Court Awards Our Client $2.2 Million at Trial, Five Times More Than ICBC’s Offer

Posted on by Goodman Law

Mussio Goodman is pleased to announce our recent success in the BC Supreme Court, which resulted in a significant win for our client against ICBC.

In McColl v. Sullivan, 2020 BCSC 137, Madam Justice Baker awarded our client $2.2 million dollars after a ten day trial. It is notable that our client wanted to move on from her injury claim a long time ago, and was prepared to accept far less than what the Court awarded. However, since ICBC’s settlement offer was only $435,000, five times less than what the Court determined her claim was worth, she had no choice but to take her case to trial with her lawyer, Eric Goodman.

Our client was a 25 year old woman who was rear-ended by two separate drivers a few months apart. She had just completed her education at Emily Carr University and obtained a highly sought after position in the lucrative film industry. Her talent and drive was remarked upon by all those that knew her, from the professors that taught her to the managers that quickly recognized her skills as an editor. She was described by her friends and colleagues as a friendly, kind, vivacious young woman who was enjoying her life and her new career.

As a result of the two collisions, our client suffered injuries to her neck, chest and back, which eventually developed into a permanent and debilitating nerve condition called Thoracic Outlet Syndrome (“TOS”). Her TOS causes numbness, tingling, and excruciating shooting pains down her right arm and hand, effecting her ability to perform even the most basic tasks such as chopping vegetables, using a keyboard, or washing her hair.

As a result of her injuries, our client was unable to pursue the editing career for which she trained, and was entitled to compensation for the wages she would have earned had the accidents not happened. The evidence we tendered proved that her career path was very lucrative. In particular, our client’s former boss testified as to the average earnings of our client’s specific vocation, and confirmed that our client was earmarked for future advancement due to her talent and diligence.

In response, ICBC relied on general statistics for job categories that were inapplicable to the specific career our client was actually pursing. Unsurprisingly, these statistics were for low-level work and vastly undervalued what our client was on track to earn.

Madam Justice Baker agreed that the evidence showed that our client was far more than a statistic, stating:

…I find the evidence of Ms. Turner does suggest the industry averages put forward in the evidence of Mr. Nordin and Mr. Lawless are understated for the editing work Ms. McColl would have done at Paperny. As such, I find that there is a real and substantial possibility that Ms. McColl’s loss of income is higher than the losses would be based on the reports of Mr. Nordin and Mr. Lawless…

I find that Ms. McColl has established that her earning capacity has been impaired as a result of the injuries she sustained in the accidents. Ms. McColl had successfully trained in a specialized career, obtained a good job in the film industry, and was doing very well in that job. This career would have returned her a very good income. The evidence before me was overwhelming that she will no longer be able to pursue the career she trained in and loved.

This case also provides another example of ICBC employing doctors who provide opinions that are deemed to be biased towards ICBC in the face of objective evidence. In this case, ICBC hired a vascular surgeon who opined that our client would have experienced her debilitating condition regardless of the collisions. A strong cross examination revealed the weaknesses of Dr. Fry’s opinion, leading to a stinging rebuke from Madam Justice Baker:

For the reasons I set out below, I did not find Dr. Fry’s opinion to be helpful.

Dr. Fry engaged in what I would describe as a credibility assessment of Ms. McColl, looking for inconsistencies between what she told him and what was recorded in the medical records he was provided […] Dr. Fry implied that Ms. McColl was not being honest with him about important pre-existing myofascial pain symptoms. I do not agree…

Dr. Fry also advocated that Ms. McColl would have eventually developed TOS due to her likely having a cervical rib or an elongated process of C7. He referred in a general way to literature supporting his view, but did not specify which article or study supported him. He overstated the incidence of TOS arising from a cervical rib by stating that up to 1 out of 10 people with a cervical rib will develop TOS, without clarifying that only 1% of the general population have such a cervical rib. From such a tiny fraction of the population which is vulnerable to TOS from this abnormality, Dr. Fry goes on to conclude that it is more likely than not that Ms. McColl would develop TOS. He came to this conclusion without any actual evidence that Ms. McColl has such an abnormality at all, and agreed under cross examination that he had not examined the x-ray of Ms. McColl’s cervical spine which indicated no acute bony abnormalities.

