Tag: icbc lawyer

$550,828 Awarded for Chronic Pain and Disc Herniation

In reasons for judgement released today, Madam Justice Morrison awarded a total of $550,828 in compensation for an August, 2004 motor vehicle collision.
The Plaintiff was a 45 year old senior commercial lines insurance underwriter. She was injured in a rear-end collision. As in most ICBC rear-end collisions, the defence lawyer admitted fault on behalf of the defendant leaving only quantum of damages (value of the claim) at issue.
A neurosurgeon who testified on behalf of the Plaintiff was found to give ‘compelling’ evidence. In summarizing the Plaintiff’s injuries the neurosurgon stated as follows
My diagnosis is soft tissue injuries to the lumbar spine, referable to the motor vehicle accident in question, traumatic left L3-4 disc herniation causing left L4 nerve root pain and contributing to low back pain. In my opinion, it is also possible that the motor vehicle accident may have negatively impacted on the eventual outcome from the right L5-S1 disc herniation. The preoperative CT scan did show a focal disc herniation at the right L5-S1 level. This was confirmed on the post motor vehicle accident MRI scan. It is conceivable that the force that was sustained during the motor vehicle accident could have further damaged the compressed right S1 nerve root. In other words, were it not for the accident, her outcome from the right L5-S1 discectomy may have been better
Commenting on the vocational impact of the injuries the Plaintiff’s neurosurgeon stated that:
It is my opinion that (the Plaintiff) will be left with permanent back pain. This will result in some limitation of her vocational potential, especially as it relates to jobs that require a lot of sitting, repetitive twisting or turning of the lumbar spine, or lifting.
The trial judge reached a favourable conclusion regarding the Plaintiff’s claim stating that:
On causation, I am satisfied, on a balance of probabilities, that the motor vehicle accident of August 8, 2004, more likely than not, was the cause, or contributed to the injuries of the plaintiff. No other conclusion makes sense. The chronic pain would not have occurred except for that accident. I conclude, on a balance of probabilities, that the right-sided pain would not have recurred, but for that accident, and that the left-sided pain was due to the accident, without question
After accepting virtually all of the Plaintiff’s evidence Madam Justice Morrison awarded damages as follows:
Non Pecuniary Damages (pain and suffering): $100,000
Special Damages: $7,828
Past Income Loss: $73,000
Loss of income earning capacity: $200,000
Cost of Future Care: $170,000

Snow, Ice, and your ICBC Claim

Like most of my readers I am sick of this drawn out winter and the sight of snow this week-end in Victoria seems like a cruel joke.
Snow in BC has two reliable results 1. Car Accidents, 2. Phone call to BC personal injury lawyers about those car accidents. The second is particularly true for Victoria personal injury and ICBC claims lawyers because of the local populations relative inexperience dealing with winter driving conditions.
In anticipation of the almost certain phone calls I will receive this week as a Victoria ICBC claims lawyer I write this post.
If you are the driver involved in a single vehicle accident in British Columbia, and you lost control due to the weather, all you can likely claim from ICBC are Part 7 Benefits (also referred to as no fault benefits). There is (except in some unusually peculiar situations such as an ICBC insured driver contributing to the road hazards) in all likelihood no claim from ICBC for pain and suffering (non-pecuniary damages) in these circumstances. A person’s right to claim pain and suffering and other “tort” damages only arises if someone else is at fault for your injuries. In these single vehicle accidents you usually only have yourself or the weather to blame, and last time I checked you can’t sue mother nature.
If someone else contributed to the accident (perhaps the road maintenence company for failing to act in a timely fashion or perhaps a mechanic for failing to bring your vehicle up to snuff last time you had it inspected) you will have to make a claim against them. Chances are they are not insured through ICBC for such claims and instead you will have to go against their policy of private insurance.
Now, if you are a passenger in a single vehicle, weather related accident, you may very well have a claim for pain and suffering. This claim would be against your driver (except perhaps in the unusual circumstances mentioned above). If your driver did not operate the vehicle safely in all the circumstances (for example driving too fast for the known or anticipated poor road conditions) and this caused or contributed to the collision then you have a tort claim. Assuming the driver is ICBC insured then you have the right to apply for both no-fault benefits from your own insurance and make a tort claim against the driver that will be covered through his third party liability ICBC insurance.
If you are advancing a tort claim against a driver be weary of the defence of “inetible accident”. ICBC defends claims. One of the best defences to a weather related accident is that it was “inevitable”. What this means is that the driver, operating safely, could not have avoided losing control of his vehicle. If this can be proven than the tort claim can be defeated.
People naturally don’t want to get those known to them in trouble and it is all too common that when reporting such a claim to ICBC passengers too readily agree to how unexpected the accident was and how the driver was operating the vehicle very carefully. If this is true that’s fine. My words of caution are as follows: If the driver was not safe (I’m not talking about driving like a maniac here, I’m talking about driving less than carefully for the winter driving conditions) and you give ICBC the alternate impression with a view towards helping the driver out, the result may be severely damaging your ability to bring a tort claim.
Tell the truth and know what’s at stake when doing so. If ICBC gets the false impression that the accident was inevitable you will have a much harder time advancing or settling your ICBC tort claim.
The bottom line is this: If an accident truly is inevitable and there is no tort claim so be it, but, don’t lead ICBC to this conclusion if it isn’t true. Doing so will hurt your claim for pain and suffering.

