ICBC Personal Injury Blog: March 2016

Sunday, March 13, 2016

Drive Carefully Friends - Daylight Savings Can Be Dangerous

DRIVE CAREFULLY FRIENDS - DAYLIGHT SAVINGS CAN BE DANGEROUS

Interesting articles have been written about how daylight savings day can be dangerous, and in fact statistics seem to show that it increases the frequency of traffic accidents.

Here is a link to an article run in Time Magazine.

In addition to leading to poor visibility in darkness, some experts say the requirement for people to abruptly adapt to a time change overnight may lead to dangerous driving. “Even though it’s dark, you’re still behaving like it’s light,” said Lawrence University economist David Gerard, of the first weeks after a time change. People may drive faster, he said, and pedestrians may be less attentive.

Here is an article by Live Science laying out "5 Weird Effects of Daylight Savings".

Drive carefully friends!

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Wednesday, March 2, 2016

BC Supreme Court finds ICBC's conduct malicious in a "false fraud claim" - awards $350,000 as damages

On March 2, 2016, Madam Justice Susan Griffin rendered a significant ruling in a case involving an immigrant couple that was mistreated by ICBC. She hired a lawyer and brought a civil suit against ICBC for, among other things, malicious prosecution. ICBC was punished for their conduct and ordered to pay the plaintiff $350,000 in punitive damages. Punitive damages are damages exceeding simple compensation and awarded to punish the defendant.

The judge has ordered ICBC and Gould to pay Arsenovski $30,000 for emotional distress and $350,000 in punitive damages.

Here are a couple links to news articles that have hit this morning:

The Province

Business in Vancouver

In a nut shell, malicious prosecution is a common law intentional tort, its elements include (1) intentionally (and maliciously) instituting and pursuing (or causing to be instituted or pursued) a legal action (civil or criminal) that is (2) brought without probable cause and (3) dismissed in favor of the victim of the malicious prosecution.

This decision is a must read and I will provide a link to the case once released to the public. Arsenovski v. Bodin, 2016 BCSC 359

The judge called the prosecution brought against Danica Arsenovski “malicious,” and found the actions by ICBC and special investigator John Gould “brought fear and shame to a vulnerable person.”

The court says that what happened to Mrs. Arsenovski was "odious".

The couple now into their late 60's moved to B.C. in September 1999 after leaving the war-torn former Yugoslavia.

In January 2000, the couple left an English language class in Burnaby when they were involved in an accident at the intersection of Nelson and Imperial. The couple was in a crosswalk when Arsenovski’s husband was struck by a motor vehicle. Arsenovski herself also fell as a result and was injured. A week later, the couple was encouraged by a friend to report the accident to ICBC. Their friend acted as a translator, as the couple spoke very little English.

The judge summarized that “Mrs. Arsenovski’s only understanding of the purpose of going to ICBC was that maybe it might pay the medical bills, including the ambulance bill. She was not told that they could make a claim for damages and that this was the reason for meeting with ICBC...” .

“She said there was not a similar system for making a report about an accident in the former Yugoslavia. ... She did not understand anything about the process at ICBC or think the statement was important in every detail.”

In response, the ICBC adjuster forwarded a report to Crown Counsel, written by Gould, recommending a total of three fraud charges against the couple. Gould was an in-house special investigator at ICBC. In the report, Gould alleged that Arsenovski made claims she was hit by the car. The Crown accepted one of the recommendations and charged Arsenovski with making a false statement contrary to the Insurance (Motor Vehicle) Act.

Mrs. Arsenovski had to hire a criminal defence lawyer to defend herself from those allegations. The court summarized that she went on to have those charges stayed and was successful in defending herself against the criminal charges. The judge has ordered ICBC and Gould to pay Arsenovski the $7,225.34 for legal fees she paid to defend herself in the criminal action.

During testimony in the civil case, Arsenovski said she was so shamed by the false charge that she did not tell her friends, relatives or adult children what had happened. The charge was stayed on the first day of the criminal trial when a lawyer cited weaknesses in the evidence.

In the decision, Justice Griffin found that “Mr. Gould’s handling of the file reveals that rather than operate from a presumption of innocence, Mr. Gould operated from a presumption of guilt in respect of Mrs. Arsenovski".

“Here, the alleged making of a false statement to ICBC was an invention by Mr. Gould. The false statement Mrs. Arsenovski was alleged to have made regarding how she fell was never made by her to ICBC. There was no such statement and so it could not have been false...”

The court notes that Gould’s report was written in such a way to dissuade the Arsenovskis from filing a civil claim for compensation for injuries: “Mr. Gould focused on the Arsenovskis’ potential civil claims, which they had not yet filed. He focused on the Arsenovskis being ‘recent immigrants’ who had just applied for ‘refugee status’ and the fact that they were on ‘social assistance.’ ”

Tuesday, March 1, 2016

ICBC's expert doctor criticized for being "unhelpful medical witness"

In reasons for judgment in Ferguson v. McLaughlin, 2015 BCSC 2432, Madam Justice S. Griffin of the BC Supreme Court held that a medical witness testifying on behalf of ICBC crossed the line into prohibited advocacy - a legal concept used in the court system to ensure that all expert witnesses come to court to provide independent and impartial evidence.

