Mussio Goodman Counsel Fred Sierecki Obtains $584,560 For Client At Trial

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Mussio Goodman is pleased to announce Associate Counsel Fred Sierecki’s success after a three week trial in the Supreme Court of British Columbia.

In Raptis v. Chalabiani, 2017 BCSC 1548, the Court awarded the Plaintiff $584,560 for injuries sustained in a December 2009 motor vehicle accident, which substantially exceeded ICBC’s final offer of $364,243 before trial.

The Plaintiff sustained a number of injuries in the accident, the most serious of which was to her left hip, which required surgery.  This injury made it difficult to perform her job as an elementary school teacher, and to engage in many activities that he previously enjoyed, such as running.

ICBC argued that the Plaintiff’s damages should be minimal, stemming from the fact that there was minimal damage to her car.  The Court ultimately disagreed with this argument after listening to several medical experts retained by the Plaintiff testify that minimal vehicle damage does not equate with minimal physical injury.

ICBC also argued that the Plaintiff should not be awarded any past wage loss because she simply chose to work half-time due to her two young children, one of whom was diagnosed with Autism shortly after the accident.  ICBC also argued that the Plaintiff shouldn’t have undergone the hip surgery which her surgeon felt could help reduce some of her pain.  In awarding $125,000 for past wage loss, the Court held that:

[175] In my view, it was reasonable for the plaintiff to seek the support of her physicians to work on a part-time basis following her second pregnancy in circumstances where she had struggled working full time and she was scheduled to have surgery on her hip — which ultimately occurred in January of 2015. I note that Dr. Sam expressly supported the plaintiff working on a 50% basis.

ICBC argued that the Plaintiff should not be awarded any loss of future income because she was attending a CrossFit gym which they argued was evidence of a lack of physical impairment.  The Court agreed with Mr. Sierecki’s submissions that there was a real and substantial possibility of future income loss and awarded $295,000 on the basis that she would likely only be able to work 4 days per week instead of full-time in the years ahead.  The Judge stated as follows:

[182]     In this case, I find that the plaintiff has established that her earning capacity has been impaired and that there is a real and substantial possibility that the diminishment in earning capacity will result in a loss of income. I do not agree that the plaintiff’s limitations can fairly be described as causing her mere “discomfort”. I conclude that the evidence supports her continuing to have functional limitations affecting the performance of her teaching duties on a daily basis, such as her ability to perform tasks associated with sustained or repetitive postures. As noted above, the evidence of Dr. Masri and Dr. Gilbart was that her chronic pain in her hip and lower back will likely continue and the evidence of Dr. Lamba was that her pain has an emotional component which affects how she deals with stressors. While she has been able to make a number of work modifications, they do not wholly alleviate her limitations.

While 98% of injury claims settle, this case demonstrates the importance of hiring experienced trial lawyers who won’t hesitate to advance your claim to trial to get the compensation you deserve.

 

 

Injured Client Awarded $683,810 at Trial After Rejecting Final Offer of $280,000

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Mussio Goodman is pleased to announce our success in the British Columbia Supreme Court case of Ackermann v. Pandhar, 2017 BCSC 880.

The Court awarded our client $683,810 for injuries sustained in a 2011 motor vehicle accident, which substantially exceeded the insurance company’s final offer of $280,000 before trial.

Our client sustained a number of injuries in the accident, the most serious of which was to his right wrist, described by our orthopedic expert as “chronic and static with a very high likelihood of deteriorating over time.” This injury made it impossible to perform his job as a tile setter, and to engage in many activities that he previously enjoyed.

The insurance company argued that our client should be held 25% at fault for not wearing his seatbelt at the time of the Accident. We pointed out that our client had a legitimate medical reason for not wearing his seatbelt (a recent bladder surgery), and that, regardless, the insurance company failed to prove that his wrist injury would not have occurred had a seatbelt been worn. The Court agreed with our position.

With regards to past wage loss, we argued that our client should be awarded an amount that falls between his actual earnings before the Accident and the higher average wage for a tile setter, with which the Court agreed as follows:

[146] [T]he figure proposed by Mr. Ackermann’s counsel — the mid-point between average tile setter earnings and the actual earnings as I have found them — fairly reflects the rate increases that the business would certainly have commanded in the years since the accident (and which Andreas now enjoys in his own business) without indulging in speculation about business growth.

