Judge denies ICBC's claim that injured woman's symptoms motivated by an unconsciuous desire to avoid work

A trial judge last week denied ICBC's claim that  an injured woman's symptoms were motivated by an unconscious desire to avoid work.

On October 28, 2010, a trial decision was released in Carr v. Simpson.  Ms. Carr was injured when Mr. Simpson likely fell asleep at the wheel and hit her vehicle.  She suffered a number of injuries and psychological consequences:

1. Neck/upper back/trapezius: bilateral, with pain and tingling across the back, shoulders, and down the arms with poor chances of full recovery.
2. Thoracic Outlet Syndrome, with surgery not recommended as a remedy.
3. Periodic (once every two weeks) incapacitating headaches, causing nausea and vomiting which would probably continue indefinitely.
4. Injury to right hand and wrist for which surgery was not entirely successful.
5. Meniscus tear to the right knee with surgery two years after injury which was successful.
6. Low back pain and right hip flexor which was likely permanent.
7. A major depressive disorder of moderate severity.

Mr. Justice Bernard reiterated that the following factors should all be considered when determining how much someone's pain and suffering is worth:

1. the plaintiff’s age;
2. the nature of the injury;
3. the severity and duration of pain;
4. disability;
5. emotional suffering;
6. loss or impairment of life;
7. impairment of family, marital, and social relationships;
8. impairment of physical and mental abilities;
9. loss of lifestyle; and
10. stoicism (as a factor for which the plaintiff should not be penalized).

The judge noted that the defence conducted on behalf of ICBC asked a number of witnesses whether Ms. Carr's description and complaints of her injuries was motivated by an unconscious desire to avoid work.  The trial judge refused to support this argument however.  He stated: "While I have some trouble with the concept of an unconscious motive, I have no difficulty in concluding there is no direct, or indirect, evidence the plaintiff was motivated, unconsciously or otherwise, by secondary gain."

After considering all the injuries and the above-noted factors, the trial judge awarded Ms. Carr $100,000 for pain and suffering.

We are often faced with allegations of secondary motive when representing people with permanent physical and/or psychological issues.  This case demonstrates that judges will not readily accept that people are being consciously or subconsciously dishonest about the nature and extent of their injuries.

Driver who rear-ends another car not always at fault

In Hough v. Dyck, a decision released today by the BC Supreme Court, the Court agreed with ICBC that Mr. Hough was liable for an accident even though he was rear-ended.

In this case, the Judge believed Mr. Dyck's story that Mr. Hough cut him off and then stopped abruptly in front of him, thereby giving him no chance to avoid the accident.

Although rare, there have been a number of cases where the person who was rear-ended is found liable for an accident.  If you have been injured in an accident where you rear-ended another vehicle which abruptly cut into your lane and then stopped, you should contact a lawyer to discuss whether you may have a valid claim.


Disclaimer:  This post is not intended as legal advice.  Every ICBC claim is different and dependent on its facts.  To obtain advice on a specific claim, please visit  us at www.gantzertlaw.com.

Is ICBC Doctor shopping?

In reading the preliminary motion decision released today in the case of Imeri v. Janczukowski, one gets the feeling that ICBC was "doctor shopping".

In 2006, ICBC had forced Ms. Imeri to attend an "independent" medical examination by an orthopaedic surgeon, Dr. Boyle.  ICBC's stated reason for the examination was that it was required to determine entitled to Part II no fault benefits (such as treatment or wage loss replacement).

In 2010, ICBC applied to have Ms. Imeri examined by a different orthopaedic surgeon, Dr. McGraw.  ICBC advanced the argument that this examination was for a different purpose, namely, Ms. Imeri's lawsuit for compensation for her injuries.

ICBC provided no explanation why they now wanted a different doctor to examine Ms. Imeri, rather than having Dr. Boyle do a re-examination.  One could be left with the feeling that ICBC didn't like the first opinion and was hoping for an opinion more favourable to ICBC's case from Dr. McGraw.

The Court refused to order the examination by Dr. McGraw and agreed with Ms. Imeri that any re-examination of her injuries should be conducted by Dr. Boyle.

This type of situation is not unusual.  Individuals not represented by an experienced ICBC claim lawyer are often asked early in their claims to attend for a supposedly independent Part VII medical examination.  ICBC will then seek a further examination once the person files a lawsuit. 

If you are dealing with ICBC on your own, it is important to seek legal advice if you are being asked to attend an independent medical examination.


Disclaimer:  This post is not intended as legal advice.  Every ICBC claim is different and dependent on its facts.  To obtain advice on a specific claim, please visit  us at www.gantzertlaw.com.