What's All This Then? Interpreting Police Accident Reports

ICBC tells you you are at fault and you disagree. What do you do? You gather as much information as possible in support of your claim.
One of the main sources of information to examine is the BC Motor Vehicle Traffic Accident Police Investigation Report (the “Report”). Assuming the police attended the accident scene a copy of this report should have been provided to all motorists involved.
These reports often contain valuable information such as the names of all involved, the exact location of the accident, the names of witnesses and if any charges were laid. If charges were laid, the section of the Motor Vehicle Act that was allegedly violated is often cited in the report. It is a good idea to look up the exact section cited to see what the police allege against the other motorist.
Other information contained the report is coded and most ICBC lawyers know how to intepret this. I thought I would highlight some of the more important codes to share this useful information with my readers.
On the right hand side of the the Report are typed numbers. Assuming you were involved in a two vehicle collision fields 31-33A relate to the first motorist mentioned in the report and fields 34-36A relate to the second motorist mentioned in the report.
The police then fill in these fields with codes for all the “contributing factors” to the collision. Here is what some of these codes mean:
HUMAN CONDITION
16 = extreme fatigue
19 = fell asleep
22 = illness
23 = Sudden Loss of Consciousness
26 = Pre-existing physical disability
80 = Ability impaired by Alcohol
81 = Alcohol suspected
82 = Ability impaired by drugs
83 = Drugs Suspected
84 = Ability impaired by medication
85 = Driver inatentive
86 = Driver internal / external distraction
87 = Deceased prior to colliison
HUMAN ACTION
11 = Backing unsafley
12 = Cutting in
17 = Failing to Signal
18 = Failing to yield the right of way
20 = Following too closely
21 = Improper Passing
24 = Driving on wrong side of road
25 = Pedestrian error / confusion
29 = Ignoring traffic control device
30 = Improper turning
32 = Ignoring officer / flagman / guard
33 = Avoiding vehicle / pedestrian / cycle
34 = Use of Communication / video equipment
35 = Exceeding speed limit
36 = Excessive speed over 40 KH Hour
37 = Driving too fast for conditions
38 = failure to secure stopped vehicle
39 = Driver error / confusion
In additon to the above, the police can code in various factors for “Environmental Conditions” or “other” conditions that contributed the the accident.
I should note that police officers who fill out these reports rarely witnessed the collision themselves and often their allegations of what happened are inadmissible hearsay evidence. It is important to track down all witnesses who can verify these allegations so that there is a source to provide admissible evidence should your ICBC claim ever go to trial.
These reports are a valuable source of information when advancing ICBC claims and it is important for you or your ICBC lawyer to properly interpret these reports to properly advance an ICBC claim.
If you have any questions about your ICBC claim or some of the codes contained in a BC Motor Vehicle Traffic Accident Police Investigation Report feel free to contact the author for help.

