Court Denies ICBC’s Attempted “Fishing Expedition”

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Mussio Goodman Protects Clients’ Rights Against ICBC

Advancing an ICBC claim for injuries and lost wages requires a claimant to disclose relevant medical and employment records. However, ICBC should not be entitled to a “fishing expedition” by gaining access to a claimant’s entire medical and employment history with the hopes of finding something they can later argue is relevant.

As a firm representing the interests of injured claimants, we strive to ensure that ICBC is held to this standard.

In our recent case Stephens v Gill, ICBC applied to the Court for an order compelling our client to produce extensive medical, employment and Worksafe records, some dating as far back as 16 years prior to the accident.

Mussio Goodman argued that such a broad disclosure was not relevant to the claim and unfairly invaded the privacy of our client.

On the day of the hearing, ICBC abandoned many of their record requests, and limited most of the others to what we had already agreed to disclose.

Regarding most of the remaining records in contention, Master Vos of the Supreme Court of British Columbia agreed with our position, finding that much of records ICBC sought was disproportionate and overbroad.

This ruling underscores the benefit of hiring a lawyer to protect both your rights and your privacy over the course of your ICBC injury claim.

Court Rejects ICBC’s Application to Assess Our Client By ICBC Doctor

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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.

Court Questions Credibility and Rejects Opinion of ICBC Doctor Martin Grypma

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In claims involving personal injury, it is often necessary for both the claimant and ICBC to retain independent medical experts to assess the claimant’s injuries.

The purpose is to have an independent doctor provide the parties – and ultimately the Court – with an impartial expert opinion on the claimant’s injuries. The opinion usually includes a diagnosis of the claimant’s present injuries and his or her prognosis for the future. These opinions are very helpful to the parties in reaching a settlement, or to the Court in awarding damages at trial.

Pursuant to the Rules of Court in British Columbia, any doctor who provides a written expert opinion has a legal duty to be impartial and refrain from being an advocate for any party. In addition, the doctor has a legal duty to certify in their report that they are aware of the duty, have made their report in conformity with the duty, and will conform with the duty if called upon to give oral or written testimony at trial.

ICBC routinely retains expert doctors from a roster that includes several who have been criticized by the Court for various reasons, including failing to abide by the duty to not advocate for any party.

One such expert whom ICBC routinely retains to provide opinions is Dr. Martin Grypma. Dr. Grypma is an orthopedic surgeon whose practice now largely involves conducting medical assessments for ICBC.

As we have previously discussed, Dr. Grypma has been strongly rebuked by the Court over the last several years. His opinions have been deemed to be superficial, ill-considered, argumentative, and outside the scope of his expertise.

In spite of this, ICBC continues to routinely retain this doctor to opine on claimants injuries. The result is yet another recent decision by the Court on the troubling conduct of Dr. Grympa and ICBC.

In Kim v. Lin, 2016 BCSC 2405, the Court singled out Dr. Grypma as a witness that is neither reliable nor credible.

[118]     … I appreciate that Dr. Grypma is an orthopedic surgeon, and as such his opinion would ordinarily be accorded considerable weight. However, after reviewing his opinions in the context of the whole of the evidence and observing him under cross-examination, I have concluded that he failed to present balanced and impartial evidence in this case.

[119]     The first observation I would make about Dr. Grypma’s reports is that he bases his conclusions about Ms. Kim’s condition largely on the absence of complaints in the clinical records …. He also failed to mention that in her report Dr. Budzianowska-Kwiatkowski confirmed that in the accident-related examination on February 16, 2011, Ms. Kim reported that she had suffered from back pain consistently after the Accident.

[120]     Dr. Grypma also interpreted entries in the records in a way to suggest that Ms. Kim was recovering when those records do not support any such conclusion. The most egregious example of this is Dr. Grypma’s reference to a clinical record dated October 10, 2008 in Dr. Budzianowska-Kwiatkowski’s records that “things are going really well”…

[122]     However, it is obvious to me that the reference to things going really well in Dr. Budzianowska-Kwiatkowski’s records has nothing to do with her and in fact refers to her child…

[124]     This reference is consistent with the tenor of Dr. Grypma’s opinions, which I found to be adversarial in tone and content. Dr. Grypma’s comment that Ms. Kim’s travelling to Korea indicated that she must have been doing really well is argumentative….

