Court Awards Over $720,000 to Injured Motorcyclist Client

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Mussio Goodman is thrilled to share our recent success in Farrugia v. Bailey, 2023 BCSC 81, where the Court awarded over $720,000 to our client who suffered injuries while riding a motorcycle.

The awarded damages included $200,000 in non-pecuniary damages (pain and suffering), $80,000 for past loss of earnings, $250,000 for future loss of earning capacity, and $180,447.66 for costs of future care.

Our client suffered serious orthopedic injuries in the accident to his dominant right wrist and thumb, as well as his right leg and ankle that required him to undergo multiple surgeries.

A contentious matter in the trial was the manner in which our client should be awarded damages for potential future surgeries as well. The expert opinions identified the likelihood of future fusion surgeries in Mr. Farrugia’s wrist and ankle, and Mussio Goodman sought compensation for the periods after surgery when he would require additional cleaning assistance and rehabilitation.

ICBC argued that because our client was already going to be awarded a significant amount by the Court for future cleaning assistance ($45,000) as well as future physiotherapy ($22,000), massage therapy (15,000), and active rehab ($2,880) sessions, any cleaning services or rehabilitation needed after future surgeries were already being provided for. Instead, the Court agreed with our submissions that separate, additional awards be given to our client on the basis that his need for cleaning assistance and rehabilitation in these periods after surgery is bound to be more intensive.

Another contentious issue at trial was whether our should be awarded compensation for future marijuana purchases to help with his recovery even though he was already a regular user before the accident and arguably would have paid for the products even if he did not get injured. ICBC emphasized these points and argued that future purchases would not be because of our client’s injuries but due to his regular usage in any event.

Mussio Goodman argued that, after the Accident, our client forwent other medication in favor of marijuana products specifically because he found them the best remedy for his pain. Again, the Court agreed and made separate, substantial awards for marijuana ($10,000) and CBD oil ($25,000) as part of the costs of future care.

This case is an example of the precise attention to detail and outside-the-box thinking Mussio Goodman employs to open more avenues for compensation and maximize the overall award for our clients. Mussio Goodman takes pride in meticulously examining the particular circumstances and needs of each of our clients and finding creative solutions to persuade the Court to take them seriously and award our clients accordingly.

Court Awards Our Client Five Times More Than ICBC’s Offer Before Trial

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Mussio Goodman is delighted to declare our recent accomplishment after a ten-day trial in BC Supreme Court. In Mak v. Blackman, 2022 BCSC 931 the Court awarded our client $445,489, more than five times the $80,000 that ICBC had offered our client for injuries our client sustained in two accidents occurring June 2018 and March 2019.

Our client was a 43-year-old wife and mother of two young children. She was also a business analyst at Central 1. Addressing her injuries, the Court stated:

[140] Ms. Mak has suffered soft tissue injuries to her neck, shoulders, low back, and wrist. Her pain is flared from lifting, household chores, hiking, kayaking, badminton, running, and is worse when she attempts to do computer work for long hours. It is hard for her to sit for long road trips or flights. The pain wakes her up at night, and her sleep is not refreshing. The pain and sleeplessness is a cycle.

The expert physiatrist for ICBC claimed that our client’s limitations resulted from being scared of getting hurt and argued that pain has to be actively injuring a person further before they can limit their work or social life. The Court made short shrift of this argument as follows:

[94] Dr. Acharya’s opinion on the relationship between pain and limitations would lead to the conclusion that a person who has chronic pain syndrome must endure constant flare-ups of pain at a significant detriment to their quality of life simply because they are not further damaging their muscles and ligaments. With respect, this conclusion cannot be correct. While pain is undoubtedly subjective, it is real and the effect it has on people’s lives cannot be ignored. It is reasonable to expect an injured person to engage in activities, even where they cause some pain. It is not reasonable to dismiss the impact that pain can have entirely.

Moreover, this expert’s apparent bias was exposed during cross examination. The expert first insisted our client’s wrist injury was not caused by the March 19 accident, but when cross examined and presented with the clinical records of our client, he conceded it was indeed possible:

[97] … Dr. Acharya explained that he sees patients with wrist injuries, including TFCC tears, frequently. In his opinion, Ms. Mak’s TFCC tear was not caused by either of the Accidents. He based this conclusion, in part, on his view that an individual suffering a TFCC tear arising from a physical trauma would report pain shortly after that trauma and he did not believe that Ms. Mak had done so. However, on cross-examination, Dr. Acharya acknowledged that there were indications in the clinical records following the Second Accident that showed symptomatology that either could or did show right wrist symptoms related to a TFCC tear. Ms. Mak also told Dr. Acharya this but he seems to have disregarded it and he provided no explanation for having done so.

