Wednesday, January 31, 2018

Top 10 ICBC Claim Mistakes - Tip of the Month #7



TOP 10 MISTAKES TO AVOID WHEN MAKING AN ICBC CLAIM

Mistake #7: What to do when a Friend, Relative, or Spouse Causes an Accident While You are a Passenger 


People are often concerned with advancing an ICBC injury claim when their spouse, friend or relative was driving the vehicle. They often don`t understand that they have a valid injury claim. Common situations include, a single vehicle accident where the driver, who is a friend or relative, ends up putting the car into a ditch or striking a pole - with no other vehicles involved. They are worried about things like increasing ICBC premiums and social pressures - "why are you hiring a lawyer to sue me?".

These are misconceptions that need clarification or better understanding. 

Firstly, ICBC will reduce the claim rate discount in any event, as the vehicle repairs will be considered a claim on the insurance policy. 

Secondly, in reality, your claim for injury and damages is with ICBC under the applicable insurance policy.  As long as there are no insurance coverage issues, they are not personally at risk. 

Of course, seek legal help as this can get tricky and it is best to consult with an experienced personal injury lawyer, like Perminder S. Tung.






ICBC Lawyer
Partner
Lindsay Kenney LLP
778-289-9513
ptung@lklaw.ca 

Do you have questions about your ICBC personal injury claim or accident?  If so, click here arrange your free consultation with  ICBC Claims Lawyer Perminder S. Tung (Services provided for ICBC injury claims throughout all of BC: Vancouver, Surrey, Langley, Burnaby, Richmond, Abbotsford, Chilliwack, Tri-city area and all over BC)



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Tuesday, December 5, 2017

Top 10 ICBC Claim Mistakes - Tip of the Month #6



TOP 10 MISTAKES TO AVOID WHEN MAKING AN ICBC CLAIM

Mistake #6: You Are Not Prepared For Your First Meeting With An ICBC Adjuster

The initial meeting with an ICBC adjuster can be complicated and sets the foundation for your claim.  Before your initial meeting, contact your doctor's office, physiotherapist or chiropractor and confirm the dates that you received treatment before the accident in relation to prior health problems (if you had any).  ICBC is often looking for "the pre-existing condition" to diminish your current claim. See previous post on pre-existing conditions:
 click here
If you think that you are partly at-fault for the collision, speak to an experienced ICBC personal injury lawyer immediately so that they can prepare you for the initial interview or take over conduct of the matter to protect your interests. Failure to do this could jeopardize your claim. Getting yourself into a dispute about fault can be stick-handled better by a lawyer. A lot of the stress and investigation work should be done by the legal team.

This can get tricky and it is best to consult with an experienced personal injury lawyer, like Perminder S. Tung.






ICBC Lawyer
Partner
Lindsay Kenney LLP
778-289-9513
ptung@lklaw.ca 

Do you have questions about your ICBC personal injury claim or accident?  If so, click here arrange your free consultation with  ICBC Claims Lawyer Perminder S. Tung (Services provided for ICBC injury claims throughout all of BC: Vancouver, Surrey, Langley, Burnaby, Richmond, Abbotsford, Chilliwack, Tri-city area and all over BC)



settlement, ICBC, lawyer, personal, injury, claims, trial, experience, pain, suffering, adjuster, compensation, wage, loss, cases, assessment, award, insurance, corporation, of, british, columbia, capacity, earnings, surrey, langley, lklaw, perminder, tung, punjabi, indian, white, rock, south, chilliwack, vancouver, port, moody, coquitlam, best, settlement, icbc, injury, claims, new, westminster, court, win

Tuesday, August 1, 2017

Top 10 ICBC Claim Mistakes - Tip of the Month #5



TOP 10 MISTAKES TO AVOID WHEN MAKING AN ICBC CLAIM

Mistake #5: You Attend an ICBC-Appointed Doctor or Specialist Without Retaining Your Own Medical Specialist


ICBC often uses the same medical specialists. Sometimes, those specialists prepare written reports for ICBC that may well help your case, but you won't know this because ICBC claims privilege over the reports (this means they do not have to disclose the report to you).  Often, those reports hurt your case.  

