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Mussio Goodman Wins BC Court of Appeal Against ICBC

Posted on by Mussio Goodman

Mussio Goodman Wins BC Court of Appeal Against ICBC for Trying to Deny Injury Compensation

We are pleased to announce that the British Columbia Court of Appeal has ruled that ICBC must compensate for the injuries sustained by our client during a bus ride back from their zip line ride.

As reported by The Vancouver Sun, counsel for our client, Wes Mussio and Eric Goodman, were successful in convincing the Court of Appeal to reverse a decision of the Supreme Court of British Columbia dismissing our client’s case against Ziptrek.

On the day of the accident, our client was returning from a zipline tour in a bus provided by Ziptrek and being driven by a Ziptrek employee. The bus veered off the road, flipped, and fell off a cliff. Our client sustained serious injuries as a result of this accident, including a broken neck. Ziptrek refused to take responsibility for their negligence, citing the release signed by our client.

But since this accident happened in a motor vehicle, and British Columbia’s Insurance (Vehicle) Act imposes a universal compulsory insurance regime relating to motor vehicle accidents, ICBC was also brought into the mix. Despite voluntarily signing Ziptrek’s release, could our client still sue Ziptrek and and receive compensation from ICBC under the Insurance (Vehicle) Act?

Mr. Mussio and Mr. Goodman said “yes”, arguing that our client only contemplated signing away her rights relating to injuries occurring on or around the zipline itself and that denying our client her rights under the Insurance (Vehicle) Act was contrary to public policy.

ICBC said “no”, even though they admitted that the accident occurred as a result of the Ziptrek bus driver’s negligence. They argued that our client had completely relinquished her rights to sue by signing Ziptrek`s release.

The British Columbia Supreme Court sided with Ziptrek and ICBC, which opened the door to various types of “mischief” flowing from the ability of private parties to contract out of their rights under the statutory insurance scheme. For instance, bus companies and taxi companies might theoretically be permitted to force customers to sign away their rights as a condition of using their services and thereby avoid liability for their negligence.

The concept of a universal compulsory car insurance regime would therefore be fundamentally undermined, since allowing people to opt out of the regime would render it neither universal nor compulsory.

However, the Court of Appeal reversed this decision, agreeing with Mr. Mussio and Mr. Goodman that it was against public policy to allow people to contract out of the universal and compulsory insurance scheme imposed under the Insurance (Vehicle) Act. As noted by Madam Justice Garson, writing for the majority of the Court of Appeal:

In my view, the ICBC regime is intended as a benefit for the public interest just as is human rights legislation. It would be contrary to the public interest and to a harmonious contextual interpretation of the legislation to allow private parties to contract out of this regime. As such, to the extent that the Release purports to release liability for motor vehicle accidents it is contrary to public policy and is unenforceable.

The Court of Appeal held that Ziptrek and ICBC are liable for our client’s injuries in the bus crash. A trial before the Supreme Court of British Columbia will be scheduled to determine how much those injuries are worth.

There is no word yet as to whether Ziptrek and ICBC intend to appeal this decision to the Supreme Court of Canada.

Court Rejects Opinion of “Biased”, “Arrogant” and “Argumentative” ICBC Doctor

Posted on by Mussio Goodman

ICBC Hired Doctor Biased Against Client Says Judge

Expert witnesses, such as doctors, who come to court to testify, do so in order to give evidence and opinion on complicated matters outside of the realm of the general knowledge of judges and juries.

The “Rules of Court” require that these witnesses give such evidence in a fair and balanced way and not advocate for either party, even if the expert was hired by one party to come to court on that party’s behalf.

In the recent case of Mattice v. Kirby, the Court found that a doctor retained by ICBC to give expert evidence crossed the line from expert to advocate.

In short, the doctor completed a cursory examination of the plaintiff and concluded he was not seriously injured and would likely recover with time. When ruling on the doctor’s expert evidence, the Court was quite critical:

[75] Dr. Keith Christian, an orthopaedic surgeon, provided an expert report for the defence and was also cross-examined at trial. Dr. Christian assessed Mr. Mattice on October 19, 2012 and issued a report the same day. Dr. Christian completed his interview and physical examination of Mr. Mattice in a total of twenty minutes, which included 16 minutes for the interview and four minutes for the physical examination. Dr. Christian did not disagree that his assessment of Mr. Mattice was very brief.

[76] During cross-examination, Dr. Christian was very argumentative and often arrogant. He stated that when asked previously by defence counsel whether he took notes of his meeting with Mr. Mattice, he advised that he did not take notes. At trial Dr. Christian admitted to having taken “scribbles”, which he said were illegible and which he destroyed after dictating his report on the day of the assessment. He said he had denied having taken notes as he had instead made “scribbles” and that no one had asked him if he had taken any “scribbles”. Since Dr. Christian admitted on cross-examination to having used his “scribbles” to dictate his report, there is little doubt in my mind that his “scribbles” were what any doctor would consider “notes” and that Dr. Christian was well aware that his “scribbles” constituted what anyone else would consider to be “notes”. His answers in this inquiry were most evasive and clearly showed a lack of willingness to be frank, open and honest with the Court.

