Court Rejects Another ICBC Doctor, Dr. Sovio, As Biased

Posted on by Mussio Goodman

Dr. Sovio Was Criticized By Courts for Being Biased

Everyone is entitled to their opinion. This is true for labourers, engineers, and even doctors. However, under the law, when a doctor gives an expert medical opinion at trial, he has an obligation to do so neutrally and without bias. Unfortunately, this does not always happen. As a result, the Courts have not hesitated to call out doctors who do not follow the Rules of Court and take it upon themselves to advocate for one particular party.

In the recent case of Davidge v. Fairholm, the Court found that an orthopaedic surgeon hired by ICBC, Dr. Sovio, was biased in his assessment of the plaintiff’s injuries. The Court was extremely critical of Dr. Sovio’s testimony, calling it “unduly cynical” and “superficial”. Madam Justice Griffin wrote the following in her reasons for judgment:

[124]     ICBC called expert evidence from Dr. Olie Sovio, an orthopaedic surgeon, who at ICBC’s request conducted an independent medical examination of the plaintiff on June 27, 2013 and produced a report dated July 2, 2013, admitted at trial.  Dr. Sovio’s opinion seemed to accept that the plaintiff had low back pain and neck stiffness when he saw him.  He characterized the symptoms as subjective but did not offer a reason to believe they were not real.  He recommended that the plaintiff undertake a regular activity, or exercise, program.

[125]     Dr. Sovio’s opinion did not address what caused the plaintiff’s low back pain.

[126]     However, in cross-examination Dr. Sovio made an effort to state his opinion that because there was no abnormality in the plaintiff’s low back for seven months, it did not make sense to attribute that pain to the car accident.  This opinion was offered even though it was not responsive to the question being asked, and was not in his report.  I got the sense from his eagerness to state this that he was being an advocate for ICBC rather than a neutral expert.

[127]     Dr. Sovio’s off-hand opinion in relation to causation was not well explained.  From the context of his evidence, it appeared to be based on his view that the patient had new onset of low back pain that was not there before, seven months after the accident (i.e. it was new when first noted in Dr. Rebeyka’s April 9, 2010 clinical record).  This was despite the plaintiff telling Dr. Sovio that he had low back pain almost immediately after the accident. In other words, Dr. Sovio chose to not believe the plaintiff because Dr. Sovio did not see low back pain documented in the clinical records until later. 

[128]     Just as with the other experts, it is up to this Court to determine whether or not the plaintiff can be believed when he says he had low back problems after the accident that grew in intensity over time. 

[129]     Dr. Sovio did not provide any explanation as to what was the cause of the plaintiff’s low back pain.  According to his evidence, the degenerative changes in the plaintiff’s back should not have prevented him from returning to work in the oil fields.  If that is so, his opinion does not support any conclusion that the degenerative changes limited the plaintiff’s ability to do heavy work and led to the low back pain after the return to work.    

[130]     In the last paragraph of p. 6 of Dr. Sovio’s report, he acknowledged that he was unclear on why the plaintiff took time off work from the oil fields and ultimately attended retraining even though after the WHP he was considered fit to return to work.  Dr. Sovio concluded that the patient chose to retrain rather than return to his drilling occupation, “but this does not seem to be on a physical basis, at least, judging from the medical records”.  In stating this, Dr. Sovio either ignored the plaintiff’s history or did not ask him questions about his experiences after returning to work.

[131]     Dr. Sovio’s report leads me to conclude that he did not understand the plaintiff’s medical history leading up to his attendance at BCIT, including the fact that the plaintiff found work in the oilfields to be too painful and thus too physically difficult after the accident.  It seems somewhat careless for Dr. Sovio to opine that retraining was simply a personal choice and not due to the patient experiencing physical limitations at his work.  

[132]     Dr. Sovio performs many assessments for the Workers’ Compensation Board, and he made it clear in his evidence that he thinks many workers injured at work simply would prefer not to return to work even though they do not have a good reason for not returning.  He offered this as his explanation for discounting the opinion of the plaintiff’s general physician. Unfortunately I felt that Dr. Sovio was unduly cynical and had a bias in this regard and so viewed the plaintiff’s own reports of back pain as not worthy of any weight, which is not an objective approach.

[133]     Dr. Sovio’s approach as to the plaintiff’s ability to work also seemed very superficial.  He did not apparently know the exact nature of the physical tasks the plaintiff must perform in his work and other physical stresses of his job.  When questioned what the job involved, he rather arrogantly said, “I think I know what it’s all about”, when clearly he had little idea and had not asked the plaintiff sufficient questions to gain an understanding. 

