Supreme Court of Canada Denies ICBC Permission to Appeal Our Client’s Victory

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ICBC was Denied a Appeal on Our Client’s Court Victory

We are pleased to announce that the Supreme Court of Canada denied ICBC permission to appeal our client’s victories in the Supreme Court of British Columbia and the British Columbia Court of Appeal, a decision that finally compels ICBC to compensate our client for her serious spinal injuries.

As previously announced, the British Columbia Court of Appeal ruled in our client’s favour, overturning the lower court’s decision and prohibiting ICBC from relying on a zipline waiver to deny compensation for injuries sustained in a car accident.

ICBC sought “leave” (in other words, permission) to appeal the decision to the Supreme Court of Canada in Ottawa.

ICBC’s argument was that the decision was wrong and has implications across the country.

We argued in response that the Court of Appeal decision was properly decided, and that the issue specifically pertains to British Columbian legislation (the Insurance (Vehicle) Act), and therefore the highest Court in the land need not intervene.

Mussio Goodman Prevents Unfair Medical Assessment of Client

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Mussio Goodman Lawyer Successfully Protects Client’s Rights

We are pleased to report that Anthony Eden of Mussio Goodman successfully defended our client’s interests by preventing a Defendant IME (independent medical examination) with a neurologist expert of the insurance company’s choosing.

Insurance companies are entitled to defend a claim by compelling the injured person to attend an IME with doctors of their choosing. The law is clear that Plaintiffs must attend these appointments as long as they are reasonable. Unfortunately, sometimes the insurance companies cross the line in terms of what is reasonable under the law.

In a recent case, we filed a lawsuit on behalf of our client because his disability benefits had been unduly terminated. In order to prove his claim, we retained the services of a doctor who is an expert in the field of chronic pain. This doctor also has a broad range of expertise, including neurology.

Additionally, we relied on our client’s family doctor in support of his ongoing disability. In response to these opinions, the insurance company attempted to disprove the claim using four expert reports; they sought one report from a psychiatrist, one from a vocational specialist, and one from an occupational physician. Then, they tried to obtain an additional report from a neurologist, claiming that our chronic pain expert was essentially a neurologist as well.

The insurance company therefore argued that they needed a neurology report to defend the claim. This was notwithstanding the fact that the insurance company had already sent our client to a neurologist in 2002 who wholeheartedly supported his disability. Notably, they wanted an updated report with a different neurologist, even though there had been no evidence of any neurological change since the 2002 report.

We opposed this IME  on the basis that it would make the trial unfair. The law is clear that the parties must be on equal footing with regard to the expert evidence. The Master in Chambers ultimately agreed with our argument, the reasons for which were published in Korpa v. Co-Operators Life Insurance Company 2014 BCSC 2246:

[26] The issue in this case is whether, in all the circumstances, there is a need to put the parties on an equal footing with respect to the medical evidence or, as it has sometimes been described, to balance the playing field.

[27] I have concluded that, for the following reasons, Mr. Korpa should not be required to attend an IME with Dr. Dost…

[36] In all these circumstances, I am not satisfied that the defence has shown the need for examination by a neurologist to balance the playing field.

The Importance of Using Sick Days For Injuries Instead of Vacation Days

Posted on by Mussio Goodman

Vacations are a time to kick back, relax, and enjoy some well-deserved time off work. Here at Mussio Goodman Law Group, we know that when you have been injured in car accident and are prevented from working, your time away from the office is no vacation. Constant pain, treatment, and specialist appointments are a far cry from margaritas and Mexican sun.

It may seem logical that when you miss work because of your injuries and take vacation days as a result, you should be compensated for those wasted days that you could have spent on the beach or with your family. However, the Supreme Court of British Columbia does not see it that way.

In the recent case of McCartney v. McArthur 2014 BCSC 2164, the court found that paid vacation days used after a motor vehicle accident are not compensable in an ICBC claim. The court gave the following reasons:

[82]         At the time of the accident the plaintiff was working about 32 hours a week at Oak Hills Woodcraft. He received a base salary of $1,200, plus a car allowance of $150 every two weeks, for a total of $1,350. He took seven days off after the accident; however, he used his vacation time for that time off and continued to receive his regular salary. In 2010 his income was $36,549 which is slightly more than he received in the years before the accident.

