Ontario Personal Injury Lawyers

Court Awards Our Client Almost Triple What ICBC Offered Before Trial

Posted on December 29, 2021 by Mussio Goodman

Mussio Goodman is pleased to announce Associate Lawyer Thomas O’Mahony’s success for his client after a 5 day trial in BC Supreme Court. In Tompkins v Meisters, 2021 BCSC 2080 the Court awarded approx. $710,000 for soft tissue injuries sustained in a June 2017 accident, close to triple what ICBC offered prior to trial.

The Plaintiff was a 49 year old mother of two and full-time care aid, looking after the elderly. As a result of the Accident the Plaintiff was rendered disabled from her work and social life:

… Her most significant injury is to her right shoulder. She is right‑hand dominant. She has reduced range of motion in both her shoulder and neck. She suffers from chronic pain.

[15]      Ms. Tompkins’ shoulder is aggravated by many activities, such as washing the dishes, vacuuming and pruning in her garden. She has experienced some improvement in her shoulder since the Accident, but she remains in constant pain. As a result of pain on the right side of her body, in particular her shoulder, she has disrupted sleep. The activities of daily living, such as bathing, dressing and washing her hair, are adversely affected by her shoulder injury. The pain radiates down her arm and up her neck, causing numbness in her right ring finger and thumb. She also has low back pain on the right side, which radiates down her right leg.

[16]      Ms. Tompkins feels fatigued, sad, hopeless and depressed. She has gained over 60 pounds of weight since the Accident, which she finds embarrassing and limits her activities. She has withdrawn from most social activities. Ms. Tompkins’ relationships with her family have suffered. She feels she is no longer the mother her children deserve. She is irritable and fatigued, and unable due to pain to be physically intimate with her husband. She feels dependent on her family for everything.

[17]      As a result of her inability to work since the Accident, Ms. Tompkins’ family has experienced significant financial hardship, which has been hard on her and her husband. For a period of time, they were in danger of losing their home, and have had to use all of their RRSPs and Mr. Tompkins’ inheritance from his father to pay their bills.

In an attempt to argue the Plaintiff’s compensation should be reduced, ICBC argued that the Plaintiff should have attended more treatment than she did despite her financial inability to do so. That the Plaintiff should be penalized for a lack of money was not an argument the Court allowed:

[49] Considering the evidence on this issue, I find that the defendants have not met their burden of establishing that Ms. Tompkins acted unreasonably in not attending physiotherapy until 2019. She had attended a physiotherapist three times in the months immediately after the Accident, and had not found it beneficial. She did receive some massage therapy, which she found beneficial. She reasonably acted on Dr. Wilson’s advice in declining active rehabilitation in March 2018 until she had received sufficient physiotherapy.

[50] Given the dire financial situation the Tompkins found themselves in as a result of Ms. Tompkins’ inability to work, they could simply not afford the $40.00 per visit up front fee they would have had to pay at the physiotherapist approved by ICBC in March 2018. As mentioned, there is no evidence as to when the $750.00 advance was provided, but whenever it was provided, it would not have gone far in paying for therapy and medications. If it was used to pay other bills, I cannot find that the Tompkins acted unreasonably in doing so.

This case provides a good example of the types of unreasonable positions ICBC will take in order limit an injured person’s compensation. Mussio Goodman will make sure the Court understands the full story and fight to ensure our clients are made whole.

Mussio Goodman Successfully Defends ICBC Appeal of Our Client’s $1.5M Award

Posted on August 3, 2021 by Mussio Goodman

Mussio Goodman lawyers Eric Goodman and Thomas O’Mahony successfully defended an ICBC appeal of our client’s $1,542,866 award for future loss of earnings.

In the original decision McColl v Sullivan, 2020 BCSC 137, the judge agreed with our submissions that the female plaintiff’s future loss of earnings should be calculated using male labour market statistics. The male statistics increased the award significantly, by about $300,000.

In arguing that the male labour market statistics were more appropriate, we noted that the plaintiff was working as a film editor, work for which there is no statistical difference in pay between male and females. Our client also intended to work full time for the rest of her career, with or without children. Recognizing that female statistics factor in the likelihood that a female would be paid less than a male or would take more time off than a male for family formation, we argued that this would visit unfairness on the plaintiff.

ICBC appealed, arguing that the judge erroneously applied male labour market statistics to a female as a blanket principle, and that female statistics were more appropriate given the evidence.

We argued that the trial judge clearly applied a cautious, individual approach, and that her finding of fact was well supported by the evidence and should not be disturbed.

