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ICBC Injury Claims Information

What happens when you are hit and injured by a drunk driver?

19 Dec 2014 07:47


Unfortunately the holiday season brings with it an increased risk from drunk drivers; and when a dunk driver cause an accident resulting in personal injuries, special consideration apply.

ICBC has the right to void the insurance of anyone who has caused an accident while driving impaired. This means that the innocent victims of the impaired driver must recover compensation from a driver without insurance. Fortunately, ICBC will be required to cover damages up to a maximum of $1,000,000 depending on the severity of the injuries and losses.

However, special rules apply which can result I arbitrary deductions from that amount. Additional insurance funds might also be available if the innocent victim is covered by Excess Underinsured Motorist protection. The amount available can also be reduced if more than one person is injured.

Due to the number of special considerations that apply in drunk driving accidents, it is highly advisable to obtain legal advice from an experienced ICBC accident lawyer at the earliest opportunity.


ICBC Pedestrian Hit and Run Claims

27 Oct 2014 08:23


Hit and Run cases are particularly disgusting when a pedestrian is hit in a crosswalk while the driver of the vehicle takes off hoping to avoid responsibility.

More often than not, the pedestrian will be seriously injured. Fortunately, even though the driver of the vehicle may never be identified, the law in British Columbia allows people injured by hit and run drivers to sue ICBC for compensation. However, there are certain deadlines for filing such claims. Most importantly, there is an obligation to make reasonable efforts to identify the driver and vehicle, often by placing signs at the scene of the accident, and/or placing newspaper advertisements. Failure to take those steps could result in the court dismissing the personal injury claim. A full police investigation of the accident may or may not always be sufficient to meet this standard.

If you or a loved-one has been struck by a hit and run driver, an experienced ICBC personal injury lawyer should be contacted as soon as possible. At Gantzert Law, we are happy to provide a free consultation to discuss such matters.


Judge refuses to enter "inconsistent" jury verdict

3 Oct 2014 19:05


In a decision released on October 1, 2014, BC Supreme Court Justice G.P. Weatherill refused to enter a jury verdict in an ICBC case because the jury's verdict was internally inconsistent.

The jury found that the Plaintiff was entitled to special damages and wage loss, which could only arise if she was injured, but awarded nothing for pain and suffering.  Even if the jury found that the injuries were minor and transitory, the Judge felt that awarding no compensation was inconsistent with a finding that the injuries were sufficient to result in a wage loss.

Because of the provisions of the Rules of Court, the Judge was not free to substitute his own assessment of damages.

The decision can be found at: http://www.courts.gov.bc.ca/jdb-txt/SC/14/18/2014BCSC1833.htm


Supreme Court of Canada declares BC Government's court hearing fees unconstitutional.

2 Oct 2014 16:45


The Supreme Court of Canada today declared the BC government's court hearing fee schedule as unconstitutional. Under the government's system, he hearing fees escalated from no fee for the first three days of trial, to five hundred dollars for days four to ten, to eight hundred dollars for each day over ten. Those fees were found by a 6-1 majority to be unconstitutional as they had the potential to deny access to justice.


Rule 20‑5(1) of the Supreme Court Civil Rules provided for an exemption from hearing fees if the court finds that a person is “impoverished”.  The exemption in place at the time of the trial provided that a judge could waive all fees for a person who is “indigent”. However, the Supreme Court found this exemption did not go far enough in protecting access to justice.  Chief Justice McLachlin wrote:


" A hearing fee scheme that does not exempt impoverished people clearly oversteps the constitutional minimum ― as tacitly recognized by the exemption in the B.C. scheme at issue here. But providing exemptions only to the truly impoverished may set the access bar too high.  A fee that is so high that it requires litigants who are not impoverished to sacrifice reasonable expenses in order to bring a claim may, absent adequate exemptions, be unconstitutional because it subjects litigants to undue hardship, thereby effectively preventing access to the courts."
Interestingly, the Court did not say that the fees offended the Charter of Rights.  Rather, they offended the inherent jurisdiction of the Court to manage it's affairs and had the potential of restricting superior courts (such at the BC Supreme Court) from being able to exercise their inherent jurisdiction.  It seems clear that the Supreme Court of Canada was carefully avoiding extending Charter Rights to individuals with respect to "financial access" to justice.
The Court indicated that the government could legally impose a fee structure, so long as it allowed for exemptions on a broader scale and allowed for judicial discretion to waive the fees.