[77] Dr. Christian’s interview and physical examination of Mr. Mattice were without question incomplete. On cross-examination, Dr. Christian admitted that he had not asked Mr. Mattice questions regarding, among many other things: the severity of the accidents of 2008 and 2009; any symptoms in his hands such as pain and “pins and needles”; whether symptoms, if there were any, were improving; bruising on Mr. Mattice’s elbow; the nature of his employment; the extent of the pain in his shoulder; and sleep problems. Dr. Christian also did not inquire about aspects of the accident that were relevant to the injuries claimed, such as Mr. Mattice’s body position in the 2009 accident and how he was impacted in the accident. In written submissions, counsel for Mr. Mattice listed 18 areas of legitimate inquiry that Dr. Christian could have pursued to provide a more informed and unbiased opinion; in my view, there were areas in addition to these 18 which Dr. Christian could have explored, but elected not to do so.

[82] In cross-examination Dr. Christian stated that there was no reason at the time for him to be having shoulder pain, that any fatigue being experienced by Mr. Mattice was “absolutely irrelevant”, that there was no reason for Mr. Mattice not to improve, and that there was no reason for Mr. Mattice to have a problem with his shoulder. He stated that, generally, in his opinion, Mr. Mattice should have been over any injuries from the 2009 accident long before the visit to Dr. Christian.

[83] In conclusion on Dr. Christian’s evidence and opinions, I have no hesitation in finding that his research was incomplete, that he was predisposed to a finding that Mr. Mattice’s injuries were either exaggerated or did not exist, and that by limiting his opinions to musculoskeletal injuries, he was not qualified to opine on the injuries which Mr. Mattice claimed to have suffered in the 2009 accident. As a result, I find the opinions and evidence of Dr. Christian to be of little or no probative value and I am left with the medical-legal opinions of the plaintiff’s expert and all other evidence to make a determination regarding Mr. Mattice’s injuries.

This case underscores the importance of remaining vigilant about the doctors ICBC often attempts to assign to our clients. We strive to oppose examinations involving doctors with a history of bias, and should a claim proceed to trial, we ensure that their bias is properly brought to the Court’s attention.

“Diminished Home-Making Capacity” Results in Court Award of $20,000

Posted on by Mussio Goodman

A Home-Maker Receives Compensation in Court for Loss of Capacity

A claimant may also be entitled to a court award for “diminished home-making capacity”, in addition to compensation for lost wages, pain and suffering, and treatment expenses.

This was the case in Savoie v. Williams, in which a Plaintiff suffered injuries to her back and neck in a motor vehicle accident. While her injuries caused her to miss a minimal amount of time from work, she struggled to perform her daily household activities following the incident.

ICBC insisted that there should be no award because there was no evidence that the Plaintiff was completely disabled from performing her household tasks.

The Court rejected ICBC’s argument, and awarded $20,000 under this particular head of damage, which follows:

[51] .…In this case, Ms. Savoie expended considerable energy, and took great pride, in maintaining her home and yard, in cooking, and in keeping vehicles clean…

[52] I agree with [ICBC] that Ms. Savoie can do some, perhaps a great deal, of what she could do before the accident. The fact remains that she is impaired in her ability to do those things she did previously without restriction. I find that as a result of the injuries she suffered in the accident that she is no longer the person described by her son as “super mom”…

[55] The plaintiff here led no evidence by which any of the household services can be valued, on either the replacement cost or opportunity cost approach… The plaintiff has not hired anyone to perform household tasks that she would have performed if not injured.

[56] I note that in Rezaei v. Piedade, the court accepted $15 per hour as a value of lost housekeeping capacity, partly because it had been used as a measure in earlier decisions, but also because it accorded with evidence in that case of what a witness paid for similar services..

[57] I find that Ms. Savoie was initially unable to perform some household tasks. I find that she has recovered some of her ability to do household tasks but with some difficulty and some adjustments to accommodate her changed physical abilities…

What this case shows is that an individual does not need to incur a monetary loss in the workplace in order to show a monetary loss at home.

It also indicates that the evidence from lay witnesses is a key component in proving a diminished home-making capacity claim. In this particular situation, the Plaintiff’s son was able to confirm the reduction in his mother’s ability to maintain the household post accident, which proved vital to the case.

Wes Mussio Featured in Lawyers Weekly

Posted on by Mussio Goodman

Lawyers Weekly Recently Featured Mussio Goodman Lawyer

As previously discussed, injured claimants must take reasonable steps to restore themselves to their pre-accident condition, which includes following the advice of their doctors.

In the trial of Warner v. Cousins, the judge found that the Plaintiff failed to mitigate her damages and reduced the award as a result.

The decision was appealed to the Court of Appeal, the result of which was profiled along with our lawyer Wes Mussio’s views in the publication Lawyers Weekly.

