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More on ICBC Claims: Chronic Pain, Surveillance and Credibility

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Privacy Issues, ICBC Soft Tissue Injury Cases, Uncategorized.

(Update: December 14, 2011 – the  below decision was upheld by the BC Court of Appeal in reasons for judgement released today)
I’ve written on this topic a few times in the past.  Surveillance in and of itself does not harm a Plaintiff’s ICBC Injury Claim.  It’s when surveillance contradicts a Plaintiff’s testimony that the damage is done.  Reasons for judgment were released today by the BC Supreme Court demonstrating this in action.
In today’s case (Fan v. Chana) the Plaintiff was injured as a passenger in a rear-end collision in Vancouver BC. The crash happened in 2000 and the Plaintiff was 9 years old at the time.
At trial the Plaintiff testified that she suffered various injuries in this collision and that these continued to affect her at the time of trial some 9 years later.   Mr. Justice McEwan noted that the Plaintiff “twisted, turned, stretched and pushed herself against the edge of the (witness) box almost constantly” while testifying.
The Court concluded that the Plaintiff’s injuries were not as severe as presented and instead found that this crash caused “soft tissue injuries of an immediate duration of less than two years” and awarded $25,000 for the Plaintiff’s non-pecuniary damages.
In coming to his conclusions about the extent and severity of the Plaintiff’s injuries the Court noted the following about video surveillance evidence that was gathered on behalf of the defendant:

[50] The plaintiff was shown a surveillance video taken March 18 and 19, 2009, apparently showing her going about without any apparent pain.  After spending four hours at a wave pool she went to a very long movie without the sort of getting up and walking around that she suggested she needed.  In redirect she identified a few occasions on the video where she appeared to “crack” her neck…

[74] The plaintiff’s case is somewhat unusual in that there appear to be two quite different dimensions in which she moves.  The first is her ordinary, public life.  This is the world of school and teachers and social friends.  In the aftermath of the accident, the plaintiff’s physical education teachers noted no change.  The plaintiff’s marks were those of a diligent, hard working student.  Her social activities are in all respects normal.  The plaintiff’s friends consider her an outgoing, lively companion.  Significantly, the most obvious sign of pain they were able to remark upon was her habit of “cracking” her neck and back, something that is medically of no import according to those who have treated her, including Dr. Hahn.

[75] The surveillance video and the plaintiff’s observed behaviour do not show anything like the pattern demonstrated in court.  There may be a few occasions when the plaintiff “cracked” her neck, but it is very difficult to say.  The observations made by the surveillance operators specifically do not bear out the plaintiff’s suggestions that she is a drag on her friends, frequently holding them up to take rest breaks and unable to sit through movies.  She was observed to sit through a very long film with no trouble.  I recognize the caution with which surveillance of a brief sample of a person’s life must be approached, but I also note that the observers managed to spend a number of hours watching the plaintiff doing things she specifically cited as current examples of her disability, without noting any of the overt signs her evidence would suggest.

In addition to a useful and lengthy discussion on credibility in chronic pain cases Mr. Justice McEwan had the following statement of interest when it comes to doctor’s opinions regarding the severity of Chronic Pain in Subjective Injury Cases:

[72] The balance of the medical opinion divides along lines that depend on the degree of scepticism the doctors bring to the description of symptoms with which they were presented.  These range from very strong endorsements of the plaintiff’s claims (Dr. Kuttner, as reported by Dr. Hahn) to the blunt, contrary opinions offered by Dr. Weeks.

[73] I see very little purpose in parsing the medical reports to sort out who has the greater credibility based on their qualifications (i.e. “paediatric” physiatrists v. “adult” physiatrists).  As courts have observed on any number of occasions, the approach taken by medical professionals is not forensic: they assume that the patient is accurately reporting to them and then set about a diagnosis that plausibly fits the pattern of the complaint.  In the absence of objective signs of injury, the court’s reliance on the medical profession must, however, proceed from the facts it finds, and must seek congruence between those facts and the advice offered by the medical witnesses as to the possible medical consequences and the potential duration of the injuries.

When prosecuting a Chronic Pain claim the above quote is important to keep in mind.  Just because a physician accepts that a Plaintiff suffers from Chronic Pain as a consequence of a car accident and makes a diagnosis accordingly does not mean a Court has to accept the diagnosis.  The Court can and will make an independent finding of credibility and decide if the pain a Plaintiff complains of is sincere.

