$80,000 Non-Pecuniary Assessment for 80% Recovered but Lingering Myofascial Pain Syndrome

The guest post is written by ERIK MAGRAKEN

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for myofascial pain developed secondary to a vehicle collision.

In today’s case (Tang v. Duong) the Plaintiff was injured in a 2105 collision where the Defendant turned into the plaintiff’s lane of travel at an intersection.   The Plaintiff developed various soft tissue injuries which resulted in regional myofascial pain syndrome.  By the time of trial the injuries were about 80% improved but the lingering symptoms were expected to persist.  In assessing non-pecuniary damages at $80,000 Mr. Justice Thompson provided the following reasons:

[11]         It is convenient to begin with Dr. Letcher’s evidence, which I accept in its entirety. On physical examination in September 2019, over four years after the MVA, Dr. Letcher identified tenderness and palpable trigger points on the right side of Mr. Tang’s neck, and the right side of his low back. Dr. Letcher reviewed the medical documentation made available to him, and noted the documentation of significant and prolonged low mood, anxiety disorder, sleep disturbance, as well as decreased exercise/activity tolerance. This was consistent with the history provided to him by Mr. Tang, and consistent with Mr. Tang’s evidence at trial, which I accept.

[12]         Dr. Letcher’s opinion is that the MVA probably caused acute muscle and ligamentous strains to Mr. Tang’s neck and back, which would have healed within about eight weeks, but he has subsequently developed regional myofascial pain syndrome affecting his neck and low back. At the time that Dr. Letcher examined Mr. Tang, there was no clear evidence of a more diffuse chronic pain syndrome such as fibromyalgia. I accept this evidence, and despite Dr. Lee’s diagnosis of fibromyalgia, I am not satisfied on the balance of probabilities that Mr. Tang ever met the diagnostic criteria for that condition.

[13]         Dr. Letcher’s opinion is that Mr. Tang’s depressed mood, anxiety, and sleep disturbance complicate his prognosis, which Dr. Letcher describes as “guarded given the chronicity of his symptoms.” His neck and back pain will most likely persist into the foreseeable future, with some improvement with treatment strategies. Although Mr. Tang is not disabled from work, Dr. Letcher emphasized that he would need to “work around his symptoms as best as possible….

[17]         Mr. Tang has endured a significant amount of pain, and although I find he has achieved a recovery on the order of 80 percent, the likelihood is that he will always have some pain and stiffness in his neck and low back. Work is important to Mr. Tang, and the effects of his injuries causes him to have to work around his symptoms. He has been able to keep up with domestic chores since the summer of 2015. His injuries have affected his recreational pursuits, but in a modest way.  ..

[20]         Each of these cases has been of some help in making the assessment, but, naturally, each has important distinguishing features. Making an individualized assessment, I consider that $80,000 is a fit award for non-pecuniary damages.

bc injury law, chronic myofascial pain syndrome, chronic regional myofascial pain syndrome, Mr. Justice Thompson, Tang v. Duong

Wife of late Palestinian terrorist can’t collect on life insurance policy

By Colin Perkel

THE CANADIAN PRESS

TORONTO _ The wife of a notorious Palestinian terrorist who attacked an Israeli airliner has lost out on her bid to collect on her late husband’s life insurance because he failed to mention his unsavoury past when he took out the policy in 1987.

In overturning a lower court decision, the Ontario Court of Appeal ruled against Fadia Khalil Mohammad given the important omission on his original application.

“It is a principle of long-standing that an applicant for insurance has an obligation to reveal to the insurer any information that is material to the application,” the Appeal Court ruled.  “The deceased knew that his past activities were relevant.”

Mahmoud Mohammad Issa Mohammad, a member of the Popular Front for the Liberation of Palestine, made international headlines in 1968 when he and an accomplice attacked an El Al commercial aircraft at the airport in Athens. They threw grenades and fired live rounds, killing one person and destroying the plane.

Mohammad was convicted in Greece of manslaughter and other offences but released after a hostage negotiation when other front members stormed another plane. He moved to Lebanon and then, under an alias, to Canada in 1987 and settled in Brantford, Ont.