Pedestrian Struck in Cross-walk Awarded over $700,000

After a trial that lasted over 20 days, A Plaintiff who was struck in a cross-walk in Whistler, BC was awarded $718,331 for his losses and injuries.
The accident was significant. The circumstances are canvassed at paragraph 2 of the judgement where it was held that “The Plaintiff was struck on his left side. He flew over the hood of the Defendant’s vehicle. His face smashed into the windshield. He then was thrown off the car landing on the pavement.
The Plaintiff suffered serious injuries including facial lacerations, a fractured nose, soft tissue injuries to the left knee, neck and back, a mild traumatic brain injury (also known as a concussion), dental and TMJ injuries, permanent facial scarring, depression, insomnia, fatigue, anxiety, panic attacks, chronic pain disorder and most significantly cognitive defecits due to his injuries.
As is often the case in ICBC claims involving chronic pain and head injury, the court had to deal with a mountain of medical expert witness testimony both for the Plaintiff and for the Defence.
In addition to obtaining opposing medical evidence, ICBC hired investigators to video the Plaintiff surreptitiously. As stated in my last blog, video surveillance is a common ICBC lawyer defence tactic. While ICBC lawyers defending claims don’t hire private investigators in every case, a safe general rule is that the more serious a Plaintiff’s injuries, the more likely the chance that ICBC defence lawyers have hired a private investigator.
Mr. Justice Williamson made an interesting comment regarding surveillance at paragraph 114 of his judgement where he held that “(the occupational therapist hired by ICBC) testified that there was a sense that (the Plaintiff) did not trust her and that (the Plaintiff) considered her as somehow or other a spy for ICBC. I note that the Plaintiff’ concern that ICBC was spying on him was accurate. The corporation hired investigators to video the plaintiff surreptitiously.”
After weighing all the evidence, the trial judge found that the Plaintiff “suffers from chronic pain syndrome, depression and continuing cognitive defecits.”
$135,000 was awarded for pain and suffering. The other damages awarded were as follows:
$450,000 for Loss of Earning Capacity (commonly referred to as future wage loss)
$101,436 for Past Wage Loss
$31,895 for Cost of Future Care

Plaintiff Awarded $96,970 For a Disc Herniation

In a case that can be characterized as “the straw the broke the camel’s back”, a Plaintiff was awarded over $90,000 soft-tissue injuries and a L5-S1 disc herniation which were caused (at least in part) as a result of a 2003 car accident.
The Plaintiff was a 47 year old with a long history of back injuries. She had pre-exsting low back pain, neck pain and a bilateral facet-joint arthropathy.
She was involved in a fairly serious car accident in 2003. Her vehicle sustained damage which took close to $5,000 to repair.
At trial both a neurosurgeon and an physiatrist testified on behalf of the Plaintiff. The neurosurgeon’s opinion was that “(the Plaintiff’s) disk herniation was caused by small tears to the annular fibres surrounding the disc which eventually ruptured due to the ongoing stresses from day to day living” and that “(since the car accident) was the last major trauma before (the Plaintiff) experienced the disc herniation, it was a significant contributor to the problem.” The Plaintiff’s physiatrist largely shared this opinion.
ICBC lawyers defending claims often retain orthopaedic surgeons who disagree with treating physicians. This common insurance defence step was followed in this case as the defence lawyers retained an orthopaedic surgeon who testified there was “no objective evidence of ongoing injury to explain the Plaintiff’s ongoing pain“.
The Defence also showed video surveillance of the Plaintiff doing various activities including getting in and out of her car on many occasions with minimal difficulty. I have previously blogged about surveillance evidence and ICBC claims and don’t intend to re-visit this subject at length but will point out that this is a common tactic ICBC lawyers take when defending injury claims and Justice Fenton, at paragraph 10 and 11 of the judgement canvasses the position that many ICBC lawyers take at trial when they have surveillance evidence which shows a Plaintiff potentially overstating injuries.
After hearing all the medical evidence the court accepted the opinions of the Plaintiff’s physiatrist and neurologist and stated that “(the Plaintiff’s) earlier accidents, along with degenerative changes to her spine, made her more vulnerable to lower back injury. Accordingly, while I cannot find the defendant’s negligence was the only cause of the Plaintiff’s problems after February 13, 2003, on a balance of probabilities, I find that the defendant’s negligence materially contributed to the occurrence of those injuries
The court assessed the Plaintiff’s damages as follows:
1. Pain and Suffering: $65,000
2. Special Damages (out of pocket expenses): $3,118
3. Past Wage Loss: $88,000
4. Cost of Future Care: $5,000
Justice Fenlon then reduced the total award by 40% to account for the risk that the Plaintiff’s pre-existing condition in her spine and her psychological fragility would have detrimentally affected her in the future, regardless of the car accident.
Justice Fenlon did a great job in canvassing the applicable law in determining whether the car accident caused the Plaintiff injury. This case is worth reading to get insight into the factors courts consider when addressing pre-existing injuries that were aggravated by a car accident, and further to see the “thin-skull” legal principle in action which is well canvassed at paragraphs 42-44 of the judgement.

