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The NDP Government is Attempting to Help ICBC by Limiting Expert Reports and the Amount Paid by ICBC for Disbursements

Posted on by Mussio Goodman

On February 11, 2019, the NDP, through the Attorney General (David Eby), unilaterally changed the Rules of Court without the usual consultation with the Rules of Court Committee, a committee which is made up of lawyers and judges jointly appointed by the Chief Justice and David Eby. They did not consult the TLABC (Trial Lawyers Association of BC) either. He no doubt listened to ICBC on how to give them an unfair advantage.

The new Rule limited the use of quantum expert reports to one only if the case in under Fast Track Litigation, a program put in place to streamline trials that can be heard in 3 days and/or are under $100,000 in value. All non-Fast Track actions have a limit of 3 quantum expert reports.

The constitutionality of the Rule change went before the Supreme of British Columbia and the NDP’s Rule change was found to be inappropriate and struck down, rightfully so. Do you think that David Eby and the NDP accepted fate and realized that this was a poor decision? Absolutely not because they are now attempting to put in legislation, just before the election was called, to do exactly what the court already said was not proper. This time, rather than using the Rules of Court, they are attempting to put forward the changes through the Evidence Act but they gave a little bit more discretion for the Court to grant orders allowing more than the one or three expert reports in special cases. Thankfully, there is hope that the new legislation will not become law if the NDP lose the election as the BC Liberals will definitely not put in this draconian legislation as it is simply unfair to the injured victim and is completely in favour of ICBC.

The interesting point is that when the NDP originally made the Rule amendments, they were effective immediately on experts reports that had not already been formally served on ICBC. In the result, this was a major “blindside” to lawyers and their clients especially since tens of thousands of reports on existing files still had not been served on ICBC because many lawyers tend to serve the reports closer to the 84-day service deadline before trial for tactical reasons.

Not to be outdone, the NDP, when the proposed change to the Evidence Act in February 2020, did the same “blindside” rather than speaking to all affected parties and coming up with a reasonable solution to the high cost of expert reports.

Backing up, the NDP’s rational for the Rule change is there would be a $400 million yearly cost saving to ICBC with the dramatic curtailment of expert reports. The cost savings, as the NDP government sees is it, not results from less expert reports per case but also, with the limited number of expert reports, most injured claimants won’t be able to fully prove their case meaning ICBC has to pay less per claim. Indeed, ICBC routinely tells injured victims that they cannot pay for certain parts the claim because there’s no expert opinion evidence on the point. You can be rest assured ICBC will use that limit on expert reports to their significant advantage in defending claims.

That wasn’t enough to give ICBC unfair advantage. The NDP went one step further and is proposing to limit the amount of disbursements that ICBC has to pay back to the injured victim to 5% of the settlement value of the claim.

Currently the law is that, generally speaking, ICBC has to pay any reasonable disbursements to the injured victim upon settlement or judgement. This change will dramatically reduce the amount ICBC has to pay back on disbursements of the injured claimant. It will also reduce the size of the overall claim because again, if the injured victim has to pay for expert reports, they would be less inclined to spend the necessary money to fully prove the claim.

There’s no question, therefore, the NDP government is more the prepared to put one-sided legislation into effect that will severely restrict an injured victim’s ability to get fair compensation while completely empowering ICBC.

Fortunately, if the NDP government lose power in the election, the legislation will not go through and fairness will return in the ICBC claim process.

Simply put, the NDP is going to great lengths to completely empower ICBC as an even more powerful corporation with all the Rules in their favour. The NDP does not care one bit about the injured victim and has no problem eliminating rights.

Court Awards Our Client $280,000 at Trial, Six Times More Than ICBC’s Offer

Posted on by Mussio Goodman

Mussio Goodman is proud to announce our recent victory in in the BC Supreme Court, in which our client was awarded over $280,000.

ICBC offered her $47,000 before trial, forcing her to take her case in front of a judge.

In Cox v Acapulco 2020 BCSC 1135, Mr. Justice Walker sided with our client, a 57-year-old woman who moved to Canada 36 years ago. She was involved in two accidents, one in May 2015 and the second in July 2016. As a result, she suffered numerous injuries to her neck, back, and shoulder, which significantly impacted her ability to live her life and work. While she tried to maintain her ambitious work schedule, her continued requests to her employer for support caused her to be dismissed from her company.  She used her sterling reputation in the industry to obtain a few subsequent jobs, but each proved too much in light of her injuries and pain. She ended up assisting one of her daughters with a uniform company start-up, providing contacts and valuable insight from her years of experience in the industry.

Before the accidents, our client was energetic, physically active, organized, motivated, well-liked, and cheerful before the accidents. She was a proud single mother, raising 4 children on her own while building up a lucrative career as a salesperson. She was actively involved in her temple and went salsa dancing 4-5 times per week. However, her life was drastically changed following these accidents. She suffered injuries to her neck, back, and shoulder, as well as myofascial pain syndrome and tension headaches. She was no longer able to live the full, rich life she previously led.