After a publicized battle with immigration authorities, he was deported to Lebanon in 2013 and died from cancer in 2015. His wife, as sole beneficiary, sought to collect on the $75,000 policy issued decades earlier by the Manufacturers Life Insurance Company.

When he applied for the policy, Mohammad said he had just moved to Canada from Spain and provided a social insurance number, court records show. The application, however, did not ask about his citizenship or residency status, or any convictions. He made no mention of his nefarious past.

Khalil argued successfully before Superior Court last May that she should get the money. Justice Shaun O’Brien ruled that her late husband had not misrepresented his immigration status or failed to provide significant information about himself, because the insurance company had simply not asked those questions on the application form.

Manufacturers appealed, arguing O’Brien was wrong. The company maintained that Mohammad’s failure to disclose material facts had voided the policy. It relied on a clause that stated the company required “complete and accurate answers” and that it could deny a claim if any answers were wrong.

The Appeal Court agreed with Manufacturers, pointing out that insurance legislation requires applicants to disclose all facts material to the insurance.

“The past actions of the deceased were material to the risk that he posed for the purpose of having his life insured,” the Appeal Court found. “There is no suggestion that (Manufacturers) ought to have known that the information related to the deceased’s past existed, and therefore cannot be faulted for not having inquired into it.”

The higher court noted that shortly after applying for the insurance, Mohammad himself argued his life would be in danger if deported to Israel. The upshot, the court said, was that he had intentionally hidden his past activities from Manufacturers, just as he had done with the federal government when came to Canada.

“Our conclusion that the deceased intentionally withheld this information is sufficient to establish fraud,” the Appeal Court said.

Bureaucratic hurdles hampered federal flood prevention program: audit

By Jim Bronskill

THE CANADIAN PRESS

OTTAWA _ The federal government had trouble spending half of the $184 million earmarked over the last few years to prevent flood damage in Canadian communities, an internal evaluation has found.

The National Disaster Mitigation Program’s effectiveness was hindered by scheduling issues that led to delays, the lack of an agreement with Quebec and additional hurdles for First Nations, says the newly released evaluation report.

According to government data, 108 of the 170 major disasters between 2008 and 2018 were floods, causing billions of dollars in damage.

Eighty per cent of Canadian cities are built on flood plains, the report notes.  “With climate change, recovery costs for flood disasters will continue to increase.”

The mitigation program, created in 2015, funded 363 projects in 117 communities mainly flood mapping and structural improvements to lessen the effects of rising waters. About $95 million went to these projects, but another $89 million in earmarked funding was not allocated.

“Administrative requirements and time limits for structural projects were seen as barriers,” the report says.

There was little uptake of the program in the first two years, as timing of the launch did not align with provincial budget cycles, meaning provinces could not provide the needed matching funds.

In addition, provinces and territories had expected a program to address a wider range of hazards, and therefore may have had to modify projects to match the program’s tight focus on flood mitigation. That focus was considered important given the interplay between disasters.

“When there are forest fires, we know that we’re going to get more floods in coming years,” said one person interviewed by the evaluation team.

Since applications had to be made through provincial or territorial governments, First Nation communities “faced additional barriers,” given the federal responsibility for on-reserve communities.

Other problems included “complex and burdensome” administration of the funding program, long forms to complete, and significant staffing turnover in the regions and at Public Safety Canada headquarters during the early stages.

The program managers accepted the evaluation’s recommendations and committed to making changes.

Five years ago, Canada was the only G7 country with no residential insurance coverage for overland flooding, as existing flood maps were outdated, the report notes. The disaster mitigation program was set up, in part, to undertake the necessary assessments and mapping, and the insurance industry has begun to use newly created maps.

“However, at present, affordable overland flood insurance is not available to all affected communities across Canada,” the report says.

Governments, homeowners, the private sector, academia and non-governmental organizations all have roles to play in reducing the burden on governments related to disaster recovery, the reviewers say.

They advocate steps such as:

_ preventing land development in flood-prone areas through reliance on the program’s risk assessments and mapping;

_ flood-proofing properties with appropriate window wells, downspouts and sump pumps.

