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Court Awards Our Client $729,457 in Complex Injury Case

Posted on by Mussio Goodman

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

In Gill v Borutski, 2021 BCSC 554 the Court awarded $729,457.13, significantly more than what ICBC offered prior to trial for a very complex case. Prior to the collision the Plaintiff was a physically and psychiatrically vulnerable person, having been diagnosed with fibromyalgia. However, the Court found that she was also high functioning, “fully employed and fully engaged with family and friends, almost all of whom were unaware of her physical complaints”.

As a result of the collision the Plaintiff suffered soft tissue injuries, which resulted in her psychiatric health deteriorating:

[41]      In the accident, Ms. Gill suffered soft tissue injuries to her back and shoulder, giving rise to headaches and back and shoulder pain.  She was a vulnerable personality who came to believe that she had also suffered neurological injuries. This sent her into a downward spiral of unsuccessful treatments and anxiety concerning her treatments, which led her to subjectively experience further symptoms. She became focused on her treatment, and the focus made her worse.  As Dr. Travlos puts it:

The result now is that her entire daily being is focused on her symptoms and she in turn is highly focused on every aspect of her symptoms, obstructing her recovery.

ICBC argued at trial that the Plaintiff’s predisposition to injury would have led to her condition deteriorating regardless of the collision. Thanks to the evidence assembled by the team at Mussio Goodman, the Court made short shrift of this argument:

[48]      I am not persuaded that there is a real and substantial possibility that Ms.  Gill’s condition would have deteriorated in any event.  In September 2017, her condition was stable.  She seldom missed work and was not complaining to her family and friends.  It is highly unlikely that her condition would have deteriorated spontaneously, without a trigger of some kind, such as a motor vehicle accident.  I should not take into account the possibility of a trigger in the form of an event caused by the negligence of a third party.

[49]      I find that the accident was the cause of Ms. Gill’s injuries and her damages should not be discounted by reason of her predisposition to injury.

ICBC also argued that the Plaintiff’s presentation was not credible, and that the Court should deny her compensation on that basis. The Court noted that it was more complicated than this, and pointed out that her presentation was actually a part of her condition:

… One of the physicians, Dr. Gillian Simonette, remarked on a disconnect between Ms. Gill’s complaints of pain at a very high level (at 9 on a 10 point scale) and her apparent presentation.  Some of this correlates with the psychiatric diagnoses that offer the best explanation for her current condition.

This case provides a good example of how sometimes a person’s physical and psychiatric health can very impacted by an accident in complex ways. An insurance company will always want to boil the case down to the most basic and simplistic terms, and will point to any cause for an injured person’s condition other than the accident. Mussio Goodman will ensure that the full story gets put before the Court.

 

 

Court Awards Our Client $753,726, Five Times More Than ICBC’s Offer Before Trial

Posted on by Mussio Goodman

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.

The NDP Government is Attempting to Help ICBC by Limiting Expert Reports and the Amount Paid by ICBC for Disbursements

Posted on by Mussio Goodman

On February 11, 2019, the NDP, through the Attorney General (David Eby), unilaterally changed the Rules of Court without the usual consultation with the Rules of Court Committee, a committee which is made up of lawyers and judges jointly appointed by the Chief Justice and David Eby. They did not consult the TLABC (Trial Lawyers Association of BC) either. He no doubt listened to ICBC on how to give them an unfair advantage.

The new Rule limited the use of quantum expert reports to one only if the case in under Fast Track Litigation, a program put in place to streamline trials that can be heard in 3 days and/or are under $100,000 in value. All non-Fast Track actions have a limit of 3 quantum expert reports.

The constitutionality of the Rule change went before the Supreme of British Columbia and the NDP’s Rule change was found to be inappropriate and struck down, rightfully so. Do you think that David Eby and the NDP accepted fate and realized that this was a poor decision? Absolutely not because they are now attempting to put in legislation, just before the election was called, to do exactly what the court already said was not proper. This time, rather than using the Rules of Court, they are attempting to put forward the changes through the Evidence Act but they gave a little bit more discretion for the Court to grant orders allowing more than the one or three expert reports in special cases. Thankfully, there is hope that the new legislation will not become law if the NDP lose the election as the BC Liberals will definitely not put in this draconian legislation as it is simply unfair to the injured victim and is completely in favour of ICBC.

The interesting point is that when the NDP originally made the Rule amendments, they were effective immediately on experts reports that had not already been formally served on ICBC. In the result, this was a major “blindside” to lawyers and their clients especially since tens of thousands of reports on existing files still had not been served on ICBC because many lawyers tend to serve the reports closer to the 84-day service deadline before trial for tactical reasons.