Our client was also awarded $385,000 for future loss of earning capacity after we successfully argued that our client had planned to work well into his 70s and had significant language barriers that likely precluded him from alternative employment. The Court agreed as follows:

[160] I conclude that the possibility of Mr. Ackermann obtaining paid employment in the future is so low that his remaining earning capacity must be considered minor at best. If he does become employed I predict that at best he is looking at entry-level service-type jobs, with virtually no possibility of replacing his pre-accident income.

While 98% of injury claims settle, this case demonstrates the importance of hiring experienced lawyers who won’t hesitate to advance your claim to trial to get the compensation you deserve.

Mussio Goodman Obtains Over $250,000 For Client At Trial

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Mussio Goodman is pleased to announce our success in the British Columbia Supreme Court decision of Sohal v. Singh, 2017 BCSC 734.

Our client was awarded $252,431.79 in damages resulting from a car accident which occurred on November 26, 2011, where she sustained a fractured kneecap resulting in ongoing chronic, knee and leg pain.

In this case, Fred Sierecki and Michelle Gillespie of Mussio Goodman represented Ms. Sohal in advancing her claim at trial.

Mr. Justice Skolrood agreed that Ms. Sohal, a 53 years old widow, was entitled to a pain and suffering award of $80,000, as well as $44,000 in past wage loss from her job as a cook, and a further $75,000 for loss of future income earning capacity on the basis that she may need to retire earlier than planned due to her ongoing chronic pain.

The Court also recognized that a person is entitled to compensation for their loss of ability to maintain their household, even where family members residing with them have stepped in to assist in lieu of hired help.

The Court awarded Ms. Sohal $40,000 for a past and future loss of housekeeping capacity based on the fact that she was physically unable to maintain her home in the same fashion as before the accident in the years leading up to the trial and that she would also be limited in this regard in the future.

The Court also awarded $12,000 for other aspects of future care, including a supervised exercise program and a gym pass.

Achieving success such as this at trial requires the judgment and experience of trial lawyers who are able to articulate and argue the relevant legal principles that apply to the case.  At Mussio Goodman, we have the experience, knowledge and confidence to advance a case through the various stages of the lawsuit and all the way to trial.

Court Denies ICBC’s Attempted “Fishing Expedition”

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Advancing an ICBC claim for injuries and lost wages requires a claimant to disclose relevant medical and employment records. However, ICBC should not be entitled to a “fishing expedition” by gaining access to a claimant’s entire medical and employment history with the hopes of finding something they can later argue is relevant.

As a firm representing the interests of injured claimants, we strive to ensure that ICBC is held to this standard.

In our recent case Stephens v Gill, ICBC applied to the Court for an order compelling our client to produce extensive medical, employment and Worksafe records, some dating as far back as 16 years prior to the accident.

Mussio Goodman argued that such a broad disclosure was not relevant to the claim and unfairly invaded the privacy of our client.

On the day of the hearing, ICBC abandoned many of their record requests, and limited most of the others to what we had already agreed to disclose.

Regarding most of the remaining records in contention, Master Vos of the Supreme Court of British Columbia agreed with our position, finding that much of records ICBC sought was disproportionate and overbroad.

This ruling underscores the benefit of hiring a lawyer to protect both your rights and your privacy over the course of your ICBC injury claim.

Court Rejects ICBC’s Application to Assess Our Client By ICBC Doctor

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Mussio Goodman is pleased to announce our recent success in the Supreme Court of British Columbia, in which we defended our client’s interests by preventing a medical assessment (IME) by a neurologist chosen by ICBC.

IMEs are often obtained by both the claimant and ICBC during the litigation process, the purpose of which is to have independent doctors provide the parties, and ultimately the Court, with an impartial expert opinion on the claimant’s injuries. The law is clear with regards to IMEs; the Plaintiff must attend these appointments so long as they are reasonable and fair.

In this recent case, our client was in two motor vehicle accidents where she suffered a number of injuries including a concussion, traumatic brain injury, and a number of soft tissue injuries.

Over the course of the claim, our client consented to two IMEs selected by ICBC; one with a psychiatrist and one with an orthopaedic surgeon. Interestingly, we had yet to receive copies of the reports from the first two assessments, yet ICBC asked for yet another one, this time with a neurologist. When we drew the line at two assessments, ICBC applied for a court order to compel our client to attend.

We argued that the third IME was unnecessary and would put the parties on an unequal playing field. We further argued that ICBC had yet to produce reports from their two previous IMEs, and was in essence ‘doctor shopping’ for a favorable opinion.

