Decrease in Discount Rate Means Increased Compensation for Personal Injury Victims

The Chief Justice of British Columbia has announced a decrease in the discount rate under the Law and Equity Act.  The discount rate is used by economists to calculate the current dollar value of future compensation awards.


By decreasing the discount rate, the Court has recognized that the previous rate unfairly penalized victims of personal injuries, including ICBC claims.  Compensation for these victims will now more accurately reflect the current economic climate and rates of return on investments.  The discount rate had not been changed in 33 years.


It is important that personal injury claims take into account the new discount rate when calculating fair compensation, including for ICBC claims.


If you require advise about your personal injury claim, including ICBC claims, and how the change in discount rate affects your claim, please feel free to contact René Gantzert at Gantzert Law Office.

ICBC's refusal to repay Sick Bank benefits for accident victim denied by BC Courts

The Supreme Court of British Columbia released a ruling on January 18, 2013 which denied ICBC's attempts to not repay sick bank benefits to an car accident victim.  The case involved a Vancouver City police officer who was forced to use part of his accumulated sick bank while recovering from injuries.

The officer was succesful in obtaining a judgment against the uninsured driver who caused the accident.  ICBC was responsible for paying the judgment on behalf of the uninsured driver, but asked the court to reduce the judgment by the amount of the sick bank payments received by the officer.

If ICBC had been successful, the officer would not have been able to repay the sick bank, thereby leaving him with fewer sick days should he suffer an illnes in the future.

Mr. Justice Willcock determined that ICBC could not legally refuse the pay the amount of sick days used if these formed part of the judgment against the uninsured driver.

The judgment can be found at: http://www.courts.gov.bc.ca/jdb-txt/SC/13/01/2013BCSC0151.htm

NEW WEBSITE LAUNCHED

We are please to announce the redesign of our website at www.Gantzertlaw.com.  Our new site offers more in-depth information on a variety of topics, including all aspects of ICBC Claims such low velocity impact, personal injuries, whiplash, brain injuries, and spinal cord injuries.

ICBC Ordered to Re-instate Disability Payments

In a judgment released today, ICBC was ordered to reinstate wage loss benefits after a judge of the BC Supreme Court found that ICBC had improperly terminated the benefits.

After a March 2010 accident, the claimant had received one week of disability benefits from ICBC.  At that point, she started receiving EI Disability payments.  When her EI ran out, she re-applied for the ICBC benefits, but ICBC refused to pay them.

ICBC's adjuster based the denial on a report by DR. Malloon, an orthopaedic surgeon regulalrly retained by ICBC.  Dr. Malloon found that she was not totally disabled, eventhough her family doctor and a rheumatologist had both indicated that she was totally diabled from work.

In making the decision to re-instate the benefits, the judge noted that Dr. Malloon's opinion was restricted to his speciality, i.e. musculoskeletal problems, but that he could say nothing of her ligament injuries.

The judge also made a comment that adjusters should not overstate what is in a medical report:

• "I close by noting, once again, the grounds on which ICBC terminated benefits.  The claims representative did fairly describe Dr. Maloon as finding that there was no further disability, and that may very well have been the case within Dr. Maloon's limited field as a specialist in orthopaedic medicine opining only on musculoskeletal as opposed to musculoligamentous injuries.  That was all fair on the part of ICBC.  However, the claims representative, in his denial letter, also stated that Dr. Maloon felt that much of the claimant’s complaints may relate to a pre-existing degenerative condition.  As I have noted, that is not what Dr. Maloon’s report says.  Claims representatives should read their independent medical reports carefully before citing them as grounds for denying coverage."

This demonstrates that ICBC's decision on termination of benefits can be succesfully challenged when based on erroneous facts and if proper medical evidence can be provided to the courts.

The case of Derbyshire v. ICBC can be found at: http://www.courts.gov.bc.ca/jdb-txt/SC/11/01/2011BCSC0170.htm

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.