In response to our claim for fair compensation for our client’s injuries and limitations, ICBC levied a series of arguments against our client, all of which Justice Walker rejected. The case was marked by a clear pattern of us providing concrete evidence of our client’s injuries and limitations, and ICBC countering with arguments that lacked any evidentiary basis.

ICBC primarily argued that the accidents merely exacerbated some pre-existing conditions. This argument was based on a handwritten clinical note from a chiropractor, an incident where our client was prescribed pain medications several years before the accidents, and the testimony of our client’s friend about when our client stopped dancing. Justice Walker dismissed this argument as speculative, noting that ICBC did not verify the chiropractic record with the chiropractor or our client, the client’s family doctor advised those pain medications could have been prescribed for any number of reasons, and that the friend was confused about dates and was therefore unreliable in this regard. Justice Walker concluded:

Thus, there is no evidence to establish the defendants’ theory that Ms. Cox suffered from pre-existing injuries or symptoms at the time of the First Accident…

There is also no evidence to establish a measurable risk or a real and substantial possibility (as opposed to speculation) that any of Ms. Cox’s pre-First Accident neck or back stiffness would have manifested as an injury in future absent the Accidents. Nor is there any evidence to establish that the injuries she sustained in the Prior Motor Vehicle Accident were aggravated or contributed to the injuries she sustained in the Accidents.

In this case, because ICBC was unwilling to consider our client’s reasonable offer, the corporation will likely end up paying twice the costs for going to trial. This is indicative of the widespread unreasonableness that permeates ICBC. Having to pay double costs provides a measure of accountability where ICBC refuses to make fair offers to injured persons. With the newly passed “no-fault” legislation coming into force next year, this accountability will be gone, giving ICBC free-reign to treat accident victims even more unfairly than it already does.

Am I Going to Receive an Inheritance?

Posted on by Mussio Goodman

When an individual passes away, anyone close to that individual will rightfully wonder if they are a beneficiary under the will

We’ve all heard of stories where certain family members or friends refuse to provide information on whether or not there is a will, who the beneficiaries are under the will and/or what the estate assets are that will be distributed eventually. The reason for not providing information is usually on the misconception  that one can holdback information about an estate from potential beneficiaries. Such is not the case.

Wills are private documents so they can be found in a safe, a file folder or a drawer at a deceased’s home rather than at a lawyer’s office. The original is needed to avoid any potential fraud associated with the will. There is a will registry run by the Vital Statistics branch of the provincial government but that registry simply notes that a will was prepared. The registry does not hold copies of the will. Often, a will is not registered especially if the will was drafted by the deceased or by a party other than a lawyer. Generally speaking, lawyers will register the will although there is a fee for doing so and some clients don’t want to spend the extra money to register the will.

If there is a will, the individual that’s named as the executor is supposed to apply for probate in a timely manner. If you’re a beneficiary or potential beneficiary under the will then you should be getting notice from the executor about the application for probate. If you don’t receive notice within a relatively short period of time after the death (a few months), there are a number of reasons for that including:

  1. There is no assets in the estate to be probated;
  2. The executor is slow moving;
  3. The executor is not interested in probating the will; and/or
  4. The will has not been found.

There are many situations where the assets of the deceased pass to others outside of probate and the will. This happens when real estate is owned in joint tenancy between the deceased and other individual(s). Also, if there is a right of survivorship or a named beneficiary on bank accounts, RRSPs, etc. then the money would pass automatically to the individual outside of the will. If there are joint bank accounts, the money automatically goes to the surviving account holder.

The executor may be slow-moving especially if he/she does not hire a lawyer to apply for probate. Also, some executors simply don’t want the hassle of applying for probate and doing all the necessary paperwork to wind up the estate, which paperwork can be daunting and tedious. There are timelines for probate to be completed but unfortunately, there is quite a few executors that get overwhelmed with the task and do not comply with the timelines under the various legislative enactments. A lawyer acting for you can definitely put on the pressure necessary to have the executor move in a timely manner and in some situations, look to remove the executor from probating the estate due to a conflict of interest, incompetence, slow movement, etc.

It’s very important to look long and hard to find the original will because applying for letters of administration without a will is more difficult and may not result in the estate assets being transferred to the appropriate parties according to the wishes of the deceased. Full effort must be shown to find the original will and if it’s not to be found, then one can apply for letters of administration without a will.

The problem with all of the above is it takes time and often individuals who believe they have been named as a beneficiary under the deceased’s will may be left hanging without much information in many cases.

Mussio Goodman offers an estate search service that will investigate if a relative or friend has provided for you under their will, and if so, the potential amount of the inheritance. The service includes searching the will registry, investigating the potential assets of the deceased and determining whether or not probate has been granted to wind up the estate.

