Category Archives: All

ICBC must pay $80,000 for student care aide’s loss of future earning capacity – experts’ opinions critical to this claim

Ms. Niijar went to trial claiming damages arising from her chronic headaches & neck & back pain caused by two accidents. Madam Justice Baker concluded on March 30, 2016 that her:

  • capacity to work at any type of employment she wanted was reduced due to her injuries & her loss of stamina and
  • career goal of being a care aide could be affected because this work will require her to have a strong back so she can do heavy lifting.

She considered the opinions of her family doctor, her functional capacity evaluator & her treating medical specialist & the medical specialist ICBC chose.
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Claimant’s award reduced by $13,500 because she failed to attend a doctor-recommended exercise program

Ms. Nijar was injured in two car accidents two years apart. Neither of them were her fault. She suffered from headaches & neck & back pain from both her accidents which had not resolved at the time of her trial.

ICBC’s lawyer:

  • used Ms. N’s doctor’s records to show that he had told her a few times to go to the gym or to a rehab program to strengthen her back muscles,
  • argued that she did not follow his advice & thus did not take all reasonable steps to mitigate (minimize) her damages and
  • had her doctor agree in cross-examination that if she had done some weight training she would have had less back pain.

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Judge awards man $30,000 for the extent mva worsened his condition but rejects loss of housekeeping capacity claim

Mr. Ben-Yosef was in a serious car accident in 1998 and never fully recovered. In 2011, 13 years later, he was struck by a car while in a crosswalk. He described the accident to his family doctor 2 weeks later — that he had been “bumped”.

At trial, Mr. B claimed that:

  • his 2011 accident worsened his ongoing symptoms from his 1998 injuries,
  • it had prevented him from being able to do his family’s housekeeping and
  • he hired a housecleaner to replace his work around the house.

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Injured wife claim for compensation for her husband’s assistance & income loss rejected by judge

Ms. Lacayo was in a car accident in 2008. She suffered multiple soft tissue injuries and her depression worsened. She sought compensation on behalf of her husband at her trial for $43— $45,000. He claimed he drove her to many doctors’ appointments, that this sometimes resulted in his missing work and that this will continue.

This is called in law an “in trust” claim. Ms. L. would hold in trust any such award for her husband.

The judge concluded that what Ms. L’s husband did for her was not over and above the normal “give and take” between spouses. He therefore rejected this part of her claim. See below for what one needs to do and to prove if one wishes to pursue such a claim.

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$110,000 pain & suffering award — permanent shoulder & back pain & tinnitis

A judge of the Supreme Court of BC found that 5 years after his accident Mr. Arletto:

  • suffers from permanent back & shoulder pain,
  • had to reduce his working hours,
  • cannot tolerate loud noises or family dinners due to the “swooshing” sound in his ear (tinnitis), and
  • as a result of his inability to tolerate loud noises his family & social relationships have suffered.

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Is ICBC compensation allowed if 2nd MVA between 2 “workers” aggravates injuries from previous MVA?

Mr. Pinch was in 2 motor vehicle accidents (“MVAs”). As a result of MVA #1 he incurred chronic pain. In MVA #2 he injured many of the same areas.

When MVA #2 occurred both he and the at fault driver were on the job.

When MVA #1 occurred neither he nor the at fault driver were on the job and ICBC was the the third party liability insurer of the at fault driver.

The judge decided that Mr. P. was only entitled to damages from ICBC for that portion of his damages that were attributable to MVA #1.
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ICBC must pay designated driver injured by drunk passenger who grabbed the steering wheel & caused accident

Ms. Felix was a designated driver for her boyfriend. He was intoxicated at the time and grabbed her steering wheel. This resulted in a severe accident and severe injuries to Ms. Felix.

A court judgment awarded her nearly $800,000 in damages against her deceased boyfriend but ICBC refused to pay the damages. ICBC’s lawyer argued that it is only obligated to pay for damages arising out of the “use” of the motor vehicle and the drunk passenger’s actions did not constitute “use” of the vehicle.

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Judge rejects ICBC’s expert claim that a rhizotomy will cure the claimant’s low back pain – awards $230,000

Mr. Dzumhur suffered from chronic back pain as a result of a car accident in 2012 and was unable to work at his job at UPS.