ICBC Advertising Campaign

23 Sep 2014 20:45


I have been seeing and hearing the new ICBC advertising campaign a lot over the last few weeks.  The campaign strikes me as interesting in a number of ways.


First, the ICBC commercials leave the general impression that lawyers are not telling injured persons the truth when advising them of the rights in relation to ICBC claims.  This is troubling, of course, because lawyers are neither ethically nor legally allowed to lie to potential clients.  One of the issues that ICBC seems to emphasize is that people can settle when they are ready, and not on ICBC timeline.  The implication is that lawyers are telling people that they will be forced to settle when they are not ready.


I don't know any lawyer who would tell their client that they will be forced to settle their ICBC claim against their will if they don't hire a lawyer.  Personally, I do tell injured persons that they have only two years less one day to settle with ICBC or they have to file a lawsuit to protect their rights.  Now, filing a lawsuit for a personal injury case in not necessarily an easy matter, so in that sense, if you don't want to settle with ICBC within the first two years, you will likely need a lawyer.


Another trick (and I use the word purposely) that has been used in the past is to simply send a "settlement" cheque to an injured person with a letter indicating that the claim will be closed when they cash the cheque.  This happens without any agreement by the injured person that they are ready to settle. Clearly this is inappropriate.


Second, the ICBC commercial states that often, medical benefits can be obtained without having to sign any documents.  If that is true, then that is certainly a new development since most adjusters require a signed statement and a signed CL22 Application for Benefits.  That forms satisfies the following legal requirement contained in the governing legislation and regulations: "within 90 days from the date of the accident furnish the corporation with a proof of claim in a form authorized by the corporation".


So while ICBC may immediately approve some basic treatments such as physiotherapy and massage, at some point they will be looking for those signed documents.  Additionally, ICBC almost universally asks claimants to provide an authorization to access a claimant's medical records.


One important thing to keep in mind is that nowhere in the commercials does it say that ICBC will reach a "fair" settlement with you.  Keep in mind that when trying to reach a settlement, the adjuster is working for the insurance company representing the person who caused the accident.  Of course, in BC that is the same insurance company that insurers all of us, so it is easy to forget that ICBC is not legally required to treat the innocently injured person fairly when it comes time to determine compensation.


The adjuster's job is to close your file for the least amount of money possible.  That does not make them bad people.  It's just their job.


If you have concerns about that, discuss your case with a lawyer experienced in ICBC cases.


Accident caused by snow spray from passing vehicle

23 Sep 2014 08:04


With winter approaching, it seems appropriate to review an interesting recent case involving blinding snow. What do you do if you are blinded by snow thrown onto your windshield by a passing motorist? In today's case, an accident ensued and the driver asked the court to find the passing motorist responsible.


The BC Supreme Court decided on September 19, 2014 that an accident caused by a passing motorist throwing a curtain of snow onto the window shield of another car was the fault of the passing driver. The judge found that the overtaking truck passed at high speed even though it was evident that the road was blanketed with snow. It should have come as no surprise to the passing driver that his actions would blanket the other car in a spray of snow.


Mr. Justice Ball stated: "There is, in my view, a very heavy onus on the driver of an overtaking vehicle to make sure that passing can be done in safety; particularly in poor road and weather conditions. The driver of the SUV in this case did not respect the circumstances that the standard of care dictated."


These types of cases demonstrate that no matter what the circumstances, it is always advisable to discuss an accident case with a lawyer to determine your rights.


