Doctor Shoppping By ICBC Not Allowed

Posted in: ICBC / INJURY- Apr 19, 2018 Comments Off on Doctor Shoppping By ICBC Not Allowed

If you’re hurt in a car crash, you should see your doctor. And if you can prove the accident wasn’t your fault, you’ll likely be able to get compensation for your injuries from the person at fault or their insurer, usually ICBC.

How much compensation? That depends on how badly you were hurt. The opinions of medical experts on the nature of the injuries and your future prospects of recovery are crucial in helping the court decide on what compensation it should award for loss of life enjoyment (and any other losses like costs of future care). They’re also important in helping your lawyers trying to settle your case for fair compensation.

Under the terms of your policy, ICBC has the right to get your brief doctor’s report – despite any doctor-patient confidentiality and even if you don’t consent. If you’ve gone to court for compensation, ICBC also has the right to have you submit to one or more “independent” medical examinations by physicians of its choice (where the defendant in your lawsuit is insured and defended in court by ICBC, as is usually the case).

That’s because in your lawsuit, you will normally present your doctor’s medical opinion(s) as evidence of the diagnosis of your injuries and the prognosis for your recovery. To “level the playing field” and counter any perceived favourable bias, ICBC is allowed to have its own medical examination(s) conducted for those purposes too.

Doctors and medical professionals for both sides are supposed to be impartial. They’re supposed to offer expert opinions that help the court. And they’re not supposed to be advocates for “their” side. Still, the amounts at stake in accident injury cases may be huge – and when one side oversteps the aims of the rules, the court will step in to prevent unfairness.

Here’s one recent example. A car crash victim who was badly hurt and suffered various injuries including a traumatic brain injury underwent two “independent” medical examinations by ICBC-selected medical experts, including a psychiatrist. ICBC then wanted a neurologist to do a third “independent”exam, without giving the victim the reports from the first two examinations. When the victim’s lawyers said “no,” ICBC applied for a court order requiring this third examination.

The accident victim’s lawyers argued in court that another report for ICBC was excessive. They pointed out that ICBC hadn’t handed over the reports from the first two independent medical exams and suggested that ICBC was “doctor-shopping” for a more favourable medical expert opinion. ICBC’s court application was rejected, and ICBC wasn’t allowed the third medical exam.

What medical exams are appropriate – and what can be demanded and what can be refused – isn’t straightforward. If you’ve been injured in a car accident, make sure you get legal help early on from an experienced personal injury lawyer who can make sure your legal rights are protected.

This column has been written by Janice Mucalov LL.B as part of “You And The Law”. It provides information only and must not be relied on for legal advice. Names of the parties in reported cases have been changed or removed to protect their identity. Lawyer Janice Mucalov is an award-winning legal writer.

Oops! Don’t Let Tenants Put Your House Deal At Risk

Posted in: Real Estate- Apr 18, 2018 Comments Off on Oops! Don’t Let Tenants Put Your House Deal At Risk

If the house you are selling (or buying) has tenants, make sure the purchase contract clearly spells out what happens with those tenants when your deal closes. BC has detailed residential tenancy rules about ending a tenant’s lease. If your contract isn’t clear on whether the tenants are to stay or have to be out when the house deal closes, you could end up with a big problem, an expensive court fight and a failed deal. A recent BC Supreme Court case serves as a warning.

The Martins (all names changed) were looking for a large house for several generations of family members. In 2014, after losing out on buying several other properties, they struck a deal to buy a house from the Prestons in Richmond for just over $2 million. It had over 8,000 square feet of space and a separate coach house. There were also two tenants on the property, one living in the main house and the other in the coach house.

The Prestons told the real estate agent, who represented both parties under a dual agency agreement, that they would deal directly with the Martins about the tenants. In the purchase contract, the agent didn’t record anything about that, or about any existing tenancies. However, the Prestons didn’t talk to the Martins about these tenancies in the two months before the closing, nor did they take any steps to terminate the tenancies.

The Martins’ lawyer prepared the closing paperwork on the basis the Martins would get vacant possession, as specified in the standard form purchase contract prepared by the real estate agent.