At issue in the trial was whether or not there was treatment available that would give him full recovery from his chronic back pain.

ICBC medical specialist, Dr. Rickards, wrote that there were two procedures that would cause Mr. D. to experience a complete and full recovery from his accident and to see a return to his pre-accident work and recreational activities. They are:

  • “medical branch blocks” (diagnostic blocks) followed by
  • a rhizotomy

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Claimant dodges bullet — judge refuses to penalize him for failing to do exercise program

After his car accident Mr. Kostinuk suffered from ongoing neck & back pain and, eventually, depression. His doctors all recommended that he maintain an active exercise program. However he found a new job as a security guard and claimed that his work obligations interfered with his ability to attend a gym or do other exercise programs.

ICBC’s lawyer argued that Mr. K. failed to mitigate (minimize) his damages and, as a result, his award for damages should be decreased because he contributed to his poor recovery from his injuries.

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Judge relies on claimant’s O.T.’s rec’s to award $195,000 for her cost of future care

Ms. Litt was injured in two car accidents. After her second one she developed a pain disorder which was caused by physical and psychological factors. Her lawyer hired Ms. Berry, an occupational therapist who did an assessment in Ms. L’s home.

ICBC hired their own occupational therapist, Mr. Gander. He was critical of Ms. Berry’s report and suggested that her observations were not vigorous enough to prove that the claimant was incapable of ordinary functioning. ICBC’s lawyer argued that a reasonable award for her cost of future care should be $5,000 for an active rehabilitation program.

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Judge awards $8,000 for past income loss — yet claimant worked full time since accidents

Mr. Ali was injured in 2 car accidents. Before that he worked at a very physical job.

His ongoing neck & back pain & headaches prevented him from doing heavy lifting for more than 15 to 20 minutes.

He continued to work but his employer relegated him to a supervisory job which had less overtime hours.

ICBC’s lawyer argued at trial that Mr. Ali did not suffer from any wage loss because:

  • he kept on working;
  • his employer accommodated his injuries and
  • he used his accrued vacation pay when he took time off to attend treatment.

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Judge praises claimant for her stoicism and awards her $60,000 for pain & suffering

Ms. Hinder was 29 years old when her vehicle was hit by the defendant taxi driver in Dec 2010.

She suffered from intense headaches and upper back pain for over a year after her accident. Then her headaches and upper back pain became low-grade pains with occasional flare-ups.

A specialist wrote a report for her lawyer stating that Ms. H will unlikely to be ever free from pain. This has hampered her ability to go mountain biking which she greatly enjoyed.

She went to court in March, 2015 to seek compensation for her injuries. She sought somewhere in the range of $55,000-$65,000 for her pain and suffering. ICBC’s lawyer argued:

  • for an award of $25,000 to $35,000 partly on the basis
  • that she failed to take all reasonable steps to get better.

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Court cuts 25% off loss of future earning capacity due to likelihood claimant won’t take anti-depressants

Ms. Castro sought compensation at trial for injuries she sustained in two accidents from which she suffered broken ribs, bruising, chronic pain and a major depressive disorder.

She claimed that her ability to earn income in the future has been reduced because she could not do any heavy lifting. This is required of a health care aide. She had previously worked as a server in a restaurant. She then went back to school to train as a health care aide. She did not get a chance to work in her field before she was injured.
She sought $100,000 for her loss of future earning capacity.
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Claimant chose to not take anti-depressants her doctor gently suggested – 20% reduction in P&S award

Ms. Castro was involved in an accident in 2010 and then a second one in 2012. Fault was admitted.  The legal actions respecting each of these accidents were ordered by agreement to be heard together at one trial. This is the practice in our courts.

As a result of the first accident Ms. C received six fractured ribs, bruising to her arm, leg, and chest, and head injuries. The second accident made these injuries worse, particularly to her neck, shoulder, and spine. She went on to develop chronic pain. Her doctor diagnosed her with “major depressive disorder” in Feb, 2015 and prescribed her anti-depressant medication which she decided to discontinue.

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Claimant whose income increased after her accident awarded $50,000 for lost future earning capacity

Ms. Hubley sought damages following a car accident in Fort St. John when she was 57. She suffered a knee injury which did not resolve and requires surgery. She also suffered soft tissue injuries which resolved within six months.