[63] The defendant called the evidence of Dr. Duncan McPherson, an orthopaedic surgeon, who performed a medical examination of the plaintiff at the request of the defendant.

[64] Dr. McPherson was a very unhelpful medical witness.

[65] Dr. McPherson has not practised medicine for years. He stopped his work as a surgeon in 1992 or 1994 and ceased practising medicine in 1997. It is difficult to assume that he is up to date on medical studies regarding soft tissue injuries and pain.

[66] Dr. McPherson is wholly reliant on the Insurance Corporation of British Columbia (“ICBC”) for his income and has been for years. He was clever, and I mean this not in a complimentary way, when questioned about his reliance on ICBC for his income in the last several years, hinting at the notion that he had other sources of income. He then agreed the other sources of income were simply his investment income.

[67] Dr. McPherson’s approach to examining patients appeared to be dependent on a verbal test. He asks the patient to explain the patient’s complaint, and if the patient does not mention pain in his answer, he concludes that in his opinion the patient does not have pain and thus does not have a lasting injury. Dr. McPherson stated that when patients describe complaints in the activities they can do, rather than stating they have pain in a body part, that is because they are not sure where the pain “should” be, implying that the patient is not telling the truth if they do say they have pain.

[68] Dr. McPherson was in my view overly confident that the question he poses to patients is a scientifically valid “truth-o-meter”, foolproof in discovering whether pain exists or not. He seemed completely close-minded to the possibility that some patients might not understand what he means by “complaint” or may not consider “pain” to be a complaint but a condition that they simply deal with on a day-to-day basis.

[69] Dr. McPherson found it highly relevant that when he asked the plaintiff about his present complaints relating to the accident, the plaintiff did not say he has pain, but said he is limited to certain activities now, such as he cannot do heavy work, or has issues with his back hurting during sexual activities. Dr. McPherson appeared to conclude that because the plaintiff did not say “I have pain in my back” during the interview, he therefore did not have a chronic pain injury in his back.

[70] I found Dr. McPherson’s logic to be at best simplistic and superficial. At worst it reveals that Dr. McPherson holds such a degree of cynicism regarding patients advancing claims against ICBC that he is not independent and his evidence is unreliable.

[71] When it was suggested to Dr. McPherson he may not have written down exactly what the patient said he was absolutely confident that he was always a perfect recorder of what patients said to him. This is so despite the brevity of his report. A reasonable, educated person would allow for the possibility of mistakes being made in transcribing a patient’s comments, but Dr. McPherson did not do so, illustrating his close-minded disposition.

[72] It seems obvious to me that when describing his limitations to Dr. McPherson, the plaintiff was intending to convey to Dr. McPherson that the accident caused these limitations because of the pain he suffers, as he explained in court. The fact that he might not have spelled out to Dr. McPherson in a more explanatory way that ”the accident caused me to have pain in my back which limits me from these activities” is not an admission that proves that his injuries do not cause him pain in his back.

[73] Also, Dr. McPherson gave significant weight to the fact that the plaintiff exhibits a full range of motion. He seemed unwilling to accept that a person can have a full range of motion but also suffer from pain. Dr. Lepard, the plaintiff’s family doctor until she retired in 2011, said that it is not uncommon for a patient with an injury to have full range of motion but also to have pain. I prefer Dr. Lepard’s evidence on this point, as it is consistent with the plaintiff’s evidence that he has pain on prolonged activity on a recurring basis.

[74] Dr. Lepard did agree that the plaintiff’s range of motion suggested that his whiplash injury was not as serious as Category 3 and 4, but was more in the Category 2 range, of being in the medium to low end of whiplash soft tissue injuries.

[75] Dr. McPherson concluded that there was no “objective” evidence of a disability relating to the motor vehicle accident. This is not a helpful opinion in relation to the injuries in this case. Pain may not something that can be measured objectively with a scientific instrument, but it can still be disabling.

[76] I note that even the defendant concedes on the whole of the evidence that the plaintiff has suffered a soft tissue injury which will cause some future loss of earning capacity.

[77] I do not find Dr. McPherson’s evidence to be of any value in deciding the issues in this case.

[78] I prefer the evidence of Dr. le Nobel and Mr. Kyi, as supported by the evidence of the plaintiff himself, regarding the fact that the plaintiff has continued to suffer from back pain since the accident, which gets worse on some activities, and which has not resolved and is likely to continue in the future, limiting him in some of his activities.

[79] The whole of the evidence persuades me that the accident caused injuries to the plaintiff that continue to this day and are likely to be chronic and to continue into the future. These injuries cause him back pain that becomes intolerable with prolonged standing, sitting, bending, or heavy lifting.