[125]     Finally, I note that Dr. Grypma’s first report stated that symptoms of a back injury must arise within two to three days post-accident to be have been caused by the accident, and that because Ms. Kim did not report any lower back pain in that interval it was unlikely that her subsequent back pain was accident-related. However, in his second report, prepared after he learned that Ms. Kim did report such symptoms within three days, he stated that if the onset of lower back pain occurred more than 24 hours after the accident, injury or muscle pain was very unlikely.

[126]     When asked why he changed the time frame from two to three days to 24 hours, Dr. Grypma said that he had spoken to his colleagues in neurosurgery and decided that an earlier onset of symptoms was necessary. I find this answer to be unconvincing.

This selection of reported case law shows that, in spite of ICBC’s public-relations campaign about how they treat injured claimants fairly, ICBC has hired and continues to hire doctors who have a well-established reputation for bias and other questionable conduct. In our view, choosing Dr. Grypma to opine on a claimant’s injuries is clearly an act of bad faith, the true purpose of which is to discredit and diminish a legitimate injury claim rather than pursue the truth of the matter so as to provide fair compensation.

It also underscores the important role a personal injury lawyer can play in assisting an injured claimant. At Mussio Goodman, we go to great lengths to ensure that our clients are protected from such biases, while retaining the proper experts to assess our client’s injuries in a fair and impartial manner.

Mussio Goodman Obtains Court Costs For Client After Successful Verdict at Trial

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Mussio Goodman was Successful in a Recent Estate Litigation Case.

In what may be the final installment of the Sharma estate litigation matter, Wes Mussio and Anthony Eden recently appeared before Madame Justice Griffin to argue our clients’ entitlement to costs in the recent successful decision. In the trial decision, which can be found here, Madame Justice Griffin ordered a variation of the Deceased’s will in favour of our clients, totaling 67% of the residue of the estate. The lawsuit was vigorously defended by Victor Sharma, the youngest brother of our clients.

Typically, costs are ordered by the Court from the unsuccessful party to the successful party. However, Victor Sharma argued that the Plaintiffs’ cost should come from the whole of the estate, and not from him personally, because he was only following his mother’s wishes in defending the lawsuit. To the contrary, we argued that the normal costs rule should apply, given that the lawsuit was defended so vigorously defended by Victor Sharma, and did not benefit the estate in the traditional sense.

Madame Justice Griffin agreed with our rationale. She noted that if costs were awarded from the estate in such a proceeding, they would essentially come from the plaintiffs’ entitlement. This would be most unfair, given that Victor Sharma was the party who defended the action all the way to an 11 day trial. Therefore, Madame Justice Griffin decided in our clients’ favour, awarding costs to our clients from the Defendant, personally.

 Any litigation is a daunting task that requires a skilled team. Estate litigation can be even more nuanced. Mussio Goodman has the skill and experience to handle all varieties of Estate issues. If you have, or think you may have a potential estate dispute, give Mussio Goodman a call or submit an online inquiry for a free consultation.

Mussio Goodman Obtains Another Successful Result in Court

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Successful Judgment involving a BC Wills Variation Claim

Mussio Goodman is pleased to announce our success in the British Columbia Supreme Court case of Ciarniello v. James, 2016 BCSC 1699. The case involved a BC wills variation claim by the Plaintiff, who was the second wife of a Vancouver dentist and businessman. 

The Plaintiff sued her husband’s estate, claiming that he did not adequately provide for her in his will. The deceased had five children, two with the Plaintiff and three from a previous marriage. The will split the estate equally between his five children but left out the Plaintiff.

In this case, Wesley Mussio and Anthony Eden of Mussio Goodman represented the Defendants, the three children from the first family.