Motorist Found Fully Liable For Striking Cyclist in Dedicated Bike Lane

The guest post was written by ERIK MAGRAKEN

Reasons for judgement were published today by the BC Supreme Court, Kelowna Registry, discussing the duties of cyclists riding in dedicated bike lanes.

In today’s case (Charlton-Miner v. Hedgecock) the Plaintiff was travelling on a bicycle in a dedicated bike lane.  As she approached an intersection that she was driving straight through the Defendant motorist approached from her rear and “turned across the plaintiff’s path, causing the right side of his vehicle to collide with the plaintiff’s left shoulder area and causing her to fall.”  The Plaintiff’s bike lane was to the right of a designated right hand turn lane.

ICBC argued that the Defendant should not be at fault for striking the cyclist for a variety of reasons including that the cyclist should have had a rear view mirror and somehow reacted differently and further arguing that the cyclist should have left the dedicated bike lane and entered the lanes intended for vehicles to go through the intersection because the bike lane was to the right of a dedicated right hand turn lane.  In rejecting these arguments and finding the motorist 100% at fault Mr. Justice Wilson provided the following reasons:

[33]         Neither party was aware of any cases that address the issue of whether a cyclist who intends to cross an intersection is obligated to leave a dedicated bicycle lane and cross a right turn lane in order to move into the through lane for traffic. If the plaintiff was so obligated, she would have been subject to a heightened duty of care that may be significant in determining whether she was at fault, in whole or in part, for the accident….

[40]         If I were to accept the defendant’s argument, the dedicated bicycle lane should not be used by cyclists who intend to cross the intersection and would instead be used solely by cyclists intending to turn right. However, there are neither signs nor markings in the bicycle lane that would indicate that the bicycle lane has ended for through cyclists. There are no signs or markings that require users of the bicycle lane to turn right. The bicycle lane is separated from the single lane and what subsequently becomes the right turn lane by a solid white line. The bicycle lane contains only one painted sign, which is a picture of a bicycle. The painted bicycle sign is positioned shortly after northbound lane divides into two lanes divided by a broken line. In the absence of any signage indicating that through cyclists should do otherwise, it is reasonable to assume that cyclists are intended to remain within the bicycle lane, regardless of whether they intend to turn right or to continue through.

[41]         Dedicated bicycle lanes provide cyclists with a small portion of the roadway in which to travel to the exclusion of motor vehicles, recognizing that motor vehicles may need to traverse a bicycle lane, whether to enter or exit the roadway, to park adjacent to the curb, or for other reasons. Cyclists can expect that vehicles will not be driving in the dedicated bicycle lanes and will yield to cyclists using those lanes, just as drivers of motor vehicles can expect that cyclists will confine themselves to dedicated bicycle lanes where available.

[42]         At this intersection, a cyclist would have to leave the dedicated bicycle lane, traverse the right turn lane, and then merge into and ‘take’ the through lane, a potentially hazardous manoeuver when the latter two lanes can be expected to contain vehicular traffic travelling much faster than the cyclist.

[43]         I find that the plaintiff was not in breach of any traffic rules or the rules of the road when she stayed in the dedicated bicycle lane and proceeded to cross over the intersection in the direction of the dedicated bicycle lane on Hollywood Road north of Highway 33 because cyclists in the dedicated bicycle lane are not obligated to turn right. The dedicated bicycle lane is both for cyclists who are turning right and those who are continuing through the intersection. The plaintiff was not subject to a heightened duty of care.

[44]         The facts here are similar to those in Levers v. Blace, [1993] B.C.W.L.D. 1666, 1993 CarswellBC 2355. In that case, a cyclist was riding alongside a motorist in the same lane of traffic when the motorist made a sudden right turn into a parking lot, resulting in the cyclist colliding with the passenger side of the motorist’s vehicle. Justice Lowry held the motorist to be solely responsible for the collision:

[5]        Mr. Blace says that he was stopped beside Mr. Levers at the light. But he says Mr. Levers was in the right turning lane. He says that when the light changed, he accelerated and did not see the bicycle again until the impact. He assumed Mr. Levers had turned right on Trunk Road. Mr. Blace has no recollection of looking to his right or behind before he made his turn into the Dairy Queen lot. If he had, he would have seen the cyclist. He activated his turn signal just as he cleared the intersection. He assumed there was no reason he could not turn safely. His assumption was wrong.