24 Jul 2014 06:11


Contingency Fees in Personal Injury Claims


Almost all personal injury claims involving a lawyer in BC are taken on a contingency basis. A "contingency" fee literally means that the lawyer's fee is contingent on the lawyer obtaining monetary compensation for the client. In all cases the fees are based on a percentage of the compensation that is obtained.

First, it is important to understand that all lawyers have only one thing to sell you: their time. They use that time to implement their expertise in resolving your claim. Normally, lawyers charge by the hour and they require up-front retainers to guarantee their fees.  This can be very expensive for most people and would prevent them from pursuing a claim for personal injuries against large insurance companies, such as ICBC.

A contingency fee is really just a different way for lawyers to sell their time. Rather than charging by the hour, the lawyer takes a percentage of the compensation obtained for the client.  Sometimes this can result in a fee which would be more per hour than their regular rate.  Sometimes this can result in the lawyer receiving considerably less per hour than their hourly rate.  This can often depend on how the contingency fee is structured.

Contingency fees amongst law firms vary, with some firms offering flat percentage, while others offer an incremental scale.  There are potential advantages and disadvantages to both systems.

Flat Percentage Fee

If a firm offers a flat percentage fee, they will receive only a fixed percentage of the compensation obtained, no matter how much work they are required to do.  For example, if a firm were to charge a flat percentage of 20% no matter the stage of litigation, the lawyer's effective hourly rate might be reasonable if the matter settles before any court filings are necessary.
However, what if the client should really proceed to trial in order to get a fair result.  In that case, the fixed percentage fee results in the lawyer being required to do a tremendous amount of work, but his/her fee rate remains at 20%.  The effective hourly rate in such a case would be considerably lower.

The question becomes: How likely is the lawyer going to be motivated to take a case to trial when his effective hourly rate decreases the more work he has to do?

Incremental Percentage Fee

Many forms offer an incremental percentage fee, with typical arrangements allowing for small increases in the percentage rate at the following stages of litigation: filing the lawsuit, conducting the examination for discovery, and conducting a trial.

This system recognizes that conducting a trial takes essentially all of the lawyers time during that period, and that there should be compensation in keeping with that commitment.

The question in this case becomes: How likely is the lawyer going to be motivated to take a case to trial when his effective hourly rate reasonable no matter how much work he/she has to do?

Conclusion

Why is this important?  Because there are many times when a case should be taken close to or through a trial in order to obtain fair compensation.  It is therefore important to know that your lawyer will be motivated to take a case to trial if necessary.

While a flat percentage fee may seem attractive, incremental percentage fees can be more effective in a situation where litigation, including a trial is necessary. 

14 May 2014 06:56


When it comes to concussion recovery, time is important 

A concussion is not generally a life-threatening injury.

However, according to research published in the American Journal of Sports Medicine, age and sex are critical to the treatment of concussions.

The study, conducted by Michigan State University (MSU), reveals that young and female athletes take longer to recover from concussions.

Tracey Covassin, Assistant Professor at MSU, found that high school athletes performed worse than college athletes on memory tests. Similarly, female athletes were out-performed by male athletes.

A concussion does not ordinarily result in permanent damage. However, if a person suffers another concussion before the first one has completely healed, this can have devastating consequences including bleeding inside the skull, brain swelling and even death. This is known as 'second-impact syndrome' (SIS), a form of traumatic braininjury that disproportionately affects females and athletes under 25.

Covassin noted that, "Younger athletes appear more at risk of second-impact syndrome...While it is rare, there is a serious risk of brain damage, and the risk is heightened when athletes are coming back before they heal."

According to Covassin, the key message is to allow more recovery time for female athletes and high school students. The American Academy of Paediatrics recommends that young athletes with concussions obtain clearance from a doctor before returning to the playing field. This, Covassin points out, ensures that any head injury is fully healed.

This research appears no less relevant to those who suffer a traumatic brain injury in a motor vehicle collision.

If you or your loved one has suffered a concussion as a result of a motor vehicle collision or fall in a commercial establishment, contact lawyer René Gantzert, a lawyer experienced in concussion claims, to explore your legal options.