Seek legal advice if ICBC asks you to see its chosen specialist. In 2016, these are examples of the doctors that ICBC often used:

  • Dr. Martin Grypma (orthopaedic surgeon)
  • Dr. Petar Kokan (orthopaedic surgeon)
  • Dr. Rehan Dost (neurologist)
  • Dr. Stephen Maloon (orthopaedic surgeon)
  • Dr. Bishop (family doctor with interest in orthopaedics)
  • Dr. Sovio (orthopaedic surgeon)
  • Dr. Leith (orthopaedic surgeon)
  • Dr. Levin (psychiatrist)

This information, along with other specialists used by ICBC can be found at ICBC's website where they detail their vendor payments. You can also compare the specialists MSP billings, which is readily available to the public. This will give you an idea of who those doctors mostly work for.

Of course, seek legal help as this can get tricky and it is best to consult with an experienced personal injury lawyer, like Perminder S. Tung.






ICBC Lawyer
Partner
Lindsay Kenney LLP
778-289-9513
ptung@lklaw.ca 

Do you have questions about your ICBC personal injury claim or accident?  If so, click here arrange your free consultation with  ICBC Claims Lawyer Perminder S. Tung (Services provided for ICBC injury claims throughout all of BC: Vancouver, Surrey, Langley, Burnaby, Richmond, Abbotsford, Chilliwack, Tri-city area and all over BC)



settlement, ICBC, lawyer, personal, injury, claims, trial, experience, pain, suffering, adjuster, compensation, wage, loss, cases, assessment, award, insurance, corporation, of, british, columbia, capacity, earnings, surrey, langley, lklaw, perminder, tung, punjabi, indian, white, rock, south, chilliwack, vancouver, port, moody, coquitlam, best, settlement, icbc, injury, claims, new, westminster, court, win

Saturday, June 24, 2017

Top 10 ICBC Claim Mistakes - Tip of the Month #4



TOP 10 MISTAKES TO AVOID WHEN MAKING AN ICBC CLAIM

Mistake #4: Your Doctor Does Not Examine You Regularly After Your Accident

It is extremely important that your doctor examine you fairly regularly during the initial period of significant pain, at least once per month (twice if possible).

If a significant injury is later discovered ie. rotator cuff tears, disc bulges, labral tears etc., then it can become difficult to obtain medical opinions connecting those injuries to the car accident. Your family doctor may not support the case if he/she feels they didn't discover the injury earlier.  There is a medical presumption that the pain would have been severe enough to seek medical attention, which upon examination, would have been discovered or reported by the patient. 

If you notice sharp, significant pains, especially the kind that radiate to different body parts (from your neck to your arms to your fingers, or from your back to your legs or to your toes) make sure it receives the right attention from your doctor and rehab professionals (physio, chiro, massage, kinesiologist). Also push for an xray, CT scan, and/or an MRI if necessary. These kinds of symptoms are neurological and require better investigation. It can often take a good heart-to-heart with your family doctor to get better investigations done.  

Of course, seek legal help as this can get tricky and it is best to consult with an experienced personal injury lawyer, like Perminder S. Tung.






ICBC Lawyer
Partner
Lindsay Kenney LLP
778-289-9513
ptung@lklaw.ca 

Do you have questions about your ICBC personal injury claim or accident?  If so, click here arrange your free consultation with  ICBC Claims Lawyer Perminder S. Tung (Services provided for ICBC injury claims throughout all of BC: Vancouver, Surrey, Langley, Burnaby, Richmond, Abbotsford, Chilliwack, Tri-city area and all over BC)



settlement, ICBC, lawyer, personal, injury, claims, trial, experience, pain, suffering, adjuster, compensation, wage, loss, cases, assessment, award, insurance, corporation, of, british, columbia, capacity, earnings, surrey, langley, lklaw, perminder, tung, punjabi, indian, white, rock, south, chilliwack, vancouver, port, moody, coquitlam, best, settlement, icbc, injury, claims, new, westminster, court, win

Tuesday, May 30, 2017

Top 10 ICBC Claim Mistakes - Tip of the Month #3



TOP 10 MISTAKES TO AVOID WHEN MAKING AN ICBC CLAIM

Mistake #3: After Your ICBC Accident, You Are Examined At Different Walk-In Clinics

Try to find a family doctor.  The College of Physicians and Surgeon's website maintains a list of clinics taking on new patients (click here). 

