As previously announced, the Supreme Court of Canada blocked ICBC from trying to shut down the website ICBC Advice.
Wes Mussio, who acted as counsel on behalf of the website owner, was recently interviewed about our firm’s success handling this particular case.
As previously discussed, the BC Court of Appeal rejected ICBC’s attempt to block the website www.icbcadvice.com, an independent resource to assist claimants in dealing with ICBC. Wes Mussio acted as counsel for the website and is also listed as a featured writer.
ICBC appealed the decision to the Supreme Court of Canada.
As reported this week in the Vancouver Sun, we are pleased to announce that the Supreme Court of Canada declined to review the Court of Appeal’s result:
“We are very happy to see the case finally come to a close with the Supreme Court of Canada dismissing ICBC’s case in its entirety,” said lawyer Wesley Mussio, who represents website operator Stainton Ventures Ltd..
The Supreme Court of Canada ruling was released Thursday.
“This result not only helps maintain the public service website, ICBCadvice.com, but also allows dozens of other websites that use the term ‘ICBC’ to continue to operate,” Mussio said. “Indeed, a simple Google search results in dozens of websites that use ICBC in their name. Had ICBC been successful, it would have had a major impact on many websites run by ICBC service providers including lawyers and repair shops. All these websites would have had to shut down or change their names had the courts sided with ICBC.”
Spokesman Adam Grossman said Thursday that ICBC is disappointed with the court decision.
“We had pursued this case because we have an obligation to prevent customer confusion and believed some customers might see the domain name and think the website and its content are being provided by ICBC, when in fact it’s being provided by a third party. We always seek to ensure our customers clearly know when they’re dealing with us and when they’re dealing with others.”
According to Stainton Ventures, the website started in 2006 to help the public deal with ICBC on injury or property damage claims.
ICBC demanded that the website be taken down and the domain name be transferred to ICBC. The insurer argued in B.C. Supreme Court that it owned the trademark “ICBC’ and that Stainton Ventures were infringing on ICBC’s rights.
In 2012, the B.C. Supreme Court dismissed ICBC’s claim. ICBC lost again last year before the B.C. Court of Appeal.
In the 2012 decision, Justice Christopher Grauer ruled ICBCadvice.com’s use of ICBC does “not constitute misrepresentation because they are not likely to deceive the public.”
Mussio noted Thursday that anyone visiting the website would quickly learn that it is an independent entity with no involvement with ICBC.
“In fact, it’s very clear that the website gives information that is contrary to ICBC’s interests, particularly with respect to educating members of the public on how to deal with the insurer.”
He said the site “can now be revamped to further assist the public on how to handle ICBC injury and property damage claims.”
We are pleased to announce that the Supreme Court of Canada denied ICBC permission to appeal our client’s victories in the Supreme Court of British Columbia and the British Columbia Court of Appeal, a decision that finally compels ICBC to compensate our client for her serious spinal injuries.
As previously announced, the British Columbia Court of Appeal ruled in our client’s favour, overturning the lower court’s decision and prohibiting ICBC from relying on a zipline waiver to deny compensation for injuries sustained in a car accident.
ICBC sought “leave” (in other words, permission) to appeal the decision to the Supreme Court of Canada in Ottawa.
ICBC’s argument was that the decision was wrong and has implications across the country.
We argued in response that the Court of Appeal decision was properly decided, and that the issue specifically pertains to British Columbian legislation (the Insurance (Vehicle) Act), and therefore the highest Court in the land need not intervene.
We are pleased to report that Anthony Eden of Mussio Goodman successfully defended our client’s interests by preventing a Defendant IME (independent medical examination) with a neurologist expert of the insurance company’s choosing.
Insurance companies are entitled to defend a claim by compelling the injured person to attend an IME with doctors of their choosing. The law is clear that Plaintiffs must attend these appointments as long as they are reasonable. Unfortunately, sometimes the insurance companies cross the line in terms of what is reasonable under the law.