Not to be outdone, the NDP, when the proposed change to the Evidence Act in February 2020, did the same “blindside” rather than speaking to all affected parties and coming up with a reasonable solution to the high cost of expert reports.

Backing up, the NDP’s rational for the Rule change is there would be a $400 million yearly cost saving to ICBC with the dramatic curtailment of expert reports. The cost savings, as the NDP government sees is it, not results from less expert reports per case but also, with the limited number of expert reports, most injured claimants won’t be able to fully prove their case meaning ICBC has to pay less per claim. Indeed, ICBC routinely tells injured victims that they cannot pay for certain parts the claim because there’s no expert opinion evidence on the point. You can be rest assured ICBC will use that limit on expert reports to their significant advantage in defending claims.

That wasn’t enough to give ICBC unfair advantage. The NDP went one step further and is proposing to limit the amount of disbursements that ICBC has to pay back to the injured victim to 5% of the settlement value of the claim.

Currently the law is that, generally speaking, ICBC has to pay any reasonable disbursements to the injured victim upon settlement or judgement. This change will dramatically reduce the amount ICBC has to pay back on disbursements of the injured claimant. It will also reduce the size of the overall claim because again, if the injured victim has to pay for expert reports, they would be less inclined to spend the necessary money to fully prove the claim.

There’s no question, therefore, the NDP government is more the prepared to put one-sided legislation into effect that will severely restrict an injured victim’s ability to get fair compensation while completely empowering ICBC.

Fortunately, if the NDP government lose power in the election, the legislation will not go through and fairness will return in the ICBC claim process.

Simply put, the NDP is going to great lengths to completely empower ICBC as an even more powerful corporation with all the Rules in their favour. The NDP does not care one bit about the injured victim and has no problem eliminating rights.

Court Awards Our Client $280,000 at Trial, Six Times More Than ICBC’s Offer

Posted on by Mussio Goodman

Mussio Goodman is proud to announce our recent victory in in the BC Supreme Court, in which our client was awarded over $280,000.

ICBC offered her $47,000 before trial, forcing her to take her case in front of a judge.

In Cox v Acapulco 2020 BCSC 1135, Mr. Justice Walker sided with our client, a 57-year-old woman who moved to Canada 36 years ago. She was involved in two accidents, one in May 2015 and the second in July 2016. As a result, she suffered numerous injuries to her neck, back, and shoulder, which significantly impacted her ability to live her life and work. While she tried to maintain her ambitious work schedule, her continued requests to her employer for support caused her to be dismissed from her company.  She used her sterling reputation in the industry to obtain a few subsequent jobs, but each proved too much in light of her injuries and pain. She ended up assisting one of her daughters with a uniform company start-up, providing contacts and valuable insight from her years of experience in the industry.

Before the accidents, our client was energetic, physically active, organized, motivated, well-liked, and cheerful before the accidents. She was a proud single mother, raising 4 children on her own while building up a lucrative career as a salesperson. She was actively involved in her temple and went salsa dancing 4-5 times per week. However, her life was drastically changed following these accidents. She suffered injuries to her neck, back, and shoulder, as well as myofascial pain syndrome and tension headaches. She was no longer able to live the full, rich life she previously led.

In response to our claim for fair compensation for our client’s injuries and limitations, ICBC levied a series of arguments against our client, all of which Justice Walker rejected. The case was marked by a clear pattern of us providing concrete evidence of our client’s injuries and limitations, and ICBC countering with arguments that lacked any evidentiary basis.

ICBC primarily argued that the accidents merely exacerbated some pre-existing conditions. This argument was based on a handwritten clinical note from a chiropractor, an incident where our client was prescribed pain medications several years before the accidents, and the testimony of our client’s friend about when our client stopped dancing. Justice Walker dismissed this argument as speculative, noting that ICBC did not verify the chiropractic record with the chiropractor or our client, the client’s family doctor advised those pain medications could have been prescribed for any number of reasons, and that the friend was confused about dates and was therefore unreliable in this regard. Justice Walker concluded:

Thus, there is no evidence to establish the defendants’ theory that Ms. Cox suffered from pre-existing injuries or symptoms at the time of the First Accident…

There is also no evidence to establish a measurable risk or a real and substantial possibility (as opposed to speculation) that any of Ms. Cox’s pre-First Accident neck or back stiffness would have manifested as an injury in future absent the Accidents. Nor is there any evidence to establish that the injuries she sustained in the Prior Motor Vehicle Accident were aggravated or contributed to the injuries she sustained in the Accidents.