British Columbia Wills and Estate law is very unique when compared to other jurisdictions, as it features legislation which allows adult children or spouses to apply to the Court to vary the will of a deceased person. 

A Court will overturn a will of a deceased person and vary it with terms it deems to be “just, adequate, or equitable”, if a variety of criteria are met. However, the criteria which warrants variation of a will is routinely a point of contention between the parties, especially when there are millions of dollars at stake.  

The BC wills variation regime often pits family members against each other in lengthy and contested litigation. A particularly common family dynamic in BC wills variation claims involve blended families. Where the deceased has multiple children with different spouses, there is typically an increased possibility for animosity between family members. This age-old problem can lead to some fairly complex litigation. The lawyers at Mussio Goodman are well versed in the legal and practical aspects of such situations and the impact on Wills and Estate law in British Columbia.


Disagreement Against our Client

The first family disagreed that the deceased’s will ought to be varied in the Plaintiff’s favour, mainly because their father had transferred significant assets to the Plaintiff before his death. Furthermore, they argued that their father relied on complicated tax planning reasons for leaving the Plaintiff out of his will.  

Mr. Justice Sigurdson heard arguments from all the parties over four days of trial. The evidence revealed that the estate was over $11M in total, and that the Plaintiff had been transferred significant assets prior to the death of the Deceased. In spite of this, the Plaintiff argued that she should have received half of the marital assets on the death of the Deceased, as would have been required on a divorce. Furthermore, the Plaintiff argued that she had not been maintained by the deceased to continue a standard of living to which she had grown accustomed.


Mussio Goodman’s Argument

On the other hand, we argued on behalf of our clients that the court should give due consideration to the considerable assets already transferred to the Plaintiff, and the taxes paid by the estate for which the Plaintiff was not responsible.

Of importance, it was revealed through the course of litigation that a company transferred to the Plaintiff before the death of the deceased owed debts of close to $1.5M dollars to the deceased’s estate. This key evidence was uncovered through the discovery process of the litigation by the efforts of the Mussio Goodman team. 

After reviewing all the evidence, Mr. Justice Sigurdson ordered that the will be varied so that the Plaintiff is entitled to 25% of the Estate. In making his decision, Mr. Justice Sigurdson placed a great deal of weight on the fact that without a variation of the will, the Plaintiff would be unable to re-pay the debt to the Estate. So while the Plaintiff will receive an increased share from the estate, the practical consequence is that the she must use her increased share to satisfy the debt owing to the estate. 

This case demonstrates how complicated BC Wills and Estate litigation can be. There are often significant investigations in the course of litigation as well as complicated practical issues to take into account, such as tax planning consequences. Litigation can be a very risky endeavour and there are very rarely “slam dunk” cases. At Mussio Goodman, we provide our BC Wills and Estate litigation clients with the experience, knowledge, and expertise to deal with any situation that may arise throughout the course of a lawsuit.

Court Rejects ICBC’s Application to Conduct Prolonged Examination of Our Client

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Mussio Goodman Successful Against ICBC Question Tactics

Mussio Goodman is pleased to announce our success in opposing ICBC’s application to subject our client to further questioning by their defence lawyer.

ICBC sought a court order to increase the permitted time to question our client under oath, which is known as an “examination for discovery”. 

Under the Rules of Court, in this case, an examination of discovery cannot last longer than two hours unless all parties consent or the Court orders it. We argued that two hours was more than sufficient to examine our client, who was a passenger in a vehicle that was involved in a hit and run collision.

In spite of our client’s medical records and family doctor’s opinion indicating no significant pre-existing health issues, ICBC sought to question our client about, among other issues, a concussion that she sustained as a child.

The Court dismissed ICBC’s application on the basis that if the defence lawyer were succinct and efficient with their questioning, then the two hours would be more than adequate.  

The Court further agreed with our submissions that a concussion that occurred more than 20 years ago was irrelevant and in no way warranted an additional examination.

This decision underscores the importance of consulting a lawyer to ensure ICBC is being held in check, and that your rights and privacy are protected over the course of your ICBC injury claim.