Court Finds ICBC Doctor’s Evidence Biased and Unreliable

Posted on by Goodman Law

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

Posted on by Goodman Law

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.

Goodman Law Successfully Obtains Court Order Striking a Jury

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ICBC is entitled to have a jury hear his or her case as of right. However, there are times when it is unfair to the injured party to have a jury decide their case because it is too complicated for the jury to understand. In these circumstances the injured party can apply to the court to have the jury struck, and have the case decided by only a judge.

In the recent court decision of Forstved v. Kokabi, 2018 BCSC 1878, Goodman Law ensured that their client will have a fair trial by obtaining an order to remove the jury.

Removing the defendant’s right to a jury is a tough thing to do, and the court will only do so where the injured party makes a strong argument that the case involves prolonged examination of documents and/or is overly complex.

In determining whether it is convenient to have a jury hear the evidence Courts have noted that jury members are to be considered quite capable, as referenced by Master Dick:

[27] The context in which a court is obliged to apply Rule 12-6(5) was set out by Madam Justice Arnold-Bailey in Gulamani v. Chandra, 2009 BCSC 1042 at para 43:

…juries in this province are held to be informed and intelligent and capable of assessing expert evidence where it is properly presented. In other words, the threshold for determining whether a prolonged examination of documents or a scientific investigation is necessary and whether it can be conveniently done by a jury … or whether the issues are of a complex or intricate nature … is relatively high even in the context of a long trial with many difficult legal questions.

Goodman Law argued on behalf of the plaintiff that the trial could not be conveniently heard by a jury:

[30] Counsel for the plaintiff submits that this matter will require prolonged examination of documents and scientific investigation such that it cannot be conveniently heard by a jury. There is disagreement as to whether the plaintiff sustained a concussion in the accident, a mild traumatic brain injury, and/or a brain injury of any severity. There is a difference of opinion as to whether the plaintiff suffers from any cognitive disabilities as a result of the injuries sustained in the accident…

On the other hand ICBC argued that the case was a typical one, well understandable by the jury. By providing an in-depth overview of their case, Goodman Law convinced the court that the high bar to remove the defendant’s right to a jury had been passed and the complexity of the case warranted a trial with only a judge. Master Dick concluded:

[50] In this case, I agree with the plaintiff. The evidence in this case is sufficient to establish that this case will require a prolonged examination of documents or accounts and that the issues require a scientific or local investigation.

[54] If I was just considering the number of experts, the expert’s use of terminology, the volume of medical evidence, and divergent opinions alone, that would not necessarily cause me to strike the jury in this case. What makes this case more difficult is the fact the plaintiff’s income and business losses are not straightforward. The jury will have to review and understand the plaintiff and his spouse’s income tax information as well as the financial statements from all of the corporations he owned. The jury will then have to analyze, understand, and interpret the documents to assess his income and business loss.

Ensuring a fair trial means having lawyers who understand the law, what arguments to make, and the best strategy for your particular case.

Wes Mussio Interviewed on the Importance of Hiring an Injury Lawyer Who Does Not Also Work for ICBC

Posted on by Goodman Law

As discussed on our website, many personal injury lawyers supplement their practice by acting for ICBC as well. The result is a potential conflict, and clients may be left wondering whether their lawyer avoided a fight out of fear of losing ICBC’s business on other files.

Wes Mussio was recently asked to expand on this issue in an article by Kamloops Matters:

All firms that take on ICBC defence work sign strategic alliance agreements – contracts worth up to millions of dollars each year that legally prevent them from alleging bad faith or from suing ICBC for punitive or exemplary damages, even in cases where they represent plaintiffs.

“If you’re a defence lawyer or have a lot of defence files at your firm, you’re not going to be … taking some really aggressive approaches against ICBC when ICBC is being unreasonable. So it does hand-tie you a bit,” said Wes Mussio, managing partner at Mussio Goodman, a Vancouver plaintiff-only personal injury firm.

“In all honesty that would be something that has to be disclosed, but I don’t think it is unless somebody asks.”

ICBC has a more than 40-year history of hiring external legal defence firms to assist with litigation. Since 1999, the insurer has held six procurements for legal services and currently has contracts with 72 firms across B.C. that assist with litigation at below-market rates.

The practices of some of the firms on the list are limited to ICBC defence work, but most also take on plaintiff-side work, and ICBC has confirmed that all law firms it works with, and every lawyer at those firms, have agreed not to advance claims for punitive, exemplary or bad-faith damages while under contract.

The Law Society of British Columbia (LSBC), the professional regulatory body for lawyers in B.C., has on a couple of occasions addressed whether an ICBC defence firm’s strategic alliance agreement with the insurer creates a conflict of interest in the firm’s plaintiff-side work.In 2006, an LSBC bencher’s bulletin confirmed that lawyers working for ICBC must advise plaintiff clients of their relationship with ICBC, of the restrictions the lawyer is under and of the implications of those restrictions.

The recommendation to disclose the information is an ethical, not a legal, obligation. It doesn’t prevent lawyers from handling ICBC plaintiff files.

“I think there’s a problem there,” Mussio said, “because invariably if an adjuster takes a hard line on a file and denies a claim for simple benefits such as temporary total disability benefits, one of the strategies you can use as a plaintiff lawyer is to sue ICBC for bad faith or punitive damages, and the way the current rules are is you can’t do that if you have defence work in your firm.”