Over the 3.5 years since her accident her annual income at a sawmill almost doubled because she logged more and more overtime hours after a short period off work.

ICBC’s lawyer argued that no award should be given for loss of future earning capacity since her increased earnings suggested that the accident did not impact her ability to earn income.

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No award for lost future earning capacity based on claimant’s need to take stretch breaks at work

Ms. Best went to trial in Vancouver in September, 2015, two & a half years after her car accident.

She worked long hours on a computer and as a manager until she got a job before her trial teaching her trade at the Vancouver Film School.

Ms. Best claimed that:

  • people in her trade have to sit for prolonged periods of time, and
  • her future ability to earn income was diminished because of her inability to do so due to her ongoing neck & back injuries.

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Court awards dizzy & nauseous claimant $100,000 for pain & suffering & lost housekeeping capacity

Ms. Reimer was involved in a car accident in 2011 in which she hit her head. Prior to her accident she was physically active and enjoyed spending time with her friends & grandchildren. However after her accident she suffered from nausea, dizziness, nightmares and neck, back, and jaw pain. Her soft tissue injuries & nightmares resolved but her dizziness, imbalance & migraine headaches had become chronic.

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Claimant injured in three accidents but he caused his 2nd one – damages awarded

Mr. Lane was injured in the first of his three accidents in 2008. His second accident was his fault.

After his second accident Mr. L. developed severe depression. His third accident made his depression much worse.

One issue Mr. L faced at trial was damages for his depression because he caused his second accident which started his depression.

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Court fully compensates claimant’s chronic pain & depression although her accident was only one of several causes

Ms. K suffered whiplash type injuries in a 2007 car accident. Her pain became chronic and she became depressed. The consensus of the medical experts at her trial was that “her chronic pain is unlikely to resolve and the focus of her treatment should be on pain management, not cure.”

Mr. Justice Blok concluded that “there is a significant psychological aspect to Ms. K’s’ ongoing difficulties. They may not rise to the level of a psychiatric disorder but it is plain that psychological issues play an important part in her level of functioning and her approach to rehabilitation.” Factors unrelated to the accident contributed to her depression.

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Claimant giving inaccurate facts to medical specialists destroyed the usefulness of their reports

Ms. Pitcher was involved in a car accident in 2004 in Kelowna. She claimed that she suffered from a neck injury, head tremors and psychological disorders as a result of her accident. A significant issue in her lawsuit was whether or not she was being honest and forthright about her injuries and her pre-accident condition.

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Court refuses to penalize claimant who tried to return to her pre-accident sport in spite of her pain

Ms. Hendry was an energetic 26 year old who loved sports at the time of her car accident in Burnaby in 2012.

Her accident caused her jaw soreness, neck & shoulder pain & shooting pain down her arms. She claimed that she missed work briefly before the start of her trial in 2015.

A year after her accident she entered an auto racing competition even though she said that her symptoms had only mildly improved by then. ICBC’s lawyer argued at her trial that:

  • this showed that she had fully recovered from her injuries within one year;
  • her accident did not cause her a significant injury; and
  • he should award her $20,000 – $30,000 for her pain and suffering.

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Judge rejects ICBC lawyer’s claim that treatments for car accidents must be recommended by a doctor

After his accident, Mr. Derksen visited a number of treating people on his own accord for his injuries. No doctor had recommended them. He spent a total of $27,000 on massage therapy, physiotherapy, chiropractic and kinesiology. He went to trial to recover these expenses from ICBC.

ICBC’s lawyer argued that the treatments Mr. D took must have been recommended by his doctor before he is entitled to recover what he spent for them.

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Judge awards $110,000 for pain and suffering for chronic pain & depression

Mr. Grewal was driving in Langley when he was struck by another vehicle. As a result of the accident, he sustained many injuries, including broken ribs, soft tissue injuries to his neck and shoulder, and damage to his knee, which required surgery. Due to these injuries, he experienced chronic pain that will likely be long term, and major depressive disorder. He lost a significant amount of weight and had trouble sleeping.

