$170,000 Non-Pecuniary Assessment for Hip Injury, PTSD, TOS and Chronic Pain

Source: Erik Magraken BC Injury and ICBC Claims Blog

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for a plaintiff who suffered a host of injuries in a vehicle collision.

In today’s case (Firman v. Asadi) the Plaintiff was involved in a 2013 collision.  The Defendant denied fault but was found liable at trial.  The collision resulted in multiple injuries including a torn labrum, thoracic outlet syndrome, PTSD and chronic pain.  Prognosis for full recovery was poor.  In assessing non-pecuniary damages at $170,000 Mr. Justice Verhoeven provided the following reasons:

[145]     Based upon the abundant medical evidence as well as the evidence of the plaintiff and other evidence of the lay witnesses, I find that the plaintiff’s injuries that she attributes to the MVA and as reported to the treatment providers and medical experts were caused by the MVA.

[146]     As noted, there is much overlap in the specific diagnoses found in the medical evidence.  In more general terms, the plaintiff’s injuries sustained in the MVA are: (1) left hip injury, including torn labrum, requiring surgery;  (2) TOS or thoracic outlet syndrome, requiring surgery, and with further surgery recommended; (3) whiplash injuries (myofascial pain syndrome, mechanical spine pain) and resultant chronic pain, particularly in her upper back, left shoulder, and arm; (4) left shoulder tendinopathy; (5) chronic headaches; (6) mood or psychological/psychiatric disorders, including depression, somatic symptom disorder, and anxiety.

[147]     The defendants dispute the diagnosis of PTSD, made by Dr. Schweighofer. Dr. Iso noted PTSD “symptoms”.  In the circumstances of this case, the question of whether the plaintiff fully meets the criteria for this diagnosis is of little practical consequence. Dr. Waraich noted that her symptoms meet the DSM-5 criteria for PTSD, with one exception. He states that, while a diagnosis of delayed onset PTSD could be made, in his view her PTSD symptoms are “better accounted for” by the diagnoses that he makes: depressive disorder, and somatic symptom disorder. However, he added:

…in my opinion, her future course and potential treatment of PTSD symptoms are relevant despite her not meeting full criteria for PTSD in my assessment.

[148]     The prognosis for substantial improvement is poor…

[218]     The evidence discloses that the plaintiff has suffered a very substantial non-pecuniary loss.  She is now only marginally able to continue with her former occupations, and passions in life, fitness training and barbering. Her physical and psychological injuries as outlined previously are substantial, and likely permanent to a large extent at least.  She has endured a great deal of pain and suffering, which will continue indefinitely. She has undergone two surgeries and a third surgery is likely, since it is recommended and the plaintiff says she plans to undergo it.

[219]     Her injuries and their consequences have quite dramatically affected her former lifestyle and her personality. She was previously very physically active. She participated in marathon runs and triathlons, operated a fitness business, and engaged in a number of sporting activities. She was independent and took pride in being able to support herself and her younger daughter, who continues to be a dependant. I referred earlier to the change in her personality noted by the witnesses. She is no longer outgoing, social, energetic and happy, as she was before.

[220]     Her homemaking capacity has been impacted. She testified that pre-accident she kept a tidy household. This is corroborated by Mr. MacDonald and her daughter. She no longer has the ability to maintain a tidy household. Now her house is messy.

[221]     On the other hand, she is far from completely debilitated, and there is a chance her condition will improve, with appropriate treatment.  Her pre-accident condition was not perfect, (in particular, she had symptomatic spinal degeneration, and headaches) and there was some risk that her conditions could have affected her detrimentally in future, as they had pre-accident.  They might have worsened.  …

[231]     Having regard to the case authorities I have referred to, I assess the plaintiff’s non-pecuniary damages in the amount of $170,000.

Nearly 1 in 3 surveyed Canadians report having been victimized by financial fraudsters

Read more

Misleading insurance myths about ‘severe weather’ flooding distract us from real problems

Opinion: Claims that rising frequency and intensity of storms is causing rise in payouts not based on science

Robert J. Muir

Flooding and the damage it can cause are of concern for good reason, and we all share the desire to mitigate the losses caused by flooding. However, the contention of Craig Stewart of the Insurance Bureau of Canada (IBC) in a recent op-ed in these pages, that increases in the frequency and intensity of severe weather are the cause of rising insurance claims, is iill-founded

First, the IBC has promoted its “Telling the Weather Story” report claiming that weather events that once occurred every 40 years now occur every six years in parts of the country, citing the source for that claim as Environment Canada data. This claim was based on nothing more than a hypothesized shift in a probability distribution, with no foundation in fact. Environment Canada corrected this IBC claim in Canadian Underwriter, and Canada’s largest insurers no longer repeated the IBC claim after they were made aware of the data.