However, later in the cross examination, the expert fell back to his earlier stance of asserting the accident didn’t cause the injury, refusing to acknowledge what he had just earlier admitted to. He revealed the weakness of his position and contradicted himself in the process. The inconsistency of the expert’s testimony was observed and not viewed favourably by the Court:

[99] … Dr. Acharya’s reluctance to concede the possible link between the Second Accident and the wrist injury after being shown the clinical records indicating that Ms. Mak reported pain shortly after the accident is troublesome. […] I give Dr. Acharya’s opinion with respect to Ms. Mak’s wrist injury little weight.

Mak v. Blackman is indicative of how ICBC’s experts can call into question their own supposed role of being “independent”. They can make irrational and biased arguments in order to diminish an injured person’s compensation. These arguments can be disassembled with conscientious and incisive cross examination. Mussio Goodman is very experienced in knowing what to expect from ICBC’s experts and will make sure that our client’s case is safeguarded from those who seek to taint it.

 

Court Awards Our Client $750,000 After She Rejects ICBC’s $60,000 Offer Before Trial

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Mussio Goodman is pleased to announce our recent success after a six-day trial in BC Supreme Court. In Montazamipoor v. Park, 2022 BCSC 140 the Court awarded over $750,000 for injuries our client sustained in a July 2018 accident, far exceeding ICBC’s $60,000 offer before trial.

Our client was a 35-year-old mother of two young children, for whom she was the primary caregiver. She was also working part-time in an immigration firm while studying for her real estate license. Regarding her injuries, the Court stated:

[4] There is no issue that the accident caused an injury to Ms. Mansouri’s left neck and shoulder, extending to numbness in her left fingers associated with compression of her ulnar nerve. The cause of the injury and the nerve impingement is myofascial and, while there has been some improvement in her condition, the defendants do not challenge the independent medical evidence that her prognosis for further improvement of these injuries is guarded.

ICBC attempted to play down the impact the injuries have had on our client’s life. They argued that she and her lay witnesses “may have “embellished” the extent of her injuries”. The Court rejected this argument as follows:

[13] I find that Ms. Mansouri did not overstate her injuries; to the contrary, her evidence and the evidence of Dr. Squire establishes that Ms. Mansouri has, from the outset, approached her injuries as temporary ones that can be overcome with exercise and diligence, despite their persistence. She readily described where she has improved and which injuries bothered her less. My overall impression from her testimony is that Ms. Mansouri feels some shame with respect to her post-accident condition, and has worked hard to overcome it.

Furthermore, the Court took issue with ICBC’s reliance on their expert who did not assess our client but merely criticized our own occupational therapist’s opinion:

[53] … I find that I can place only very limited weight on Ms. Branscombe’s opinions. Although she testified that she was not providing her own opinions and merely pointing out potential pitfalls in Mr. Kowalik’s conclusions, those potential pitfalls frequently amount to nothing more than questions about whether Mr. Kowalik took certain factors into account. She acknowledges that Mr. Kowalik may well have considered all of the questions she raised, and that much of her critique amounts to seeking clarity around questions that may well be addressed in the report already.

This case is illustrative of the value of effective experts and provides a good example of the types of unreasonable positions ICBC will take in order limit an injured person’s compensation. The speculative and biased arguments frequently made by ICBC can be overcome with a competent, honest, and fair medical expert. Mussio Goodman is well-versed in dealing with ICBC’s experts, and can ensure that the most effective voices are before the court to present a fair case for any client.

Court Awards Our Client Almost Triple What ICBC Offered Before Trial

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Mussio Goodman is pleased to announce Associate Lawyer Thomas O’Mahony’s success for his client after a 5 day trial in BC Supreme Court. In Tompkins v Meisters, 2021 BCSC 2080 the Court awarded approx. $710,000 for soft tissue injuries sustained in a June 2017 accident, close to triple what ICBC offered prior to trial.

The Plaintiff was a 49 year old mother of two and full-time care aid, looking after the elderly. As a result of the Accident the Plaintiff was rendered disabled from her work and social life:

… Her most significant injury is to her right shoulder. She is right‑hand dominant. She has reduced range of motion in both her shoulder and neck. She suffers from chronic pain.

