Wes Mussio is Featured in Canadian Lawyer Magazine

Posted on by Mussio Goodman

Mussio Goodman lawyer featured in national magazine publication, Canadian Lawyer Magazine

With the introduction of a restrictive no-fault system by ICBC for accidents on or after April 1, 2019, if ICBC has their way and categorizes most claims as “minor injuries”, ICBC will be able to avoid paying much of any compensation to injured victims involved in car crashes.

The level of compensation available to victims will impede the ability of victims to retain a lawyer to help him/her deal with ICBC and the Civil Resolution Tribunal. Judging from public statements by David Eby, the Attorney General, one of the purposes of the NDP’s legislative changes is to reduce lawyer involvement in ICBC files which, in turn, means reducing access to justice for victims of car crashes.

The of clear consequences of these changes is a lot less legal work which will almost certainly create extensive layoffs across the industry, whether it be lawyers, paralegals, legal assistants, receptionists, clerks, etc. This article discusses the impact of ICBC’s new no-fault system on the legal community.

You can read the article here: Insurance Cap Article

ICBC’s New “Care Model” Results in Less Care

Posted on by Mussio Goodman

Before April 1, ICBC let injured people have options, now they do not

 

On April 1, 2019 the new NDP legislative regime designed to save ICBC money kicked in. The scheme was purported by the Attorney General David Eby to “provide enhanced care for people injured in crashes” by increasing the amount ICBC pays for treatment like physiotherapy or active rehabilitation. The reality on the ground now being realized shows that Mr. Eby is at best a naive idealist and at worst deceptive.

The legislation did indeed increase the amount ICBC will pay for treatment up front, but also capped the total amount ICBC has to pay for each treatment. Therein lies the fine print.

Before April 1, 2019, an injured person had the option of going to any clinic they wanted, and pay for the treatment they needed, resting assured they could recover that sum from ICBC when they settled their claim. The legislation now forces claimants to only go to clinics that adhere to ICBC’s policies, because if they go elsewhere and pay one penny more than ICBC’s prescribed rates, they are barred from getting that money back from ICBC.

More importantly, because the amounts ICBC pays per treatment session are not market rates, physiotherapists and other treatment professionals are now doing what is obvious to make the new rates work; they are spending less time actually treating injured people.

As indicated to us by one physiotherapy clinic “…our new session fee schedule will not charge a user fee, but have a reduced time 1:1 physio (20 mins) and 1:1 kin (45 mins) vs the [old] 30 and 60 mins respectively.”

ICBC will surely just say, “Well, to make up for the shorter treatment sessions, injured people can just go to the clinics more often.” Never mind the life disruption of having to book more sessions to get the same result. Or is it the same result? Surely there was a rehabilitative reason why a kinesiologist wanted to see a patient for a full 60 minutes at a time rather than 45 minutes once they started getting paid less by ICBC.

If Mr. Eby believed that highly trained physiotherapists and kinesiologists in this province would simply provide so called “enhanced” care for less money, he wassorely naïve. An alternate explanation is that Mr. Eby’s stated goal of providing care for injured persons is misdirection. Perhaps his real goal is to save ICBC money at the expense of injured people in British Columbia.

ICBC Further Increasing Staffing Costs

Posted on by Mussio Goodman

The NDP government says its trying to cut costs at ICBC, then why are they increase their costs instead?

On March 29, 2019, the NDP government passed an Order in Council eliminating the two-year limitation period to submit medical expense receipts to ICBC for coverage under part seven benefits. Instead, they shorted the limitation period to 60 days.

The NDP government is trying to sell the new no-fault system to the public on the basis that ICBC is going to pay more medical expenses to all parties involved in a motor vehicle accident after April 1, 2019. However, in reality this new rule does the exact opposite by taking away more rights.

The new provision found at Section 88.01 of the Insurance (Vehicle) Regulation reads as follows:

Requirement for receipts
88.01 (1) If an accident occurs for which benefits are provided under section 88, the insured must provide to the corporation a receipt for the expenses incurred that will be compensated as benefits under that section no later than 60 days from the date that those expenses are incurred.
(2) The corporation is not liable to an insured who, without reasonable excuse, fails to comply with this section.

This provision is for motor vehicle accidents that occur on or after April 1, 2019.