[45]         The circumstances in this case are similar to those here because the defendant had previously seen the plaintiff before he got to the intersection, but had lost track of her and failed to ensure that it was safe to commence his right turn.

[46]         I do not accept that the plaintiff should share any responsibility for the accident. The plaintiff had been travelling in the dedicated bicycle lane for several blocks. It was a bright and sunny day and she was clearly visible. Motorists such as the defendant who were travelling in the same direction as the plaintiff had a prolonged opportunity to observe her in the bicycle lane and the defendant ought to have anticipated that she may continue through the intersection in line with the dedicated bicycle lane.

[47]         Because I have concluded that the plaintiff was ahead of the defendant as they approached the intersection and that they arrived at the intersection at approximately the same time, the defendant was obligated to yield to the plaintiff, no different than if she had been a pedestrian using the adjacent crosswalk. The defendant’s evidence was that he did not see her, even though he had seen her previously. However, it does not matter whether he actually saw her at the time he was commencing his turn. Rather, she was riding her bicycle in the dedicated bicycle lane in accordance with the bylaw and she was there to be seen.

[48]         I do not accept the defendant’s submission that the plaintiff failed to take sufficient precautions for her own safety by not having a rear-view mirror attached to either her bicycle or helmet. Even if she had been aware that the defendant was approaching her from behind in the right turn lane, it was reasonable for her to expect that the defendant would have allowed her to pass before commencing his turn, and it is not apparent on the face of the evidence as to what kind of evasive action the plaintiff could have taken upon the sudden realization that the defendant was not going to allow her to do so.

[49]         I find the defendant 100% at fault for the accident. Subject to something of which I am unaware, the plaintiff is entitled to her costs.

bc injury law, Bike Lanes, Chartlon-Miner v. Hedgecock, cyclist collisions, Mr. Justice Wilson

Does private insurance fit with Canada’s health system?

The excerpted article was written by DIANA DUONG | The Province

Is paying out-of-pocket for medical care the answer to long wait times?

In Canada, private medical insurance does not exist. Our health care system does not allow paying with private health insurance for any hospital services that are “medically necessary.” It’s illegal for patients to pay out of pocket to skip a long waitlist for a surgery and physicians cannot accept payment from patients who want to see them sooner.

To be clear, we’re not talking about the private insurance that covers dental care, vision, or prescription drugs. Private medical insurance in Canada would aim to provide an alternative option to waitlists and providing faster and better options for currently covered elective procedures. In England, 10.5 percent of the population have private medical insurance while 44 percent of the population in Australia have purchased complementary coverage on top of their public system.

Canada’s model is designed to protect affordability. Healthcare is provided on the basis of need, rather than the ability to pay, states the Canada Health Care System website. A major concern is that if private insurance were introduced, high-income people will receive faster and better care than lower-income people. But with a growing aging population, not enough facilities to manage the elderly, and painfully lengthy waitlists, many wonder if it’s time to consider how private medical insurance could fit into our system.

Healthcare is provided on the basis of need, rather than the ability to pay

Conservative policy think tank Fraser Institute released a new study this week criticizing these objections. It compares the healthcare systems in several developed nations with universal health care coverage. But when Healthing spoke with study author Steven Globerman, he says this study doesn’t offer a prescription or proposal of how exactly Canada could introduce private insurance to our current model.

“It’s hard to say ‘here’s a specific model,’ because it varies from country to country,” he says. “Each country has its own differences and its own idiosyncrasies. If Canada is going to move along the path towards allowing private insurance, Canada needs to go slowly and carefully and adopt the changes and see which seem to work and which don’t. What works in Switzerland might not work in Canada.”

Indeed, if done wrong, it may have unintended consequences. A report from the Grattan Institute states that private hospitals in Australia are “less efficient than public hospitals.” The report found that “a handful of greedy doctors charging more than twice the Medicare Benefit Schedule fee account for the vast majority of out-of-pocket costs private patients pay.”

It also found that private hospital patients stay 9 per cent longer than public hospital patients with similar conditions, which it estimates costs about $1 billion each year.