The Court of Appeal essentially held that it was unclear from her reasons for judgment how the trial judge settled on male multipliers, and remitted the issue back to her for clarification and to assess the overall fairness of the award.

We then reappeared before the trial judge, who dismissed ICBC’s arguments and affirmed the original award, while also awarding costs against ICBC for the hearing.

We are proud of our client’s resolve and grateful for the trust she put in us to see this case through to the right result.

Mussio Goodman Goes 4 for 4 at Trial in One Month: Court Awards Our Client Four Times ICBC’s Final Offer

Posted on April 8, 2021 by Mussio Goodman

It seems clear to us that ICBC’s recent litigation strategy is to offer far less than what claims are worth, with the expectation that injured victims will feel pressured into settling rather than go to trial. Perhaps this works with some claimants, but at Mussio Goodman, we encourage our clients to fight for what’s fair, even if that means having to do the hard work of taking their case to the BC Supreme Court.

Given our track record, we know the hard work pays off. You can find our three previous trial decisions in the last month here and here, and now, Mussio Goodman is pleased to announce our firm’s latest success in the BC Supreme Court. In Debruyn v. Kim, 2021 BCSC 620, the Court awarded our client $380,375, over four times what ICBC offered prior to trial.

Our client was a 31-year old single mother with a passion for personal fitness and exercise who was trying to start a career as a personal trainer after raising her child alone and recovering from a debilitating stroke in her early 20s. The accident rendered our client a shell of herself, suffering physical injuries including a tear in her shoulder, as well as PTSD and an exacerbation of a previously under-control panic disorder with agoraphobia. She became terrified of leaving her house, requiring hours of preparation to take her daughter to school – a 10 minute drive from her home.

ICBC challenged our client at trial, arguing that that the plaintiff was neither credible nor reliable. The court dismissed this argument, noting:

[111] The plaintiff was a very good witness. She was forthright, sincere, careful, and steadfast in her evidence. She did not attempt to embellish or exaggerate her symptoms or limitations. If anything, she tended to downplay her abilities before the Collision and enhance them after the Collision. Her genuineness as a witness was bolstered by her demeanour throughout, particularly during cross-examination. The truthfulness of her evidence was repeatedly borne out on cross-examination. She fully explained what appeared to have been inconsistencies between the clinical records and her evidence in court. She was undeniably a balanced, authentic, and sympathetic witness whose evidence I have no hesitation accepting in its entirety as credible and reliable.

Aside from challenging our client’s credibility, ICBC also sought to argue that her symptoms and limitations were due to her pre-existing health issues. They also sought to make her miscarriage and the termination of her pregnancy as a focal point of the trial by arguing those were the cause of her psychological symptoms rather that the accident. This was rejected by the court, which noted:

[116] Despite these pre-existing physical and psychological issues, the plaintiff was physically functional and active, in a positive place psychologically, and was motivated to become a certified fitness instructor.

…

[119] I do not accept that the plaintiff’s post-Collision miscarriage and pregnancy termination were intervening events that contributed to the psychological issues she is currently experiencing. Although there is no doubt that these events were depressing events for the plaintiff, as they would be for any person, her PTSD and other psychological issues had manifested long before these events occurred. The defendant has failed to establish that these events warrant a reduction in the plaintiff’s damages award.

Due to the complex physical and psychological nature of our client’s symptoms, a host of doctors and other medical experts provided evidence about our client’s condition. The court lauded three of our experts in particular, noting:

[103] Drs. Syal, Helper, and Muir were impressive witnesses who gave their respective evidence in an entirely objective and helpful manner. Indeed, each was the epitome of an expert who both understands and demonstrably carries out his role in the proceedings, namely, to assist the court rather than to advocate for one party or the other. I accept their opinion evidence, as supplemented by their oral testimony, without qualification. Dr. Muir, in particular, was a breath of fresh air in the atmosphere of medical expert evidence typically heard by this court in personal injury litigation. He was genuinely focused on what can and should be done to help the plaintiff through her problems. His candid evidence was both helpful and appreciated.

ICBC’s next line of argument was that the Plaintiff failed to mitigate her injuries but not undergoing a recommended shoulder surgery in 2018. While the experts agreed that an earlier surgery had a higher likelihood of success, they also noted it was necessary to reduce the swelling in her arm first. More importantly, they also acknowledged that her psychological symptoms presented a significant barrier to her treatment. The court acknowledged this, noting:

[171] I find that the plaintiff understood and appreciated the advice of her medical practitioners to undergo cortisone injections followed by arthroscopy labrum repair to her left shoulder. However, I accept the evidence of Dr. Muir that the plaintiff’s failure to engage in these treatments was likely neither deliberate nor voluntary, but rather the result of her being psychologically incapable of following the advice due to her Collision-related PTSD on top of her pre-existing panic disorder.