[83]         The plaintiff seeks $1,181.25, representing his salary for the seven days that he did not work shortly after the accident when he used his vacation time. The plaintiff argues that by using seven days of his vacation entitlement he gave up something that should be compensated for as past wage loss.

[84]         While the use of days from a bank of sick leave days may entitle a plaintiff to compensation for the loss of past income because the plaintiff may have to pay to replace the sick days, in my view the use of vacation time does not represent lost income. (Roberts v. Earthy, 1995 CarswellBC 1800 (B.C.S.C.)). During that vacation time the plaintiff continued to receive his expected income.

The moral of the story is that when you are on “vacation”, you are still being paid a regular salary. Thus, the courts do not feel there is a compensable loss to be recovered.

While this is unfortunate, we feel it is important for the public to be aware of this so that future issues can be avoided.

The bottom line is that you will not be able to recover income from time off work while you are being paid a salary for vacation time. Therefore, we always advise our clients to exhaust all possible remedies for income substitution prior to taking vacation days.

In particular, a claimant should first use their sick days and exhaust their “sick bank”, as such days are compensable under the law.

Public Advisory: ICBC Doctor Martin Grypma

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Dr. Martin Grypma has been c for his Unnecessary Comments in Legal Matters

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

The purpose is to have an independent expert doctor provide the parties and ultimately the court an 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 can be helpful either 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 to the court has a legal duty to assist the court and not to be an advocate for any party. In addition, the doctor has a legal duty to certify in her report that she was aware of the duty, has 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.


Judges Have Publicly Strongly Criticized Dr. Grypma for his Opinions

Over the last three years, Dr. Grympa’s opinions have been strongly criticized by the Court no less than eight times for various reasons:

Currie v. McKinnon 2012 BCSC 698. Dr. Grypma’s report contained observations that the Court found were “either outside the scope of his expertise or …unnecessary.” Specifically, the Court found that Dr. Grypma’s comments attacking the plaintiff’s credibility were “highly unusual” and “in the nature of argument.” Further, the Court held that those comments, “[had] no place in an expert report from a medical expert, especially where the expert has certified he understands his duty not to be an advocate for any party.”

Dr. Grympa concluded that the Plaintiff’s injuries were minor and healed quickly. In coming to that conclusion, Dr. Grympa relied on statements in another doctor’s consult report which noted that the plaintiff never came to any injury or harm. The Court found that the other doctor’s statements were in fact in relation to the plaintiff’s epileptic seizures. The Court concluded that Dr. Grympa took the comments out of context and that the references were misleading.

Devilliers v. McMurchy, 2013 BCSC 730. After reviewing Dr. Grypma’s opinion, the court concluded “[o]verall I found Dr. Grypma’s evaluation of [the plaintiff] to be ill-considered and superficial, and I give no weight to his evidence”.

Khosa v. Kalamatimaleki, 2014 BCSC 2060. Other than pointing to the possibility of a non-organic injury, the Court “did not find Dr. Grypma’s opinion or his trial testimony to contribute any meaningful insight into either the nature of Mr. Khosa’s current condition or her prognosis.”

Dunne v. Sharma, 2014 BCSC 1106. The Court found that Dr. Grypma’s conclusions were “quite markedly at odds with those” of the plaintiff’s expert. The plaintiff’s expert was preferred.

Cai v. Insurance Corporation of British Columbia, 2013 BCSC 2213. Dr. Grypma’s report was excluded for a number of reasons, including a finding that Dr. Grypma formed his opinion based on an incomplete medical history.

Culos v. Chretien, 2012 BCSC 1050. Dr. Grypma opined that the plaintiff’s injuries were not related or caused by the accident in this case. The court rejected his opinion in this regard.

Bissonnette v. Horn, 2012 BCSC 518. Part of Dr. Grympa’s conclusion was that the plaintiff did not experience left hip pain. The Court rejected parts of Dr. Grympa’s evidence as based on incorrect assumptions about the plaintiff’s reporting to her doctor.