Spinal Injuries Sustained in Auto Accidents are Never Minor

1 May 2014 09:27


Injuries to the spinal cord can cause permanent damage to an individual. Pain, loss of mobility and sometimes loss of cognitive abilities can result from a spinal cord injury. Spinal cord injuries include whiplash, herniated discs and fractures. In some cases, medical therapies and treatment may be able to reduce the chance of the injury resulting in a permanent condition. However, some spinal cord injuries result in permanent paralysis.

Whiplash

Probably the most common injury sustained in motor vehicle accidents, whiplash is often thought of as a temporary condition that goes away with time. However, soft tissue damage can cause permanent and debilitating conditions.


Whiplashcan occur when the muscles in the neck stretch and tear during an auto accident. When muscle tissue tears, it heals by creating scar tissue to mend itself. Unfortunately, this scar tissue does not grow in the exact manner as the original tissue in the neck and can protrude and put pressure on the spinal cord. This pressure can cause instances of migraines, stiffness and loss of mobility in the neck and shoulders.

Vertebrae damage

Traumatic damage to the spine can result in fracturesor disc displacement. Any time a bone in the spine is damaged or a disc is herniated or bulging, it puts more pressure on the other vertebrae and discs to maintain the mobility of the spine. This weakens the spine and can cause a so-called domino effect of damage. Severely fractured vertebrae can be mended or replaced through surgery, but the spine will forever be weakened.

A herniated or bulging disc can mean a lifetime of pain and discomfort. When the cushioning disc is not in its proper place, it causes the vertebrae to be tilted and can even cause them to rub against each other as the person moves. There are treatments to temporarily relieve pain, but most disc injuries are lifetime concerns. Severe cases of disc herniation require surgery to relieve the pressure on the vertebrae.



Consult a personal injury attorney after sustaining a spinal cord injury

Spinal injuries can result in medical bills, time spent in the hospital and therapy and, in some cases, loss of employment. This can put a further strain on the patient, which can slow the recovery process. In many cases, the injuries are a result of a car accident, and the victim is entitled to legal recovery. It is important to consult with an experienced personal injury lawyer who has experience helping victims with spinal cord injuries.

Spinal injuries are not minor injuries. Pain can linger for months or could last a lifetime. Legal recovery to help pay medical bills and replace lost income can be an option for spinal injury victims involved in an auto accident. It is important to seek legal counsel after the accident to preserve your rights and help you get the proper diagnosis and treatment.


 
If you would like the opportunity to discuss your ICBC whiplash claim with an experienced personal injury lawyer, please contact René Gantzert at GantzertLaw Office for a free consultation.

Decrease in Discount Rate Means Increased Compensation for Personal Injury Victims

30 Apr 2014 21:22


The Chief Justice of British Columbia has announced a decrease in the discount rate under the Law and Equity Act.  The discount rate is used by economists to calculate the current dollar value of future compensation awards.


By decreasing the discount rate, the Court has recognized that the previous rate unfairly penalized victims of personal injuries, including ICBC claims.  Compensation for these victims will now more accurately reflect the current economic climate and rates of return on investments.  The discount rate had not been changed in 33 years.


It is important that personal injury claims take into account the new discount rate when calculating fair compensation, including for ICBC claims.


If you require advise about your personal injury claim, including ICBC claims, and how the change in discount rate affects your claim, please feel free to contact René Gantzert at Gantzert Law Office.


6 Feb 2013 17:58


ICBC's refusal to repay Sick Bank benefits for accident victim denied by BC Courts


The Supreme Court of British Columbia released a ruling on January 18, 2013 which denied ICBC's attempts to not repay sick bank benefits to an car accident victim.  The case involved a Vancouver City police officer who was forced to use part of his accumulated sick bank while recovering from injuries.

The officer was succesful in obtaining a judgment against the uninsured driver who caused the accident.  ICBC was responsible for paying the judgment on behalf of the uninsured driver, but asked the court to reduce the judgment by the amount of the sick bank payments received by the officer.

If ICBC had been successful, the officer would not have been able to repay the sick bank, thereby leaving him with fewer sick days should he suffer an illnes in the future.

