Following a five-day trial, Mussio Goodman was successful once again. In Omerovic v. Merced, 2023 BCSC 727, the BC Supreme Court awarded our client $266,000 for injuries sustained in a June 2016 accident, almost five times more than ICBC’s $60,000 offer prior to trial.

Our client was 28 years old at the time of the accident, and she continued to experience pain and limitation in all aspects of her life since. Unfortunately for our client, after her family doctor retired, she was unable to find another family doctor to take her on as a patient since she had an open ICBC claim. Since our client couldn’t find another family doctor, she was unable to get referral notes to attend treatment. ICBC attempted to use this to discount our client’s award for injuries by arguing that she failed to mitigate her injuries by not seeking treatment. The court rejected ICBC’s argument.

Our client, even while experiencing pain, pushed through her limitations to complete her work duties and maintain her lifestyle as best as she could since she did not want to be considered a burden to her family and friends. ICBC again tried to discount our client’s injuries by arguing that she was not as injured because she was able to push through her pain. The court rejected this argument as well and stated:

[60] In short, Ms. Omerovic has a stoic disposition and I must bear in mind the principle that her willingness and ability to push through the pain should not count against her, in the assessment of fair compensation for her injuries.

ICBC advanced an argument based on cases completely different on their facts. The Court agreed with our client, stating:

[75] The cases cited by the defendant are unhelpful. Lowney, Bischoff and Thorson involved plaintiffs who suffered less consequential injuries. Notwithstanding her injuries, Ms. Lowney remained an enthusiastic international traveller. Ms. Bischoff had achieved close to a full recovery. Ms. Thorson described her injuries as an inconvenience and her long-term prognosis was good […]

This case is illustrative of the unrealistic arguments that ICBC uses to downplay a person’s injuries to limit the compensation they deserve, and the unreasonable tactics that ICBC uses to force injured persons to take lower compensation before trial.

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.

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.

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.