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Court awards $400,000 for loss of future earning capacity in accident causing permanent wrist injury

Mr. Ishii sought compensation for a car accident in which he fractured both his arms and his right leg. All his doctors expressed the opinion that he would not be able to fully recover. He had a permanent disability in his right wrist. This severely impaired his ability to do repetitive movements or work. At the time of his first accident he was only 18 years old. He wanted to become a pilot or an automobile mechanic.

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ICBC’s lawyer challenges the claimant’s claim about his reduced ability to work

Mr. Espinoza was was injured in a car accident in Surrey. After the accident, he suffered chronic pain syndrome, myofascial pain syndrome and thoracic outlet symdrome. While he was laid off at the time of his accident he found a job as a cement mason soon after his accident. Because he returned to work so soon after his accident, ICBC took issue with the extent of his injuries.

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Judge accepts claimant’s testimony which conflicted with what what her doctor thought her pre-accident medical records stated

Ms. Lemyre suffered soft tissue injuries to her neck in a car accident.  One issue at her trial was whether or not she already had neck pain prior to the accident. If the court concluded that she had pre-accident neck pain this would have resulted in a decrease in her overall award for damages.

In a medical report used as evidence in court her doctor wrote that:

  • she had visited the clinic in which she worked in 2009 complaining of neck pain and
  • she had a fall in 2008, for which she received cortisone injections and a neck brace.

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Judge denies claim for the cost of special mattress and pillow

The claimant Ms. Lemyre was involved in a collision in 2010. As a result of the accident, the claimant had ongoing neck pain. Five years later at trial, she sought compensation for her injuries sustained in the accident. Part of her claim was for two expenses that she claimed were necessary to her recovery.

She sought compensation for a posture care mattress and a water pillow which she believed would reduce her level of pain.

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Judge rejects claimant’s long term income loss claim because she pursued other vocational activities

Ms. Gupta was involved in 3 separate car accidents, the first being in 2009. They left her with back and shoulder pain and impeded her ability to work. At the time, she was a part-time bank teller at Scotiabank and was beginning to get involved in franchising a tutoring service. She continued to work part-time for the bank until 2011 before focusing on the tutoring service exclusively.

She sought compensation at her trial for past and future loss of income from her bank teller job.

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Claimant’s pre-existing psychological risk for PTSD reduced her award by 25%

After she was injured in two car accidents Ms. Wagner developed a generalized anxiety disorder and post traumatic stress disorder (PTSD). The main issue at trial was whether or not the claimant’s pre-existing psychological profile put her at risk for developing some of her symptoms absent the accident.

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Claimant awarded $50,000 for pain & suffering for increased back and neck pain after his accident

Mr. Dhaliwal was an elderly man who was involved in a car accident in Surrey. Two years prior he fell from a ladder and injured his back and neck. His car accident made his neck and back injuries much worse.

Mr. D was unable to settle his claim for damages and therefore sought compensation at trial in New Westminster. On April 2nd, 2015, Mr. Justice Truscott released his written decision (called in law his “reasons for judgement”). Continue reading

Judge reduces future income loss award by 19% to account for the chance that claimant would not have worked absent his accident

Mr. Dhaliwal’s car accident left him seeking compensation at trial. The accident left him unable to sit cross-legged as a priest in a Sikh temple in Kelowna. One of his claims was for loss of future income. This is called in law “loss of future earning capacity”.

On April 2, 2015 the judge accepted that Mr. D would have likely worked until age 75 absent his accident.

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Judge awards $90,000 for pain & suffering for ongoing balance problems called visual vestibular mismatch after a car accident

Mr. Justice Myers wrote in his April 20, 2015 reasons for judgement:

“Ms. Miolla was treated by an otolaryngologist, or ear nose and throat specialist, Dr. Miller.  She was also tested extensively by Dr. Longridge who specialises in otology — a subspecialty of otolaryngology focussing on balance disorders.

Dr. Longridge concluded that Ms. Miolla suffered from vestibular mismatch.  In his direct evidence he briefly described that as a disorder where information from the ear and eyes regarding movement fail to gel, which creates a confusion that in turn creates imbalance, nausea, light-headedness and vertigo.

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Claimant compensated $47,000 for income loss including for a period after her job would have ended absent her accident

Ms. Tisalona sought damages at trial including her income loss resulting from a vehicle accident. Prior to her accident she had a contract position which was to end 4 months after her accident. Her contract was extended once by 4 months after her accident.