In this case, because ICBC was unwilling to consider our client’s reasonable offer, the corporation will likely end up paying twice the costs for going to trial. This is indicative of the widespread unreasonableness that permeates ICBC. Having to pay double costs provides a measure of accountability where ICBC refuses to make fair offers to injured persons. With the newly passed “no-fault” legislation coming into force next year, this accountability will be gone, giving ICBC free-reign to treat accident victims even more unfairly than it already does.

Am I Going to Receive an Inheritance?

Posted on by Mussio Goodman

When an individual passes away, anyone close to that individual will rightfully wonder if they are a beneficiary under the will

We’ve all heard of stories where certain family members or friends refuse to provide information on whether or not there is a will, who the beneficiaries are under the will and/or what the estate assets are that will be distributed eventually. The reason for not providing information is usually on the misconception  that one can holdback information about an estate from potential beneficiaries. Such is not the case.

Wills are private documents so they can be found in a safe, a file folder or a drawer at a deceased’s home rather than at a lawyer’s office. The original is needed to avoid any potential fraud associated with the will. There is a will registry run by the Vital Statistics branch of the provincial government but that registry simply notes that a will was prepared. The registry does not hold copies of the will. Often, a will is not registered especially if the will was drafted by the deceased or by a party other than a lawyer. Generally speaking, lawyers will register the will although there is a fee for doing so and some clients don’t want to spend the extra money to register the will.

If there is a will, the individual that’s named as the executor is supposed to apply for probate in a timely manner. If you’re a beneficiary or potential beneficiary under the will then you should be getting notice from the executor about the application for probate. If you don’t receive notice within a relatively short period of time after the death (a few months), there are a number of reasons for that including:

  1. There is no assets in the estate to be probated;
  2. The executor is slow moving;
  3. The executor is not interested in probating the will; and/or
  4. The will has not been found.

There are many situations where the assets of the deceased pass to others outside of probate and the will. This happens when real estate is owned in joint tenancy between the deceased and other individual(s). Also, if there is a right of survivorship or a named beneficiary on bank accounts, RRSPs, etc. then the money would pass automatically to the individual outside of the will. If there are joint bank accounts, the money automatically goes to the surviving account holder.

The executor may be slow-moving especially if he/she does not hire a lawyer to apply for probate. Also, some executors simply don’t want the hassle of applying for probate and doing all the necessary paperwork to wind up the estate, which paperwork can be daunting and tedious. There are timelines for probate to be completed but unfortunately, there is quite a few executors that get overwhelmed with the task and do not comply with the timelines under the various legislative enactments. A lawyer acting for you can definitely put on the pressure necessary to have the executor move in a timely manner and in some situations, look to remove the executor from probating the estate due to a conflict of interest, incompetence, slow movement, etc.

It’s very important to look long and hard to find the original will because applying for letters of administration without a will is more difficult and may not result in the estate assets being transferred to the appropriate parties according to the wishes of the deceased. Full effort must be shown to find the original will and if it’s not to be found, then one can apply for letters of administration without a will.

The problem with all of the above is it takes time and often individuals who believe they have been named as a beneficiary under the deceased’s will may be left hanging without much information in many cases.

Mussio Goodman offers an estate search service that will investigate if a relative or friend has provided for you under their will, and if so, the potential amount of the inheritance. The service includes searching the will registry, investigating the potential assets of the deceased and determining whether or not probate has been granted to wind up the estate.

Court Awards Our Client $2.2 Million at Trial, Five Times More Than ICBC’s Offer

Posted on by Mussio Goodman

Mussio Goodman is pleased to announce our recent success in the BC Supreme Court, which resulted in a significant win for our client against ICBC.

In McColl v. Sullivan, 2020 BCSC 137, Madam Justice Baker awarded our client $2.2 million dollars after a ten day trial. It is notable that our client wanted to move on from her injury claim a long time ago, and was prepared to accept far less than what the Court awarded. However, since ICBC’s settlement offer was only $435,000, five times less than what the Court determined her claim was worth, she had no choice but to take her case to trial with her lawyer, Eric Goodman.

Our client was a 25 year old woman who was rear-ended by two separate drivers a few months apart. She had just completed her education at Emily Carr University and obtained a highly sought after position in the lucrative film industry. Her talent and drive was remarked upon by all those that knew her, from the professors that taught her to the managers that quickly recognized her skills as an editor. She was described by her friends and colleagues as a friendly, kind, vivacious young woman who was enjoying her life and her new career.