Court Awards Our Client $2.2 Million at Trial, Five Times More Than ICBC’s Offer

Posted on by Mussio Goodman

Mussio Goodman is pleased to announce our recent success in the BC Supreme Court, which resulted in a significant win for our client against ICBC.

In McColl v. Sullivan, 2020 BCSC 137, Madam Justice Baker awarded our client $2.2 million dollars after a ten day trial. It is notable that our client wanted to move on from her injury claim a long time ago, and was prepared to accept far less than what the Court awarded. However, since ICBC’s settlement offer was only $435,000, five times less than what the Court determined her claim was worth, she had no choice but to take her case to trial with her lawyer, Eric Goodman.

Our client was a 25 year old woman who was rear-ended by two separate drivers a few months apart. She had just completed her education at Emily Carr University and obtained a highly sought after position in the lucrative film industry. Her talent and drive was remarked upon by all those that knew her, from the professors that taught her to the managers that quickly recognized her skills as an editor. She was described by her friends and colleagues as a friendly, kind, vivacious young woman who was enjoying her life and her new career.

As a result of the two collisions, our client suffered injuries to her neck, chest and back, which eventually developed into a permanent and debilitating nerve condition called Thoracic Outlet Syndrome (“TOS”). Her TOS causes numbness, tingling, and excruciating shooting pains down her right arm and hand, effecting her ability to perform even the most basic tasks such as chopping vegetables, using a keyboard, or washing her hair.

As a result of her injuries, our client was unable to pursue the editing career for which she trained, and was entitled to compensation for the wages she would have earned had the accidents not happened. The evidence we tendered proved that her career path was very lucrative. In particular, our client’s former boss testified as to the average earnings of our client’s specific vocation, and confirmed that our client was earmarked for future advancement due to her talent and diligence.

In response, ICBC relied on general statistics for job categories that were inapplicable to the specific career our client was actually pursing. Unsurprisingly, these statistics were for low-level work and vastly undervalued what our client was on track to earn.

Madam Justice Baker agreed that the evidence showed that our client was far more than a statistic, stating:

…I find the evidence of Ms. Turner does suggest the industry averages put forward in the evidence of Mr. Nordin and Mr. Lawless are understated for the editing work Ms. McColl would have done at Paperny. As such, I find that there is a real and substantial possibility that Ms. McColl’s loss of income is higher than the losses would be based on the reports of Mr. Nordin and Mr. Lawless…

I find that Ms. McColl has established that her earning capacity has been impaired as a result of the injuries she sustained in the accidents. Ms. McColl had successfully trained in a specialized career, obtained a good job in the film industry, and was doing very well in that job. This career would have returned her a very good income. The evidence before me was overwhelming that she will no longer be able to pursue the career she trained in and loved.

This case also provides another example of ICBC employing doctors who provide opinions that are deemed to be biased towards ICBC in the face of objective evidence. In this case, ICBC hired a vascular surgeon who opined that our client would have experienced her debilitating condition regardless of the collisions. A strong cross examination revealed the weaknesses of Dr. Fry’s opinion, leading to a stinging rebuke from Madam Justice Baker:

For the reasons I set out below, I did not find Dr. Fry’s opinion to be helpful.

Dr. Fry engaged in what I would describe as a credibility assessment of Ms. McColl, looking for inconsistencies between what she told him and what was recorded in the medical records he was provided […] Dr. Fry implied that Ms. McColl was not being honest with him about important pre-existing myofascial pain symptoms. I do not agree…

Dr. Fry also advocated that Ms. McColl would have eventually developed TOS due to her likely having a cervical rib or an elongated process of C7. He referred in a general way to literature supporting his view, but did not specify which article or study supported him. He overstated the incidence of TOS arising from a cervical rib by stating that up to 1 out of 10 people with a cervical rib will develop TOS, without clarifying that only 1% of the general population have such a cervical rib. From such a tiny fraction of the population which is vulnerable to TOS from this abnormality, Dr. Fry goes on to conclude that it is more likely than not that Ms. McColl would develop TOS. He came to this conclusion without any actual evidence that Ms. McColl has such an abnormality at all, and agreed under cross examination that he had not examined the x-ray of Ms. McColl’s cervical spine which indicated no acute bony abnormalities.

In addition to the egregious deficiencies I have identified above, I agree with Ms. McColl’s assessment of Dr. Fry’s report in general, including that Dr. Fry has included highlighted commentary throughout his report which advocates for the defence position, ventures into fact finding within the purview of the court, and challenges the honesty of Ms. McColl. Further, Dr. Fry ignored medical evidence which is not helpful to the defence position, including General Practitioner records which disclose no physical complaints prior to the first accident, and medical records which indicate numbness in the fourth and fifth fingers in Ms. McColl’s right hand.