Sekihara v. Gill, 2014 BCSC 1387. Dr. Grypma arrived at conclusions contrary to those of the plaintiff’s experts. The Court commented that “[i]n his evidence, Dr. Grypma does not appear to have demonstrated an open mind in his examination of and conclusions regarding [the plaintiff] or to have taken into account the complete medical history”.

ICBC Continues to Hire Bias Doctor for Their Benefit

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.

It also underscores the important role a personal injury lawyer can play in assisting an injured claimant. At Mussio Law Group, 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.

Court Rejects Another ICBC Doctor, Dr. Sovio, As Biased

Posted on by Mussio Goodman

Dr. Sovio Was Criticized By Courts for Being Biased

Everyone is entitled to their opinion. This is true for labourers, engineers, and even doctors. However, under the law, when a doctor gives an expert medical opinion at trial, he has an obligation to do so neutrally and without bias. Unfortunately, this does not always happen. As a result, the Courts have not hesitated to call out doctors who do not follow the Rules of Court and take it upon themselves to advocate for one particular party.

In the recent case of Davidge v. Fairholm, the Court found that an orthopaedic surgeon hired by ICBC, Dr. Sovio, was biased in his assessment of the plaintiff’s injuries. The Court was extremely critical of Dr. Sovio’s testimony, calling it “unduly cynical” and “superficial”. Madam Justice Griffin wrote the following in her reasons for judgment:

[124]     ICBC called expert evidence from Dr. Olie Sovio, an orthopaedic surgeon, who at ICBC’s request conducted an independent medical examination of the plaintiff on June 27, 2013 and produced a report dated July 2, 2013, admitted at trial.  Dr. Sovio’s opinion seemed to accept that the plaintiff had low back pain and neck stiffness when he saw him.  He characterized the symptoms as subjective but did not offer a reason to believe they were not real.  He recommended that the plaintiff undertake a regular activity, or exercise, program.

[125]     Dr. Sovio’s opinion did not address what caused the plaintiff’s low back pain.

[126]     However, in cross-examination Dr. Sovio made an effort to state his opinion that because there was no abnormality in the plaintiff’s low back for seven months, it did not make sense to attribute that pain to the car accident.  This opinion was offered even though it was not responsive to the question being asked, and was not in his report.  I got the sense from his eagerness to state this that he was being an advocate for ICBC rather than a neutral expert.

[127]     Dr. Sovio’s off-hand opinion in relation to causation was not well explained.  From the context of his evidence, it appeared to be based on his view that the patient had new onset of low back pain that was not there before, seven months after the accident (i.e. it was new when first noted in Dr. Rebeyka’s April 9, 2010 clinical record).  This was despite the plaintiff telling Dr. Sovio that he had low back pain almost immediately after the accident. In other words, Dr. Sovio chose to not believe the plaintiff because Dr. Sovio did not see low back pain documented in the clinical records until later. 

[128]     Just as with the other experts, it is up to this Court to determine whether or not the plaintiff can be believed when he says he had low back problems after the accident that grew in intensity over time. 

[129]     Dr. Sovio did not provide any explanation as to what was the cause of the plaintiff’s low back pain.  According to his evidence, the degenerative changes in the plaintiff’s back should not have prevented him from returning to work in the oil fields.  If that is so, his opinion does not support any conclusion that the degenerative changes limited the plaintiff’s ability to do heavy work and led to the low back pain after the return to work.    

[130]     In the last paragraph of p. 6 of Dr. Sovio’s report, he acknowledged that he was unclear on why the plaintiff took time off work from the oil fields and ultimately attended retraining even though after the WHP he was considered fit to return to work.  Dr. Sovio concluded that the patient chose to retrain rather than return to his drilling occupation, “but this does not seem to be on a physical basis, at least, judging from the medical records”.  In stating this, Dr. Sovio either ignored the plaintiff’s history or did not ask him questions about his experiences after returning to work.

[131]     Dr. Sovio’s report leads me to conclude that he did not understand the plaintiff’s medical history leading up to his attendance at BCIT, including the fact that the plaintiff found work in the oilfields to be too painful and thus too physically difficult after the accident.  It seems somewhat careless for Dr. Sovio to opine that retraining was simply a personal choice and not due to the patient experiencing physical limitations at his work.  