ICBC Snooping in Jurors Records, Apologies and the Privacy Act

Written by admin on . Posted in ICBC Privacy Issues, Jury Trials, Uncategorized.

BC Personal Injury Lawyers have been abuzz lately with the news that ICBC intentionally snooped into jurors claims histories while conducting the defence in a recent ICBC Injury Trial.
I have been following this story since it first came to my attention a few weeks ago.  It was reported by Ian Mulgrew of the Vancouver Sun and more recently by the Louise Dickson of the Victoria Times Colonist.  In a nutshell the facts behind the story are as follows:  
The Plaintiff was injured in 2 motor vehicle collisions.  She sued for damages.  The trial for both claims were to be heard at the same time.  ICBC chose to have both matters heard by Jury Trial.  At the beginning of trial the Plaintiff brought an application to strike the jury and have the matter proceed by Judge alone.  Mr. Justice Macaulay, the presiding judge, dismissed this motion and let the jury trial begin.  (click here to read the reasons denying the motion to strike the jury).
A few days into the trial a settlement was reached.  At the same time ICBC admitted to improper conduct, particularly snooping in the jurors private ICBC records.   This breach of privacy was apparently initiated by ICBC’s defence lawyer who asked an ICBC adjuster to provide her with the juror’s claims histories.  This admission concerned the presiding judge who discharged the jury and ordered that the ICBC defence lawyer and ICBCs’ corporate counsel appear before him for a subsequent hearing to shed some light on why the jurors claims histories were improperly disclosed to ICBC’s defence lawyer.
The following hearing took place today in the BC Supreme Court.  One thing that I and many other personal injury lawyers had hoped for was that some information would have come to light about the frequency with which this snooping has occurred in the past.  Particularly has ICBC improperly accessed jurors, plaintiffs or witnesses ICBC claims histories in other cases?  Unfortunately these important questions were left unanswered.  
Mr. Justice Macaulay held that the behaviour that came to his attention fell short of contempt of court however that it was improper and left serious concerns about the administration of justice in BC.  The Times Colonist reported that ” The justice again emphasized he had serious concerns that the unauthorized disclosure of the two claims history impacts the administration of justice.  Macaulay said it was not the responsibility of the court to investigate alleged breaches of the Information and Privacy Act, nor was it the function of the court to decide whether the lawyer’s conduct falls short of professional standards. Macaulay said he was concerned about fairness. If the plaintiff had called for a mistrial, Macaulay said he likely would have granted one.”
According to the Times Colonist “Macfarlane (ICBC’s corporate counsel) said ICBC had sent letters of apology to five of the eight jurors, but had been unable to contact the remaining three. Macaulay told him ICBC would not have the assistance of the court in contacting them.”
I wonder if ICBC’s letters of apology to the jurors make any mention of the BC Privacy Act and the fact that “it is a tort, actionable without proof of damage, for a person, willfully and without a claim of right, to violate the privacy of another“.  I hope that ICBC’s letters contain more than a mere apology but proper compensation for this improper use of the jurors records.  I further hope that this is an isolated incident and some sort of objective proof can be had to verify if this is the case.  
The concerns about this behaviour and its impact on the administration of justice are serious ones.  I commend the individuals at ICBC who came clean about this breach of Privacy but given the vast records that ICBC have in their database regarding British Columbians and the relative ease with which these can be accessed by ICBC adjusters this story should not end until there is a proper and verifiable assurance from ICBC that this is an isolated incident and that the jurors whose privacy was breached are properly compensated for this wrong. 

Facebook Photos Used to Contradict Plaintiff in ICBC Injury Claim

Written by admin on . Posted in ICBC LVI (Low Velocity Impact) Cases, ICBC Privacy Issues, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases.