The approach of ICBC to our client both in terms of quantifying her loss using inapplicable statistics, and using public money to hire biased medical experts, illustrates why the proposed shift to ‘no fault’ insurance in our province will leave the most vulnerable injured persons short changed.

Under the new system, our client would have received zero dollars for her pain and suffering despite having a permanent and extremely painful condition that ruined the career path she worked so hard to achieve. She would have had no access to a lawyer to fight for her rights, and would have been left without even basic funding for treatment once ICBC hired a biased expert to state that her condition would have developed regardless of the collisions.

Even if our client had cleared the obstacle of ICBC’s biased experts, her wage loss would not have been based on what her career would have been. Rather it would have been calculated based on her entry level income at the time of the MVA, a difference of hundreds of thousands of dollars.

This claim could have settled a long time ago if ICBC was run like a private, efficient corporation with some semblance of accountability. With the arrival of “no fault”, and without lawyers or judges to provide checks and balances, ICBC is about to get a whole lot worse.

John Shorthouse, Voice of the Vancouver Canucks, Endorses Mussio Goodman Injury Lawyers

Posted on by Mussio Goodman

No one should decide what to purchase or who to hire based on a celebrity endorsement alone.

But when John Shorthouse chose to lend his name and goodwill in support of our law firm, we certainly felt a great sense of accomplishment and community pride.

“Shorty” has been a household name in British Columbia since he made his start as a local sports anchor in the early 1990s.

Since then, as the play-by-play commentator and “Voice of the Vancouver Canucks” over the last 20 years, Shorty has burnished his reputation as an honest broker and trusted voice in our community.

(And as the owner of the Junior A Nanaimo Clippers, Wes Mussio is particularly thrilled with Shorty’s approval!)

Shorty is known for ”calling it as he sees it”, and now we couldn’t be more proud that he recommends you call us.

The following Mussio Goodman TV advertisements featuring Shorty are airing on Sportsnet during the broadcast of each Vancouver Canucks game through the 2019/2020 season

Court Finds ICBC Doctor’s Evidence Biased and Unreliable

Posted on by Mussio Goodman

In a personal injury case, the court requires medical evidence to determine the extent of a claimant’s injuries. To this end, it is common for both ICBC and the claimant to hire independent medical experts to assess the claimant’s injuries.

When considering the medical opinions of these experts, the court has a key requirement: objectivity. A medical expert needs to provide honest, unbiased opinions of the claimant’s injuries in order to be reliable.

This common-sense principle is also entrenched in law. The Rules of Court in British Columbia state that any doctor who provides a written, expert opinion to the court has a duty to assist the court impartially and not advocate for either party.

While the Court and most lawyers take these obligations seriously, this hasn’t always appeared to be the case with ICBC, as they often commission expert doctors who are known to provide biased reports.

The court recently criticized a psychiatrist, Dr. Solomons, for this exact reason. Speaking for the Court in her recent decision, Miller v. Resurreccion, Madame Justice Baker refused to accept Dr. Solomons’ evidence. She found that it was “completely at odds with the evidence at trial” and that his evidence was tailored to meet the position of ICBC.

This is unsurprising given that Dr. Solomons has been previously and repeatedly criticized for bias by our Court. It is also telling that, as noted by the Court, Dr. Solomons was paid over $1.25 million dollars by ICBC for medical assessments over the past 15 months. The decision states in part:

[52] Dr. Solomons, a psychiatrist, assessed Ms. Miller and provided an expert opinion. Dr. Solomons’ practice is generally limited to providing medico-legal reports, with 95% of his work under retainer for defendants. He agreed he received approximately $1,282,000 from ICBC for reports he generated in the previous 15 months. He currently has minimal MSP billings and has no hospital privileges.

[55] I cannot accept the opinion of Dr. Solomons. His assessment of Ms. Miller’s pain and the impact of her injuries on her work and social life are completely at odds with the evidence at trial. The evidence of Ms. Miller was credible, as was the evidence of her co-workers, supervisors, and friends. All of these witnesses described significant pain and impacts on her daily life. While she was upset as any person would be by the suicide of a friend, none of the witnesses described the suicide of Ms. Miller’s friend as having a significant or lasting psychological impact on Ms. Miller. In fact, Dr. Kjernisted, who was Ms. Miller’s treating psychiatrist from 2008 to 2018, testified that she did not mention her friend’s suicide to him. Overall, I find that Dr. Solomons was not an impartial or credible witness, and tailored his evidence to meet the position of his defendant client.

Indeed, this is not an isolated incident. ICBC has routinely hired biased doctors in the past, and will likely continue to do so in the future. At Mussio Goodman, we are always vigilant against biased experts and we ensure that our clients’ injuries are assessed in a fair, impartial manner.