In a recent case, we filed a lawsuit on behalf of our client because his disability benefits had been unduly terminated. In order to prove his claim, we retained the services of a doctor who is an expert in the field of chronic pain. This doctor also has a broad range of expertise, including neurology.
Additionally, we relied on our client’s family doctor in support of his ongoing disability. In response to these opinions, the insurance company attempted to disprove the claim using four expert reports; they sought one report from a psychiatrist, one from a vocational specialist, and one from an occupational physician. Then, they tried to obtain an additional report from a neurologist, claiming that our chronic pain expert was essentially a neurologist as well.
The insurance company therefore argued that they needed a neurology report to defend the claim. This was notwithstanding the fact that the insurance company had already sent our client to a neurologist in 2002 who wholeheartedly supported his disability. Notably, they wanted an updated report with a different neurologist, even though there had been no evidence of any neurological change since the 2002 report.
We opposed this IME on the basis that it would make the trial unfair. The law is clear that the parties must be on equal footing with regard to the expert evidence. The Master in Chambers ultimately agreed with our argument, the reasons for which were published in Korpa v. Co-Operators Life Insurance Company 2014 BCSC 2246:
[26] The issue in this case is whether, in all the circumstances, there is a need to put the parties on an equal footing with respect to the medical evidence or, as it has sometimes been described, to balance the playing field.
[27] I have concluded that, for the following reasons, Mr. Korpa should not be required to attend an IME with Dr. Dost…
[36] In all these circumstances, I am not satisfied that the defence has shown the need for examination by a neurologist to balance the playing field.
Vacations are a time to kick back, relax, and enjoy some well-deserved time off work. Here at Mussio Goodman Law Group, we know that when you have been injured in car accident and are prevented from working, your time away from the office is no vacation. Constant pain, treatment, and specialist appointments are a far cry from margaritas and Mexican sun.
It may seem logical that when you miss work because of your injuries and take vacation days as a result, you should be compensated for those wasted days that you could have spent on the beach or with your family. However, the Supreme Court of British Columbia does not see it that way.
In the recent case of McCartney v. McArthur 2014 BCSC 2164, the court found that paid vacation days used after a motor vehicle accident are not compensable in an ICBC claim. The court gave the following reasons:
[82] At the time of the accident the plaintiff was working about 32 hours a week at Oak Hills Woodcraft. He received a base salary of $1,200, plus a car allowance of $150 every two weeks, for a total of $1,350. He took seven days off after the accident; however, he used his vacation time for that time off and continued to receive his regular salary. In 2010 his income was $36,549 which is slightly more than he received in the years before the accident.
[83] The plaintiff seeks $1,181.25, representing his salary for the seven days that he did not work shortly after the accident when he used his vacation time. The plaintiff argues that by using seven days of his vacation entitlement he gave up something that should be compensated for as past wage loss.
[84] While the use of days from a bank of sick leave days may entitle a plaintiff to compensation for the loss of past income because the plaintiff may have to pay to replace the sick days, in my view the use of vacation time does not represent lost income. (Roberts v. Earthy, 1995 CarswellBC 1800 (B.C.S.C.)). During that vacation time the plaintiff continued to receive his expected income.
The moral of the story is that when you are on “vacation”, you are still being paid a regular salary. Thus, the courts do not feel there is a compensable loss to be recovered.
While this is unfortunate, we feel it is important for the public to be aware of this so that future issues can be avoided.
The bottom line is that you will not be able to recover income from time off work while you are being paid a salary for vacation time. Therefore, we always advise our clients to exhaust all possible remedies for income substitution prior to taking vacation days.
In particular, a claimant should first use their sick days and exhaust their “sick bank”, as such days are compensable under the law.
In claims involving personal injury, it is often necessary for the claimant and ICBC to retain independent medical experts to assess the claimant’s injuries.
The purpose is to have an independent expert doctor provide the parties and ultimately the court an opinion on the claimant’s injuries. The opinion usually includes a diagnosis of the claimant’s present injuries and his or her prognosis for the future. These opinions can be helpful either to the parties in reaching a settlement, or to the court in awarding damages at trial.