In addition to the egregious deficiencies I have identified above, I agree with Ms. McColl’s assessment of Dr. Fry’s report in general, including that Dr. Fry has included highlighted commentary throughout his report which advocates for the defence position, ventures into fact finding within the purview of the court, and challenges the honesty of Ms. McColl. Further, Dr. Fry ignored medical evidence which is not helpful to the defence position, including General Practitioner records which disclose no physical complaints prior to the first accident, and medical records which indicate numbness in the fourth and fifth fingers in Ms. McColl’s right hand.

The approach of ICBC to our client both in terms of quantifying her loss using inapplicable statistics, and using public money to hire biased medical experts, illustrates why the proposed shift to ‘no fault’ insurance in our province will leave the most vulnerable injured persons short changed.

Under the new system, our client would have received zero dollars for her pain and suffering despite having a permanent and extremely painful condition that ruined the career path she worked so hard to achieve. She would have had no access to a lawyer to fight for her rights, and would have been left without even basic funding for treatment once ICBC hired a biased expert to state that her condition would have developed regardless of the collisions.

Even if our client had cleared the obstacle of ICBC’s biased experts, her wage loss would not have been based on what her career would have been. Rather it would have been calculated based on her entry level income at the time of the MVA, a difference of hundreds of thousands of dollars.

This claim could have settled a long time ago if ICBC was run like a private, efficient corporation with some semblance of accountability. With the arrival of “no fault”, and without lawyers or judges to provide checks and balances, ICBC is about to get a whole lot worse.

Court Awards Our Client $280,000 at Trial, Six Times More Than ICBC’s Offer

Posted on by Goodman Law

Mussio Goodman is proud to announce our recent victory in in the BC Supreme Court, in which our client was awarded over $280,000.

ICBC offered her $47,000 before trial, forcing her to take her case in front of a judge.

In Cox v Acapulco 2020 BCSC 1135, Mr. Justice Walker sided with our client, a 57-year-old woman who moved to Canada 36 years ago. She was involved in two accidents, one in May 2015 and the second in July 2016. As a result, she suffered numerous injuries to her neck, back, and shoulder, which significantly impacted her ability to live her life and work. While she tried to maintain her ambitious work schedule, her continued requests to her employer for support caused her to be dismissed from her company.  She used her sterling reputation in the industry to obtain a few subsequent jobs, but each proved too much in light of her injuries and pain. She ended up assisting one of her daughters with a uniform company start-up, providing contacts and valuable insight from her years of experience in the industry.

Before the accidents, our client was energetic, physically active, organized, motivated, well-liked, and cheerful before the accidents. She was a proud single mother, raising 4 children on her own while building up a lucrative career as a salesperson. She was actively involved in her temple and went salsa dancing 4-5 times per week. However, her life was drastically changed following these accidents. She suffered injuries to her neck, back, and shoulder, as well as myofascial pain syndrome and tension headaches. She was no longer able to live the full, rich life she previously led.

In response to our claim for fair compensation for our client’s injuries and limitations, ICBC levied a series of arguments against our client, all of which Justice Walker rejected. The case was marked by a clear pattern of us providing concrete evidence of our client’s injuries and limitations, and ICBC countering with arguments that lacked any evidentiary basis.

ICBC primarily argued that the accidents merely exacerbated some pre-existing conditions. This argument was based on a handwritten clinical note from a chiropractor, an incident where our client was prescribed pain medications several years before the accidents, and the testimony of our client’s friend about when our client stopped dancing. Justice Walker dismissed this argument as speculative, noting that ICBC did not verify the chiropractic record with the chiropractor or our client, the client’s family doctor advised those pain medications could have been prescribed for any number of reasons, and that the friend was confused about dates and was therefore unreliable in this regard. Justice Walker concluded:

Thus, there is no evidence to establish the defendants’ theory that Ms. Cox suffered from pre-existing injuries or symptoms at the time of the First Accident…

There is also no evidence to establish a measurable risk or a real and substantial possibility (as opposed to speculation) that any of Ms. Cox’s pre-First Accident neck or back stiffness would have manifested as an injury in future absent the Accidents. Nor is there any evidence to establish that the injuries she sustained in the Prior Motor Vehicle Accident were aggravated or contributed to the injuries she sustained in the Accidents.

In this case, because ICBC was unwilling to consider our client’s reasonable offer, the corporation will likely end up paying twice the costs for going to trial. This is indicative of the widespread unreasonableness that permeates ICBC. Having to pay double costs provides a measure of accountability where ICBC refuses to make fair offers to injured persons. With the newly passed “no-fault” legislation coming into force next year, this accountability will be gone, giving ICBC free-reign to treat accident victims even more unfairly than it already does.