The Court of Appeal found the trial judge made “overly specualtive assumptions” about the Plaintiff and failed to provide adequate reasoning in reducing the award. The result is that the trial judge’s decision was overturned and a new trial was ordered.

Asked to comment, Wes Mussio stated that the finding is consistent with recent case law, which has established a clear criteria for establishing a failure to mitigate:

The trial judge also has to set out exactly why there is a reduction, which she didn’t do.
Usually appeals are pretty tough to win but this sort of sets the boudaries that there’s some hope if the judge speculated or didn’t have evidence to support a certain assertion.
It’s a very helpful case, for sure – very plaintiff oriented.

Mussio Goodman Prevents ICBC Doctor Examination of Our Client

Posted on by Mussio Goodman

The Supreme Court has prevented ICBC from Unfairly Examining Our Client

As previously discussed, there are two ways ICBC can compel an injured claimant to attend an examination by a doctor of ICBC’s choosing. The first is pursuant to a claim for Part VII or “no-fault” benefits, whereby a claimant is receiving reimbursement for treatment expenses or ongoing wage loss, regardless of who was at fault for the accident.

The second is in response to a tort claim; that is, after a plaintiff files a lawsuit against the other driver.

The law generally prevents ICBC from compelling a plaintiff to attend an examination by a doctor of the same specialty more than once. To do so would allow ICBC to “doctor shop”, or in other words, to send a claimant to, for instance, several orthopaedic surgeons until ICBC finally receives a medical report that serves their interests.

In Lee v. Ching, ICBC sought a court order to send our client to an examination with a second orthopaedic surgeon, Dr. Sovio. ICBC argued that the first examination with orthopaedic surgeon Dr. Yu was only with respect to the no-fault benefits claim and not the lawsuit, and it therefore did not count towards the “one doctor per specialty” rule.

We argued that since Dr. Yu’s report had already comprehensively addressed the medical issues with respect to the lawsuit, a subsequent assessment with Dr. Sovio was not necessary to establish equality between the parties.

We further argued that Dr. Yu’s conclusions were substantially similar to that of our own expert, Dr. McGraw, and that while it’s unfortunate for ICBC that Dr. Yu’s opinions were not as helpful as ICBC would like, this is not a reason to order another assessment.

Master Baker of the Supreme Court accepted our submissions, dismissed ICBC’s application, and awarded costs in our favour.

Mussio Goodman Wins Third Consecutive WCB Tribunal Decision Against ICBC

Posted on by Mussio Goodman

Mussio Goodman Wins Against ICBC in Court

As previously discussed, when an injured motorist first informs ICBC of the accident, one of the questions they may be asked is whether they were working at the time of the collision. The reason is, if both drivers involved in the accident were “workers” as defined by the Workers Compensation Act, there can be no injury claim against ICBC; rather, any compensation must be sought through WCB instead.

This is an unfavorable situation to the injured person, as the WCB regime does not provide any compensation for pain and suffering, and only limited reimbursement for lost wages.

Naturally, given the chance, ICBC will argue that a claimant was working, or performing some sort of work related activity, to avoid having to pay out. This was the situation in our recent case of Quillen v. Linnea.

In January 2011, our client was a subcontractor working construction for the defendant, a sole proprietor who was also an old friend. On the morning of the accident, our client agreed to meet the defendant outside his personal residence so they could travel to the jobsite together in one vehicle.

Our claim alleges that in the course of transferring his personal belongings from his own vehicle into the defendant’s truck, our client was run over by the defendant.

ICBC argued that our client should be prohibited from pursuing an injury claim because both he and the defendant were working at the time of the accident. In particular, ICBC submitted that our client attended the defendant’s residence at the direction of the employer, that the Defendant’s truck was a “crew bus”, and that transportation to the worksite was within the scope of our client’s employment.

On behalf of our client, Eric Goodman argued that our client’s longstanding friendship with the defendant must be considered. Our client did not rely on the defendant or his alleged “crew bus” for transportation to work, nor was it a part of the employment contract; rather, our client’s acceptance of rides in the truck was more akin to a carpooling arrangement between two friends who also happened to work together.

The WCAT tribunal agreed:

[67] In particular, I note [the defendant’s] answer to the questions about why he and the plaintiff would ride together in [the defendant’s] truck, since the plaintiff had his own vehicle. [The defendant] stated: “We were going to the same job.” This suggests an arrangement of convenience…

[68] In addition, the evidence does not support the defendants’ argument that the plaintiff reported to the meeting place at the defendant’s residence as a result of instructions from the defendant…

[69] I find that the evidence is more consistent with a ride-sharing or carpooling arrangement between workers than with the plaintiff reporting to an assembly area of the employer’s premises with the purpose of continuing to the work site in transportation provided or arranged by the employer.

With this result, our client is now entitled to pursue his ICBC claim for pain and suffering, lost wages and out-of-pocket expenses resulting from severe orthopedic injuries he sustained in the accident.