[134]     In short, I did not find Dr. Sovio’s evidence to be helpful on the issues of causation or the plaintiff’s ability to work. 

In short, Dr. Sovio committed the cardinal sin; being an advocate for ICBC. Medical practitioners who give expert evidence must adhere to strict rules with regard to their testimony. The most important rule is to be neutral and objective with regard to the medical evidence given to the Court. Unfortunately, Dr. Sovio did not do so. In the end, justice was served and the court awarded $361,946 in total damages to the plaintiff after disregarding ICBC’s biased report and evidence of Dr. Sovio.

Take Five Magazine Reports on Wes Mussio’s Court of Appeal Victory

Posted on by Mussio Goodman

Magazine Reports on Wes Mussio of Mussio Goodman Successful Court Appeal

As reported in the August issue of Take Five by OnPoint Legal Research, the BC Court of Appeal has rejected ICBC’s attempt to shut down, a free informational website for those dealing with ICBC claims, owned by Wes Mussio’s wife. This was ICBC’s second attempt to remove the website – the first attempt was rejected by the BC Supreme Court in 2012. ICBC claimed that the website unlawfully infringed on the company’s copyright license of the term “ICBC” and, therefore, violated the Trade-Marks Act. However, the Court of Appeal sided with Wes Mussio, counsel for the Respondant, confirming that was not in violation of the Act.

Counsel Wes Mussio commented to Take Five:

ICBC was attempting to argue that any website with the acronym ‘ICBC’ in it is a copyright infringement. The Court of Appeal made it clear that where the website is not trying to confuse web browsers, there is no copyright infringement. It opens up the door to allow a wider reaching use of website names. If the Court of Appeal would’ve allowed the appeal, ICBC could’ve gone after dozens and dozens of websites that use the acronym ICBC in it. For that reason, the case is very important to law firms and other companies marketing in the area of ICBC Claims.

A Summary of the Court Decision in Take Five is as Follows:

The appeal was dismissed. The Appellant argued that the trial judge failed to apply the correct tests for determining breaches of ss. 9 and 11 of the Trade-marks Act and with respect to passing-off. The Appellant further argued that the judge erred in mixed fact and law in finding that the use of the domain name did not violate the Trade-marks Act or amount to passing-off. The Court of Appeal began its analysis by determining that because the resolution of issues raised involved the legal effect of undisputed facts, the appropriate standard of review was correctness. The Appellant submitted that so nearly resembled its mark as to be likely mistaken for it. In particular, it pointed to the fact that its official mark comprises the first and, arguably, dominant part of the domain name.

The Appellant went on to argue that its rights to the mark could not be circumvented by adding a non-distinctive word such as “advice” after its official mark, as the consumer would likely be led to believe the Appellant itself was offering advice on its business and services. The Court of Appeal disagreed, commenting that the argument failed “to give the ‘relevant consumer’, i.e. an Internet user, credit for even the most basic understanding of a domain name.” The Appellant submitted that the Court of Appeal must take care to avoid failing to differentiate the test applicable to official marks from the test applicable to trade-marks. While the Court acknowledged the difference between the tests, it found that official marks like any others serve an identification function, and it could not accept that the average Internet user would mistakenly think referred to advice provided or endorsed by the Appellant. Therefore, the Court of Appeal held that the website and the related domain names did not contravene the Trade-marks Act. The Court rejected the Appellant’s passing-off argument for the same reasons.

Vancouver Sun Interviews Eric Goodman on ICBC’s Rate Increase

Posted on by Mussio Goodman

BC Media Giant, Vancouver Sun, Interviews Mussio Goodman Lawyer on ICBC Rate Increases

As reported on the front page of The Vancouver Sun, ICBC has applied to increase rates by 5.5 per cent to cover the rising cost of insurance, so says ICBC spokesperson Adam Grossman. “Here in B.C., in 2013, our injury claims in one year were $1.9 billion. That’s up by more than $500 million from just five years ago,” stated Grossman.

While ICBC attributes the increase in accidents to distracted driving and a rise in smartphone use, ICBC also blames the rising cost of injury claims on higher legal and medical costs.

However, as explained by Eric Goodman to the The Vancouver Sun, ICBC has failed to paint the entire picture:

Vancouver lawyer Eric Goodman said that ICBC could do much more to decrease its legal costs when it comes to injury claims.

“The reason why legal expenses have risen is because ICBC is becoming less and less interested in making reasonable offers early in the litigation. The result is that these injury claims are open longer and at a far greater expense,” he said.