IBC does not help its members by ignoring the real causes of flooding or hyping unfounded storm intensity and flood loss correlations at the expense of sound science and engineering

Second, the CBC Ombudsman concluded that CBC reports on the topic were incorrect in reporting insurance-industry claims that increases in the frequency and intensity of severe weather are the source of these rising insurance claims costs. In his op-ed, Mr. Stewart argued that the ombudsman used only one source to reach his conclusion. But that source, Environment Canada, compiles many other papers that have the same finding that there has been no change in severe weather events.

Furthermore, 10 studies in southern Ontario alone, by leading universities, municipalities and engineering consultants, have shown no change in storm design intensities that drive flood damages. When rainfall trends are extended to incorporate more recent data, including 2013 extremes, it is seen that there is no increasing trend in observed maximum rainfall amounts to support IBC’s repeated hypothesis that storms are on the rise.

The accompanying chart shows the trend from Toronto’s Pearson Airport meteorological station. Despite the 2013 extreme, the overall trend is still downward when recent data are considered.

The observance of correlation is too often used to declare causation, such as IBC claiming rain intensity as the cause of greater flood losses. While IBC may be confident in its loss numbers (even though 1990s values are not as robust as values compiled since 2008), it cites absolutely no rain data to correlate with those losses. Thus, IBC skipped right over correlation and claimed causation.

This is not science.

If losses have doubled since the 1990s, we must also look to the science of hydrology for an explanation. Unlike storm trends, urbanization and intensification have increased by significant factors for many decades and logically explain greater urban runoff and flood risk. We must accurately characterize the true causes of flooding to focus on the most effective solutions. If engineers ignore the facts and design flood mitigation infrastructure according to IBC’s falsely claimed frequency shift of 40 to six years, or the new unfounded claim that storms are more intense since 2009, scarce public resources would be diverted to over-designed, unnecessary works, delaying or even preventing implementation of reasonably sized infrastructure that is greatly needed.

Should governments focus on mitigation due to a “weather story” about bigger storms, they may do so at the expense of timely and effective adaptation strategies focused on the real problems.

IBC does not help its members by ignoring the real causes of flooding or hyping unfounded storm intensity and flood loss correlations at the expense of sound science and engineering.

Robert J. Muir, P. Eng is an Ontario municipal engineer and member of the Ontario Society of Professional Engineers

ICBC, police and government continue to find new ways to tackle distracted driving

ICBC, police and government continue to find new ways to tackle distracted driving

With more than one in four fatal crashes on B.C. roads involving driver distraction, ICBC, police and government continue to look for solutions to combat this dangerous driving behaviour that claims 77 lives each year.*

Crashes reached a record high in 2017, with many of these caused by distracted or inattentive driving. Distracted driving involves any non-driving activity that reduces a driver’s ability to focus on the road or control their vehicle, and is the leading contributing factor in police-reported injury crashes in B.C.

As part of the commitment to make roads safer, ICBC is inviting eligible drivers to participate in a telematics pilot project starting this summer. The goal is to determine whether using this technology can improve road safety and driving behaviour for inexperienced drivers in B.C.

Eligibility is based on driving experience and will be open to all drivers entering the novice stage of the Graduated Licensing Program and for drivers who have held a full drivers license for less than five years. The project was originally announced in November, and further details, including the telematics vendor, will be released later this spring.

The B.C. government, police and ICBC conduct two distracted driving education and enhanced enforcement campaigns every year. The campaigns also include advertising and social media support.

This month, drivers will be hearing one united message – take a break from your phone when you’re behind the wheel. Enhanced police enforcement of distracted driving will take place across B.C., including a province-wide blitz on Friday, and community volunteers are conducting Cell Watch deployments to remind drivers to leave their phone alone when driving.