If you can't find one, then choose one doctor at a single walk-in clinic and only see that doctor for the life of your injury claim. Make sure this doctor is comfortable handling ICBC claims and the paperwork that might be involved. Check to see which shifts he/she works and work around their schedule. 

Why? In ICBC cases, it becomes important to seek an opinion from the attending physician. If you have been seen by a series of different doctors, you may not be able to secure a full and proper opinion.  A further benefit is that your injuries will have the attention of one caring physician, rather than transient single visits with random doctors.

If you have already been by different doctors, this can get tricky and it is best to consult with an experienced personal injury lawyer, like Perminder S. Tung.







ICBC Lawyer
Partner
Lindsay Kenney LLP
778-289-9513
ptung@lklaw.ca 

Do you have questions about your ICBC personal injury claim or accident?  If so, click here arrange your free consultation with  ICBC Claims Lawyer Perminder S. Tung (Services provided for ICBC injury claims throughout all of BC: Vancouver, Surrey, Langley, Burnaby, Richmond, Abbotsford, Chilliwack, Tri-city area and all over BC)



settlement, ICBC, lawyer, personal, injury, claims, trial, experience, pain, suffering, adjuster, compensation, wage, loss, cases, assessment, award, insurance, corporation, of, british, columbia, capacity, earnings, surrey, langley, lklaw, perminder, tung, punjabi, indian, white, rock, south, chilliwack, vancouver, port, moody, coquitlam, best, settlement, icbc, injury, claims, new, westminster, court, win

Tuesday, May 9, 2017

Interesting Distracted Driving Cases: Are App Developers Liable?


Interesting Cases Involving Smart Phone Apps and Devices:
Potential Liability In Distracted Driving Cases


Device and app designers are potentially liable parties in distracted driving cases. This is a developing area of the law and much of the legal advice will arise from new case law coming out of the courts in North America.


For Example:
  • In 2014, Uber was sued when one of its drivers killed a six-year old pedestrian. The plaintiffs claimed that Uber contributed to its drivers' distraction by requiring them to manually input data in its app to accept fares while driving (see Liu v. Uber Tech., Inc No. CGC-14-536979 (Calif.Super.Ct.San Fransisco Cnty. filed Jan 27, 2014 - a confidential settlement was reached in 2015. Because of the case, Uber changed its policies to provide insurance coverage for crashes its drivers caused while logged into the app, even when no passenger was in the vehicle).


  • In 2015, SnapChat and an allegedly distracted driver were sued under a theory that SnapChat encouraged drivers to travel at excessive speeds to take selfies using the app's "speed filter," which imprints the vehicles speed on a photo or video - in this case, allegedly more than 100mph. (see Maynard v. McGee & SnapChat, Inc. No. 16-SV-89 (Ga. Spalding Cnty. filed April 19, 2015).


  • Apple was also sued in 2015 after a driver texting on an iPhone caused a crash that resulted in two deaths and a child's paralysis. The plaintiff alleged that Apple should have incorporated a "lock-out mechanism" - for which it filed a patent - to prevent texting while driving. (See Meador v. Apple Inc., No 6:15-cv-715-MHS-KNM (E.D. Texas filed July 28, 2015)

  • To date, courts dismissing cases filed against parties other than the distracted driver have focused on the lack of foreseeability of drivers using cell phones and causing crashes. But, with the proliferation of these devices and increased danger on the road, courts may look at foreseeability and causation issues different going forward.
Source: "The Landscape of Distracted Driving" by Joel D. Feldman, The Verdict, Issue 152, Spring 2017 pages 42 to 45

If you have any questions about your BC injury claim, feel free to contact me:




Partner
Lindsay Kenney LLP
778-289-9513
ptung@lklaw.ca 



Do you have questions about your ICBC personal injury claim or accident?  If so, click here arrange your free consultation with  ICBC Claims Lawyer Perminder S. Tung (Services provided for ICBC injury claims throughout all of BC: Vancouver, Surrey, Langley, Burnaby, Richmond, Abbotsford, Chilliwack, Tri-city area and all over BC)



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Thursday, April 27, 2017

First Injury Award of its kind - Surrogacy Fees


First Injury Award of this kind - Surrogacy Fees

April 13, 2017 - In a landmark decision of Madam Justice Sharma, the BC Supreme Court awarded crash victim Mikaela Wilhelmson significant damages in a claim that changed her life forever. 