Mr. Justice Willcock determined that ICBC could not legally refuse the pay the amount of sick days used if these formed part of the judgment against the uninsured driver.

The judgment can be found at: http://www.courts.gov.bc.ca/jdb-txt/SC/13/01/2013BCSC0151.htm

18 Jul 2012 09:43


NEW WEBSITE LAUNCHED

We are please to announce the redesign of our website at www.Gantzertlaw.com.  Our new site offers more in-depth information on a variety of topics, including all aspects of ICBC Claims such low velocity impact, personal injuries, whiplash, brain injuries, and spinal cord injuries.

ICBC Ordered to Re-instate Disability Payments

11 Feb 2011 19:52


In a judgment released today, ICBC was ordered to reinstate wage loss benefits after a judge of the BC Supreme Court found that ICBC had improperly terminated the benefits.

After a March 2010 accident, the claimant had received one week of disability benefits from ICBC.  At that point, she started receiving EI Disability payments.  When her EI ran out, she re-applied for the ICBC benefits, but ICBC refused to pay them.

ICBC's adjuster based the denial on a report by DR. Malloon, an orthopaedic surgeon regulalrly retained by ICBC.  Dr. Malloon found that she was not totally disabled, eventhough her family doctor and a rheumatologist had both indicated that she was totally diabled from work.

In making the decision to re-instate the benefits, the judge noted that Dr. Malloon's opinion was restricted to his speciality, i.e. musculoskeletal problems, but that he could say nothing of her ligament injuries.

The judge also made a comment that adjusters should not overstate what is in a medical report:

  • "I close by noting, once again, the grounds on which ICBC terminated benefits.  The claims representative did fairly describe Dr. Maloon as finding that there was no further disability, and that may very well have been the case within Dr. Maloon's limited field as a specialist in orthopaedic medicine opining only on musculoskeletal as opposed to musculoligamentous injuries.  That was all fair on the part of ICBC.  However, the claims representative, in his denial letter, also stated that Dr. Maloon felt that much of the claimant’s complaints may relate to a pre-existing degenerative condition.  As I have noted, that is not what Dr. Maloon’s report says.  Claims representatives should read their independent medical reports carefully before citing them as grounds for denying coverage."
This demonstrates that ICBC's decision on termination of benefits can be succesfully challenged when based on erroneous facts and if proper medical evidence can be provided to the courts.

The case of Derbyshire v. ICBC can be found at: http://www.courts.gov.bc.ca/jdb-txt/SC/11/01/2011BCSC0170.htm

Judge denies ICBC's claim that injured woman's symptoms motivated by an unconsciuous desire to avoid work

1 Nov 2010 05:25


A trial judge last week denied ICBC's claim that  an injured woman's symptoms were motivated by an unconscious desire to avoid work.

On October 28, 2010, a trial decision was released in Carr v. Simpson.  Ms. Carr was injured when Mr. Simpson likely fell asleep at the wheel and hit her vehicle.  She suffered a number of injuries and psychological consequences:

  1. Neck/upper back/trapezius: bilateral, with pain and tingling across the back, shoulders, and down the arms with poor chances of full recovery.
  2. Thoracic Outlet Syndrome, with surgery not recommended as a remedy.
  3. Periodic (once every two weeks) incapacitating headaches, causing nausea and vomiting which would probably continue indefinitely.
  4. Injury to right hand and wrist for which surgery was not entirely successful.
  5. Meniscus tear to the right knee with surgery two years after injury which was successful.
  6. Low back pain and right hip flexor which was likely permanent.
  7. A major depressive disorder of moderate severity.
Mr. Justice Bernard reiterated that the following factors should all be considered when determining how much someone's pain and suffering is worth:
  1. the plaintiff’s age;
  2. the nature of the injury;
  3. the severity and duration of pain;
  4. disability;
  5. emotional suffering;
  6. loss or impairment of life;
  7. impairment of family, marital, and social relationships;
  8. impairment of physical and mental abilities;
  9. loss of lifestyle; and
  10. stoicism (as a factor for which the plaintiff should not be penalized).
The judge noted that the defence conducted on behalf of ICBC asked a number of witnesses whether Ms. Carr's description and complaints of her injuries was motivated by an unconscious desire to avoid work.  The trial judge refused to support this argument however.  He stated: "While I have some trouble with the concept of an unconscious motive, I have no difficulty in concluding there is no direct, or indirect, evidence the plaintiff was motivated, unconsciously or otherwise, by secondary gain."

