Mussio Goodman Wins Another WCB Tribunal Decision Against ICBC

When an injured motorist first informs ICBC of the accident, one of the questions they may be asked is whether they were working at the time of the collision. This is because, if both drivers were “workers” as defined by the Workers Compensation Act, there can be no injury claim against ICBC; rather, any compensation must be sought through WCB instead.

This is an unfavorable situation to any injured party, as the WCB regime does not provide any compensation for pain and suffering, and only limited reimbursement for lost wages.

Naturally, given the chance, ICBC will argue that a claimant was working, or performing some sort of work related activity, to avoid having to pay out. This was the case in Yushchenko v. Costa.

In this case, the Plaintiff drove from his office to meet his mother at home for lunch. The car accident occurred as he was on his way back to work.

Generally speaking, an injured party is not declared to be “working” pursuant to the Workers Compensation Act if the accident occurred during a lunch break. However, ICBC argued that the Plaintiff was defined as a “traveling employee”, meaning the nature of his employment required him to drive. As a consequence of being a traveling employee, ICBC asserted that his lunch break was still within WCB’s jurisdiction since it was a routine part of his work day.

We argued that the Plaintiff’s lunch break was anything but routine. Rather than choosing to eat in the company lunch room or driving to the closest available eatery, the Plaintiff’s lunch break required a substantial deviation from his work routine in that he drove out of his way to have lunch with his mother. The lunch, therefore, constituted a distinct departure for a personal errand, and therefore, WCB coverage does not apply.

The tribunal agreed:

[54] This was not a case of the plaintiff stopping for a meal in the course of a journey. Rather, this was the case in which the plaintiff drove some distance, away from the central area of one municipality where the temporary work location was located, to a residential area of an adjacent municipality for the purpose of going from to have lunch with a family member. While the crossing of municipal boundaries has no significance in itself, it may in some circumstances flag the fact that the journey had a special purpose.

[55] This was also not a situation in which the plaintiff had to travel some greater distance due to limited options for having lunch in the area of the temporary work location. Rather, it appears the plaintiff was motivated by personal factors in his decision to have lunch at home. In particular, he had arranged in advance to have lunch at home where family member prepared lunch for him.

[56]…The fact that he was meeting a family member, and drove some distance beyond what would have been necessary to locate a convenient place to have lunch, support a conclusion that the plaintiff was engaged in a distinct departure on a personal errand.

[57] Accordingly, I consider workers’ compensation coverage did not apply in relation to the plaintiff’s travel… I find therefore that the plaintiff’s injuries did not arise out of and in the course of his employment.

With this result, the Plaintiff is now entitled to pursue his ICBC claim for pain and suffering, lost wages and out-of-pocket expenses resulting from a severe back injury he sustained in the accident.

Mussio Goodman has Successfully Won $290,400 for Our Client

We are pleased to announce that, after declining ICBC’s offer to settle for $115,000, our client proceeded to a two week jury trial resulting in an award of $290,400.

The primary issue in this case was “causation”. In April 2009, our client was rear-ended at a red light in New Westminster. ICBC deemed the impact “low velocity” due to the minimal damage to our client’s vehicle, the repairs for which were estimated at $400.

In the years leading up to the accident, our client was diagnosed with severe spondylosis, otherwise known as degenerative disc disease of the cervical spine. However, our client suffered minimal pain and neurological symptoms from her condition prior to the collision.

After the accident however, our client suffered a severe escalation in her symptoms, and eventually underwent an invasive surgical procedure called a decompression laminectomy of the cervical spine.

There were two competing arguments in this case. Ours relied on the “thin skull” principle, which essentially means “you take your victim as you find them”. We argued that our client was in a fragile state at the time of the accident; she was predisposed to a significant injury due to her pre-existing condition. While a healthy 18 year old could have very well walked away from the impact unscathed, in our client’s case, the collision was the tipping point that resulted in surgery and her ongoing disability.

ICBC, on the other hand, relied on the “crumbling skull” principle. The health of our client, they argued, was on a trajectory of decline prior to the accident, and it was only a matter of time before she needed the surgery in any event.

ICBC therefore argued that they should not be held responsible for our client’s pain and suffering, wage loss and treatment expenses since she was going to end up in the same disabled state regardless of the accident.