His firm has filed access-to-information requests with ICBC, and discovered that between 2008 and 2012 there was an increase of more than 2,000 open claims that were two years or older.

As each case drags on, Goodman said that ICBC is on the hook for medical experts and lawyers to defend their claim, as well as the injured person’s lawyer and medical reports.

According to ICBC, less than one per cent of injury claims end up going to trial, but Goodman said that figure doesn’t give the whole picture.

“Files are being kept open for five years instead of two. There’s no need to have the extra three years of having to pay costs.”

Click here to read the full article in The Vancouver Sun.

Hit and Run Accidents: What You Need to Know

Posted on by Mussio Goodman

What You Need to Know About Hit and Run Accidents

A story was recently published about a devastating hit and run collision which took place on Pacific Boulevard between Abbott and Carrall Street in Vancouver.

In the wake of this unfortunate incident, we thought it important to provide the general public with some important information for individuals who are injured in hit and run accidents.

If you are injured by an unidentified motorist, you can claim against ICBC directly for compensation under the Insurance (Vehicle) Act.  It should be noted that the law of negligence still applies in this situation. If you are clearly at-fault for the accident, you will not be successful in an injury claim against ICBC even though the other driver took off.

An example of this situation was recently provided in Ormiston v ICBC 2014 BCCA 276. Here, ICBC successfully argued that a cyclist was fully at fault for an accident which caused injury, even though the other driver left the scene and was not identified afterwards.

If you are injured by an at-fault unidentified driver, there are still some very important statutory requirements with which you must comply following the accident. The most litigated aspect in hit and run accidents is whether the Plaintiff took “all reasonable efforts” to identify the at-fault motorist. This is required under s. 24(5) of the Insurance (Vehicle) Act.

In some respects, ICBC wants you to “play detective” in finding the driver who left the scene. In certain situations, this may involve canvassing the neighbourhood in the days and weeks following the accident. In other situations, it may involve thinking quickly in the few moments after to accident to take down a license plate number. However, every situation is different and therefore “all reasonable efforts” is a sliding scale.


Legal Decision on Hit and Runs:

In Morris v Doe 2011 BCSC 253, Madame Justice Ker provided a very useful summary detailing what constitutes “all reasonable efforts” with respect to different situations under s. 24(5):

[54]         Two specific time periods are relevant under the s. 24(5) inquiry: the time of the accident and the days or weeks following the accident. If reasonable efforts could not be made at the time of the accident, e.g. due to shock or injury; a belief that the party has not sustained any injury; or the driver fled the scene before information could reasonably be obtained, the court examines the steps taken by the plaintiff to ascertain the identity of the negligent driver in the days or weeks following the accident. What constitutes all reasonable efforts is a factual issue decided on a case by case basis.

[55]         An examination of the jurisprudence on what constitutes reasonable efforts reveals the following principles:

a.       depending on the plaintiff’s condition at the scene of the accident, it may not be realistic to expect the plaintiff to obtain particulars as to the identity of the offending driver particularly where the plaintiff is in shock or confused or injured…

b.       failure to record a licence plate number at the time of the accident when the plaintiff has the opportunity to do so or obtain information as to the driver’s identity, either personally or through the assistance of others, but does not take advantage of the opportunity amounts to a failure to take reasonable steps at the time of the accident…

c.       simply notifying the police of the accident may not be sufficient to satisfy the requirements of s. 24(5)…

d.       the Act does not put the responsibility to find the unidentified driver on the police; rather the responsibility lies with the plaintiff…

e.       where a plaintiff does notify the police of the accident, it is not reasonable for them to simply assume the police will make the necessary inquiries without following up with the police and checking to see if there was an investigation and if so what progress was being made in it…

f.        simply reporting the matter to the police and ICBC, without more, has led to the dismissal of a plaintiff’s action for failure to comply with the requirement of taking all reasonable steps to ascertain the identity of the driver…

g.       where the police attend the scene of the accident and take witness statements and indicate they are investigating the hit and run accident, it may not be necessary for the plaintiff to take any additional steps, depending on the circumstances…

h.       a plaintiff placed in a position of danger at the time of the accident cannot be expected to remain in that position to obtain details of a licence plate and movement to a position of safety before trying to obtain any licence information does not constitute a failure to take reasonable steps at the scene of the accident…

i.        posting signs in the area of the accident and/or advertising in local newspapers in an effort to find witnesses within a reasonable time after the accident where the accident occurs at a busy intersection is a reasonable and expected step as it is possible that someone present at the time of the accident could be of assistance in ascertaining the identity of the driver of the vehicle that left the scene…