This case is illustrative of the value of effective experts. The speculative and biased arguments frequently made by ICBC and seen here can be overcome with a competent, honest, and fair medical expert. Mussio Goodman is well-versed in dealing with ICBC’s experts, and can ensure that the most effective voices are before the court to present a fair case for any client.

Court Awards Our Client $729,457 in Complex Injury Case

Posted on March 30, 2021 by Mussio Goodman

Mussio Goodman is pleased to announce Associate Lawyers Thomas O’Mahony and Aron Chitsaz’s success after a two week trial in BC Supreme Court.

In Gill v Borutski, 2021 BCSC 554 the Court awarded $729,457.13, significantly more than what ICBC offered prior to trial for a very complex case. Prior to the collision the Plaintiff was a physically and psychiatrically vulnerable person, having been diagnosed with fibromyalgia. However, the Court found that she was also high functioning, “fully employed and fully engaged with family and friends, almost all of whom were unaware of her physical complaints”.

As a result of the collision the Plaintiff suffered soft tissue injuries, which resulted in her psychiatric health deteriorating:

[41] In the accident, Ms. Gill suffered soft tissue injuries to her back and shoulder, giving rise to headaches and back and shoulder pain. She was a vulnerable personality who came to believe that she had also suffered neurological injuries. This sent her into a downward spiral of unsuccessful treatments and anxiety concerning her treatments, which led her to subjectively experience further symptoms. She became focused on her treatment, and the focus made her worse. As Dr. Travlos puts it:

The result now is that her entire daily being is focused on her symptoms and she in turn is highly focused on every aspect of her symptoms, obstructing her recovery.

ICBC argued at trial that the Plaintiff’s predisposition to injury would have led to her condition deteriorating regardless of the collision. Thanks to the evidence assembled by the team at Mussio Goodman, the Court made short shrift of this argument:

[48] I am not persuaded that there is a real and substantial possibility that Ms. Gill’s condition would have deteriorated in any event. In September 2017, her condition was stable. She seldom missed work and was not complaining to her family and friends. It is highly unlikely that her condition would have deteriorated spontaneously, without a trigger of some kind, such as a motor vehicle accident. I should not take into account the possibility of a trigger in the form of an event caused by the negligence of a third party.

[49] I find that the accident was the cause of Ms. Gill’s injuries and her damages should not be discounted by reason of her predisposition to injury.

ICBC also argued that the Plaintiff’s presentation was not credible, and that the Court should deny her compensation on that basis. The Court noted that it was more complicated than this, and pointed out that her presentation was actually a part of her condition:

… One of the physicians, Dr. Gillian Simonette, remarked on a disconnect between Ms. Gill’s complaints of pain at a very high level (at 9 on a 10 point scale) and her apparent presentation. Some of this correlates with the psychiatric diagnoses that offer the best explanation for her current condition.

This case provides a good example of how sometimes a person’s physical and psychiatric health can very impacted by an accident in complex ways. An insurance company will always want to boil the case down to the most basic and simplistic terms, and will point to any cause for an injured person’s condition other than the accident. Mussio Goodman will ensure that the full story gets put before the Court.

Court Awards Our Client $753,726, Five Times More Than ICBC’s Offer Before Trial

Posted on March 22, 2021 by Mussio Goodman

Mussio Goodman is pleased to announce Associate Lawyers Thomas O’Mahony and Karol Suprynowicz’s success after a two week trial in BC Supreme Court.

In Morgan v Ziggiotti, 2021 BCSC 106 the Court awarded $753,726 for injuries sustained in a December 2016 motor vehicle accident, more than five times ICBC’s final offer prior to trial.

The Plaintiff was a 28 year old lifeguard and swimming instructor at the time of the accident. The Court summarized her active pre-accident life noting:

[10] Prior to the Accident, Ms. Morgan enjoyed extremely good health and a high level of physical fitness. She was a very athletic person who enjoyed and excelled in a wide variety of athletic activities including swimming, walking and hiking, tennis, running, horseback riding, and team sports, among others. Ms. Morgan took great pride in her athletic achievements, which she viewed as the one thing she was good at. Being an athlete was key to her identity. Physical activity was her means of coping and self-care.