[15]      Ms. Tompkins’ shoulder is aggravated by many activities, such as washing the dishes, vacuuming and pruning in her garden. She has experienced some improvement in her shoulder since the Accident, but she remains in constant pain. As a result of pain on the right side of her body, in particular her shoulder, she has disrupted sleep. The activities of daily living, such as bathing, dressing and washing her hair, are adversely affected by her shoulder injury. The pain radiates down her arm and up her neck, causing numbness in her right ring finger and thumb. She also has low back pain on the right side, which radiates down her right leg.

[16]      Ms. Tompkins feels fatigued, sad, hopeless and depressed. She has gained over 60 pounds of weight since the Accident, which she finds embarrassing and limits her activities. She has withdrawn from most social activities. Ms. Tompkins’ relationships with her family have suffered. She feels she is no longer the mother her children deserve. She is irritable and fatigued, and unable due to pain to be physically intimate with her husband. She feels dependent on her family for everything.

[17]      As a result of her inability to work since the Accident, Ms. Tompkins’ family has experienced significant financial hardship, which has been hard on her and her husband. For a period of time, they were in danger of losing their home, and have had to use all of their RRSPs and Mr. Tompkins’ inheritance from his father to pay their bills.

In an attempt to argue the Plaintiff’s compensation should be reduced, ICBC argued that the Plaintiff should have attended more treatment than she did despite her financial inability to do so. That the Plaintiff should be penalized for a lack of money was not an argument the Court allowed:

[49]      Considering the evidence on this issue, I find that the defendants have not met their burden of establishing that Ms. Tompkins acted unreasonably in not attending physiotherapy until 2019. She had attended a physiotherapist three times in the months immediately after the Accident, and had not found it beneficial. She did receive some massage therapy, which she found beneficial. She reasonably acted on Dr. Wilson’s advice in declining active rehabilitation in March 2018 until she had received sufficient physiotherapy.

[50]      Given the dire financial situation the Tompkins found themselves in as a result of Ms. Tompkins’ inability to work, they could simply not afford the $40.00 per visit up front fee they would have had to pay at the physiotherapist approved by ICBC in March 2018. As mentioned, there is no evidence as to when the $750.00 advance was provided, but whenever it was provided, it would not have gone far in paying for therapy and medications. If it was used to pay other bills, I cannot find that the Tompkins acted unreasonably in doing so.

This case provides a good example of the types of unreasonable positions ICBC will take in order limit an injured person’s compensation. Mussio Goodman will make sure the Court understands the full story and fight to ensure our clients are made whole.

Mussio Goodman Successfully Defends ICBC Appeal of Our Client’s $1.5M Award

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Mussio Goodman lawyers Eric Goodman and Thomas O’Mahony successfully defended an ICBC appeal of our client’s $1,542,866 award for future loss of earnings.

In the original decision McColl v Sullivan, 2020 BCSC 137, the judge agreed with our submissions that the female plaintiff’s future loss of earnings should be calculated using male labour market statistics. The male statistics increased the award significantly, by about $300,000.

In arguing that the male labour market statistics were more appropriate, we noted that the plaintiff was working as a film editor, work for which there is no statistical difference in pay between male and females. Our client also intended to work full time for the rest of her career, with or without children. Recognizing that female statistics factor in the likelihood that a female would be paid less than a male or would take more time off than a male for family formation, we argued that this would visit unfairness on the plaintiff.

ICBC appealed, arguing that the judge erroneously applied male labour market statistics to a female as a blanket principle, and that female statistics were more appropriate given the evidence.

We argued that the trial judge clearly applied a cautious, individual approach, and that her finding of fact was well supported by the evidence and should not be disturbed.

The Court of Appeal essentially held that it was unclear from her reasons for judgment how the trial judge settled on male multipliers, and remitted the issue back to her for clarification and to assess the overall fairness of the award.

We then reappeared before the trial judge, who dismissed ICBC’s arguments and affirmed the original award, while also awarding costs against ICBC for the hearing.

We are proud of our client’s resolve and grateful for the trust she put in us to see this case through to the right result.

 

Mussio Goodman Goes 4 for 4 at Trial in One Month: Court Awards Our Client Four Times ICBC’s Final Offer

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It seems clear to us that ICBC’s recent litigation strategy is to offer far less than what claims are worth, with the expectation that injured victims will feel pressured into settling rather than go to trial. Perhaps this works with some claimants, but at Mussio Goodman, we encourage our clients to fight for what’s fair, even if that means having to do the hard work of taking their case to the BC Supreme Court.