Pursuant to the Rules of Court in British Columbia, any doctor who provides a written expert opinion to the court has a legal duty to assist the court and not to be an advocate for any party. In addition, the doctor has a legal duty to certify in her report that she was aware of the duty, has made their report in conformity with the duty, and will conform with the duty if called upon to give oral or written testimony at trial.
ICBC routinely retains expert doctors from a roster that includes several who have been criticized by the Court for various reasons, including failing to abide by the duty to not advocate for any party.
One such expert whom ICBC routinely retains to provide opinions is Dr. Martin Grypma. Dr. Grypma is an orthopedic surgeon whose practice now largely involves conducting medical assessments for ICBC.
Over the last three years, Dr. Grympa’s opinions have been strongly criticized by the Court no less than eight times for various reasons:
Currie v. McKinnon 2012 BCSC 698. Dr. Grypma’s report contained observations that the Court found were “either outside the scope of his expertise or …unnecessary.” Specifically, the Court found that Dr. Grypma’s comments attacking the plaintiff’s credibility were “highly unusual” and “in the nature of argument.” Further, the Court held that those comments, “[had] no place in an expert report from a medical expert, especially where the expert has certified he understands his duty not to be an advocate for any party.”
Dr. Grympa concluded that the Plaintiff’s injuries were minor and healed quickly. In coming to that conclusion, Dr. Grympa relied on statements in another doctor’s consult report which noted that the plaintiff never came to any injury or harm. The Court found that the other doctor’s statements were in fact in relation to the plaintiff’s epileptic seizures. The Court concluded that Dr. Grympa took the comments out of context and that the references were misleading.
Devilliers v. McMurchy, 2013 BCSC 730. After reviewing Dr. Grypma’s opinion, the court concluded “[o]verall I found Dr. Grypma’s evaluation of [the plaintiff] to be ill-considered and superficial, and I give no weight to his evidence”.
Khosa v. Kalamatimaleki, 2014 BCSC 2060. Other than pointing to the possibility of a non-organic injury, the Court “did not find Dr. Grypma’s opinion or his trial testimony to contribute any meaningful insight into either the nature of Mr. Khosa’s current condition or her prognosis.”
Dunne v. Sharma, 2014 BCSC 1106. The Court found that Dr. Grypma’s conclusions were “quite markedly at odds with those” of the plaintiff’s expert. The plaintiff’s expert was preferred.
Cai v. Insurance Corporation of British Columbia, 2013 BCSC 2213. Dr. Grypma’s report was excluded for a number of reasons, including a finding that Dr. Grypma formed his opinion based on an incomplete medical history.
Culos v. Chretien, 2012 BCSC 1050. Dr. Grypma opined that the plaintiff’s injuries were not related or caused by the accident in this case. The court rejected his opinion in this regard.
Bissonnette v. Horn, 2012 BCSC 518. Part of Dr. Grympa’s conclusion was that the plaintiff did not experience left hip pain. The Court rejected parts of Dr. Grympa’s evidence as based on incorrect assumptions about the plaintiff’s reporting to her doctor.
Sekihara v. Gill, 2014 BCSC 1387. Dr. Grypma arrived at conclusions contrary to those of the plaintiff’s experts. The Court commented that “[i]n his evidence, Dr. Grypma does not appear to have demonstrated an open mind in his examination of and conclusions regarding [the plaintiff] or to have taken into account the complete medical history”.
This selection of reported case law shows that, in spite of ICBC’s public-relations campaign about how they treat injured claimants fairly, ICBC has hired and continues to hire doctors who have a well-established reputation for bias and other questionable conduct.
It also underscores the important role a personal injury lawyer can play in assisting an injured claimant. At Mussio Law Group, we go to great lengths to ensure that our clients are protected from such biases, while retaining the proper experts to assess our client’s injuries in a fair and impartial manner.