As a result of the two collisions, our client suffered injuries to her neck, chest and back, which eventually developed into a permanent and debilitating nerve condition called Thoracic Outlet Syndrome (“TOS”). Her TOS causes numbness, tingling, and excruciating shooting pains down her right arm and hand, effecting her ability to perform even the most basic tasks such as chopping vegetables, using a keyboard, or washing her hair.

As a result of her injuries, our client was unable to pursue the editing career for which she trained, and was entitled to compensation for the wages she would have earned had the accidents not happened. The evidence we tendered proved that her career path was very lucrative. In particular, our client’s former boss testified as to the average earnings of our client’s specific vocation, and confirmed that our client was earmarked for future advancement due to her talent and diligence.

In response, ICBC relied on general statistics for job categories that were inapplicable to the specific career our client was actually pursing. Unsurprisingly, these statistics were for low-level work and vastly undervalued what our client was on track to earn.

Madam Justice Baker agreed that the evidence showed that our client was far more than a statistic, stating:

…I find the evidence of Ms. Turner does suggest the industry averages put forward in the evidence of Mr. Nordin and Mr. Lawless are understated for the editing work Ms. McColl would have done at Paperny. As such, I find that there is a real and substantial possibility that Ms. McColl’s loss of income is higher than the losses would be based on the reports of Mr. Nordin and Mr. Lawless…

I find that Ms. McColl has established that her earning capacity has been impaired as a result of the injuries she sustained in the accidents. Ms. McColl had successfully trained in a specialized career, obtained a good job in the film industry, and was doing very well in that job. This career would have returned her a very good income. The evidence before me was overwhelming that she will no longer be able to pursue the career she trained in and loved.

This case also provides another example of ICBC employing doctors who provide opinions that are deemed to be biased towards ICBC in the face of objective evidence. In this case, ICBC hired a vascular surgeon who opined that our client would have experienced her debilitating condition regardless of the collisions. A strong cross examination revealed the weaknesses of Dr. Fry’s opinion, leading to a stinging rebuke from Madam Justice Baker:

For the reasons I set out below, I did not find Dr. Fry’s opinion to be helpful.

Dr. Fry engaged in what I would describe as a credibility assessment of Ms. McColl, looking for inconsistencies between what she told him and what was recorded in the medical records he was provided […] Dr. Fry implied that Ms. McColl was not being honest with him about important pre-existing myofascial pain symptoms. I do not agree…

Dr. Fry also advocated that Ms. McColl would have eventually developed TOS due to her likely having a cervical rib or an elongated process of C7. He referred in a general way to literature supporting his view, but did not specify which article or study supported him. He overstated the incidence of TOS arising from a cervical rib by stating that up to 1 out of 10 people with a cervical rib will develop TOS, without clarifying that only 1% of the general population have such a cervical rib. From such a tiny fraction of the population which is vulnerable to TOS from this abnormality, Dr. Fry goes on to conclude that it is more likely than not that Ms. McColl would develop TOS. He came to this conclusion without any actual evidence that Ms. McColl has such an abnormality at all, and agreed under cross examination that he had not examined the x-ray of Ms. McColl’s cervical spine which indicated no acute bony abnormalities.

In addition to the egregious deficiencies I have identified above, I agree with Ms. McColl’s assessment of Dr. Fry’s report in general, including that Dr. Fry has included highlighted commentary throughout his report which advocates for the defence position, ventures into fact finding within the purview of the court, and challenges the honesty of Ms. McColl. Further, Dr. Fry ignored medical evidence which is not helpful to the defence position, including General Practitioner records which disclose no physical complaints prior to the first accident, and medical records which indicate numbness in the fourth and fifth fingers in Ms. McColl’s right hand.

The approach of ICBC to our client both in terms of quantifying her loss using inapplicable statistics, and using public money to hire biased medical experts, illustrates why the proposed shift to ‘no fault’ insurance in our province will leave the most vulnerable injured persons short changed.

Under the new system, our client would have received zero dollars for her pain and suffering despite having a permanent and extremely painful condition that ruined the career path she worked so hard to achieve. She would have had no access to a lawyer to fight for her rights, and would have been left without even basic funding for treatment once ICBC hired a biased expert to state that her condition would have developed regardless of the collisions.

Even if our client had cleared the obstacle of ICBC’s biased experts, her wage loss would not have been based on what her career would have been. Rather it would have been calculated based on her entry level income at the time of the MVA, a difference of hundreds of thousands of dollars.

This claim could have settled a long time ago if ICBC was run like a private, efficient corporation with some semblance of accountability. With the arrival of “no fault”, and without lawyers or judges to provide checks and balances, ICBC is about to get a whole lot worse.