The trial involved twenty expert reports and almost two dozen witnesses, including several neurologists, neurosurgeons and orthopaedic surgeons.

In the end, if the final award is any indication, the jury appeared to favour the evidence of our client, as well as that of the medical specialists testifying on her behalf. We are thrilled with the result and wish her all the best in her continuing recovery.

It should be noted that every case is different, and that past performance is no guarantee of future results. It should also be noted that very few injury claims require a resolution in a courtroom; in the vast majority of cases, we are able to negotiate a fair settlement with ICBC on behalf of our clients. However, in the event ICBC refuses to make a reasonable offer, we are always prepared to take the case to trial.

Mussio Goodman Successfully Wins Client $115,000 At Trial

We are pleased to announce that, following a five day trial in the Supreme Court of British Columbia, our client was awarded a total of $115,834.31 plus costs and disbursements.

Our client’s injuries, initially sustained in a 2008 motor vehicle accident at the intersection of 2^nd Ave and Burrard, resulted in a diagnosis of musculoligamentous soft tissue injuries at the neck and thoracic spine.

One of the issues at trial involved the claim for $10,467 representing the treatment expenses our client incurred over the course of four years.

As per the written reasons of the Court, ICBC argued as follows:

[110] The defendants submit that the plaintiff likely made a substantial recovery within a year or so of the accident and that any expenses beyond that timeframe cannot be their responsibility. Further, they submit that on the evidence the physiotherapy and massage therapy treatments after the first eight months or so were of little assistance.

ICBC further submitted that, because a significant portion of the treatment and medication expenses were reimbursed through the client’s father’s extended benefits plan, ICBC should not have to repay the funds since that would amount to a “double recovery”.

In response, we argued that the medical evidence clearly indicated that our client was nowhere near a full recovery, and that her injuries had in fact plateaued.

Furthermore, and as our expert rheumatologist confirmed on the witness stand, the physiotherapy and massage therapy treatments were, and continued to be beneficial, as they provided the temporary relief our client needed to continue with her University studies and pursue gainful employment.

We also submitted that ICBC should not be entitled to benefit from the fact that our client’s father successfully sought reimbursement through his extended medical plan. It should be assumed, we argued, that her father negotiated with his employer for that benefit plan, and presumably gave up other benefits in return. Therefore, since the benefit plan was available at a cost to our client’s father, ICBC should not be let off the hook for having to repay the full amount.

The Court agreed, awarding full reimbursement of treatment expenses, and awarding a further $10,000 for future massage therapy:

 [111] I find the plaintiff is entitled to recover the special damages amounts claimed including the full costs of the prescription medication. Such sums are recoverable pursuant to the private insurance exception to double recovery: Cunningham v. Wheeler, [1994] 1 S.C.R. 359; Napoleone v. Sharma, 2008 BCSC 1746. The massage and physiotherapy treatments were recommended by the plaintiff’s treating physician. The massage therapy provides short term relief to the plaintiff. I find those amounts are all recoverable.

It should be noted that every case is different, and that past performance is no guarantee of future results. It should also be noted that very few injury claims require a resolution in a courtroom; in the vast majority of cases, we are able to negotiate a fair settlement with ICBC on behalf of our clients. However, in the event ICBC refuses to make a reasonable offer, we are always prepared to take the case to trial.

Mussio Goodman Wins WCB Tribunal Decision Against ICBC

When an injured motorist first informs ICBC of the accident, one of the questions they may face is whether they were working at the time of the collision. This is because, if both drivers were “workers” as defined by the Workers Compensation Act, there can be no injury claim against ICBC; rather, any compensation must be sought through WCB instead.

This is an unfavorable situation to any injured party, as the WCB regime does not provide any compensation for pain and suffering, and only limited reimbursement for lost wages.

Naturally, given the chance, ICBC will argue that a claimant was working, or performing some sort of work related activity, to avoid having to pay out. This was the case in the unique scenario of Terry Robinson v. David Noyes and Price’s Trucking Ltd.

In this case, the Plaintiff left his office on his break to meet his childhood friend for lunch. The motor vehicle accident occurred en route.