The expenses include medical equipment for some very catastrophic injuries such as:

(i) a wheelchair;

(ii) a medically prescribed bed;

(iii) bowel and bladder equipment;

(iv) aids for communication, dressing, eating, grooming and hygiene;

(v) transfer equipment; and

(vi) a ventilator;

 

People that are severely injured, such as quadriplegia, amputation, severe brain injury, etc. are expected now to submit receipts within 60 days even if the terribly injured individual is still in the early stages of recovery. Do you really think these terribly injured individuals will have the wherewithal of meeting such a short deadline? Can they even get to a post office to mail the receipts?

Even for the less injured individual, it is going to be an onerous task to remember to constantly be submitting receipts to ICBC. Indeed, people are busy in life and to expect a claimant to constantly be submitting receipts to ICBC is unrealistic.

So why are the NDP and ICBC putting in this short-fuse rule? Are they hoping that a claimant misses the deadline so that they can save money by not reimbursing proper medical and rehabilitation expenses? Of course not because according to what the NDP is selling to the public, the system is supposed to be providing more not less treatment expense coverage.

So what is the other motivation for doing this?

Any business owner would understand that the more times you have to touch a file the more expensive it is to administer the file. There is approximately 60,000 new claims annually so with this short-fuse rule, rather than an adjuster having to address payment of medical expenses on a periodic basis, now the adjuster has to constantly be administering small checks and reimbursement to claimants because there is such a tight timeline for submission of the receipts to ICBC. If the receipts have to come in every 60 days, then you are looking at a minimum of six times a year were an adjuster will have to review the receipts, issue a check, mail out the check, etc. This is clearly administratively onerous resulting in significant increase in costs and the need for more staffing at ICBC.

Is this just an oversight by the NDP government and/ or ICBC management on the extra cost this 60 day short-fuse requirement has created? Is this an attempt by the NDP government to again ensure the need for more unionized ICBC employees? Is this an attempt by the NDP government to hope people miss the deadline so that they don’t have to pay out money for necessary medical expenses and treatment?

Whichever way you look at it, this is an unfair change of the rules which penalizes the injured while increasing the administration costs at ICBC.

Mussio Goodman will be filing a Lawsuit on behalf of Commercial Drive Businesses to Ensure Fortis BC Fairly Compensates the Businesses for Severe Disruption of Business

Posted on by Mussio Goodman

Many owners and renters of businesses along Commercial Drives sustained severe loss of revenues when FortisBC closed 1st Avenue for months in order to place a new 30 inch gas line under 1st Avenue. Businesses collectively approached Fortis BC asking for fair compensation for the severe negative intrusion into their businesses to which Fortis BC denied any compensation whatsoever.

In other words, Fortis BC send the strong message that it is okay to severely compromise other businesses so that Fortis BC can enjoy development and presumably profits from the development. To quote a recent Fortis BC representative, “we don’t generally compensate anyone for our actions despite the impact…”. The end result is that the Commercial Drive businesses have been forced to take legal action as Fortis BC has made it is clear that in order to improve profitability of their pipelines, they are not prepared to compensate anyone despite severely impacted businesses.

Client, Federico Fuoco, spoke to Global News and CTV about his business, Federico’s Supper Club, being negatively impacted by FortisBC.

“A lot of these businesses are small businesses. They can’t afford any loss, let alone 20 to 50 per cent,” Fuoco said to CTV.

Mr. Fuoco also stated to Global News that “They kept saying to us that they would do it and it was just a matter of time, and then for them to renege like that and tell us to lawyer up was quite a surprise actually, quite a shock”.

Thankfully, Mr. Fuoco and business owners in his position have hired Wes Mussio of Mussio Goodman, who will ensure they get their fair compensation for their loss of revenue.

Read and watch Federico Fuoco’s Interview with Global News: Commercial Drive businesses set to launch court action against FortisBC over 1st Ave. closure

Read Federico Fuoco’s Interview with CTV: Gas line replacement leads to traffic disruptions in Coquitlam

 

Mussio Goodman Successfully Obtains Court Order Striking a Jury

Posted on by Mussio Goodman

In a recent court decision, Mussio Goodman ensured that their client will have a fair trial

ICBC is entitled to have a jury hear his or her case as of right. However, there are times when it is unfair to the injured party to have a jury decide their case because it is too complicated for the jury to understand. In these circumstances the injured party can apply to the court to have the jury struck, and have the case decided by only a judge.

In the recent court decision of Forstved v. Kokabi, 2018 BCSC 1878, Mussio Goodman ensured that their client will have a fair trial by obtaining an order to remove the jury.

Removing the defendant’s right to a jury is a tough thing to do, and the court will only do so where the injured party makes a strong argument that the case involves prolonged examination of documents and/or is overly complex.