Court refuses ICBC's application to withdraw admission of liability

In Surerus v. Leroux, a decision released by the BC Supreme Court today, the court refused to allow ICBC to withdraw an admission that their insured driver was responsible for an accident.

Mr. Surerus was rear-ended by Mr. Leroux in September 2006.  Mr. Surerus filed a lawsuit against Mr. Leroux in 2008.  In the lawsuit, it was alleged that the accident was the result of Mr. Leroux's negligence, including having faulty brakes on his car.

In responding to the lawsuit in the Statement of Defence, ICBC which was representing Mr. Leroux admitted that the accident was Mr. Leroux's fault.

It was not until August 2009 that the defendant told ICBC that his brakes had failed unexpectedly.  ICBC's lawyer the tried to withdraw the admission of liability on Mr. Leroux's behalf on the basis that ICBC had not addressed its mind to the issue of faulty brakes when they admitted liability.

The Supreme Court Master refused the application because the Mr. Surerus' lawsuit had very specifically noted that faulty brakes was a cause of the accident, and the Master therefore felt that the specific allegation had been brought to the defendant's attention.  He also felt it would be unfair to the plaintiff to have to try to refute a "faulty brake" defence some four years after the accident, when there was no evidence of what had happened to the vehicle or whether it was still available for inspection.

This case is of interest to personal injury lawyers for a number of reasons.  First, in a rear-end collision, it is generally accepted that the rear vehicle is responsible for the accident.  ICBC normally, and quite properly, admits liability in these cases.  Lawyers often rely on this standard to assess whether they are prepared to accept a case, and also as a basis for fee arrangements.

Secondly, litigation strategies and decisions are made based on whether liability has been admitted or denied in the defence to the lawsuit.  If defendants were able to easily withdraw those admissions, court cases could become lengthier and costlier.

From a plainitff's lawyer point of view, this decision protects the rights of innocently injured people from lengthy delays and unnecessary expense when dealing with the ICBC injury claims.


Disclaimer:  This post is not intended as legal advice.  Every ICBC claim is different and dependent on its facts.  To obtain advice on a specific claim, please visit  us at www.gantzertlaw.com.

Judge finds that injuries from car accident can develop over time.

In the case of Vershinin v. Hayward released today by the BC Supreme Court, Mr. Justice Grauer did not accept ICBC's argument that an injury must be felt and complained of immediately after an accident. 

Mr. Vershinin was involved in a serious accident which completely destroyed the front of his car.  He suffered a number of obvious and immediately apparent injuries.  However, a dispute arose over the cause of a shoulder injury for which he ultimately had surgery.  ICBC, which was representing the defendants, argued that the shoulder injury could not have been caused by the accident because Mr. Vershinin did not have complaints about shoulder pain until three to four months after the accident.

The judge decided that there was a perfectly normal explanation for the lack of complaints because the shoulder injury only became noticeable when Mr. Vershinin was able to return to normal activities as his other injuries healed.

This case demonstrates the importance of maintaining a diary of your injuries, including any pains and problems that develop over the months following an accident.  The totality of your injuries are not always obvious immediately following an accident, and may not be obvious to your doctors.



Disclaimer:  This post is not intended as legal advice.  Every ICBC claim is different and dependent on its facts.  To obtain advice on a specific claim, please visit  us at www.gantzertlaw.com.

BC Supreme Court supports reduced earning capacity in chronic pain case

On Friday, September 17, 2010, the B.C. Supreme Court released a judgment in Knight v. Belton, a Prince George case.

Ms. Knight was a dental hygenist and mother of two.  After her accident, Ms. Knight suffered several months of headaches, vertigo, and neck pain. She also suffered right shoulder pain for about a year and she had on-going chronic pain and periodic right shoulder pain.

What is particularly interesting about this case is that ICBC did not want any award to be given to Ms. Knight for her loss of future earnings, even though her pain caused her to be less energetic and less capable of pursuing full employment.  The Plaintiff asked for $300,000 to make up for her diminished earning capacity while ICBC asked for an award of $0.  After examining Ms. Knight's potential future earning and calculating what she might now make given her chronic pain, Madam Justice Gray awarded $300,000, in addition to awards for pain and suffering and a number of other categories.

ICBC tends to fight quite vigourously against demands for compensation for potential future earnings loss.  This case demonstrates that the Courts will make reasonable awards where justified, but taking a case to trial is sometimes necessary.

Disclaimer:  This post is not intended as legal advice.  Every ICBC claim is different and dependent on its facts.  To obtain advice on a specific claim, please visit  us at www.gantzertlaw.com.