Her injuries prevented her from finishing her contract duties. She tried to find new work that did not require heavy physical labour; but she was unable to find new work until 16 months after her accident.

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Judge rejects ICBC’s argument that the claimant failed to take reasonable steps to exercise and to return to work

Ms. Liu’s involvement in 3 car accidents left her with severe chronic pain in her neck and back. After the accidents her doctors determined that she was not capable of anything more than part-time work.

At trial, ICBC’s lawyer argued that the claimant failed to take all reasonable steps to minimize her injuries. If ICBC’s argument was successful, then the claimant would be awarded less compensation.

ICBC’s lawyer argued that the claimant failed to:
– do an adequate exercise program to rehabilitate her injuries and
– pursue part-time work with her former employer. Continue reading

Judge awards claimant the cost of a treadmill he purchased to relieve his back pain

The claimant, Mr. Chenier’s, car was struck by another vehicle. This left him with significant pain across the shoulders. These symptoms persisted until the date of his trial.

A doctor trained in sports medicine testified for the claimant at trial. He noticed that when the claimant walked slowly on a treadmill he experienced relief from his back pain. Mr. Chenier therefore claimed for the cost of a treadmill.

ICBC’s lawyer argued that the cost of a treadmill was unnecessary. Continue reading

Claimant didn’t pursue desired career hard enough after accident to prove claim

Ms. Cummings’ car accident left her with severe neck pain.

She had a long-standing interest in working with children. She claimed that she was on her way to becoming an Early Childhood Educator (ECE) had her accident not intervened. It has an annual salary of $30,000. She sought $96,000 for her loss of income since her accident.

ICBC’s lawyer objected to this claim. He argued that the claimant’s career path was only a hypothetical possibility and thus no award for past loss of income was justified.

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Functional Capacity Evaluation was key to proving loss of income claim

Mr. George’s car accident left him with intense headaches and back pain. He became employed as a steel detailer in Langley after his accident. He claimed that he periodically missed work due to his injuries and that he lost $20,000 in wages.

ICBC’s lawyer pointed out his sporadic income history and argued that Mr. George failed to prove any loss of income.

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Judge disallows claim for interest on loan to pay for treatment

Ms. McKay required chiropractic treatments, exercise programs & psychological counseling as a result of her car accident. She did not have the money to pay these treatments, so she borrowed the money.

On Feb. 17th 2015 the judge ordered ICBC to compensate her for the cost of these treatments but not for the interest she paid out in order to finance her treatments.

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Claimant rejects shoulder surgery – See how judge rules

Mr. Tabatabaei suffered an injury to his shoulder due to a car accident. Mr. T’s lawyers and ICBC each hired an orthopaedic surgeon to assess him and provide a report. They disagreed on the appropriate treatment.

Dr. Tarazi, the claimant’s expert, concluded that:

  • surgery would not improve Mr. T’s symptoms.
  • Mr. T will likely have ongoing pain and
  • he will require manual therapy 15 to 20 times per year for the rest of his life.

In spite of the surgeon that ICBC hired recommending surgery the judge awarded Mr. T. $15,000 for the cost of future manual therapy.

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Claimant’s pain doesn’t prove her inability to perform her job duties

Ms. McKay complained at her trial of ongoing pain. Her lawyer argued that her ongoing pain prevented her from performing her job duties at work and claimed $25,000 for her loss of future earning capacity.

The judge disagreed. On Feb 17th, 2015 she found that Ms. M’s complaints of pain alone did not establish that her pain prevented her from performing all of her duties at work. Accordingly, the judge declined to make any award for loss of future earning capacity.

Complaints of ongoing pain are generally not enough to prove such a claim.

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Judge reduces lost earning capacity award due to claimant’s pre-accident psychological challenges

Mrs. M. was a teacher. She suffered a mild traumatic brain injury in a car accident. Before her accident she had a few challenges:

  • she had received numerous treatments for psychological counseling;
  • had difficulty coping with the normal stressors of day-to-day life; and
  • was at risk for anxiety and depression.

The judge awarded her $350,000 for her loss of future earning capacity. Continue reading

Judge finds claimant’s drug addiction should not reduce award

Mr. Tabatabaei was not your average claimant. At times, he used opium and heroin. He had enrolled in a treatment program, but had relapsed from time to time.

