This case is a great illustration of how judges & also ICBC decide whether or not to believe what a claimant is telling them. Mr. Nagra claimed at his trial that he lost income & will lose income in the future in his orchard business as a result of the injuries he suffered in his MVA 3 years earlier. The judge entirely rejected these claims.
Ms Wolford, 47, claimed that her injuries from her MVA caused her to miss work for much of the three year period between her accident & her trial. Continue reading
Ms. Cantwell, 35, was born with medical conditions causing her chronic chest pain & mobility issues. Despite these conditions, she lived a full life & worked full time.
After a minor MVA in 2011, she suffered significantly more pain, but she continued to work. In 2013 she experienced a “popping” feeling while shoulder-checking. After that, her chest pain was severe. Continue reading
Mr. Fleming owns 50% of a small business that sells roofing & siding materials. His company was doing well until 2 years before the first of his accidents. It then began losing money.
His accidents caused him lasting low back pain & his company’s losses increased after his first accident. He claimed that his company lost more money than it would have without his injuries. Continue reading
After Mr. Klein’s 2 mvas, he suffered from neck, back & shoulder pain & a fractured tailbone. He returned to part-time carpentry a few months after each mva, but he was forced to take on easier jobs, work fewer hours and rest more. Almost a year after his 2nd mva, he started up his own carpentry company but he worked only 40 – 60 % of what did before his accidents.
ICBC’s lawyer argued at his trial that Mr. K had failed to mitigate (minimize or reduce) his losses because he had failed to:
- look for non-carpentry jobs &
- undertake the rehab program that ICBC’s doctor had recommended.
Ms. Wahid, an RCMP officer, had two car accidents a year & a half apart.
She missed work for treatment & the RCMP put her on medical leave for about 15 months because she was unfit for duty due to her accidents. Continue reading
At his trial Mr. Ilett was not able to give a precise plan for how long he would have worked at the shipyards. His estimates varied from 1 to 5 years. Continue reading
Over the 3 years between her car accident & trial Ms. Bove improved but she occasionally had pain in her neck & back to the point that she had to miss work as an administrative assistant.
Before her accident, she had occasional issues with her abdomen & vertigo which caused her to miss work 2 to 4 times a year. Continue reading
Ms. Powell’s suffered from neck & upper & lower back pain after her accident. After a short recovery period, she returned to work part-time. She worked for three years part-time but then stopped working because of her ongoing pain.
Ms. P then applied for ICBC basic total disability benefits of only $300 per week. ICBC denied them because she did not receive them within the first 2 years following her accident.
If one is completely disabled from working as a result of a car accident one can apply to ICBC for either basic or extended wage replacement benefits (of up to $700 per week tax free) in accordance with the rules explained below.
Ms. Suthakar was injured when another vehicle smashed into her car. Before her accident, she worked two jobs. She took about three or four months off from work after her accident. She then returned to both of her jobs and claimed damages from ICBC for the income she lost from both of them.
ICBC’s lawyer argued that the driver ICBC represented should only have to compensate her for her loss of income of one of her two jobs. He argued that she would not have continued working two jobs because she was already in a financially comfortable position.
Mr. Bramley suffered injuries in a car accident. As a result, he was unable to do manual labour for a period of time. He hired a subcontractor to replace him in his business for 4 months & then hired him as an employee for almost a year.
He claimed in court that he would not have paid the man who was his subcontractor absent his accident.
Ms. Fletcher (née Rutter) suffered neck, back & psychological injuries as a result of her accident.
An issue at her trial was whether during her period of unemployment her psychological injuries:
- prevented her from taking advantage of jobs she could have accepted and, if so:
- what were the chances she would have earned income during this period &
- about how much income would she have earned had she worked.
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.
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.
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.
Mr. Montgomery is a self-employed salesman whose work involved attending trade shows. His car accident caused severe injuries to his neck and back. This resulted in his no longer being able to attend trade shows. He became irritable due to the pain from the accident and, as a result, he was less able to serve clients.
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.
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.
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.
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.
Before Ms. Snidal was involved in a car accident, she was employed as a lifeguard. She suffered significant soft tissue injuries. A year later, she was diagnosed with a major depressive disorder.
Although she tried to find work she could handle she was not successful until 2014.
Ms. Park, a registered nurse, was rear-ended. She suffered from a number of soft tissue injuries and slumped into episodes of depression.
At the time of her accident, she had accumulated eight days of sick leave that she could use throughout the year.
Seven years after her accident in 2008, Ms. Brown sought compensation at a trial.
She was a stylist at a hair salon. It took her 18 months to build up her stamina to fully return to work. She had a 2-week period of being completely off work and then a gradual increase in her work hours.
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.
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
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
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
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
Ms. Redmond suffered from ongoing chronic pain after a car accident.
She continued to work in pain but was laid off three times. The judge concluded that she did not prove that any of her layoffs resulted from the accident.
Ms. Redmond had claimed that she was laid off because of her poor performance as a result of her constant chronic pain Continue reading
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
The median retirement age in Canada in 2011 was 63.2 for men and 61.4 for women.
One challenge lawyers face is persuading a court (or ICBC during negotiations) that if our client not been injured he or she would have likely worked well past the median retirement age.
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;
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