Last week I posted on a recent BC case which ordered that a computer hard-drive be produced to permit a Defendant to examine the amount of time an allegedly brain injured Plaintiff spent on Facebook.
As evidenced in reasons for judgment released today by the BC Supreme Court Facebook’s role in the realm of BC personal injury litigation is becoming more prevalent.
In today’s case (Bagasbas v. Atwal) the Plaintiff was injured in a 2006 car crash in Surrey, BC.  From the submissions of the defence lawyer it seems that this case was defended on the basis of ICBC’s LVI program. The Plaintiff sued for damages claiming $40,000 for her pain and suffering due to a whiplash injury and other soft tissue injuries.
In the course of the trial she testified that as a result of her injuries “she could no longer kayak, hike or bicycle“.  The defence lawyer contradicted this by producing to the Plaintiff “photographs posted on her Facebook page that showed her doing these activities“. 
In assessing the Plaintiff’s pain and suffering at $3,500 Madam Justice Satanove made the following comments:

[7]                The medical evidence before me was rather vague.  Combining this evidence with the plaintiff’s subjective evidence of her complaints, I find that on a balance of probabilities the plaintiff suffered a mild whiplash to her right neck, shoulder and upper back in the accident of June 1, 2006.  I further find that the whiplash had probably substantially resolved itself within three months.  Any further complaint of pain in the fall of 2006 is not supported by the objective evidence of the plaintiff’s rather strenuous activities.  The photographs of the plaintiff dancing illustrate arm, neck and back movements, executed in approximately two inch heels, that contradict any claims of restricted range of motion or significant pain in these areas.  It has been said many times in many cases that the court must be careful in awarding compensation where there is little or no objective evidence of continuing injuries, or in the absence of convincing evidence that is consistent with the surrounding circumstances (Butler v. Blaylock, [1981] B.C.J. No. 31 (S.C.); Price v. Kostryba (1982), 70 B.C.L.R. 397 (S.C.)).

[8]                Unfortunately, because of the inflated view the plaintiff took of her injuries, none of the cases cited by her counsel were of assistance in fixing non-pecuniary damages.  Similarly, because the defendant refused to recognize any damages, his counsel provided no case law on an appropriate range of compensation.

[9]                On my own research, this case is in line with the damage awards made in Bonneville v. Mawhood, 2005 BCPC 422; Siddoo v. Michael, 2006 BCPC 12; and particularly, Saluja v. Wise, 2007 BCSC 706, which are in the range of $1,500 to $6,500.  Taking the whole of the evidence into account, which reflected some injury and pain, but not much loss of enjoyment of life, I award the plaintiff $3,500 for non-pecuniary compensation.

This case along with last week’s decision show that the use of information contained on social media sites such as Twitter and Facebook is alive and well in BC Injury Litigation.  Lawyers and clients alike need to be aware of the potential uses such information can be put to in their claims.

Can ICBC Talk to my Doctors About my Injuries?

Written by admin on . Posted in Civil Procedure, ICBC Privacy Issues, Uncategorized. 102 Comments on Can ICBC Talk to my Doctors About my Injuries?

When you are injured by another motorist in British Columbia and advance an injury claim does ICBC have access to your treating physicians to receive information about the nature and extent of your injuries?
If you are seeking no-fault benefits from ICBC under Part 7 of the Insurance (Vehicle) Regulation the answer is yes.  Section 98 of the Regulation reads as follows:

98 (1)  An insured shall, on request of the corporation, promptly furnish a certificate or report of an attending medical practitioner, dentist, physiotherapist or chiropractor as to the nature and extent of the insured’s injury, and the treatment, current condition and prognosis of the injury.

(1.1)  The certificate or report required by subsection (1) must be provided to the corporation

(a) in any form specified by the corporation including, without limitation, narrative form, and

(b) in any format specified by the corporation including, without limitation, verbal, written and electronic formats.

(2)  The corporation is not liable to an insured who, to the prejudice of the corporation, fails to comply with this section.

What if you are injured by a person insured with ICBC and make a tort claim  in the BC Supreme Court against them for your pain and suffering and other losses?    In the course of defending the Claim can the lawyer hired by ICBC have access to your treating physicians to discuss the nature and extent of your accident related injuries?  

Reasons for judgement were released today (Scott v. Erickson) by the BC Supreme Court, Victoria Registry, dealing with this issue.

In today’s case the Plaintiff was injured in a 2004 motor vehicle collision.  In the course of her recovery she was treated by a neuropsychologist.  The injury lawyer defending the claim brought an application to speak with the Plaintiff’s treating neuropsychologist.  In dismissing this application, Master McCallum of the BC Supreme Court summarized the law relating to defendants access to treating physicians in injury litigation as follows:

[8]                The Defendant applies for two orders.  The second application for permission to speak to a doctor may be disposed of summarily.  I refer to the decision of Wilkinson J. in Swirski v. Hachey, [1995] B.C.J. No. 2686 where the court held that there was no necessity for an application for permission to speak to plaintiff’s treating doctors concerning information relevant to the claims made in the action.  The court suggested that notice should be given of an intention to seek informal discussions with plaintiff’s treatment providers and confirmed that treatment providers were not compelled to participate in such meetings.