After considering all the injuries and the above-noted factors, the trial judge awarded Ms. Carr $100,000 for pain and suffering.

We are often faced with allegations of secondary motive when representing people with permanent physical and/or psychological issues.  This case demonstrates that judges will not readily accept that people are being consciously or subconsciously dishonest about the nature and extent of their injuries.

Driver who rear-ends another car not always at fault

4 Oct 2010 20:52


In Hough v. Dyck, a decision released today by the BC Supreme Court, the Court agreed with ICBC that Mr. Hough was liable for an accident even though he was rear-ended.

In this case, the Judge believed Mr. Dyck's story that Mr. Hough cut him off and then stopped abruptly in front of him, thereby giving him no chance to avoid the accident.

Although rare, there have been a number of cases where the person who was rear-ended is found liable for an accident.  If you have been injured in an accident where you rear-ended another vehicle which abruptly cut into your lane and then stopped, you should contact a lawyer to discuss whether you may have a valid claim.


Disclaimer:  This post is not intended as legal advice.  Every ICBC claim is different and dependent on its facts.  To obtain advice on a specific claim, please visit  us at www.gantzertlaw.com.


Is ICBC Doctor shopping?

1 Oct 2010 21:49


In reading the preliminary motion decision released today in the case of Imeri v. Janczukowski, one gets the feeling that ICBC was "doctor shopping".

In 2006, ICBC had forced Ms. Imeri to attend an "independent" medical examination by an orthopaedic surgeon, Dr. Boyle.  ICBC's stated reason for the examination was that it was required to determine entitled to Part II no fault benefits (such as treatment or wage loss replacement).

In 2010, ICBC applied to have Ms. Imeri examined by a different orthopaedic surgeon, Dr. McGraw.  ICBC advanced the argument that this examination was for a different purpose, namely, Ms. Imeri's lawsuit for compensation for her injuries.

ICBC provided no explanation why they now wanted a different doctor to examine Ms. Imeri, rather than having Dr. Boyle do a re-examination.  One could be left with the feeling that ICBC didn't like the first opinion and was hoping for an opinion more favourable to ICBC's case from Dr. McGraw.

The Court refused to order the examination by Dr. McGraw and agreed with Ms. Imeri that any re-examination of her injuries should be conducted by Dr. Boyle.

This type of situation is not unusual.  Individuals not represented by an experienced ICBC claim lawyer are often asked early in their claims to attend for a supposedly independent Part VII medical examination.  ICBC will then seek a further examination once the person files a lawsuit. 

If you are dealing with ICBC on your own, it is important to seek legal advice if you are being asked to attend an independent medical examination.


Disclaimer:  This post is not intended as legal advice.  Every ICBC claim is different and dependent on its facts.  To obtain advice on a specific claim, please visit  us at www.gantzertlaw.com.


Court refuses ICBC's application to withdraw admission of liability

24 Sep 2010 20:40


In Surerus v. Leroux, a decision released by the BC Supreme Court today, the court refused to allow ICBC to withdraw an admission that their insured driver was responsible for an accident.

Mr. Surerus was rear-ended by Mr. Leroux in September 2006.  Mr. Surerus filed a lawsuit against Mr. Leroux in 2008.  In the lawsuit, it was alleged that the accident was the result of Mr. Leroux's negligence, including having faulty brakes on his car.

In responding to the lawsuit in the Statement of Defence, ICBC which was representing Mr. Leroux admitted that the accident was Mr. Leroux's fault.