See Media Release Link: CBC News


The total damages awarded were $3,837,824.32.

The breakdown of the award is as follows:

  • Pain and Suffering (non-pecuniary): $367,000
  • Damages for Loss of Capacity to Earn Income and Loss of Interdependency: $2,450,000
  • Cost of Future Care: $882,066
    • $100,000 of which was for Surrogacy Fees
  • In-trust Award: $50,000
  • Special Damages: $88,758.32


This is a fascinating and ground breaking award for injury victims in BC. Cost of Future Care is an award designed to deal with future medical expenses post settlement or trial judgement. Philosophically, your lawyer should be advocating for compensation that is medically recommended and reasonable.  In the Wilhelmson case, this young injury victim could no no longer bare children and could reasonably be expected to incur future costs associated with paying a surrogate to have a biological child.  

The Court discussed this award starting at paragraph 366 and stated as follows:

Is She Entitled to Damages for Surrogacy Fees?

[366]     As stated above, I find that the best and safest way for Ms. Wilhelmson to have a biological child would be to use the services of a surrogate. Both parties agree that the loss of Ms. Wilhelmson’s ability to carry her own child is compensable. The plaintiff submits that the damages for cost of future care should include costs for a gestational carrier (a “surrogate”), as the accident has left her fertile but unable to carry her own child to term. The defendant submits that the plaintiff’s inability to have a child, together with the recent termination of a pregnancy, should be compensated only under the award for non-pecuniary damages.
[367]     I find the medical evidence overwhelmingly support the conclusion that a surrogate is medically necessary for Ms. Wilhelmson to have a biological child. That is clearly compensable. Ms. Wilhelmson got pregnant before the accident and there was no indication whatsoever that she could have carried that child to term. She cannot safely do so now. She is entitled to be put in the same position she was had the accident not happened. Surrogacy fees are the only way to do that. I did not understand the defendant to suggest otherwise. Instead, the defendant focussed on whether a specific award for surrogacy fees was precluded for other reasons.
[368]     The plaintiff submits that there is  legal precedent for covering private clinic costs and U.S. health care expenses, and that the surrogacy fees she is claiming fall under into those categories: Engqvist v. Doyle, 2011 BCSC 1585 and Morgan Estate v. Newfoundland, 2007 NLCA 40.
[369]     In Engqvist, the plaintiff who suffered soft tissue damage from two motor vehicle accidents, made a claim for money to pay for private health care due to the specific treatment she required and the accelerated healing that private care would facilitate. In his decision, Rogers J. states that “[t]he first point to address on this issue is that it does not concern the Canada Health Act. … Instead, the fundamental question is whether a particular treatment modality is reasonably necessary to promote the plaintiff’s mental and physical health…”. Essentially, he considered any public policy concerns about private versus public health care to be irrelevant. The test the plaintiff had to meet was whether the care would be sufficiently necessary and beneficial to her. The judge found it was and damages were awarded.
[370]     In Morgan, a plaintiff who had been injured in a car accident in Canada had since moved to the United States. She sought an award for medical treatment available in the US that was unavailable in Canada. She also sought special damages to reflect the increased cost of health care in the U.S. Cameron J.A. affirms the trial judge’s decision to take judicial notice of the fact that the U.S. has a private health care system and that may increase the plaintiff’s future care costs. The plaintiff was given an increased damages award to reflect that.
[371]     The defendant says that a specific award for surrogacy fees is not available as such an award would be contrary to public policy. To support this argument he points to s. 6 of the Assisted Human Reproduction Act, S.C. 2004, c. 2 (the AHR Act) which makes it illegal to pay a woman to be a surrogate in Canada.