[9]                The Plaintiff in the case at bar knows of the Defendant’s intention to speak to Dr. Martzke and Dr. Martzke will know that he is free to participate or not as he pleases.  No order is necessary.  As the court said in Demarzo v. Michaud, 2007 BCSC 1736, if the Defendant’s counsel wishes to compel the treatment providers to participate in discussions, an application under Rule 28 is the appropriate vehicle.

In other words, there is no property in a treating physician and a court order is not required for a defendant to approach a Plaintiff’s treating physicians.  However, the treating physicians are under no duty to participate in discussions initiated by the defendant in a lawsuit.  As a result of the professional obligations of treating physicians in British Columbia, many decline to participate in such discussions.

Lawyers involved in the defence of BC injury claims should also keep their professional duties as set out in Chapter 8, section 14 of the Professional Conduct Handbook in mind which states as follows with respect to cotacting opposing expert witensses:

 

Contacting an opponent’s expert

14. A lawyer acting for one party must not question an opposing party’s expert on matters properly protected by the doctrine of legal professional privilege, unless the privilege has been waived.

[amended 12/99]

15. Before contacting an opposing party’s expert, the lawyer must notify the opposing party’s counsel of the lawyer’s intention to do so.

[amended 12/99]

16. When a lawyer contacts an opposing party’s expert in accordance with Rules 14 and 15, the lawyer must, at the outset:

(a) state clearly for whom the lawyer is acting, and that the lawyer is not acting for the party who has retained the expert, and

(b) raise with the expert whether the lawyer is accepting responsibility for payment of any fee charged by the expert arising out of the lawyer’s contact with the expert.

[amended 09/06]

17. In Rules 14 to 16, “lawyer” includes a lawyer’s agent.

In situations where treating physicians refuse to particiapte in an interview set up by the defence lawyer in an injury claim today’s case appears to indicate that Rule 28 of the BC Supreme Court Rules is the proper tool to use to compel the witness to share any relevant facts he/she may have knowledge of.  Rule 28 states as follows:

Order for

(1)  Where a person, not a party to an action, may have material evidence relating to a matter in question in the action, the court may order that the person be examined on oath on the matters in question in the action and may, either before or after the examination, order that the examining party pay reasonable solicitor’s costs of the person relating to the application and the examination.

Expert

(2)  An expert retained or specially employed by another party in anticipation of litigation or preparation for trial may not be examined under this rule unless the party seeking the examination is unable to obtain facts and opinions on the same subject by other means.

Affidavit in support of application

(3)  An application for an order under subrule (1) shall be supported by affidavit setting out

(a) the matter in question in the action to which the applicant believes that the evidence of the proposed witness may be material,

(b) where the proposed witness is an expert retained or specially employed by another party in anticipation of litigation or preparation for trial, that the applicant is unable to obtain facts and opinions on the same subject by other means, and

(c) that the proposed witness has refused or neglected upon request by the applicant to give a responsive statement, either orally or in writing, relating to the witness’ knowledge of the matters in question, or that the witness has given conflicting statements.

Notice of application

(4)  The applicant shall serve notice on the proposed witness at least 7 days before the hearing of the application.

Subpoena

(5)  Where a party is entitled to examine a person under this rule, by serving on that person a subpoena in Form 21, the party may require the person to bring to the examination

(a) any document in the person’s possession or control relating to the matters in question in the action, without the necessity of identifying the document, and

(b) any physical object in the person’s possession or control which the party contemplates tendering at the trial as an exhibit, but the subpoena must identify the object.

[am. B.C. Reg. 95/96, s. 12.]

Notice of examination

(6)  The examining party shall give notice of examination of a person under this rule by delivering copies of the subpoena to all parties of record not less than 7 days before the day appointed for the examination.

Mode of examination

(7)  The proposed witness shall be cross-examined by the party who obtained the order, then may be cross-examined by any other party, and then may be further cross-examined by the party who obtained the order.