It was not until August 2009 that the defendant told ICBC that his brakes had failed unexpectedly.  ICBC's lawyer the tried to withdraw the admission of liability on Mr. Leroux's behalf on the basis that ICBC had not addressed its mind to the issue of faulty brakes when they admitted liability.

The Supreme Court Master refused the application because the Mr. Surerus' lawsuit had very specifically noted that faulty brakes was a cause of the accident, and the Master therefore felt that the specific allegation had been brought to the defendant's attention.  He also felt it would be unfair to the plaintiff to have to try to refute a "faulty brake" defence some four years after the accident, when there was no evidence of what had happened to the vehicle or whether it was still available for inspection.

This case is of interest to personal injury lawyers for a number of reasons.  First, in a rear-end collision, it is generally accepted that the rear vehicle is responsible for the accident.  ICBC normally, and quite properly, admits liability in these cases.  Lawyers often rely on this standard to assess whether they are prepared to accept a case, and also as a basis for fee arrangements.

Secondly, litigation strategies and decisions are made based on whether liability has been admitted or denied in the defence to the lawsuit.  If defendants were able to easily withdraw those admissions, court cases could become lengthier and costlier.

From a plainitff's lawyer point of view, this decision protects the rights of innocently injured people from lengthy delays and unnecessary expense when dealing with the ICBC injury claims.


Disclaimer:  This post is not intended as legal advice.  Every ICBC claim is different and dependent on its facts.  To obtain advice on a specific claim, please visit  us at www.gantzertlaw.com.


Judge finds that injuries from car accident can develop over time.

21 Sep 2010 02:24


In the case of Vershinin v. Hayward released today by the BC Supreme Court, Mr. Justice Grauer did not accept ICBC's argument that an injury must be felt and complained of immediately after an accident. 

Mr. Vershinin was involved in a serious accident which completely destroyed the front of his car.  He suffered a number of obvious and immediately apparent injuries.  However, a dispute arose over the cause of a shoulder injury for which he ultimately had surgery.  ICBC, which was representing the defendants, argued that the shoulder injury could not have been caused by the accident because Mr. Vershinin did not have complaints about shoulder pain until three to four months after the accident.

The judge decided that there was a perfectly normal explanation for the lack of complaints because the shoulder injury only became noticeable when Mr. Vershinin was able to return to normal activities as his other injuries healed.

This case demonstrates the importance of maintaining a diary of your injuries, including any pains and problems that develop over the months following an accident.  The totality of your injuries are not always obvious immediately following an accident, and may not be obvious to your doctors.



Disclaimer:  This post is not intended as legal advice.  Every ICBC claim is different and dependent on its facts.  To obtain advice on a specific claim, please visit  us at www.gantzertlaw.com.


BC Supreme Court supports reduced earning capacity in chronic pain case

20 Sep 2010 07:08


On Friday, September 17, 2010, the B.C. Supreme Court released a judgment in Knight v. Belton, a Prince George case.

Ms. Knight was a dental hygenist and mother of two.  After her accident, Ms. Knight suffered several months of headaches, vertigo, and neck pain. She also suffered right shoulder pain for about a year and she had on-going chronic pain and periodic right shoulder pain.

What is particularly interesting about this case is that ICBC did not want any award to be given to Ms. Knight for her loss of future earnings, even though her pain caused her to be less energetic and less capable of pursuing full employment.  The Plaintiff asked for $300,000 to make up for her diminished earning capacity while ICBC asked for an award of $0.  After examining Ms. Knight's potential future earning and calculating what she might now make given her chronic pain, Madam Justice Gray awarded $300,000, in addition to awards for pain and suffering and a number of other categories.

ICBC tends to fight quite vigourously against demands for compensation for potential future earnings loss.  This case demonstrates that the Courts will make reasonable awards where justified, but taking a case to trial is sometimes necessary.


Disclaimer:  This post is not intended as legal advice.  Every ICBC claim is different and dependent on its facts.  To obtain advice on a specific claim, please visit  us at www.gantzertlaw.com.

        
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