Generally speaking, an injured party is not declared to be “working” pursuant to the Workers Compensation Act if the accident occurred during a lunch break. However, ICBC argued that, because the Plaintiff’s childhood friend was also a regular client, the lunch appointment should be deemed to be “client development” rather than merely a social outing. Therefore, ICBC submitted, this particular lunch break was in fact work-related, and the Plaintiff’s injury claim should be extinguished.

On behalf of the Plaintiff, Eric Goodman argued that the predominant purpose of the lunch meeting was personal or social in nature, rather than the product of a business relationship. The tribunal agreed:

[27] …The plaintiff submits that his [Examination for Discovery] statement that “anything is possible,” regarding whether he and [his friend] would have discussed some business, was in response to a speculative question with respect to a lunch which never took place. The further evidence of the plaintiff in his affidavit is that it was not his intention to discuss business over lunch, but he could not say that he had any intention to avoid discussing business. The purpose of the lunch was purely personal in nature.

[34] …There is strong evidence of a longstanding personal association outside of the plaintiff’s employment… I find persuasive the plaintiff’s evidence that the lunch meeting was arranged due to the fact that Williams’ work near Capilano Road on April 2, 2009 motor made it convenient for them to meet for a social lunch.

[41] In the circumstances, I find that the plaintiff’s travel to North Vancouver to meet Williams for lunch involved a distinct departure on a personal errand…

[42] I find, therefore, that the injuries suffered by the plaintiff in the April 2, 2009 accident did not arise out of and in the course of his employment within the scope of Part 1 of the Act.

With this result, the Plaintiff was entitled to pursue his ICBC claim for pain and suffering, lost wages and out-of-pocket expenses resulting from a severe lower back injury he sustained in the accident.

Mussio Goodman Protects Client’s Rights and Privacy Against ICBC

There are two ways ICBC can compel an injured claimant to attend an examination by a doctor of ICBC’s choosing. The first is pursuant to a claim for Part VII or “no-fault” benefits, whereby a claimant is receiving reimbursement for treatment expenses or ongoing wage loss, regardless of who was at fault for the accident.

The second is in response to a tort claim; that is, after a plaintiff files a lawsuit against the other driver.

The law generally prevents ICBC from compelling a plaintiff to attend an examination by a doctor of the same specialty more than once. To do so would allow ICBC to “doctor shop”, that is, to send a claimant to, for instance, several orthopaedic surgeons until ICBC finally receives a medical report that serves their interests.

In Socynski v. Cai, ICBC sought a court order to send the plaintiff to an examination with a second orthopaedic surgeon. ICBC argued that the first examination was only with respect to the no-fault benefits claim and not the lawsuit, and it therefore did not count towards the “one doctor per specialty” rule.

The Court ruled as follows:

[14] In this case, [ICBC adjuster] Ms. Mulligan has deposed that on July 31, 2008, the claim file regarding the plaintiff’s claims [emphasis added] arising from the MVA was transferred to her for handling. This obviously referenced both the Part 7 and the tort claims. By the fall of 2008, Ms. Mulligan was aware that the plaintiff had retained counsel with respect to both her tort claim and her claim for benefits under Part 7…

[16] [Wes Mussio] sent Ms. Mulligan an email on December 10, 2008, which contained the following:

I have your letter of December 9, 2008…
The letter suggests that the
assessment is for Part VII issues only.

I take the view that the assessment is
for the tort claim so you are using your
opportunity for a tort IME at this stage.

Ms. Mulligan did not respond to that email. At Court, Eric Goodman argued that Ms. Mulligan’s decision not to respond to, or in any way indicate disagreement with Wes Mussio’s position should be deemed as an implied acceptance thereof.

The Court’s Decision

The Court held:

[21]  In reviewing the facts in this case, and keeping in mind the main principle to be looked at here, the principle of keeping the parties on an equal footing, I find that in the circumstances of this case, and in particular, the fact that the ICBC adjuster was handling both the Part 7 and tort claims, and did not respond when she knew that the plaintiff’s position was that the examination in front of Dr. Bishop was to deal with both those claims, I find that the examination which took place at the behest of ICBC on January 27, 2009 by Dr. Paul Bishop constituted the first medical examination as contemplated by Rule 7-6(1)…

Keeping in mind the “level playing field” principle, it is not appropriate to order a further examination of the plaintiff by a medical practitioner having expertise in the area of orthopaedics.