[372]     The defendant also relies on 57134 Manitoba Ltd. v. Palmer, [1989] B.C.W.L.D. 1543 (CA). In that case the Court of Appeal upholds the trial court’s finding that the plaintiff could not be compensated for the loss of a discount due to the fact that the discount was contrary to s. 34 of the Combines Investigation Act. The trial judge stated that “[t]he court will not lend itself to assist the plaintiff in taking advantage of another's illegal act” (at para. 38).
[373]     The facts of Palmer are very different from this case, but the defendant submits that the rationale is applicable. He submits making an award for surrogacy fees would be contrary to the AHR Act, just as making an award based on the discount would be have been contrary to the Combines Investigation Act.
[374]     I do not agree. In Palmer, the court concluded its award would sanction illegal conduct. In this case there is no such danger; Ms. Wilhelmson is not seeking surrogacy fees to pay a surrogate in Canada, which would contravene the AHR Act. Instead, she is seeking fees which would allow her to embark on the lawful activity of compensating an American surrogate. The AHR Act cannot apply outside Canada’s borders. Dr. Yuzpe testified he was aware of Canadians successfully hiring American surrogates with no known legal complications. I have been presented with no evidence or case law which convinces me that this practice contravenes Canadian law in any way.
[375]     Based on the evidence in this case, a specific award for surrogacy fees is more appropriate than assuming her loss is adequately compensated for within the award for non-pecuniary damages. While the lost ability to carry a child to term certainly has caused Ms. Wilhelmson pain and suffering, deserving of recognition within the non-pecuniary damages, the fact that she is unable to carry a child leads to a distinct future cost to allow her to have a biological child -- the cost of hiring a surrogate. I find this cost is medically necessary and reasonable. Its necessity arose directly from the accident; therefore the cost must be borne by the defendant.
[376]     I find some support for my view in Sadlowski v. Yeung, 2008 BCSC 456. In that case the plaintiff underwent a hysterectomy and she alleged the defendant, a gynaecologist, failed to adequately inform her of her medical condition and treatment options. The operation left the plaintiff infertile, and she alleges had she been adequately informed she would not have proceeded with the hysterectomy.
[377]     The court awarded her $90,000 for the loss of fertility as a separate award from the $100,000 damages awarded for pain and suffering. In doing so, the court relied on Semeniuk v. Cox, [2000] A.J. No. 51 at 78 where the judge noted the “invidious task” facing a judge trying to quantify the loss of fertility. In Semeniuk Acton J. also stated (para. 35):
I am of the view on this point, however, that infertility is a type of loss not properly lumped together with the usual non-pecuniary categories of pain, suffering and loss of amenities. Those categories cover losses which, in my view, at of a different nature of quality than the loss of the ability to bear children or to achieve the family one has planned.....I prefer ... to assess quantum for infertility discretely, by reference to the circumstances of each case.
[378]     The court ultimately did not award a separate amount for surrogacy fees, but that was on the basis that the evidence of her desire to pursue surrogacy was “highly speculative”. The evidence present in this case was not “highly speculative”, and I am persuaded that the claim for surrogacy fees is medically justified and reasonable.
[379]     Dr. Yuzpe testified about the approximate cost involved in hiring a surrogate in the United States. These estimates were not successfully challenged by the defence. I am satisfied that Dr. Yuzpe’s evidence regarding costs is reliable. His report cited an overall range of between $50,000 and $100,000 per pregnancy by surrogate. I find that an award at the low end of this range is appropriate and award $100,000 for surrogacy fees for two pregnancies.


This is a significant win for BC injury victims and the effects of the case will be felt across the country. If you have any questions about your BC injury claim, feel free to contact me:




Partner
Lindsay Kenney LLP
778-289-9513
ptung@lklaw.ca 



Do you have questions about your ICBC personal injury claim or accident?  If so, click here arrange your free consultation with  ICBC Claims Lawyer Perminder S. Tung (Services provided for ICBC injury claims throughout all of BC: Vancouver, Surrey, Langley, Burnaby, Richmond, Abbotsford, Chilliwack, Tri-city area and all over BC)



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