In determining whether it is convenient to have a jury hear the evidence Courts have noted that jury members are to be considered quite capable, as referenced by Master Dick:

[27] The context in which a court is obliged to apply Rule 12-6(5) was set out by Madam Justice Arnold-Bailey in Gulamani v. Chandra, 2009 BCSC 1042 at para 43:

…juries in this province are held to be informed and intelligent and capable of assessing expert evidence where it is properly presented. In other words, the threshold for determining whether a prolonged examination of documents or a scientific investigation is necessary and whether it can be conveniently done by a jury … or whether the issues are of a complex or intricate nature … is relatively high even in the context of a long trial with many difficult legal questions.

Mussio Goodman argued on behalf of the plaintiff that the trial could not be conveniently heard by a jury:

[30] Counsel for the plaintiff submits that this matter will require prolonged examination of documents and scientific investigation such that it cannot be conveniently heard by a jury. There is disagreement as to whether the plaintiff sustained a concussion in the accident, a mild traumatic brain injury, and/or a brain injury of any severity. There is a difference of opinion as to whether the plaintiff suffers from any cognitive disabilities as a result of the injuries sustained in the accident…

On the other hand ICBC argued that the case was a typical one, well understandable by the jury. By providing an in-depth overview of their case, Mussio Goodman convinced the court that the high bar to remove the defendant’s right to a jury had been passed and the complexity of the case warranted a trial with only a judge. Master Dick concluded:

[50] In this case, I agree with the plaintiff. The evidence in this case is sufficient to establish that this case will require a prolonged examination of documents or accounts and that the issues require a scientific or local investigation.

[54] If I was just considering the number of experts, the expert’s use of terminology, the volume of medical evidence, and divergent opinions alone, that would not necessarily cause me to strike the jury in this case. What makes this case more difficult is the fact the plaintiff’s income and business losses are not straightforward. The jury will have to review and understand the plaintiff and his spouse’s income tax information as well as the financial statements from all of the corporations he owned. The jury will then have to analyze, understand, and interpret the documents to assess his income and business loss.

Ensuring a fair trial means having lawyers who understand the law, what arguments to make, and the best strategy for your particular case.

Wes Mussio Interviewed on the Importance of Hiring an Injury Lawyer Who Does Not Also Work for ICBC

Posted on by Mussio Goodman

As discussed on our website, many personal injury lawyers supplement their practice by acting for ICBC as well. The result is a potential conflict, and clients may be left wondering whether their lawyer avoided a fight out of fear of losing ICBC’s business on other files.

Wes Mussio was recently asked to expand on this issue in an article by Kamloops Matters:

All firms that take on ICBC defence work sign strategic alliance agreements – contracts worth up to millions of dollars each year that legally prevent them from alleging bad faith or from suing ICBC for punitive or exemplary damages, even in cases where they represent plaintiffs.

“If you’re a defence lawyer or have a lot of defence files at your firm, you’re not going to be … taking some really aggressive approaches against ICBC when ICBC is being unreasonable. So it does hand-tie you a bit,” said Wes Mussio, managing partner at Mussio Goodman, a Vancouver plaintiff-only personal injury firm.

“In all honesty that would be something that has to be disclosed, but I don’t think it is unless somebody asks.”

ICBC has a more than 40-year history of hiring external legal defence firms to assist with litigation. Since 1999, the insurer has held six procurements for legal services and currently has contracts with 72 firms across B.C. that assist with litigation at below-market rates.

The practices of some of the firms on the list are limited to ICBC defence work, but most also take on plaintiff-side work, and ICBC has confirmed that all law firms it works with, and every lawyer at those firms, have agreed not to advance claims for punitive, exemplary or bad-faith damages while under contract.

The Law Society of British Columbia (LSBC), the professional regulatory body for lawyers in B.C., has on a couple of occasions addressed whether an ICBC defence firm’s strategic alliance agreement with the insurer creates a conflict of interest in the firm’s plaintiff-side work.In 2006, an LSBC bencher’s bulletin confirmed that lawyers working for ICBC must advise plaintiff clients of their relationship with ICBC, of the restrictions the lawyer is under and of the implications of those restrictions.The recommendation to disclose the information is an ethical, not a legal, obligation. It doesn’t prevent lawyers from handling ICBC plaintiff files.

“I think there’s a problem there,” Mussio said, “because invariably if an adjuster takes a hard line on a file and denies a claim for simple benefits such as temporary total disability benefits, one of the strategies you can use as a plaintiff lawyer is to sue ICBC for bad faith or punitive damages, and the way the current rules are is you can’t do that if you have defence work in your firm.”