Master Bouck of the Supreme Court of British Columbia agreed with our submissions and dismissed ICBC’s application with costs.

Court Questions Credibility and Rejects Opinion of ICBC Doctor Martin Grypma

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In claims involving personal injury, it is often necessary for both the claimant and ICBC to retain independent medical experts to assess the claimant’s injuries.

The purpose is to have an independent doctor provide the parties – and ultimately the Court – with an impartial expert opinion on the claimant’s injuries. The opinion usually includes a diagnosis of the claimant’s present injuries and his or her prognosis for the future. These opinions are very helpful to the parties in reaching a settlement, or to the Court in awarding damages at trial.

Pursuant to the Rules of Court in British Columbia, any doctor who provides a written expert opinion has a legal duty to be impartial and refrain from being an advocate for any party. In addition, the doctor has a legal duty to certify in their report that they are aware of the duty, have made their report in conformity with the duty, and will conform with the duty if called upon to give oral or written testimony at trial.

ICBC routinely retains expert doctors from a roster that includes several who have been criticized by the Court for various reasons, including failing to abide by the duty to not advocate for any party.

One such expert whom ICBC routinely retains to provide opinions is Dr. Martin Grypma. Dr. Grypma is an orthopedic surgeon whose practice now largely involves conducting medical assessments for ICBC.

As we have previously discussed, Dr. Grypma has been strongly rebuked by the Court over the last several years. His opinions have been deemed to be superficial, ill-considered, argumentative, and outside the scope of his expertise.

In spite of this, ICBC continues to routinely retain this doctor to opine on claimants injuries. The result is yet another recent decision by the Court on the troubling conduct of Dr. Grympa and ICBC.

In Kim v. Lin, 2016 BCSC 2405, the Court singled out Dr. Grypma as a witness that is neither reliable nor credible.

[118]     … I appreciate that Dr. Grypma is an orthopedic surgeon, and as such his opinion would ordinarily be accorded considerable weight. However, after reviewing his opinions in the context of the whole of the evidence and observing him under cross-examination, I have concluded that he failed to present balanced and impartial evidence in this case.

[119]     The first observation I would make about Dr. Grypma’s reports is that he bases his conclusions about Ms. Kim’s condition largely on the absence of complaints in the clinical records …. He also failed to mention that in her report Dr. Budzianowska-Kwiatkowski confirmed that in the accident-related examination on February 16, 2011, Ms. Kim reported that she had suffered from back pain consistently after the Accident.

[120]     Dr. Grypma also interpreted entries in the records in a way to suggest that Ms. Kim was recovering when those records do not support any such conclusion. The most egregious example of this is Dr. Grypma’s reference to a clinical record dated October 10, 2008 in Dr. Budzianowska-Kwiatkowski’s records that “things are going really well”…

[122]     However, it is obvious to me that the reference to things going really well in Dr. Budzianowska-Kwiatkowski’s records has nothing to do with her and in fact refers to her child…

….

[124]     This reference is consistent with the tenor of Dr. Grypma’s opinions, which I found to be adversarial in tone and content. Dr. Grypma’s comment that Ms. Kim’s travelling to Korea indicated that she must have been doing really well is argumentative….

[125]     Finally, I note that Dr. Grypma’s first report stated that symptoms of a back injury must arise within two to three days post-accident to be have been caused by the accident, and that because Ms. Kim did not report any lower back pain in that interval it was unlikely that her subsequent back pain was accident-related. However, in his second report, prepared after he learned that Ms. Kim did report such symptoms within three days, he stated that if the onset of lower back pain occurred more than 24 hours after the accident, injury or muscle pain was very unlikely.

[126]     When asked why he changed the time frame from two to three days to 24 hours, Dr. Grypma said that he had spoken to his colleagues in neurosurgery and decided that an earlier onset of symptoms was necessary. I find this answer to be unconvincing.

This selection of reported case law shows that, in spite of ICBC’s public-relations campaign about how they treat injured claimants fairly, ICBC has hired and continues to hire doctors who have a well-established reputation for bias and other questionable conduct. In our view, choosing Dr. Grypma to opine on a claimant’s injuries is clearly an act of bad faith, the true purpose of which is to discredit and diminish a legitimate injury claim rather than pursue the truth of the matter so as to provide fair compensation.

It also underscores the important role a personal injury lawyer can play in assisting an injured claimant. At Mussio Goodman, we go to great lengths to ensure that our clients are protected from such biases, while retaining the proper experts to assess our client’s injuries in a fair and impartial manner.