Police Officer Awarded $87,231.53 for Back and Neck Injuries

In reasons for judgement released by the BC Supreme Court today, The Honourable Madam Justice Griffin awarded a police officer, who was 26 at the time, a total of $87,231.53 as compensation for her injuries from a 2004 rear end motor vehicle accident.
The Plaintiff was diagnosed with back and neck soft tissue injuries.
The trial judge found that “it is now unlikely that (the Plaintiff) will recover completely from her injuries. She has recovered considerably….however, she is likely to have flare-ups of her symptoms from time to time“.
The Plaintiff called a total of 5 medical witnesses in support of her claim. The medical evidence in support of the claim included:
1. The Plaintiff’s former GP who testified that the Plaintiff did not complain of back or neck pain prior to the car accident.
2. The Plaintiff’s current family physician who testified that the Plaintiff’s injuries cause her to remain vulnerable to aggravated symptoms with physical activity
3. A chiropractor
4. An occupational and sports medicine physician who testified that the Plaintiff had Post Trauamtic Myofascial Pain Syndrome and Mechanical Low Back Pain. He went on to state that “it is my opinion that (the Plaintiff) now has a permanent impairment of her mid back and low back.”
5. A specialist in physical medicine and rehabilitiation (commonly referred to as a physiatrist). He diagnosed the Plaintiff with mechanical low back pain and mechanical neck pain.
The Defense hired an orthapoedic surgeon to assess the Plaintiff. (This is a common step taken by ICBC lawyers in defending soft tissue injury claims). He testified that the Plaintiff had a resolving cervical sprain, that her complaints were minimal and that they would resolve with the passage of time and a continuing exercise program.
The defence doctor’s evidence was challenged in cross-examination and he made some useful admissions including that “the chance of spontaneous recovery is less with the passage of time“.
The trial judge assessed damages as follows:
1. $30,000 for pain and suffering
2. $5,112.60 for past loss of income
3. $2,391 for cost of future care
4. $5,227.93 for special damages (out of pocket expenses incurred as a result of the accident)
5. $70,000 for loss of earning capacity (future wage loss).
The damages awarded for pain and suffering and future wage loss were then reduced by 25% by the trial judge. The reasons provided for this were that “because (the Plaintiff) had a vulnerability to back injury due to her earlier accidents, there was a measurable risk prior to the July 2004 accident that if (the Plaintiff) was to suffer a work injury in her position as a police officer the effects would be serious.”
This reduction of damages is an example of a basic legal principle (that a Plaintiff is not to be over-compensated) in action. The court heard evidence that the Plaintiff suffered previous injuries and the Plaintiff’s own physician testified that “(a previous accident) directly caused her complaints of mid and low back pain and that July 2004 accident aggravted her symptoms”.
This case is a great illustration of the fact that previous injuries do not disentitle a person for compensation if these injuries are aggravated in a later accident.  The extent of the pre-existing injuries simply have to be taken into account when properly valuing the damages of the subsequent accident.
Are you looking for an ICBC Lawyer to discuss a similar ICBC injury claim? If so feel free to contact the author for a free consultation.

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Contact

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.

“Work hard, be kind and enjoy the ride!”
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