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.

Mussio Goodman is pleased to announce Associate Lawyers Thomas O’Mahony and Karol Suprynowicz’s success after a two week trial in BC Supreme Court.

In Morgan v Ziggiotti, 2021 BCSC 106 the Court awarded $753,726 for injuries sustained in a December 2016 motor vehicle accident, more than five times ICBC’s final offer prior to trial.

The Plaintiff was a 28 year old lifeguard and swimming instructor at the time of the accident. The Court summarized her active pre-accident life noting:

[10]      Prior to the Accident, Ms. Morgan enjoyed extremely good health and a high level of physical fitness. She was a very athletic person who enjoyed and excelled in a wide variety of athletic activities including swimming, walking and hiking, tennis, running, horseback riding, and team sports, among others. Ms. Morgan took great pride in her athletic achievements, which she viewed as the one thing she was good at. Being an athlete was key to her identity. Physical activity was her means of coping and self-care.

As a result of the collision the Plaintiff suffered an injury to her knee. Despite her best efforts at treatment, the injury turned out to be permanent, causing her sharp pain when she attempts physical activity. She also experiences mechanical pain in her hip and lower back, which seize up. She is constantly fatigued, and has given up her life in order to manage her pain.

The Plaintiff is unable to pursue her line of work as a lifeguard as a result of the pain caused by the intense physical requirements of the work. Despite the Plaintiff’s learning disability and her reliance on her physical abilities to sustain her financially, ICBC argued that her life had not been particularly diminished by her injury, and she would not suffer much income loss in the future due to her inability to lifeguard. The Court disagreed noting:

[171]   While previous cases provide some guidance, I must assess Ms. Morgan’s damages having regard to her particular circumstances and injuries. What is most significant in her case is the loss of her athletic ability and the sense of identity that was intimately related to that ability. Through sport, she was able to overcome the shame she felt due to her learning disabilities. She was a young woman at the time of the Accident, and it has dramatically altered her life. In my view, an award of $120,000 is appropriate for pain and suffering in Ms. Morgan’s case.

…

[183]   I have already set out the expert medical evidence with respect to the impact of Ms. Morgan’s injuries. The expert evidence is clear that Ms. Morgan will, because of her injuries, never work again as a lifeguard and swimming instructor. Further, as set out in Mr. Pakulak’s report, the overall number of jobs she would be able to compete for, given her physical limitations, is significantly limited.

…

[190]   In short, Ms. Morgan’s career prospects, given her inability to work as a lifeguard and swimming instructor, her physical limitations, and learning disabilities, are very guarded indeed.

In arguing the case, ICBC relied on the opinion of orthopedic surgeon Dr. Robin Rickards. Dr. Rickards admitted that with her current symptoms the Plaintiff could not engage in the physical activity necessary to be a lifeguard. However, despite admitting that he could not be sure of his diagnosis until an invasive surgery was performed, Dr. Rickards diagnosed the Plaintiff with a condition that could be easily repaired. The Court noted Dr. Rickard’s bias, which was uncovered by an effective cross examination, and preferred the opinion of the Plaintiff’s far more experienced orthopedic surgeon, Dr. Stone:

[123]   Dr. Rickards has not performed any surgeries since the end of 2010 when he retired from his orthopaedic practice due to his own back injury. He subsequently did some training in 2014 for chronic pain management with a focus on the back and the neck, and then practiced in this area for about two years, but stopped due to a lack of patients. He retired entirely from practice in 2017 to write medical legal reports. All of his recent educational activities in the last 10 years have focused on areas other than the knee. He has not seen patients in regards to treatment for knee injuries in at least the last three years if not longer.

[124]   Dr. Rickards agreed that the more recent medical literature would be more complete than literature from 34 years ago.

[125]   Dr. Rickards was clear that he would not defer to Dr. Stone’s opinion with respect to the appropriate diagnosis. He testified that Dr. Stone in fact did not make a diagnosis, saying that knee pain is knee pain syndrome, and not a diagnosis.

 

[126]   Dr. Rickards agreed that he would defer to a psychiatrist as they have more training and experience to opine on psychiatric issues. He also agreed that someone who sees patients more often than he does has more experience than he does in treating a hypothetical injury. However, despite agreeing with these propositions, Dr. Rickards would not concede that any doctor may be in a better position than himself to opine on Ms. Morgan’s injury.

[127]   I agree with Ms. Morgan that Dr. Rickards displayed a tendency towards being argumentative and defensive in support of his opinion.

[128]   On cross-examination, Dr. Rickards admitted that he could not be sure what the diagnosis is until his recommended surgery is done. He further admitted that there are risks to surgery, and, in contrast to what he wrote in his report, that some people will actually be left in worse pain after the surgery. Despite admitting that he cannot be sure of the diagnosis, and despite noting that the symptoms of his diagnosis and that of Dr. Stone and Dr. Hershler are similar, he refused to concede that his diagnosis might not be correct.

[129]   Further, Dr. Rickards admitted that his report was at the very least incomplete. He did not include anything about Ms. Morgan stating she had a pre-existing ankle condition or any evidence of a pre-existing ankle condition in the records. Despite Ms. Morgan indicating she had no ankle complaints, he diagnosed her as needing surgery for a problem unrelated to the Accident.

[130]   In contrast, Dr. Stone, who has more relevant and recent experience and training than Dr. Rickards, provided a measured and unbiased opinion. He freely admitted that the symptoms of both his diagnosis and Dr. Rickards were similar, but noted that in terms of Ms. Morgan’s prognosis there is no reliable evidence that an arthroscopic procedure would lead to a better outcome for her.

[131]   I agree with Ms. Morgan that Dr. Rickards is not in a position to keep up with the current medical consensus on either the diagnosis or the prognosis or the outcome of his suggested surgery. This is in contrast to Dr. Stone, who is an associate professor with three clinical practices, who regularly operates on knees, and attends numerous lectures and conferences with a specific focus on the area he concentrates on in his clinical practice: knees and hips.

[132]   For all of these reasons, I prefer Dr. Stone’s evidence to that of Dr. Rickards. I accept Dr. Stone’s opinion about the appropriate diagnosis for Ms. Morgan’s knee symptoms, their treatment and likely prognosis.

This case provides a good illustration of the mentality and tactics pervasive at ICBC, which are to try to reduce payments to injured persons by minimizing the impact of injuries, and hiring biased doctors to provide them with the medical opinions they want.