ICBC argued that the damages should be minimal, Mussio Goodman thought otherwise

Mussio Goodman is pleased to announce Associate Counsel Fred Sierecki’s success after a three week trial in the Supreme Court of British Columbia.

In Raptis v. Chalabiani, 2017 BCSC 1548, the Court awarded the Plaintiff $584,560 for injuries sustained in a December 2009 motor vehicle accident, which substantially exceeded ICBC’s final offer of $364,243 before trial.

The Plaintiff sustained a number of injuries in the accident, the most serious of which was to her left hip, which required surgery.  This injury made it difficult to perform her job as an elementary school teacher, and to engage in many activities that he previously enjoyed, such as running.

ICBC argued that the Plaintiff’s damages should be minimal, stemming from the fact that there was minimal damage to her car.  The Court ultimately disagreed with this argument after listening to several medical experts retained by the Plaintiff testify that minimal vehicle damage does not equate with minimal physical injury.

ICBC also argued that the Plaintiff should not be awarded any past wage loss because she simply chose to work half-time due to her two young children, one of whom was diagnosed with Autism shortly after the accident.  ICBC also argued that the Plaintiff shouldn’t have undergone the hip surgery which her surgeon felt could help reduce some of her pain.

The Court’s Decision

In awarding $125,000 for past wage loss, the Court held that:

[175] In my view, it was reasonable for the plaintiff to seek the support of her physicians to work on a part-time basis following her second pregnancy in circumstances where she had struggled working full time and she was scheduled to have surgery on her hip — which ultimately occurred in January of 2015. I note that Dr. Sam expressly supported the plaintiff working on a 50% basis.

ICBC argued that the Plaintiff should not be awarded any loss of future income because she was attending a CrossFit gym which they argued was evidence of a lack of physical impairment.  The Court agreed with Mr. Sierecki’s submissions that there was a real and substantial possibility of future income loss and awarded $295,000 on the basis that she would likely only be able to work 4 days per week instead of full-time in the years ahead.  The Judge stated as follows:

[182]     In this case, I find that the plaintiff has established that her earning capacity has been impaired and that there is a real and substantial possibility that the diminishment in earning capacity will result in a loss of income. I do not agree that the plaintiff’s limitations can fairly be described as causing her mere “discomfort”. I conclude that the evidence supports her continuing to have functional limitations affecting the performance of her teaching duties on a daily basis, such as her ability to perform tasks associated with sustained or repetitive postures. As noted above, the evidence of Dr. Masri and Dr. Gilbart was that her chronic pain in her hip and lower back will likely continue and the evidence of Dr. Lamba was that her pain has an emotional component which affects how she deals with stressors. While she has been able to make a number of work modifications, they do not wholly alleviate her limitations.

While 98% of injury claims settle, this case demonstrates the importance of hiring experienced trial lawyers who won’t hesitate to advance your claim to trial to get the compensation you deserve.

Mussio Goodman is pleased to announce our recent success in the Supreme Court of British Columbia, in which we defended our client’s interests by preventing a medical assessment (IME) by a neurologist chosen by ICBC.

IMEs are often obtained by both the claimant and ICBC during the litigation process, the purpose of which is to have independent doctors provide the parties, and ultimately the Court, with an impartial expert opinion on the claimant’s injuries. The law is clear with regards to IMEs; the Plaintiff must attend these appointments so long as they are reasonable and fair.

In this recent case, our client was in two motor vehicle accidents where she suffered a number of injuries including a concussion, traumatic brain injury, and a number of soft tissue injuries.

Over the course of the claim, our client consented to two IMEs selected by ICBC; one with a psychiatrist and one with an orthopaedic surgeon. Interestingly, we had yet to receive copies of the reports from the first two assessments, yet ICBC asked for yet another one, this time with a neurologist. When we drew the line at two assessments, ICBC applied for a court order to compel our client to attend.

We argued that the third IME was unnecessary and would put the parties on an unequal playing field. We further argued that ICBC had yet to produce reports from their two previous IMEs, and was in essence ‘doctor shopping’ for a favorable opinion.

Master Bouck of the Supreme Court of British Columbia agreed with our submissions and dismissed ICBC’s application with costs.