Court Finds ICBC Doctor’s Evidence Biased and Unreliable

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In a personal injury case, the court requires medical evidence to determine the extent of a claimant’s injuries. To this end, it is common for both ICBC and the claimant to hire independent medical experts to assess the claimant’s injuries.

When considering the medical opinions of these experts, the court has a key requirement: objectivity. A medical expert needs to provide honest, unbiased opinions of the claimant’s injuries in order to be reliable.

This common-sense principle is also entrenched in law. The Rules of Court in British Columbia state that any doctor who provides a written, expert opinion to the court has a duty to assist the court impartially and not advocate for either party.

While the Court and most lawyers take these obligations seriously, this hasn’t always appeared to be the case with ICBC, as they often commission expert doctors who are known to provide biased reports.

The court recently criticized a psychiatrist, Dr. Solomons, for this exact reason. Speaking for the Court in her recent decision, Miller v. Resurreccion, Madame Justice Baker refused to accept Dr. Solomons’ evidence. She found that it was “completely at odds with the evidence at trial” and that his evidence was tailored to meet the position of ICBC.

This is unsurprising given that Dr. Solomons has been previously and repeatedly criticized for bias by our Court. It is also telling that, as noted by the Court, Dr. Solomons was paid over $1.25 million dollars by ICBC for medical assessments over the past 15 months. The decision states in part:

[52] Dr. Solomons, a psychiatrist, assessed Ms. Miller and provided an expert opinion. Dr. Solomons’ practice is generally limited to providing medico-legal reports, with 95% of his work under retainer for defendants. He agreed he received approximately $1,282,000 from ICBC for reports he generated in the previous 15 months. He currently has minimal MSP billings and has no hospital privileges.

[55] I cannot accept the opinion of Dr. Solomons. His assessment of Ms. Miller’s pain and the impact of her injuries on her work and social life are completely at odds with the evidence at trial. The evidence of Ms. Miller was credible, as was the evidence of her co-workers, supervisors, and friends. All of these witnesses described significant pain and impacts on her daily life. While she was upset as any person would be by the suicide of a friend, none of the witnesses described the suicide of Ms. Miller’s friend as having a significant or lasting psychological impact on Ms. Miller. In fact, Dr. Kjernisted, who was Ms. Miller’s treating psychiatrist from 2008 to 2018, testified that she did not mention her friend’s suicide to him. Overall, I find that Dr. Solomons was not an impartial or credible witness, and tailored his evidence to meet the position of his defendant client.

Indeed, this is not an isolated incident. ICBC has routinely hired biased doctors in the past, and will likely continue to do so in the future. At Mussio Goodman, we are always vigilant against biased experts and we ensure that our clients’ injuries are assessed in a fair, impartial manner.

Goodman Law Successful at Varying Will at Trial

Posted on by Goodman Law

In addition to injury claims, Goodman Law also provides legal services for estate litigation. Our latest case Webber v. Sullivan, 2019 BCSC 1522 involved a deceased mother who disinherited her two daughters in favor of her two sons.

The will left the entire estate to one of the sons, the other having been provided for with a substantial gift before the mother passed away. The estate was valued at $434,000.

The case dealt with lengthy and difficult family history, with a number of complicating dynamics including allegations of child abuse. The defendant sons denied that our clients were entitled to anything from the estate. The defendants made allegations of estrangement and relied on the deceased’s will that indicated our clients were “uninvolved”.

At trial we argued that the will did not make adequate provision to our two disinherited clients. Evidence of continued contact with deceased through phone calls and visits was adduced. It was argued that the deceased had not met her moral obligation to provide something for our clients, and there was no credible evidence to suggest that our clients had done anything that would justify the deceased cutting them completely out of the will.

Madam Justice Horsman agreed, writing:

[172] Tataryn instructs that, if the size of the estate permits and there are no circumstances negating an obligation, a testator should make some provision for adult children in a will. In the present case, the size of Betty’s estate does permit some provision for the plaintiffs, and I conclude that there are no circumstances which would negate Betty’s moral obligation to the plaintiffs. In particular, the evidence does not establish any wrongful conduct on the part of the plaintiffs, or an estrangement with Betty that would justify their complete disinheritance.

As a result the will was varied 15% to provide for our clients. This case highlights that even where there is a difficult relationship between child and parent, there are moral obligations on a will-maker to provide for his or her children in the will. If you have been disinherited unfairly by your parent contact Goodman Law to seek your portion of the estate.

