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

Posted on by Goodman Law

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

Posted on by Goodman Law

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.”

Goodman Law Breaks New Legal Ground With Latest Court Decision

Posted on by Goodman Law

Goodman Law is pleased to announce our success with the judgment of Terezakis v. Ekins, 2018 BCSC 249. This application involved the plaintiff applying for leave under s.151 of the Wills, Estates and Succession Act, SBC 2009 c. 13. to secure standing to bring an action on behalf of the Estate of Aikaterini Terezakis, the deceased.

This decision is the first successful case in British Columbia where a beneficiary or intestate successor has been granted leave, based on necessity alone, to bring an action on behalf of an estate to sue for a resulting trust over a property that was transfered by the deceased before death.

Goodman Law successfully argued in Terezakis that the plaintiff had fulfilled the requisite criterion to obtain standing. The criterion being:

  1. the beneficiary made reasonable efforts to cause the personal representative to commence or defend the proceeding;
  2. the beneficiary gave notice of the application to the personal representatives and any other beneficiaries;
  3. the beneficiary is acting in good faith; and
  4. it is necessary or expedient for the protection of the estate or the interest of the beneficiary or intestate successor for the proceeding to be brought or defended.

The Honorable Madam Justice Morellato opined at paragraph 31 in Terezakis that the court can grant leave under s. 151 on the criterion of necessity alone:

“[31]        Ms. Ekins is in a difficult position.  She is the executor of the Estate, a beneficiary under the Will and also the owner in fee simple of the Richmond Property which Mr. T. Terezakis claims she holds in trust for the Estate, an allegation which Ms. Ekins vigorously disputes.  Ms. Ekins deposed in her affidavit sworn January 31, 2017 that, “in her capacity as Executor” of the Estate, she intend to take a neutral position” in the Action.  By taking a “neutral position”, Ms. Ekins is clearly unwilling to prosecute the claims articulated by Mr. T. Terezakis, on behalf of the Estate,  since a key issue in this suit would challenge her ownership interest in the Richmond Property.  Further, because of her asserted interest in the Richmond Property, she is in a conflict of interest, making her effectively “unable to proceed” on behalf of the estate.  In this light, given that I have found the other pre-conditions of s. 151 have been satisfied, I conclude that I may exercise my discretion to grant leave under s. 151 on the criterion of “necessity” alone.”

This precedent setting judgment shows that obtaining legal counsel with experience, knowledge, and expertise in estate litigation can get you results previously unheard of. At Goodman Law, we provide our Wills and Estates clients with the requisite experience, knowledge, and expertise.

News 1130 Interviews Eric Goodman on Why Injury Caps Punish Victims Instead of Bad Drivers

Posted on by Goodman Law

From the article:

One of the key things the province is tasking ICBC to do is to, clearly and legally, redefine what a minor injury is. We know it will include things like: sprains, strains, mild whiplash, cuts, bruises, stress and anxiety from a crash but not broken bones, brain injuries or concussions.

Vancouver lawyer Eric Goodman wonders if it’s fair that someone with a minor injury doesn’t get enough money to handle a lifetime of pain. “What they’re trying to do is just use a blanket term: ‘minor injury’, and apply it to everybody no matter what the personal circumstances and that’s just not the way it works.”

He also feels having the insurance company define the word moving forward is a little biased.

“Claims that they initially determined to be minor and for which they put aside a certain amount of money to pay-off eventually turned out to be very complex. So, that in it of itself is proof that you can’t just, right after an accident say, ‘this is a minor claim, here’s a few thousand dollars, be on your way.’ These types of injuries can be insidious and it takes time to determine how it effects that individual person.”

Victoria is also looking to cap the payout for minor injuries claims at $5,500 and Goodman thinks this may backfire. “What it has shown us that in Alberta and Ontario, putting caps on injury claims do not work. In Ontario, the premiums are higher than in BC and the courts are bogged down in fighting.”

Fighting because, he adds, minor claims will be handed off to a group of independent adjudicators and Goodman expects lengthy delays as people attempt to fight for their rights.

Goodman suggests the government look elsewhere to fix the problems at ICBC.

“The fact is ICBC was wildly profitable up until just a few short years ago before the Liberals took the profits out of their coffers and before ICBC started to get very litigious in the way they handled claims. If they had just compensated claimants fairly early, we wouldn’t be in this mess. This won’t alleviate the burdens on the legal system, in fact, it may just exacerbate the problem.”