As a result of the collision the Plaintiff suffered an injury to her knee. Despite her best efforts at treatment, the injury turned out to be permanent, causing her sharp pain when she attempts physical activity. She also experiences mechanical pain in her hip and lower back, which seize up. She is constantly fatigued, and has given up her life in order to manage her pain.

The Plaintiff is unable to pursue her line of work as a lifeguard as a result of the pain caused by the intense physical requirements of the work. Despite the Plaintiff’s learning disability and her reliance on her physical abilities to sustain her financially, ICBC argued that her life had not been particularly diminished by her injury, and she would not suffer much income loss in the future due to her inability to lifeguard. The Court disagreed noting:

[171]   While previous cases provide some guidance, I must assess Ms. Morgan’s damages having regard to her particular circumstances and injuries. What is most significant in her case is the loss of her athletic ability and the sense of identity that was intimately related to that ability. Through sport, she was able to overcome the shame she felt due to her learning disabilities. She was a young woman at the time of the Accident, and it has dramatically altered her life. In my view, an award of $120,000 is appropriate for pain and suffering in Ms. Morgan’s case.

…

[183]   I have already set out the expert medical evidence with respect to the impact of Ms. Morgan’s injuries. The expert evidence is clear that Ms. Morgan will, because of her injuries, never work again as a lifeguard and swimming instructor. Further, as set out in Mr. Pakulak’s report, the overall number of jobs she would be able to compete for, given her physical limitations, is significantly limited.

…

[190]   In short, Ms. Morgan’s career prospects, given her inability to work as a lifeguard and swimming instructor, her physical limitations, and learning disabilities, are very guarded indeed.

In arguing the case, ICBC relied on the opinion of orthopedic surgeon Dr. Robin Rickards. Dr. Rickards admitted that with her current symptoms the Plaintiff could not engage in the physical activity necessary to be a lifeguard. However, despite admitting that he could not be sure of his diagnosis until an invasive surgery was performed, Dr. Rickards diagnosed the Plaintiff with a condition that could be easily repaired. The Court noted Dr. Rickard’s bias, which was uncovered by an effective cross examination, and preferred the opinion of the Plaintiff’s far more experienced orthopedic surgeon, Dr. Stone:

[123]   Dr. Rickards has not performed any surgeries since the end of 2010 when he retired from his orthopaedic practice due to his own back injury. He subsequently did some training in 2014 for chronic pain management with a focus on the back and the neck, and then practiced in this area for about two years, but stopped due to a lack of patients. He retired entirely from practice in 2017 to write medical legal reports. All of his recent educational activities in the last 10 years have focused on areas other than the knee. He has not seen patients in regards to treatment for knee injuries in at least the last three years if not longer.

[124]   Dr. Rickards agreed that the more recent medical literature would be more complete than literature from 34 years ago.

[125]   Dr. Rickards was clear that he would not defer to Dr. Stone’s opinion with respect to the appropriate diagnosis. He testified that Dr. Stone in fact did not make a diagnosis, saying that knee pain is knee pain syndrome, and not a diagnosis.

[126]   Dr. Rickards agreed that he would defer to a psychiatrist as they have more training and experience to opine on psychiatric issues. He also agreed that someone who sees patients more often than he does has more experience than he does in treating a hypothetical injury. However, despite agreeing with these propositions, Dr. Rickards would not concede that any doctor may be in a better position than himself to opine on Ms. Morgan’s injury.

[127]   I agree with Ms. Morgan that Dr. Rickards displayed a tendency towards being argumentative and defensive in support of his opinion.

[128]   On cross-examination, Dr. Rickards admitted that he could not be sure what the diagnosis is until his recommended surgery is done. He further admitted that there are risks to surgery, and, in contrast to what he wrote in his report, that some people will actually be left in worse pain after the surgery. Despite admitting that he cannot be sure of the diagnosis, and despite noting that the symptoms of his diagnosis and that of Dr. Stone and Dr. Hershler are similar, he refused to concede that his diagnosis might not be correct.

[129]   Further, Dr. Rickards admitted that his report was at the very least incomplete. He did not include anything about Ms. Morgan stating she had a pre-existing ankle condition or any evidence of a pre-existing ankle condition in the records. Despite Ms. Morgan indicating she had no ankle complaints, he diagnosed her as needing surgery for a problem unrelated to the Accident.

[130]   In contrast, Dr. Stone, who has more relevant and recent experience and training than Dr. Rickards, provided a measured and unbiased opinion. He freely admitted that the symptoms of both his diagnosis and Dr. Rickards were similar, but noted that in terms of Ms. Morgan’s prognosis there is no reliable evidence that an arthroscopic procedure would lead to a better outcome for her.