He was a skilled carpet cleaner before he was involved in a car accident. Since then he suffered from a shoulder injury that hindered his ability to work. Although he was still capable of working, he must now work slower in order to avoid aggravating his shoulder injury. Continue reading

Judge rejects claimant’s claim for past wage loss as unreasonable

Ms. McKay took time off work to recuperate and receive chiropractic treatments three years after her car accident. She testified at trial that she had to take time off work due to her injuries from her accident and she sought between $10,000-$15,000 in past wage loss.

She did not bring any evidence suggesting that a doctor recommended she take time off work. ICBC’s lawyer argued that it was not medically necessary or reasonable to take time off work. Continue reading

Judge reduces lost future earning capacity award from $500,000+ award to $430,000

Ms. Mastromonaco was uncertain about her future as a teacher before her accident in 2009. She had previously taught in a religious school overseas. More recently, she taught at a public school in BC.

She derived great pleasure from teaching overseas. This was a lower-paying job than teaching in B.C. The judge decided on 2015 that as a result of her accident her ability to teach was compromised. The judge had to decide whether to award her lost future earning capacity based on the salary of an overseas teacher or that of a B.C. teacher. Continue reading

Judge reduces past loss of income for tax and awarded $2100 to claimant

On January 25th 2015, Mr. Justice Ross accepted that Mr. Mothe lost $3,000 that he would have earned working overtime as a longshoreman had he not been injured in a car accident. This was his “gross past loss of income”.

The judge awarded Mr. Mothe $2,100 for his net past loss of income. He reduced $3,000 by the amount of additional tax that Mr. Mothe would have paid had he earned this extra $3,000.

In contrast, judges do not reduce awards for loss of future earning capacity by income tax Continue reading

Judge awards woman with constant pain & headaches $90,000 for pain & suffering

Ms. Roth was injured in a motor vehicle accident in 2011. She experienced neck pain and headaches up to her trial three years after the accident. Her doctors thought her injuries did not affect her as much as she claimed. They were also quite optimistic about her future. They predicted that: Continue reading

Claimant lacked strong evidence to establish her future planned business

Fay Cornish went to trial in September, 2014 relating to her pain and depression since her car accident in early 2010. The judge concluded that she was permanently disabled from any type of work.

Prior to her accident she was working part time as a care home care aide earning $10 to $12 per hour.

She claimed that while she had not yet started the business when her accident occurred:

  • she would have successfully opened and operated a home care business from her home had she not been in her accident;
  • she would have earned over $100,000 per year operating this business considering the large difference between what firms charge patients for home care and what firms pay home care workers;

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Large award after neurologist explains the cause, treatment & prognosis of headaches from whiplash

 Dr. Robinson is a senior neurologist in Vancouver who has a very well respected practice treating patients with headaches. He testified recently in the Supreme Court of B.C. in the case of Forder v. Linde.

He gave his insights into the treatment of headaches after a whiplash injury as well as his prediction of the future (prognosis). These would be valuable to anyone suffering from headaches after a whiplash injury.

Mr. Justice Crawford awarded the claimant a total of $835,600 for her damages.

He summarised Dr. Robinson’s report and testimony as follows: Continue reading

Claimant compensated for the sick leave & vacation pay she used after her mva – income tax was ignored

The claimant was paid sick pay which she had accumulated in her sick pay bank & also used her vacation pay after she was injured. Unlike a claim for lost wages, the judge did not make a deduction for income tax. It is normally deducted by the court from a wage loss claim.

Justice Weatherill concluded in the case of Chingcuangco v. Herback on February 20, 2013 that “I am satisfied that the plaintiff is entitled to be compensated for her lost sick leave and vacation benefits…  There will be no deduction for income tax…” Continue reading

Is there an advantage in obtaining a private MRI versus an MRI at a hospital?

This is letter written by the president of Canadian Magnetic Imaging (CMI) , a private MRI clinic in Vancouver. While CMI benefits certainly benefits from injured people obtaining private MRI’s from them it is certainly worth considering what he has written:

“There has been much discussion about the use of MRI in litigation and, in particular, a focus on the role of the public system in recovering the cost of the scan. The reports attached to this newsletter demonstrate that, regardless of the recovery issues, the public system is not where you want your litigation clients scanned because it will likely not provide you with the information you require to obtain appropriate recovery for your clients.