j.        failing to post signs at the scene of the accident or place advertisements in the newspaper in a timely manner or in a manner that provides insufficient detail where it is possible that there were potential witnesses who may have information about the accident will result in a denial of coverage under s. 24 of the Act…

k.       repeatedly canvassing regular patrons of the business where the plaintiff’s vehicle was damaged in the parking lot of the business may constitute reasonable steps to ascertain the identity of the driver…

l.        posting signs and advertising in local newspapers may not be a reasonable step where the accident occurs on a high speed area of highway or a on highway in an area that is undeveloped and sparsely populated…

m.      once it is found that a plaintiff acted reasonably in believing they had the information that would be required, such as a licence plate number, there is no onus cast upon them to undertake a highly speculative further investigation upon being advised they have the wrong license plate number…

n.       a plaintiff will not be foreclosed from pursuing ICBC as the nominal defendant in a hit and run case where they rely upon information provided by the offending driver that subsequently turns out to be untruthful…

o.       failure to follow up on directions to take additional steps such as posting signs for witnesses or advertising, once advised the recorded licence plate number is incorrect will result in a denial of coverage under s. 24 of the Act…

p.       failing to make a timely report to the police and failing to follow up on available information from the scene of the accident such as information in the possession of ambulance personnel who attended the scene will result in a denial of coverage under s. 24 of the Act…

q.       the failure of ICBC adjusters to advise the plaintiff that other steps to try and ascertain the identity of the driver should be undertaken does not relieve a plaintiff of the obligation to take all reasonable steps to ascertain the unknown driver’s identity…

If you have been injured in a hit and run accident, contact your personal injury lawyer to ensure all statutory requirements are met so your claim is not at risk of being dismissed.

ICBC Appealing Mussio Goodman Victory to Supreme Court of Canada

Posted on by Mussio Goodman

Mussio Goodman Achieves Victory in Supreme Court of Canada

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 has since sought leave to appeal the decision to the Supreme Court of Canada in Ottawa.

ICBC’s argument is that the decision was wrong and has implications across the country.

We have 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.

Should the Supreme Court of Canada grant leave to ICBC, the hearing will likely take place in early 2015.

Client Awarded $340,000 At Trial After Rejecting $83,000 ICBC Offer

Posted on by Mussio Goodman

Mussio Goodman has Obtained $340,000 At Trial for Client

We are pleased to announce that, after our client declined ICBC’s pre-trial offer to settle for $83,000, we proceeded to trial in the Supreme Court of British Columbia and obtained an award of $340,000 for pain and suffering, wage loss and medical expenses.

In July 2009, our client was rear-ended by a drunk driver at high speed and pushed into opposing traffic.  As a result of the accident, she sustained soft tissue injuries to her neck, back, and right knee.  She also started exhibiting symptoms of post-traumatic stress disorder and heightened anxiety and depression.  Aside from a brief period immediately following the accident, our client was not able to return to her job as an apartment manager.

The primary issue in this case was whether our client’s symptoms flowed from her accident or whether they flowed from her pre-accident medical conditions, i.e., whether she was a “thin skull” or a “crumbling skull”.  Our client had a lengthy history of pre-accident health concerns, including “episodes of depression, panic attacks, respiratory difficulties, high blood pressure, low back pain and injuries suffered in previous motor vehicle accidents”.  This being the case, ICBC argued that our client did not suffer significant wage loss as a result of the accident because her pre-accident health problems would have disabled her even if the accident had not occurred.


Supreme Court of British Columbia Judge Decision

Mr. Justice Smith rejected this argument, finding as follows:

Despite her pre-existing problems, the plaintiff remained functioning and employed up to the date of the accident.  There is no evidence that any of her previous problems were disabling or that they were progressing and there is no medical evidence that any of them would necessarily have done so.

In this case, the picture is that of a person who had multiple long standing physical and psychological problems by was managing to cope with them, perhaps only just coping.  I find the accident was a final blow that she could not cope with or recover from and in that sense, she was a classic thin skull.  There is no doubt that the accident caused or contributed to her current condition.

This case demonstrates the fact that the court does not always view pre-accident medical conditions as a weakness in a plaintiff`s case.  To the contrary, such pre-accident conditions are sometimes seen to make plaintiffs more vulnerable to injury and can lead to higher than expected awards at trial.

It should be noted that every case is different and that past performance is no guarantee of future results.  It should also be noted that very few injury claims require a resolution in a courtroom; in the vast majority of cases, we are able to negotiate a fair settlement with ICBC on behalf of our clients.  However, in the event ICBC refuses to make a reasonable offer, we are always prepared to take the case to trial.