[131]   I agree with Ms. Morgan that Dr. Rickards is not in a position to keep up with the current medical consensus on either the diagnosis or the prognosis or the outcome of his suggested surgery. This is in contrast to Dr. Stone, who is an associate professor with three clinical practices, who regularly operates on knees, and attends numerous lectures and conferences with a specific focus on the area he concentrates on in his clinical practice: knees and hips.

[132]   For all of these reasons, I prefer Dr. Stone’s evidence to that of Dr. Rickards. I accept Dr. Stone’s opinion about the appropriate diagnosis for Ms. Morgan’s knee symptoms, their treatment and likely prognosis.

This case provides a good illustration of the mentality and tactics pervasive at ICBC, which are to try to reduce payments to injured persons by minimizing the impact of injuries, and hiring biased doctors to provide them with the medical opinions they want.

The NDP Government is Attempting to Help ICBC by Limiting Expert Reports and the Amount Paid by ICBC for Disbursements

Posted on October 13, 2020 by Mussio Goodman

On February 11, 2019, the NDP, through the Attorney General (David Eby), unilaterally changed the Rules of Court without the usual consultation with the Rules of Court Committee, a committee which is made up of lawyers and judges jointly appointed by the Chief Justice and David Eby. They did not consult the TLABC (Trial Lawyers Association of BC) either. He no doubt listened to ICBC on how to give them an unfair advantage.

The new Rule limited the use of quantum expert reports to one only if the case in under Fast Track Litigation, a program put in place to streamline trials that can be heard in 3 days and/or are under $100,000 in value. All non-Fast Track actions have a limit of 3 quantum expert reports.

The constitutionality of the Rule change went before the Supreme of British Columbia and the NDP’s Rule change was found to be inappropriate and struck down, rightfully so. Do you think that David Eby and the NDP accepted fate and realized that this was a poor decision? Absolutely not because they are now attempting to put in legislation, just before the election was called, to do exactly what the court already said was not proper. This time, rather than using the Rules of Court, they are attempting to put forward the changes through the Evidence Act but they gave a little bit more discretion for the Court to grant orders allowing more than the one or three expert reports in special cases. Thankfully, there is hope that the new legislation will not become law if the NDP lose the election as the BC Liberals will definitely not put in this draconian legislation as it is simply unfair to the injured victim and is completely in favour of ICBC.

The interesting point is that when the NDP originally made the Rule amendments, they were effective immediately on experts reports that had not already been formally served on ICBC. In the result, this was a major “blindside” to lawyers and their clients especially since tens of thousands of reports on existing files still had not been served on ICBC because many lawyers tend to serve the reports closer to the 84-day service deadline before trial for tactical reasons.

Not to be outdone, the NDP, when the proposed change to the Evidence Act in February 2020, did the same “blindside” rather than speaking to all affected parties and coming up with a reasonable solution to the high cost of expert reports.

Backing up, the NDP’s rational for the Rule change is there would be a $400 million yearly cost saving to ICBC with the dramatic curtailment of expert reports. The cost savings, as the NDP government sees is it, not results from less expert reports per case but also, with the limited number of expert reports, most injured claimants won’t be able to fully prove their case meaning ICBC has to pay less per claim. Indeed, ICBC routinely tells injured victims that they cannot pay for certain parts the claim because there’s no expert opinion evidence on the point. You can be rest assured ICBC will use that limit on expert reports to their significant advantage in defending claims.

That wasn’t enough to give ICBC unfair advantage. The NDP went one step further and is proposing to limit the amount of disbursements that ICBC has to pay back to the injured victim to 5% of the settlement value of the claim.

Currently the law is that, generally speaking, ICBC has to pay any reasonable disbursements to the injured victim upon settlement or judgement. This change will dramatically reduce the amount ICBC has to pay back on disbursements of the injured claimant. It will also reduce the size of the overall claim because again, if the injured victim has to pay for expert reports, they would be less inclined to spend the necessary money to fully prove the claim.

There’s no question, therefore, the NDP government is more the prepared to put one-sided legislation into effect that will severely restrict an injured victim’s ability to get fair compensation while completely empowering ICBC.

Fortunately, if the NDP government lose power in the election, the legislation will not go through and fairness will return in the ICBC claim process.

Simply put, the NDP is going to great lengths to completely empower ICBC as an even more powerful corporation with all the Rules in their favour. The NDP does not care one bit about the injured victim and has no problem eliminating rights.

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