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Pain & suffering award $45,000 for moderate whiplash 4 years ago – judge expects flare-ups for 5 more years

Mr. Justice Weatherill concluded in the case of Chingcuangco v. Herback that the claimant suffered a “grade II whiplash” injury, contusion injuries to her chest and lower abdomen, a chest wall strain and a chipped tooth.

Over four years have passed since the accident and she still suffers from intermittent neck and lower back pain and tension headaches as a result of the accident. I find that it is reasonable to expect the plaintiff will be fully recovered within five years.” Continue reading

What judges consider when they decide whether to believe an injured claimant

Mr. Bouvier, the claimant in the Bouvier v. Behrend case, injured his arm in a bus accident. The judge concluded that the testimony of the medical & lay witnesses was largely based on what the claimant told them. If he was not truthful with them then their value as witnesses was greatly reduced.

This case is an example of the lawyer’s maxim, “credibility is king”, meaning that it wins cases.

Mr. Justice Harris explained the factors judges and juries are to consider when they decide whether or not to believe a claimant. Key points here were that Mr. Bouvier:

  • did not overstate his injuries,
  • admitted that he had greatly improved since his accident and
  • tried hard to return to work after his accident.

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Judge orders ICBC to fund a marijuana ointment program for pain control followed by an exercise program

Justice Greyell of the B.C. Supreme Court accepted the recommendations of the injured claimant’s medical specialist, Dr. Hershler, and awarded her $6,500 to fund a six months program of medical marijuana used by way of an ointment in order to control her pain so as to allow her to be able to work with a physiotherapist for 20 session in order to build up her core strength and increase her range of motion.  Continue reading

Court makes strict conditions for ICBC’s psychiatrist to do a “defence medical exam” of injured claimant

Mr. Browne was rendered a paraplegic as a result of a motor vehicle accident. He resides in Kelowna. ICBC applied to the Supreme Court for an order that he travel to Vancouver to attend Dr. Riar, a psychiatrist, for a defence medical assessment, a so-called “independent medical examination”.

Master Miur gave her written reasons in August, 2014. She made a number of conditions for Mr. Browne’s attendance:

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Judge explains very clearly what one must prove to succeed in a claim for a loss of future earning capacity that results from injuries

Madame Justice Russell then dismissed the plaintiff’s claim for loss of future earning capacity in the case of Le v. Point on June 30, 2014. She concluded that the evidence showed that the plaintiff was able to do a desk job at a bank and it “does not demonstrate that but for the accidents there was a real and substantial possibility that the plaintiff would have had a successful and lucrative career as an elite golf professional.” Continue reading

Judge awards $46,527 for the cost of future care of a plaintiff with chronic pain, including a full pain program

On April 25, 2014 Madame Justice Ross gave her reasons in this case. She first quoted the legal principles governing an award for cost of future care which were recently summarized by Mr. Justice Wong… The principles included the following:

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Judge reduces award to woman with chronic pain who failed to accept medical advice to seek counseling and take meds

After her accident, the plaintiff (claimant) in the Carreon-Rivera v. Zhang case got worse rather than better over time and developed  chronic pain and depression as a result of her injuries.

Her one failing, which cost her at trial, was this: she chose to ignore the advice of her physicians to obtain psychological counseling and to take anti-depressant medication for her depression. Her physicians thought that this would have helped but not cured her chronic pain.

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Absence in medical records of dizziness complaints in the first month doesn’t mean the car accident was not the cause

ICBC hired an ear, nose and throat specialist, Dr. Bell, to assess an injured claimant at an independent medical examination. He wrote that the first recorded complaint of her imbalance was about a month after the collision and that this was too long for trauma to have been its cause.

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Another expert chosen by ICBC for the defence bites the dust in court

It is often stated that “credibility is king” in our legal system. A well known North Vancouver psychologist did not pass Justice Romilly’s credibility test in the case of Kristiansen v. Grewal which  he decided on April 10, 2014. However the claimant and her friend did pass the test.