[132]     Dr. Sovio performs many assessments for the Workers’ Compensation Board, and he made it clear in his evidence that he thinks many workers injured at work simply would prefer not to return to work even though they do not have a good reason for not returning.  He offered this as his explanation for discounting the opinion of the plaintiff’s general physician. Unfortunately I felt that Dr. Sovio was unduly cynical and had a bias in this regard and so viewed the plaintiff’s own reports of back pain as not worthy of any weight, which is not an objective approach.

[133]     Dr. Sovio’s approach as to the plaintiff’s ability to work also seemed very superficial.  He did not apparently know the exact nature of the physical tasks the plaintiff must perform in his work and other physical stresses of his job.  When questioned what the job involved, he rather arrogantly said, “I think I know what it’s all about”, when clearly he had little idea and had not asked the plaintiff sufficient questions to gain an understanding. 

[134]     In short, I did not find Dr. Sovio’s evidence to be helpful on the issues of causation or the plaintiff’s ability to work. 

In short, Dr. Sovio committed the cardinal sin; being an advocate for ICBC. Medical practitioners who give expert evidence must adhere to strict rules with regard to their testimony. The most important rule is to be neutral and objective with regard to the medical evidence given to the Court. Unfortunately, Dr. Sovio did not do so. In the end, justice was served and the court awarded $361,946 in total damages to the plaintiff after disregarding ICBC’s biased report and evidence of Dr. Sovio.

Take Five Magazine Reports on Wes Mussio’s Court of Appeal Victory

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Magazine Reports on Wes Mussio of Mussio Goodman Successful Court Appeal

As reported in the August issue of Take Five by OnPoint Legal Research, the BC Court of Appeal has rejected ICBC’s attempt to shut down, a free informational website for those dealing with ICBC claims, owned by Wes Mussio’s wife. This was ICBC’s second attempt to remove the website – the first attempt was rejected by the BC Supreme Court in 2012. ICBC claimed that the website unlawfully infringed on the company’s copyright license of the term “ICBC” and, therefore, violated the Trade-Marks Act. However, the Court of Appeal sided with Wes Mussio, counsel for the Respondant, confirming that was not in violation of the Act.

Counsel Wes Mussio commented to Take Five:

ICBC was attempting to argue that any website with the acronym ‘ICBC’ in it is a copyright infringement. The Court of Appeal made it clear that where the website is not trying to confuse web browsers, there is no copyright infringement. It opens up the door to allow a wider reaching use of website names. If the Court of Appeal would’ve allowed the appeal, ICBC could’ve gone after dozens and dozens of websites that use the acronym ICBC in it. For that reason, the case is very important to law firms and other companies marketing in the area of ICBC Claims.

A Summary of the Court Decision in Take Five is as Follows:

The appeal was dismissed. The Appellant argued that the trial judge failed to apply the correct tests for determining breaches of ss. 9 and 11 of the Trade-marks Act and with respect to passing-off. The Appellant further argued that the judge erred in mixed fact and law in finding that the use of the domain name did not violate the Trade-marks Act or amount to passing-off. The Court of Appeal began its analysis by determining that because the resolution of issues raised involved the legal effect of undisputed facts, the appropriate standard of review was correctness. The Appellant submitted that so nearly resembled its mark as to be likely mistaken for it. In particular, it pointed to the fact that its official mark comprises the first and, arguably, dominant part of the domain name.

The Appellant went on to argue that its rights to the mark could not be circumvented by adding a non-distinctive word such as “advice” after its official mark, as the consumer would likely be led to believe the Appellant itself was offering advice on its business and services. The Court of Appeal disagreed, commenting that the argument failed “to give the ‘relevant consumer’, i.e. an Internet user, credit for even the most basic understanding of a domain name.” The Appellant submitted that the Court of Appeal must take care to avoid failing to differentiate the test applicable to official marks from the test applicable to trade-marks. While the Court acknowledged the difference between the tests, it found that official marks like any others serve an identification function, and it could not accept that the average Internet user would mistakenly think referred to advice provided or endorsed by the Appellant. Therefore, the Court of Appeal held that the website and the related domain names did not contravene the Trade-marks Act. The Court rejected the Appellant’s passing-off argument for the same reasons.