Given our track record, we know the hard work pays off. You can find our three previous trial decisions in the last month here and here, and now, Mussio Goodman is pleased to announce our firm’s latest success in the BC Supreme Court. In Debruyn v. Kim, 2021 BCSC 620, the Court awarded our client $380,375, over four times what ICBC offered prior to trial.

Our client was a 31-year old single mother with a passion for personal fitness and exercise who was trying to start a career as a personal trainer after raising her child alone and recovering from a debilitating stroke in her early 20s. The accident rendered our client a shell of herself, suffering physical injuries including a tear in her shoulder, as well as PTSD and an exacerbation of a previously under-control panic disorder with agoraphobia. She became terrified of leaving her house, requiring hours of preparation to take her daughter to school – a 10 minute drive from her home.

ICBC challenged our client at trial, arguing that that the plaintiff was neither credible nor reliable. The court dismissed this argument, noting:

[111] The plaintiff was a very good witness. She was forthright, sincere, careful, and steadfast in her evidence. She did not attempt to embellish or exaggerate her symptoms or limitations. If anything, she tended to downplay her abilities before the Collision and enhance them after the Collision. Her genuineness as a witness was bolstered by her demeanour throughout, particularly during cross-examination. The truthfulness of her evidence was repeatedly borne out on cross-examination. She fully explained what appeared to have been inconsistencies between the clinical records and her evidence in court. She was undeniably a balanced, authentic, and sympathetic witness whose evidence I have no hesitation accepting in its entirety as credible and reliable.

Aside from challenging our client’s credibility, ICBC also sought to argue that her symptoms and limitations were due to her pre-existing health issues. They also sought to make her miscarriage and the termination of her pregnancy as a focal point of the trial by arguing those were the cause of her psychological symptoms rather that the accident. This was rejected by the court, which noted:

[116] Despite these pre-existing physical and psychological issues, the plaintiff was physically functional and active, in a positive place psychologically, and was motivated to become a certified fitness instructor.

[119] I do not accept that the plaintiff’s post-Collision miscarriage and pregnancy termination were intervening events that contributed to the psychological issues she is currently experiencing. Although there is no doubt that these events were depressing events for the plaintiff, as they would be for any person, her PTSD and other psychological issues had manifested long before these events occurred. The defendant has failed to establish that these events warrant a reduction in the plaintiff’s damages award.

Due to the complex physical and psychological nature of our client’s symptoms, a host of doctors and other medical experts provided evidence about our client’s condition. The court lauded three of our experts in particular, noting:

[103] Drs. Syal, Helper, and Muir were impressive witnesses who gave their respective evidence in an entirely objective and helpful manner. Indeed, each was the epitome of an expert who both understands and demonstrably carries out his role in the proceedings, namely, to assist the court rather than to advocate for one party or the other. I accept their opinion evidence, as supplemented by their oral testimony, without qualification. Dr. Muir, in particular, was a breath of fresh air in the atmosphere of medical expert evidence typically heard by this court in personal injury litigation. He was genuinely focused on what can and should be done to help the plaintiff through her problems. His candid evidence was both helpful and appreciated.

ICBC’s next line of argument was that the Plaintiff failed to mitigate her injuries but not undergoing a recommended shoulder surgery in 2018. While the experts agreed that an earlier surgery had a higher likelihood of success, they also noted it was necessary to reduce the swelling in her arm first. More importantly, they also acknowledged that her psychological symptoms presented a significant barrier to her treatment. The court acknowledged this, noting:

[171] I find that the plaintiff understood and appreciated the advice of her medical practitioners to undergo cortisone injections followed by arthroscopy labrum repair to her left shoulder. However, I accept the evidence of Dr. Muir that the plaintiff’s failure to engage in these treatments was likely neither deliberate nor voluntary, but rather the result of her being psychologically incapable of following the advice due to her Collision-related PTSD on top of her pre-existing panic disorder.

This case is illustrative of the value of effective experts. The speculative and biased arguments frequently made by ICBC and seen here can be overcome with a competent, honest, and fair medical expert. Mussio Goodman is well-versed in dealing with ICBC’s experts, and can ensure that the most effective voices are before the court to present a fair case for any client.