Drivers can do their part by avoiding distractions while driving and encouraging others to do the same. Activate Apple’s Do Not Disturb While Driving feature or what’s similarly available on other devices. Free ‘not while driving’ decals are available at ICBC driver licensing offices and participating Autoplan broker offices for drivers to support the campaign and encourage other road users to leave their phones alone.

You can view tips and statistics in an infographic at icbc.com, and register your interest in participating in the pilot project at icbc.com/driverpilot.

Quotes:

David Eby, Attorney General

“Distracted driving endangers the lives of British Columbians with devastating effects for families and communities. It also puts significant pressure on insurance rates. That’s why we introduced tougher penalities for distracted drivers last year. Improving road safety is key to creating a sustainable auto insurance system with more affordable rates for everyone.”

Police Chief Neil Dubord, Chair B.C. Association of Chiefs of Police Traffic Safety Committee

“Since 2010, police have issued more than 370,000 tickets for electronic device use, which tells us that distracted and inattentive driving continues to be an ongoing issue on B.C. roads. Police will be out in full force this month ensuring you to put your phone away when you’re behind the wheel.”

Lindsay Matthews, ICBC’s Vice-President Public Affairs

“This telematics pilot project will enable us to better understand the role that technology can play in reducing distraction and preventing crashes for inexperienced drivers. But safer roads start with every driver making a conscious decision to focus on the road and leave their phones alone. You’re five times more likely to crash if you’re using your phone while driving. Let’s all do our part to create a safer driving culture in B.C.”

Regional statistics*:

  • Every year, on average, 27 people are killed in distracted driving-related crashes in the Lower Mainland.

  • Every year, on average, 10 people are killed in distracted driving-related crashes on Vancouver Island.

  • Every year, on average, 28 people are killed in distracted driving-related crashes in the Southern Interior.

  • Every year, on average, 13 people are killed in distracted driving-related crashes in the North Central region.


Editor’s note:
 Photo/video opportunities of police blitz in Surrey, White Rock and North Vancouver on March 1st. Please contact ICBC for details.

*Police data from 2013 to 2017. Distraction: where one or more of the vehicles involved had contributing factors including use of communication/video equipment, driver inattentive and driver internal/external distraction.

$160,000 Non-Pecuniary Assessment for Brain Injury and Chronic Pain

Source: Erik Magraken BC Injury and ICBC Claims Blog

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for a mild traumatic brain injury and chronic pain sustained in a BC vehicle collision.

In today’s case (Ranahan v. Oceguera) the Plaintiff was involved in a 2013 rear end collision.  Although faut was not formally admitted the Court found the Defendant fully liable for the crash.  The Plaintiff suffered chronic injuries from the collision and in assessing non-pecuniary damages at $160,000 Mr. Justice Mayer provided the following reasons:

[144]     I find that as a result of the accident, Ms. Ranahan has sustained mild traumatic brain injury and soft tissue injuries to her spine, which has developed into chronic neck pain, upper back pain, post-concussion syndrome, cognitive problems with memory and focus, imbalance, tiredness, fatigue, tinnitus, eye strain, sleep disturbance and chronic headaches. I also accept that the imbalance caused by her accident resulted in a further injury, the left ankle dislocation with a chip fracture, while coaching a soccer game.

[145]      I also find that Ms. Ranahan suffers from ongoing mood symptoms including irritability, moodiness a reduction in patience and positivity. She is experiencing on-going difficulties dealing with stress. Although Ms. Ranahan admits that prior to the accident she was under significant stress as a result of her husband’s health issues, family and work responsibilities she was managing these stresses and was fully functioning at work and at home and was able to participate in a number of sports and social activities.  

[146]      I find, based on the totality of the lay and expert evidence, that there are no genuine issues of causation in this case. I find that but for the accident Ms. Ranahan would not be suffering from her current physical and psychological/cognitive symptoms…

[157]     I find that, as a result of the accident, Ms. Ranahan experienced and continues to experience physical and emotional pain, suffering and limitation. Relevant facts have been set out earlier in my reasons and there is no need to repeat them.   

[158]     The impacts have interfered with her family and business life but as a result of her stoicism these impacts have been managed to a certain extent. In addition, her injuries have significantly impacted her recreational and social pursuits but she has not been completely unable to participate in some of these activities.  

[159]     I find that there has been some improvement in some of Ms. Ranahan’s symptoms. What is not clear is whether there will be any further improvement. There appears to be a belief amongst some of the medical experts, including Drs. Chow, Johnston and Boyle, that further assessment and treatment may result in improvement. The prognosis of Dr. Chow and Dr. Johnston is guarded.

