Wednesday, April 1, 2015

ICBC Tip-of-the-Month (April 2015): Top 10 Mistakes (#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 incident. Your family doctor may not support the case if he/she feels they didn't discover it earlier.  There is a medical presumption that the pain would have been severe enough to seek medical attention, which on examination, would have been discovered. 

If you notice sharp, significant pains, especially the kind that radiate to different body parts (from your neck to your arm to your fingers, or from your back to your leg to your toes) make sure it receives the right attention from your doctor and rehab professionals. Also push for an xray, CT scan, and/or 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 from an from experienced ICBC personal injury lawyer. 


Perminder Tung 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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Sunday, March 1, 2015

ICBC Tip-of-the-Month (March 2015): Top 10 Mistakes (#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 chose one doctor at a single walk-in clinic and only see that doctor for the life of your injury claim. Check to see which shifts that doctor works and work around his/her 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, that opinion can be very limiting.  Also, your injuries will have the attention of one caring physician, rather than a transient single visit.

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, February 10, 2015

ICBC Tip-of-the-Month (February 2015): Top 10 Mistakes (#2)


TOP 10 MISTAKES TO AVOID WHEN MAKING AN ICBC CLAIM


Mistake #2: You Do Not Get All The Treatments You Need

ICBC often stops funding treatments even though your family doctor supports further rehabilitation (massage, physiotherapy, chiropractor, active rehab etc.). For example, after the first 12 physiotherapy sessions, your doctor and physiotherapist support another round of 6-12 sessions. The handling ICBC adjuster denies ICBC coverage for the further sessions. The biggest mistake is that you stop attending physiotherapy because ICBC said so. 

You have a duty to mitigate your damages and ICBC is setting you up for failure, as they will later argue that you didn't follow the advice of your doctor and physiotherapist to get better. The court and ICBC will not buy the argument that "ICBC stopped approving the sessions, so I stopped going".  See previous post on the issue of mitigation: click here.

Advice: you have to either fund the rehab privately yourself and recover those expenses in your tort claim OR try to find a clinic that will give you a Direction to Pay. 

Direction to Pay: an agreement between you and the clinic that the clinic will advance the treatments on a running account and you recover the expenses once your claim settles, as long as you present their account as a special damage in your case. 

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

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, January 29, 2015

Low Impact Collision Results In $150,000 Award



This week, the Honorable Mr. Justice Joyce released his judgement in the matter of Corke v. Andrews et al. 2015 BCSC 118.  The case involved what the Defence Team characterized as a "low impact collision".

Judge Joyce states:

[91]   Despite the very low impact forces of the Accident, I am satisfied that Ms. Corke sustained injury to her mid-back and neck as a result. Even Dr. Horlick accepted that Ms. Corke suffered myofascial injury to her cervical and thoracic spine.
[92]  Dr. Horlick found little, if any, objective support for the chronic pain described by Ms. Corke and attributed the lack of recovery to general lack of fitness. He noted, in particular, that Ms. Corke’s subjective complaints decreased when she engaged in a physical fitness program. He is of the view that Ms. Corke has not reached maximum recovery and that she will continue to experience further recovery if she continues with regular exercise, particularly core strengthening exercises.
[93]  I accept the evidence of Ms. Corke that the pain did spread to other parts of her body over time and became chronic, even though the precise cause of the continuing and spreading pain is difficult to determine.
[94]  In her first report, Dr. Lau concluded that Ms. Corke exhibited symptoms of fibromyalgia and expressed the belief that her chronic widespread pain was likely due to centralization, whereby the pain in one area of the body transitions to other areas. In her second report, Dr. Lau felt that Ms. Corke met the classic criteria for fibromyalgia, but had not developed other common sequelae of chronic widespread pain.
[95]  By the time of Dr. Lau’s second report, Ms. Corke had undertaken a program of core strengthening and physical fitness and had obtained significant relief from IMS, after an initial aborted attempt with that treatment modality. As Dr. Lau noted, by February 2014, Ms. Corke’s symptoms related to her neck and arms had mostly resolved and her primary continuing symptoms were now focused in her mid-thoracic and upper lumbar spine as opposed to her entire spine. In addition, by this time, Ms. Corke was coping better with her ongoing symptoms, both psychologically and functionally.
[96] Dr. Lau was doubtful that Ms. Corke would achieve full recovery and believed she would continue to have some ongoing myofascial complaints with more disabling flare-ups from time to time. However, she was also of the opinion that further functional improvement was highly possible.
[97]   Dr. Lau’s opinion that Ms. Corke could expect further functional improvement is shared by her family physician, Dr. Jackson.
[98]  I find that as a result of the Accident, Ms. Corke suffered injury resulting in myofascial pain that spread, over the next several months, from her back and neck to other areas of her body. With treatment and exercise, the pain became more localized in her upper back and chest area so that, by approximately two and a-half years after the Accident, the pain was felt mainly in her thoracic spine and chest.
[99]         In my opinion, Ms. Corke undertook appropriate treatments as recommended by her medical advisors. On a review of the evidence, I am satisfied that Ms. Corke has experienced a reduction in both the number and severity of her symptoms as a result of the medical treatments and the exercise programs that she has undertaken.
[100]     It is my opinion that while Ms. Corke is not currently asymptomatic and will likely continue to suffer some ongoing discomfort, she has recovered significantly from the effects of the Accident. I accept that Ms. Corke will likely experience flare-ups from time to time resulting in increased pain, which may be treated by IMS treatments. I am of the opinion, however, that Ms. Corke has achieved significant functional recovery and is likely to achieve further functional recovery. She is currently able to attend to the physical demands of daily living, although she has to be careful to pace herself so that she does not aggravate her symptoms.
[101]  Ms. Corke’s symptoms have affected her ability to enjoy her social life with her friends and her daughter. She is less able to entertain, go to movies and go on long journeys.
[102]  I am not satisfied that Ms. Corke is at any higher risk of future injury as a result of the Accident.
...