ICBC’s New “Care Model” Results in Less Care

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Before April 1, 2019, an injured person had options, now they have less clinics available to help them

On April 1, 2019 the new NDP legislative regime designed to save ICBC money kicked in. The scheme was purported by the Attorney General David Eby to “provide enhanced care for people injured in crashes” by increasing the amount ICBC pays for treatment like physiotherapy or active rehabilitation. The reality on the ground now being realized shows that Mr. Eby is at best a naive idealist and at worst deceptive.

The legislation did indeed increase the amount ICBC will pay for treatment up front, but also capped the total amount ICBC has to pay for each treatment. Therein lies the fine print.

Before April 1, 2019, an injured person had the option of going to any clinic they wanted, and pay for the treatment they needed, resting assured they could recover that sum from ICBC when they settled their claim. The legislation now forces claimants to only go to clinics that adhere to ICBC’s policies, because if they go elsewhere and pay one penny more than ICBC’s prescribed rates, they are barred from getting that money back from ICBC.

More importantly, because the amounts ICBC pays per treatment session are not market rates, physiotherapists and other treatment professionals are now doing what is obvious to make the new rates work; they are spending less time actually treating injured people.

As indicated to us by one physiotherapy clinic “…our new session fee schedule will not charge a user fee, but have a reduced time 1:1 physio (20 mins) and 1:1 kin (45 mins) vs the [old] 30 and 60 mins respectively.”

ICBC will surely just say, “Well, to make up for the shorter treatment sessions, injured people can just go to the clinics more often.” Never mind the life disruption of having to book more sessions to get the same result. Or is it the same result? Surely there was a rehabilitative reason why a kinesiologist wanted to see a patient for a full 60 minutes at a time rather than 45 minutes once they started getting paid less by ICBC.

If Mr. Eby believed that highly trained physiotherapists and kinesiologists in this province would simply provide so called “enhanced” care for less money, he wassorely naïve. An alternate explanation is that Mr. Eby’s stated goal of providing care for injured persons is misdirection. Perhaps his real goal is to save ICBC money at the expense of injured people in British Columbia.

Limit on Expert Witnesses for Injury Claims in British Columbia

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What the Limited Amount of Expert Witnesses Means To Your Claim

On February 12, 2019, the NDP government, by Order in Council and without legislative assembly debate, severely restricted the ability for an injured victim to seek compensation for his/her ICBC injury claim. Rule 11-8 of the Supreme Court Rules was introduced without notice to the profession and without support from the Rules Committee, a committee set up of independent legal experts to consider changes to the Supreme Court Rules.

The NDP government introduced changes to the Rules of Court on February 12, 2019 retroactively limiting the total number of quantum experts and expert reports to three on all ICBC claims that are not subject to Fast Track Litigation. If the ICBC case is in Court under the Fast Track provisions, the limit is one expert and one expert report.

Given that there was no notice of the change to the Rules of Court, many lawyers were caught by surprise as they had not served all their expert reports by February 11, 2019 given most reports are not served until the 84-day deadline before the scheduled trial.

Given tremendous pressure on the NDP government for this clearly unfair “blindside” on the legal profession, on March 22, 2019 the government backed off slightly by changing the Rules such that any trial in 2019 would not be subject to the limit on expert reports. Even so, there are many trials set for January 1, 2020 and beyond where the retroactive nature of the change in the Rules is an unfair “blindside” as the injured victim has unserved reports that cannot be used to prove the case.

Regardless, the flip flop clearly shows that the NDP government is putting in one-sided Rules on the request of ICBC trying to limit cost to ICBC without full consultation and understanding of the implications of the Rules.

As the Rules stand, all quantum expert reports in an ICBC case are covered by the Rule unless:

  1. The expert report was served on or before February 11, 2019; or
  2. The trial is set to occur in 2019.

If you don’t meet one of the two exceptions above, then the limit on expert reports and experts is three unless the case is Fast Track which means the limit is one expert and one report.

The Rule is a tremendous advantage to ICBC on more complex cases because it is very difficult to find an expert that can provide an opinion on multiple injuries and/or multiple heads of damages. For example, if an injured victim has a head injury with a physical injury as well plus the inability to work, how can the injured victim fully prove the loss with one three experts?

While expert fees have escalated in recent years and should be contained, the simple and fair answer would have been to “cap” the cost of expert reports rather than limit the number of experts on a file. This is a poorly thought out one-sided Rule brought in by the NDP government which takes away the rights of injured victims to prove the full extent of their injuries in court. The rule is a tremendous advantage for ICBC as it is the injured victim that needs to prove the loss not ICBC.