When asked if services provided by private institutions should be subjected to the same rules and regulations as public institutions — and importantly, the same price or cheaper in order to protect affordability, Globerman said, “it doesn’t necessarily have to be the case.”

“You can have private insurance cost more than the tax dollar value of public insurance if people are willing to pay for it. That’s going to be determined by the marketplace,” he says. “If the government thinks that’s a monopoly price and it’s too high, then they can invoke some kind of regulation that might lower price.”

Globerman suggests adding private insurance can help get faster service, but it may result in a two-tier system.

“In a narrow sense, there would probably be a two-tier system,” he says. “Some people might get faster care or a wider selection of providers but everyone will have shorter wait times, including people who are strictly on the public insurance system and they’ll better off.”

But without a clear model ahead or a health system similar to Canada’s, it’s hard to definitively say that all parts of the population will be better off.

Car crash injury claims aren’t increasing, insurance can handle costs

Car crash injury claims aren’t increasing, insurance can handle costs

LAUREN BOOTHBY

Edmonton Journal

An Alberta group advocating for fair auto insurance is out with a new report challenging the reasoning behind scrapping a rate cap that will now see some drivers paying nearly 30 per cent more for auto insurance this year.

Insurers have blamed climbing injury payouts for creating a “crisis” in the insurance industry, with companies claiming they were paying out more than they were bringing in through premiums. But an analysis by an actuary hired by Fair Alberta Injury Regulations found injury payouts have stabilized in the last few years and even started to dip in 2019.

“They’re not skyrocketing. They’re not significantly increasing from one year to the next. That’s been the case for (three) years now,” consulting actuary Craig Allen told Postmedia.

He acknowledges injury claims did climb between 2011 and 2016, but they have levelled out since then.

“I agree there has been a period of growth, but my interpretation is that period of growth has ended,” Allen said.

He also found that the previous rate cap was high enough to cover injury claims in the last few years, because the Automobile Insurance Rate Board’s (AIRB) allowed rate hikes accounted for claims increasing at a faster pace than what resulted.

“Allowable rate levels since late 2017 … provide more than adequate amounts for the estimated bodily injury claims costs that have subsequently emerged. For insurers that have kept up to date with their rate changes, further rate increases for bodily injury coverage appear to be unnecessary at present and for a period into the future,” Allen wrote in the report.

He said insurance companies and the AIRB overestimated the severity of injury claims, and so that left room to cover any higher costs the company faced.

Fair Alberta is skeptical of claims the industry is overburdened by claims costs, and the reason behind the provincial government’s decision to scrap the rate cap

“We don’t understand where the premier got the idea that personal injury claims are escalating out of control — that is not what this data shows,” he told Postmedia.

“There is not a crisis going on with bodily injury claims costs, and there is no need to take money away, or compensation away, from injured, innocent people to compensate for an industry that is saying that there is a problem.”

The group also says it expects insurers are claiming hardship ahead of lobbying for changes to consumer protection laws around injury compensation.

The Insurance Bureau of Canada (IBC) takes issue with the report’s claims bodily injury claims have stabilized.

“Data from the independent rate regulator’s actuary clearly shows a steep increase in bodily injury claims since 2012. It’s clear that the auto insurance system no longer works for Alberta’s three million drivers: it’s expensive and offers little choice. We hope that all groups, regardless of what stake they have in the situation, will come together and work with the government-appointed expert committee on auto insurance to work on fixes that are in the best interest of drivers,” Celeste Power, IBC’s vice president said in an email statement.

When reached for comment, the AIRB only pointed to a panel reviewing insurance in the province, and did not comment further on the report.

“The government is reviewing the current automobile insurance system to ensure automobile insurance is sustainable and available for all Albertans. The AIRB looks forward to the expert advisory committee’s report and recommendations,” reads a statement from the AIRB.

Jerrica Goodwin, spokesperson for the provincial treasury board and finance, said in an email statement the AIRB is in the best position to comment on its methodology.

“Our government is addressing the issues in the automobile insurance industry that the previous government wasn’t willing to. We have appointed an advisory committee to review the system and are committed to an automobile insurance system that is fair, affordable and accessible for Albertans,” she wrote.

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