Important new case for people with ICBC claims

Today the BC Court of Appeal released a case that will have a profound impact for many people recovering from a car accident in BC.  


Under the law in BC, a injured person has access to two pools of money.  One through the Tort claim which results in compensation at the end of the claim.  The other pool of money is through "no fault" or "Part 7" benefits, which are paid up front.


Under the "no fault" benefits, there are some mandatory benefits which ICBC MUST pay, subject to certain conditions.  There are also some discretionary benefits which ICBC may pay.


ICBC has long held (when it suits its interest) that benefits for massage therapy is discretionary and ICBC's policy is to pay for up to twelve visits in the first 8 weeks.


Today in Raguin v. ICBC, Madam Justice Rowles sent ICBC a very different message.  Massage therapy benefits are actually a MANDATORY benefit.  That means, if you meet the requirements of the regulation, ICBC MUST pay for your massage therapy up front.


The decision today should make paying for treatment much easier for many people.  The problem that many people with ICBC claims will likely run into is forcing ICBC to pay for these treatments even if the Court of Appeal has told ICBC that they are mandatory.


As a law firm, McComb Witten is putting together a strategy to enforce this benefit for our clients.  We do not expect ICBC to pay willingly.  Our job as lawyers, however, is to get the money for our clients that they have a right to, but ICBC does not want to pay.  


In fact, that last statement is exactly the reason why people with ICBC claims hire lawyers and the reason I enjoy being a personal injury lawyer in Vancouver, BC.

Cross-examination of a Neurosurgeon - Part 3

You will recall that I left this story with the ducks lined up for the second goal.  The doctor wrote in his report that the accident was not the cause of my client's symptoms.  For those of you new to legal principles in ICBC claims, a plaintiff (the injured person) must prove that the accident was a legal cause of the injury - the principle is called causation.


The second goal was to get the doctor to reverse his opinion causation. 


I started with a couple of accepted medical facts.  The  neurosurgeon readily agreed that most disc herniations do not require surgery and heal on their own.  He also agreed that some of the expected symptoms of a disc herniation include numbness, tingling, weakness, and pain radiating down the arm and into the shoulder, headaches and pain radiating up and down from the injury sight


I then took the doctor through my client's clinical records from the family doctor one entry at a time starting from 3 years before the accident.  "Doctor, there is nothing in this entry to suggest to you that my client has a disc herniation that is actively causing symptoms?"  Again and again for each entry.


At the entry immediately before the car accident, the doctor volunteered, "Well, the family doctor's records are not the only records that are important.  I saw something in the chiropractor's records."


I graciously accepted this little gift.  


Q  So, then it is important to look at the various treatment providers to get a true medical picture?
A  Absolutely.
Q  And that would include treatment providers such as chiropractors, massage therapists and physiotherapist, right?
A  Definitely.


I then confirmed that the doctor had copies of the records of the chiropractor, physio, and massage therapist.   I took the doctor through the clinical entries of the chiropractor and physio - entry by entry as I did with the family doctor - stopping at the entry before the accident.  
I then took the doctor through the records of the massage therapist.


Q Doctor, you will agree with me that if my client had a disc herniation 15 years earlier, that you are not aware of any indication that it was actively causing symptoms in the three years prior to the accident?
A It would appear so.


I then took the doctor to the entry in the massage therapy records one day after the accident.  My client reported numbness, tingling, pain shooting down her arm and headaches.


Q  Doctor, you will agree with me that the accident caused these symptoms.
A  Yes.
Q  Doctor, these are the same symptoms that she has consistently been reporting since the accident?
A  It would appear so.
Q  And these symptoms, the are the ones you suggest were caused by the accident 15 years earlier.
A  That is right.
Q  And, in fact these symptoms ARE caused by the accident.
A  Yes, definitely.
Q  And to the extent that your report says otherwise, you now agree that the report is incorrect and that the accident caused the disc herniation.
A  Yes, that is true.


Goal 2 - getting the doctor to reverse his opinion on causation - accomplished


Goal 3 - confirming my client is disabled


Half the table is set for this third goal by this point in the cross-examination.


Look for Part IV to see how to turn the ICBC doctor into an asset for your client by using cross-examination. 

Family law and estate planning

As a Vancouver personal injury lawyer, I am regularly asked by clients and friends for a referral to a good family lawyer or help with wills and estates.  Because I practice exclusively in BC car accidents, I know lots of Vancouver personal injury lawyers and ICBC claims lawyers.  I do not, however, run across many family law or estate planning lawyers in my practice.  I am happy to let my readers know of a couple of fine family law and estate lawyers to whom I can confidently refer clients.


Monique Shebbeare is a lawyer at Heritage Law and gives legal advice on wills, estate planning and out-of-court family law issues.  Monique has a solid legal background.  On the estate planning side, she advises and assists clients with wills, powers of attorney, trusts, blended family estate planning, donor and surrogacy agreements, marriage and cohabitation agreements, obtaining probate, and administering and distributing estates.  


What I personally like about Monique's style and skill set as a Vancouver family law lawyer is that she combines compassion with strong legal analysis to help clients by giving practical advice for their situation.  She focuses on non-litigated separations and divorces.  I, personally, like this as it keeps family members focused on working through the issues.


Looking for a good Vancouver family law lawyer or help with estate planning, contact Monique.  Here is her contact info and bio:


Monique Shebbeare's bio


Angelique Poutissou practices primarily in the areas of estate litigation and planning.  She is the only lawyer I know of that practices in the area of committeeship applications.  This is an area that  is of key importance to lawyers, like myself, working with severely brain injured clients.  She is also a lawyer anybody who is in charge of caring for elderly parents should keep in mind.


Angelique Poutissou's bio   

Another trial success for the McComb Witten team

 I would like to thank the ladies and gentlemen of the jury who sat through two weeks of evidence and gave up their Saturday to deliberate.  They returned a fair and reasonable verdict that clearly weighed the totality of the evidence.  


This trial was a coming out party for Meghan Neathway and the McComb Witten litigation team.  Meghan did an amazing job as co-counsel on this trial.  She has a nose for detail and a heart of  a lion.  Meghan was a key contributor in the organization and selection of our evidence, refinement of our theory of our case, and preparation of our witnesses.  She did an amazing job with the witnesses she took at trial.  What I like most about Meghan's approach is her easy ability to be genuine even on a stage such as a jury trial.  Congratulations to you Meghan - you are a fine trial lawyer.


Anybody looking for a great Vancouver personal injury lawyer would be in great hands with Meghan.  Check out her bio:
Meghan Neathway's bio


Finally, our client is a class act.  A brilliant gentlemen with integrity and courage.  He suffered life threatening injuries and has the strength of character to make the most of his situation.  Two broken legs, brain injury, skull fracture, blowout fracture of his eye socket, fracture through a joint at the base of his skull, two broken bones in his back, and a shattered tailbone.  He made it out of his wheelchair 21/2 months later and was back at work 2 weeks after that!!!  ICBC told him that "he was the author of his own misfortune".  He had the courage to take his case to a jury and they found the driver that hit him 75% responsible for the accident.  Again, not exactly what we were looking for, but was a fair and  reasonable assessment of the evidence.  All in all the verdict was entered for $640,000 less 25% for contributory negligence.


The jury gave our client the resources to get the medical care he needs, compensated him for his past wage loss and gave compensation for the hit to his career and gave him a fair and reasonable amount for his pain and suffering.


Thank you to our client, our judge, Mr. Justice Abrioux, my colleague Meghan Neathway, and the jury.  It was great to see our justice system work.