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

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.

Source: The Globe and Mail

Pedestrian Found 80% At Fault For Being Struck While Jaywalking

Reasons for judgement were published this week by the BC Court of Appeal upholding a trial judge’s assessment of fault for a pedestrian/vehicle collision.

In the recent case (Vandendorpel v. Evoy) the Plaintiff was struck while crossing a street.  He was at a light controlled intersection.  He pressed the button to activate the pedestrian walk signal but did not wait for the signal to come on.  Instead, he proceeded to cross the street while the signal for traffic in his direction was still red.  The Defendant was driving marginally over the speed limit and entered the intersection on a fresh yellow light striking the jaywalking pedestrian.   At trial the plaintiff was found 80% at fault for the crash.  In upholding this result the BC Court of Appeal agreed with the following reasonsing of the trial judge:

[53]      While both parties failed in their respective duties of care, I find Mr. Evoy’s failure was much less significant than Mr. Vandendorpel’s. His negligence consisted of driving at a speed that was over the posted limit, even if it was only minimally above that limit (i.e., approximately 55 km/hr in a 50 km/hr zone) and doing so when the lighting and road conditions were less than optimal. Compared to this conduct, Mr. Vandendorpel’s failures were more serious. He was dressed in dark clothing, including a dark hooded pullover that was zipped up to the top. None of his clothing had any light reflective qualities. Counsel for Mr. Vandendorpel submits that wearing dark clothing is not in and of itself contributory negligence. That submission is correct, but Mr. Vandendorpel’s failures are greater than simply the clothing he was wearing. He was also wearing headphones and listening to music and that reduced his ability to hear any on-coming traffic. He also had to cross a five-lane roadway that spanned approximately 18 metres. Although he depressed the pedestrian control device, he only waited a second or so before he attempted to cross the roadway. He carelessly did so even though the pedestrian control signal was still red and the traffic control signals were still green. Mr. Evoy’s vehicle approached the Intersection from the north. That is the direction Mr. Vandendorpel was initially walking. The headlights of Mr. Evoy’s vehicle would have been visible from at least 100 metres away. Mr. Vandendorpel must not have looked north on Sooke Road as he began to cross the roadway because he did not see the headlights of Mr. Evoy’s vehicle until it was approximately 30 metres away from him. That is, until the vehicle was just about to enter the Intersection. At that point, the pedestrian control signal was still red and the traffic control signal was yellow. Notwithstanding all of this, Mr. Vandendorpel chose to run across the path of the on-coming car instead of standing fast or retreating.

[54]      I remain of the firm opinion that Mr. Vandendorpel showed a reckless disregard for his duties as a pedestrian on the roadway and conclude that his degree of fault for the accident is greater than that of Mr. Evoy.

[55]      The case authorities counsel provided me with respect to apportionment have been helpful. Each party’s degree of responsibility is to be decided by assessing the risk their respective conduct created, the effect of that risk, and the extent to which each party departed from the standard of reasonable care (see: MacDonald (Litigation guardian of) v. Goertz, 2008 BCSC 394, aff’d 2009 BCCA 358).

[56]      In my view, the risk Mr. Vandendorpel created when he chose to walk and then run across Sooke Road, into the path of Mr. Evoy’s on-coming vehicle created a much more significant risk than Mr. Evoy driving at a speed marginally above the speed limit on a dark morning with a wet roadway. Moreover, I find the departure from the standard of care expected of Mr. Vandendorpel as a pedestrian was much more pronounced than the departure of Mr. Evoy from his duty of care as a driver of a motor vehicle.

How Cannabis Legalization Impacts Your Insurance Coverage

Source: the co-operators

The Cannabis Act, also known as Bill C-45, came into effect Oct. 17, legalizing recreational marijuana. Here’s how this landmark decision affects your Home, Auto and Life insurance.

Home insurance

In all provinces except Manitoba and Quebec, you can legally grow up to four cannabis plants on your property for personal use. These four plants are treated the same as any other legal plant on your property and are covered under your Home insurance policy. If you illegally exceed the number of plants allowed in your province or territory, your claim may be denied entirely.

Household members who smoke cannabis aren’t eligible for our non-smoker discount.

Auto insurance

Legislation introduced by the federal government improves roadside screening and implements new charges for driving while impaired by drugs, including cannabis. Driving while under the in fluence of cannabis is illegal and can result in increased auto insurance premiums. Learn more about the dangers of cannabis impaired driving.

Life insurance

If you use cannabis for medicinal purposes, you may be asked about your medical condition during the life insurance application process. While recreational cannabis use won’t impact your rates, heavy use could cause higher premiums or a declined application.

What else you need to know about cannabis

While it’s legal for adults to use cannabis in Canada, each province and territory has different rules. It’s your responsibility to know what’s legal and what isn’t in the province or territory where you live or visit, including:

  • The legal age
  • Where you can buy and use cannabis
  • How much cannabis you can possess

For more information on the cannabis laws, visit the federal government’s Cannabis in Canada website.

Homeowners, renters, and drivers are all hazy on the rules.

Read more

DUAL Canada, will specialise in creating simple insurance solutions for small and mid-sized Canadian markets.

Read more

Court Rules Home Owners Have No Duty of Care When Tenant’s Dog Injures Others

Source: Erik Magraken: BC Injury Law and ICBC Claims Blog

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing the legal liability of a home owner whose tenant’s pet injures another.

In today’s case (Barlow v. Waterson) the Plaintiff alleged that a dog owned by the Defendant was off leash and caused her injury.  In the course of the lawsuit the Plaintiff sought to add the homeowner of the residence where the Defendant was residing as an additional Defendant.  The court rejected this application finding that even if all the allegations the Plaintiff was advancing were true the Defendant home owner owed no duty of care in the circumstances.  In dismissing the application Master Wilson provided the following reasons:

[13]         In this case, Mr. Seifi is not an occupier of the premises, having yielded control when he rented them to Ms. Waterson. Ms. Waterson was not Mr. Seifi’s agent as was found in Hindley. Mr. Seifi does not own the dog and therefore does not exercise control over the dog. He is not an occupier of Prospect Avenue, which presumably belongs to the municipality. He had no duty to control the dog owned by the defendant Waterson and had no ability or obligation to control or to limit activities on the property, let alone activities on the road adjacent to the property. To the extent there may be a bylaw regarding off leash dogs, that would be Ms. Waterson’s concern.

[14]         As for the allegation regarding adequate fencing in the proposed amended notice of civil claim, I agree with counsel for Mr. Seifi that there is no allegation that the dog here even escaped. In fact, the plaintiff’s evidence provided by way of her daughter’s email suggests that Ms. Waterson would routinely permit the dog to roam freely. This would suggest a failure to supervise or control the dog by Ms. Waterson as opposed to a failure to provide adequate fencing, a duty that would have been owed to Ms. Waterson but was not alleged by her in her Response to Civil Claim.

[15]         In the circumstances, although the threshold is a low one, I am not satisfied that Mr. Seifi owed any duty of care in this case to the plaintiff, and the application is dismissed.

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