[160]     Many of the cases relied upon by Ms. Ranahan occupy the higher end of the spectrum for non-pecuniary damages for similar injuries. The cases relied upon by ICBC are in my view at the lower range and the damages awarded in those cases are not sufficient to address the pain, suffering, loss of enjoyment of life and loss of amenities suffered by Ms. Ranahan. 

[161]     Having reviewed the cases provided by the parties I assess Ms. Ranahan’s non-pecuniary damages at $160,000.  

Lawyers coaching B.C. doctors to avoid injury caps under new auto insurance rules

The excerpted article was written by

B.C. doctors are being coached by trial lawyers to avoid classifying motor-vehicle injuries as “minor” under new rules that, starting in April, will cap some claims.

“An early and optimistic prognosis will have a devastating impact on your patients’ legal rights if their recovery does not ultimately follow this course,” law firm Murphy Battista warned physicians in a Jan. 24 letter.

“An example of a way in which a patient’s rights can be protected is if the family physician explains they ‘don’t yet know’ whether an injury will cause that patient ‘serious impairment.’ ”

That letter and others like it have prompted the organization representing physicians to urge its members to guard against what it describes as a campaign of misinformation around the changes to insurance settlements introduced by the Insurance Corporation of British Columbia.

“Doctors of BC has been made aware there are letters, flyers and other types of communications being sent to physicians that may contain misleading and inaccurate information about new ICBC regulations for treatment of patients,” reads a Feb. 14 statement from the association to physicians.

Doctors of BC says the changes will not limit patient care or restrict physicians from making independent medical decisions. In fact, it says, patients will have access to more options for treatment.

“Under the new legislation, the overall allowance for medical care and recovery expenses will double to $300,000 to better support patients injured in a crash. ICBC will also pay more per treatment based on fair market rates and customers will no longer be out-of-pocket for most expenses.”

Last year, Attorney-General David Eby described ICBC as “a financial dumpster fire” and announced dramatic changes to rein in costs. The Crown corporation is on track to post losses of $1-billion for each of the past two years.

The provincial government passed legislation to curb skyrocketing payments for minor-injury claims by capping settlements for pain and suffering at $5,500 and limiting when accident victims can sue.

In the newsletter Bridge, which provides “legal perspectives of interest to the medical doctor,” physicians are advised to avoid using the grading system in the paperwork that ICBC will use to determine if an injury falls within the cap.

“Initially, the physician may have attached a Grade 2 [that would fall under the cap] to the patient. It may be difficult to re-classify. In light of this issue, it may be prudent for the physician to initially stroke through the Grades with the statement ‘Not possible to assign grade at this time.’”

The changes have put the government at odds with the Trial Lawyers Association of B.C. The group warns that injured individuals are paying the price for financial mismanagement at ICBC. The organization declined to respond to interview requests from The Globe and Mail.

Vancouver lawyer Joe Murphy, co-founder of the firm Murphy Battista, said it is perfectly reasonable for lawyers to point out to doctors the impact their assessments could have on their patients’ rights.

“Unfortunately, you’ll find out if you have an accident that you are not entitled to treatments unless the adjuster decides you are,” he said in an interview.

He said the Doctors of BC statement is itself rife with inaccuracies.

“It is ironic. I’ve read through this, and many of the statements are based on inaccurate or misleading information. I don’t think the person who wrote this read the legislation,” he said.

Mr. Eby said in an interview on Thursday that he has heard from doctors about the unsolicited legal advice they are getting. “I’m glad the Doctors of BC are prepared to step up and warn physicians to call out misinformation when they see it.”

The Doctors of BC was consulted on the improvements to benefits for lost pay and medical rehabilitation for all people injured in accidents − the first major improvements in auto-accident benefits in more than 25 years.

Andrew Yu was one of the physicians who collaborated on the ICBC changes on behalf of Doctors of BC. He said members should not be influenced by lawyers when it comes to assessing their patients. “Some of these letters and brochures seem to offer direction on what words to use or not to use. We support the autonomy of family physicians to use their clinical discretion,” he said.

Subscribe To Our Newsletter

Join our mailing list to receive the latest news and updates from ILSTV

You have Successfully Subscribed!

Pin It on Pinterest