of what can be recovered in tort is reduced by that percentage.
Do you have questions about this case or about an ICBC injury claim involving soft tissue injuries or a disk herniation? If so please click here to arrange your free consultation with Victoria ICBC Claims Lawyer Erik Magraken (Services provided for ICBC injury claims throughout BC!)

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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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