Early on the day the deal was to complete, the Martins went to the house. When they found out the tenants were still around, they insisted on getting vacant possession per the contract and refused to close the purchase. The Prestons tried to persuade them to keep the tenants on and, when that failed, tried to end the tenancies and have the tenants move out that day.

Over the next few days, the Martins and Prestons negotiated toward reworking the house deal. But nothing got finalized. In the end, the Martins sued the Prestons for “breaching” (i.e., breaking) the purchase contract. The Prestons counter-sued, blaming the Martins for the deal not closing.

The BC Supreme Court decided the contract called for the Prestons to deliver vacant possession to the Martins on closing. Since the way they had tried to end the tenancies wasn’t in line with the residential tenancy rules, the Prestons had breached the purchase contract. So the Martins were entitled to get their $100,000 deposit back. Expert evidence showed the house value at the time of the breach was pretty much what they’d bargained for, though, so the Martins got no additional compensation for the significant house value increase since then.

Tricky issues with your house deal? Make your purchase contract is subject to review and approval by your lawyer.

This column has been written by Janice Mucalov LL.B as part of “You And The Law”. It provides information only and must not be relied on for legal advice. Names of the parties in reported cases have been changed or removed to protect their identity. Lawyer Janice Mucalov is an award-winning legal writer.

Its Tricky Figuring Out Future Income Loss From Accident

Posted in: ICBC / INJURY- Apr 18, 2018 Comments Off on Its Tricky Figuring Out Future Income Loss From Accident

A car accident can cause different kinds of losses; one loss may be your reduced future earnings capacity. The court must try to assess this to fairly compensate you. A recent B.C. Supreme Court case had to grapple with such an assessment.

Keith, 19 and in excellent physical condition, was riding his bicycle through an intersection when he was hit by Carla’s left-turning car (names changed). Carla was fully at fault for the accident.

The trial took place three-and-a-half years after the accident. By then, Keith had fully recovered from many of his injuries. But some injuries and his shoulder, hip and neck pain when he performed certain tasks were chronic and unlikely to ever improve much. They would prevent him altogether from doing certain kinds of work in future, like the heavy physical labour of his last job. And they left Keith with limitations even when it came to office work.

This meant he would no longer be able to do the shipyard work he used to, which involved lifting heavy loads plus some more skilled work. As well, he’d likely not be able in any future job or career to work the same long hours as he could before the accident, despite his good work ethic and diligent efforts at rehabilitation afterwards. He also couldn’t type or take notes like before. This impacted his university studies and would affect any office work he’d be doing going forward. He would also probably always have difficulty with office activities where he’d have to maintain a fixed posture for an extended period.

The defendant argued there was no loss of earning ability (that Keith could earn more at office work), or at most it was worth some $54,000. Keith claimed his future income loss came to about $298,000.

The court emphasized the assessment is a matter of judgment, not simply a mathematical exercise. It requires estimating future probabilities, possibilities, contingencies and risks, when comparing Keith’s working future now with what it would have been if the accident hadn’t happened. Once Keith had proved there was a real and substantial possibility his future income earning ability had been reduced, which he did, the court then has to quantify the loss taking these future eventualities into account. Here, the B.C. Supreme Court outlined various approaches courts use to quantify the financial harm of the injured person’s reduced earning ability, depending on each unique situation. They all have the common aim of putting the accident victim in the same financial position as if the accident had not occurred.

In this case, the court concluded that Keith’s future annual earnings over his working life would be about $10,000 per year or 13% less than before. This amounted to roughly $300,000 in terms of present day money. After subtracting $75,000 (as Keith had started university earlier than he would have otherwise), the court awarded him $225,000 for his reduced future earnings capacity.

If you’re injured in a car crash, consult an experienced personal injury lawyer to help you receive the compensation you’re entitled to.

This column has been written by Janice Mucalov LL.B as part of “You And The Law”. It provides information only and must not be relied on for legal advice. Names of the parties in reported cases have been changed or removed to protect their identity. Lawyer Janice Mucalov is an award-winning legal writer.

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