Justice Romilly wrote in his reasons for judgement that “Among the experts, I found that Dr. Koch’s report and his testimony in court seemed to lack objectivity. In fact, he seemed to be more of an advocate for the defendants and ICBC. I have difficulty accepting any of his evidence.” [para. 14]. Continue reading

Judge awards $23,000 for claimant’s loss of housekeeping capacity

Mr. Justice Romilly awarded an injured plaintiff (claimant) $23,000 for her lost ability to perform housekeeping in the case of Kristiansen v. Grewal on April 10, 2014. He took into account:

  • the difficulty the plaintiff has had, and may continue to have in the future, in performing her housekeeping duties,
  • that she has suffered some loss of housekeeping capacity and
  • that she will be forced to incur expenses in the future as a result.

He wrote the following in his reasons for judgement: Continue reading

Judge awarded $20,000 for pain & suffering for a neck injury which fully resolved after one year

On June 2, 2014 Justice Peter Rogers gave reasons for judgement in Huntley v. Daley. He concluded that the plaintiff [claimant] sustained a mild to moderate soft tissue injury to her neck with associated headaches and that her symptoms were no longer functionally limiting by one year after her accident. He explained her reasoning as follows: Continue reading

Judge awards the cost of a gym membership & some physio for flare-ups to age 65

On April 14, 2014 Justice Bruce Greyell gave reasons for judgement in Parhar v. Dawe. He concluded that Mr. Parhar suffered from chronic pain resulting from a whiplash injury he suffered in a rear end collision over 5 years earlier and awarded him a total of $17,820 for “reasonable and medically justified future care service costs”: Continue reading

Judge orders funding for future acupuncture, prolotherapy, kinesiology & physiotherapy

On March 27, 2014, Mr. Justice Verhoeven of the Supreme Court of B.C. gave his decision case of Hart v. Hansma. He concluded that Mr. Hart will need knee and possibly shoulder surgery due to his injuries in a car accident and that: “In general, the evidence is that the plaintiff finds relief and is better able to cope using therapies such as acupuncture, prolotherapy, and physiotherapy. His family doctor is in favour of at least some continued therapies.” and awarded him $20,000 for the cost of future treatment. Continue reading

A hot tub or sauna that helps one cope with pain – a judge may order reimbursement

On March 27, 2014 Mr. Justice Verhoeven of the Supreme Court of B.C. handed gave his decision in a New Westminster personal injury case called Hart v. Hansma. He concluded that:

“Based upon the evidence of Mr. and Mrs. Hart in the context of all of the evidence in the case, in my view the expense [of a home sauna] is reasonable and justified.” Continue reading

Botox – court orders funding

On April 11, 2014 a judge awarded an injured person $15,000 for her future cost of Advil, a sleeping pill and the possibility of Botox treatments

People often suffer from myofascial pain syndrome after a car accident, particular after a whiplash type injury.

Myofascial pain syndrome is a chronic, painful condition associated with areas of increased muscle tone, which are clinically felt as tight bands punctuated by small areas that are very tender to pressure, often called trigger points. Continue reading

ICBC must pay a meager disability benefit

ICBC must pay disability benefits to a person injured commuting to his third day of work. His entitlement was only $300 per week as he failed to buy proper ICBC disability insurance.

An injured person phoned me last week after ICBC refused to pay him disability benefits. He had not worked in the year before his accident because he was a student. However he started a job two days before his accident. Continue reading

Injured people who don’t do as well as they hope at trial may now have less downside in court costs

The B.C. Court of Appeal gave its reasons for judgement on January 28, 2014 in the case of Paskall v. Scheithauer.

Ms. Paskal was injured when a car struck her while she was crossing a street in a marked crosswalk. The driver of the car was insured by ICBC under its “third party liability” coverage. ICBC therefore funded his legal defence.

A jury awarded Ms. Paskall a great deal less than ICBC (on behalf of its insured defendant driver) had offered her in two different offers. Continue reading

Court found claimant’s permanent injury was caused by his minor whiplash

On April 4, 2014 Mr. Justice Watchuk gave his reasons for judgement in the case of Klim v. Purdy. He awarded $65,000 for Mr. Klim’s pain and suffering (called “non-pecuniary damages or general damages).

Mr. Klim is a 53 year old married man who did most of the housekeeping chores of the family, took care of the family’s garden and did a lot of handyman chores. Continue reading