Application of examination for discovery rules

(8)  Rule 27 (15), (20) and (22) to (26) apply to an examination under this rule.

$36,000 Non-Pecuniary Damages Awarded for Rib Injury

Written by admin on . Posted in ICBC Privacy Issues, ICBC Soft Tissue Injury Cases.

Reasons for judgment were released last Thursday (Grier v. Saadzoi) awarding a Plaintiff just over $46,000 in total damages as a result of injuries suffered in a 2004 British Columbia motor vehicle collision.
The crash happened in Surrey, BC.  The collision resulted in significant vehicle damage totalling the Plaintiff’s car.  The Plaintiff suffered various soft tissue injuries and rib pain.
In assessing the Plaintiff’s pain and suffering at $36,000 Mr. Justice Brooke summarized the Plaintiff’s injuries as follows:

[24]            I find that the plaintiff was a credible witness, who neither exaggerated nor diminished the injuries that she sustained or the continuing pain and discomfort she has.  She was a reliable historian.  She struck me as a person who is getting on with her life, despite having to put up with some pain and discomfort.  I am also satisfied that she has followed the advice that she has been given in terms of stretching and exercise and that she avoids, where she can, physical activity which will trigger any discomfort in the area of her rib.

[25]            The plaintiff has made a good recovery from the soft tissue injuries that she sustained in a forceful motor vehicle collision.  I find that the pain associated with the lower left rib was caused by the collision and that whether Dr. Vallentyne is correct, that the pain is a result of subcostal muscular involvement or Drs. Luoma and Coghlan are correct, that the pain is associated with the first floating rib, that the injury and its consequence is likely permanent.  Fortunately, however, the result is a modest impairment of her overall capacity and it can be controlled, to some extent, by avoiding certain physical activity, as well as involving herself in an exercise and stretching program and taking medication to assist her in sleeping and to moderate the pain.

[26]            Non-pecuniary damages are a “once and for all” award to compensate a plaintiff for pain, suffering and loss of enjoyment of life caused by the injury to the date of assessment and for the future.  In assessing damages, the ranges of damages awarded in comparable cases can be a useful guide, but in each case, the court must fashion an award that provides compensation to the plaintiff.  This is not a case like Price v. Kostryba, [1982] 70 B.C.L.R. 397 (S.C.), or Butler v. Blaylock Estate, [1981] B.C.J. No. 31 (S.C.), where complaints of injury continue long after the normal period for recovery, but rather one where the injury is real and continues to cause pain and discomfort and will likely do so for the foreseeable future.  I assess non-pecuniary damages at $36,000.

One aspect of this judgment that interested me was the court’s summary and analysis of the surveillance evidence the defendant’s used during the trial.  Video surveillance is commonly used by ICBC in the course of defending soft tissue injury claims and this judgement shows that surveillance video is not always a damaging thing.  

In today’s case the video showed the Plaintiff doing various physical activities including riding a motorbike.  This did not appear to hurt the Plaintiff’s case any as this video did contradict her evidence about her limitations.  The surveillance evidence was summarized at paragraph 19 as follows:

[19]            As part of the case for the defendant, a series of videos was put in evidence showing the plaintiff riding a motorbike off road and shopping and going about her normal household activities.  Clearly, the videotape was made surreptitiously and without the plaintiff’s awareness.  While the tape does not display any particular discomfort evinced by the plaintiff, her activity is restrained when compared to the activity of her husband who was with her.  She says that before the accident, they operated their motorbikes off road and on rugged and uneven terrain.  What was depicted in the video was the operation of the motorbikes on a relatively level gravel road.  It was noted that the plaintiff’s husband took the motorbikes out of the truck and that the plaintiff played no role in that.  Nevertheless, the videotapes do demonstrate that the plaintiff is able to continue at least some of her former activities, although perhaps not with the same intensity nor without pain.

As I’ve previously posted, Video surveillance does not in and of itself hurt a personal injury claim, overstating the effects of injuries does. It does not matter if you’re painting your house, lifting weights, or doing any number of physical activities that are caught on film. If you can be active and not aggravate your injuries that is a good thing. If, on the other hand, a personal injury claimaint tells others that they are limited and video surveillance shows otherwise, that could be very damaging. This goes to a person’s credibility. If a person is caught in a lie with respect to the effect of their injuries that will have a very negative effect on the value of an ICBC claim.