Court Awards Our Client $753,726, Five Times More Than ICBC’s Offer Before Trial

Mussio Goodman is pleased to announce Associate Lawyers Thomas O’Mahony and Karol Suprynowicz’s success after a two week trial in BC Supreme Court.

In Morgan v Ziggiotti, 2021 BCSC 106 the Court awarded $753,726 for injuries sustained in a December 2016 motor vehicle accident, more than five times ICBC’s final offer prior to trial.

The Plaintiff was a 28 year old lifeguard and swimming instructor at the time of the accident. The Court summarized her active pre-accident life noting:

[10]      Prior to the Accident, Ms. Morgan enjoyed extremely good health and a high level of physical fitness. She was a very athletic person who enjoyed and excelled in a wide variety of athletic activities including swimming, walking and hiking, tennis, running, horseback riding, and team sports, among others. Ms. Morgan took great pride in her athletic achievements, which she viewed as the one thing she was good at. Being an athlete was key to her identity. Physical activity was her means of coping and self-care.

As a result of the collision the Plaintiff suffered an injury to her knee. Despite her best efforts at treatment, the injury turned out to be permanent, causing her sharp pain when she attempts physical activity. She also experiences mechanical pain in her hip and lower back, which seize up. She is constantly fatigued, and has given up her life in order to manage her pain.

The Plaintiff is unable to pursue her line of work as a lifeguard as a result of the pain caused by the intense physical requirements of the work. Despite the Plaintiff’s learning disability and her reliance on her physical abilities to sustain her financially, ICBC argued that her life had not been particularly diminished by her injury, and she would not suffer much income loss in the future due to her inability to lifeguard. The Court disagreed noting:

[171]   While previous cases provide some guidance, I must assess Ms. Morgan’s damages having regard to her particular circumstances and injuries. What is most significant in her case is the loss of her athletic ability and the sense of identity that was intimately related to that ability. Through sport, she was able to overcome the shame she felt due to her learning disabilities. She was a young woman at the time of the Accident, and it has dramatically altered her life. In my view, an award of $120,000 is appropriate for pain and suffering in Ms. Morgan’s case.

…

[183]   I have already set out the expert medical evidence with respect to the impact of Ms. Morgan’s injuries. The expert evidence is clear that Ms. Morgan will, because of her injuries, never work again as a lifeguard and swimming instructor. Further, as set out in Mr. Pakulak’s report, the overall number of jobs she would be able to compete for, given her physical limitations, is significantly limited.

…

[190]   In short, Ms. Morgan’s career prospects, given her inability to work as a lifeguard and swimming instructor, her physical limitations, and learning disabilities, are very guarded indeed.

In arguing the case, ICBC relied on the opinion of orthopedic surgeon Dr. Robin Rickards. Dr. Rickards admitted that with her current symptoms the Plaintiff could not engage in the physical activity necessary to be a lifeguard. However, despite admitting that he could not be sure of his diagnosis until an invasive surgery was performed, Dr. Rickards diagnosed the Plaintiff with a condition that could be easily repaired. The Court noted Dr. Rickard’s bias, which was uncovered by an effective cross examination, and preferred the opinion of the Plaintiff’s far more experienced orthopedic surgeon, Dr. Stone:

[123]   Dr. Rickards has not performed any surgeries since the end of 2010 when he retired from his orthopaedic practice due to his own back injury. He subsequently did some training in 2014 for chronic pain management with a focus on the back and the neck, and then practiced in this area for about two years, but stopped due to a lack of patients. He retired entirely from practice in 2017 to write medical legal reports. All of his recent educational activities in the last 10 years have focused on areas other than the knee. He has not seen patients in regards to treatment for knee injuries in at least the last three years if not longer.

[124]   Dr. Rickards agreed that the more recent medical literature would be more complete than literature from 34 years ago.

[125]   Dr. Rickards was clear that he would not defer to Dr. Stone’s opinion with respect to the appropriate diagnosis. He testified that Dr. Stone in fact did not make a diagnosis, saying that knee pain is knee pain syndrome, and not a diagnosis.

 

[126]   Dr. Rickards agreed that he would defer to a psychiatrist as they have more training and experience to opine on psychiatric issues. He also agreed that someone who sees patients more often than he does has more experience than he does in treating a hypothetical injury. However, despite agreeing with these propositions, Dr. Rickards would not concede that any doctor may be in a better position than himself to opine on Ms. Morgan’s injury.

[127]   I agree with Ms. Morgan that Dr. Rickards displayed a tendency towards being argumentative and defensive in support of his opinion.

[128]   On cross-examination, Dr. Rickards admitted that he could not be sure what the diagnosis is until his recommended surgery is done. He further admitted that there are risks to surgery, and, in contrast to what he wrote in his report, that some people will actually be left in worse pain after the surgery. Despite admitting that he cannot be sure of the diagnosis, and despite noting that the symptoms of his diagnosis and that of Dr. Stone and Dr. Hershler are similar, he refused to concede that his diagnosis might not be correct.

[129]   Further, Dr. Rickards admitted that his report was at the very least incomplete. He did not include anything about Ms. Morgan stating she had a pre-existing ankle condition or any evidence of a pre-existing ankle condition in the records. Despite Ms. Morgan indicating she had no ankle complaints, he diagnosed her as needing surgery for a problem unrelated to the Accident.

[130]   In contrast, Dr. Stone, who has more relevant and recent experience and training than Dr. Rickards, provided a measured and unbiased opinion. He freely admitted that the symptoms of both his diagnosis and Dr. Rickards were similar, but noted that in terms of Ms. Morgan’s prognosis there is no reliable evidence that an arthroscopic procedure would lead to a better outcome for her.

[131]   I agree with Ms. Morgan that Dr. Rickards is not in a position to keep up with the current medical consensus on either the diagnosis or the prognosis or the outcome of his suggested surgery. This is in contrast to Dr. Stone, who is an associate professor with three clinical practices, who regularly operates on knees, and attends numerous lectures and conferences with a specific focus on the area he concentrates on in his clinical practice: knees and hips.

[132]   For all of these reasons, I prefer Dr. Stone’s evidence to that of Dr. Rickards. I accept Dr. Stone’s opinion about the appropriate diagnosis for Ms. Morgan’s knee symptoms, their treatment and likely prognosis.

This case provides a good illustration of the mentality and tactics pervasive at ICBC, which are to try to reduce payments to injured persons by minimizing the impact of injuries, and hiring biased doctors to provide them with the medical opinions they want.