Summary of Damages

[187]     In summary, I award Ms. Corke the following damages:
Non-pecuniary damages:
$75,000.00
Past income loss:
$7,440.00
Loss of earning capacity:
$58,000.00
Cost of future care:
$3,535.00
Special damages:
$10,814.28
Total Damages:
$154,789.28


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, January 13, 2015

ICBC Tip-of-the-Month (January 2015): Top 10 Mistakes (#1)


TOP 10 MISTAKES TO AVOID WHEN MAKING AN ICBC CLAIM


Mistake #1: You agree with ICBC to an excessive reduction of your wage loss claim from gross to net

ICBC will often claim that they are entitled to reduce your income loss claim by 30% to arrive at a net figure.  This deduction should usually be much less.  

WHY?  The deduction depends on what tax bracket you would have otherwise fit into for that particular tax year. 30% is close to the highest tax bracket.  

TIP: Agree to only a small deduction for income tax and EI premiums. Always feel free to consult with an experienced personal injury lawyer, as this is often more complex. 

Similar question and previous post: is my settlement taxable?.


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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Friday, December 19, 2014

ICBC Tip-Of-The-Month (December 2014): 6 months of Soft-Tissue pain, BC Court says $32,500



In Reasons for Judgment delivered on December 10, 2014, Mr. Justice Ball of the New Westminster BC Supreme Court awarded compensation in a motor vehicle accident case

The plaintiff alleged that the the accident, in fact, caused rheumatoid arthritis (RA) - a degenerative condition.  The court goes through an interesting discussion on what the medical experts thought about causation on the RA issue. Ultimately, the court ruled that the RA was not caused by the accident. Instead, the court found that the accident only caused 6 months of soft-tissue pain and awarded $32,500.  

The court stated in Kabani v. Lee starting at paragraph 47:


[47] Based on the evidence before me I am satisfied that the soft tissue injuries Ms. Kabani incurred in the Accident were substantially healed within six months after the Accident and were not persistent symptoms thereafter.

Damages

[48] While there is no doubt Ms. Kabani suffered soft tissue injuries in the Accident and hence is entitled to damages, those are damages consistent with a minor soft tissue injury to her neck and upper back. Ms. Kabani submitted a number of cases, including Haag v. Serry, 2009 BCSC 187, Zigawe v. Rance, 2009 BCSC 1816 and Burtwell v. McCaffrey, 2013 BCSC 886, all in support for non-pecuniary damages of $100,000, together with damages for past wage loss, loss of future earning capacity, cost of future care and significant special damages.
[49] Each of the cases cited by Ms. Kabani is distinguishable because each of them deals with a situation where a plaintiff had a pre-existing medical condition where the court found that the accident either accelerated or exacerbated a pre-existing condition. In the case before me the evidence was that at some time after the Accident Ms. Kabani contracted rheumatoid arthritis and suffered considerably from that condition. For the purposes of this case, rheumatoid arthritis was not a pre-existing condition and was not, as I have found above, caused by the Accident. For this reason, claims such as past wage loss, loss of future earning capacity or significant special damages have not been proven to be connected with the Accident. No particular medical investigation or medication was prescribed by Dr. Witherspoon following the Accident. The abovementioned cases allow non-pecuniary damages from a low of $54,000 to a high of $80,000. I find this range to be excessive in the circumstances of this case.
[50] Counsel for the defendant submitted that the only damages which should be awarded to Ms. Kabani are non-pecuniary damages. Counsel for the defendant cited Ryan v. Klakowich, 2011 BCSC 835, Gron v. Brown, 2012 BCSC 391, Currie v. McKinnon, 2012 BCSC 698 and Johal v. Conron, 2013 BCSC 1924. Again, none of these cases are on all fours with the case before me, but there are marked similarities in some aspects of each of them. The range of non-pecuniary damages in these cases moved from a low of $22,000 to a high of $35,000.
[51] The only head of damages allowable on the facts of this case is non-pecuniary damages. I am satisfied that the appropriate figure for non-pecuniary damages for Ms. Kabani as a result of the Accident is $32,500.


If you are having trouble securing fair settlement from ICBC, contact Perminder S. Tung at LK Law for a free initial consultation. 


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 9, 2014

LK Law Secures $200,000 ICBC Injury Judgment


In Reasons for Judgment rendered November 27, 2014, Mr. Justice Skolrood of the New Westminster BC Supreme Court awarded $201,763.00 in total damages resulting from a July 16, 2009 motor vehicle accident. 


Mr. Benson, client of LK Law, was involved in a crash at the intersection of 204th Street and Fraser Highway in Langley, BC.  He was 57 years old at the time of trial and worked as a metal fabricator. The trial was conducted by Paul Kent-Snowsell of LK Law

He was awarded $110,000 for pain and suffering. His injuries consisted of complex soft-tissue pain with impairment on his cognitive and psychiatric functioning. 

He was awarded $5,770 for past income loss and $76,500 for future income loss. 

Cost of future care award was $17,953 to obtain future medical treatments.

Loss of housekeeping capacity was evaluated at $5,000 and out of pocket expenses of $3,040. 

Mr. Benson's pain and suffering award, and income loss awards were reduced by 15% for failing to follow some of the recommendations made by his physicians (see previous blog post on this issue for more information about your "duty to mitigate your losses").

LK Law has experienced trial lawyers that will seek an optimum settlement on your behalf, or take your case to trial for a fair assessment by our court system.

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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