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

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

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?

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.