Saturday, October 19, 2013

Your Doctor’s Records and Your ICBC Claim

ICBC statistics for the period 2008 to 2012 show an average of 170,000 automobile crashes per year in the lower mainland.  36,000 of those crashes resulted in injury or fatality (one in five).  In the lower mainland, in the period 2008 to 2011, there was an average of 54,000 injured persons per year.

Persons injured in car accidents will often suffer from soft tissue injuries. The symptoms of soft tissue injury caused by car accidents are often referred to as Whiplash Associated Disorder.  Whiplash Associated Disorder (WAD) is difficult for busy family physicians to assess and manage.  Many car accident victims have compounding issues beyond their physical injuries.  These issues may include psychological factors, including family/relationship stresses, work issues and financial problems.  In addition, car accident victims often experience a worsening of pre-existing medical conditions, which can affect and prolong recovery.

In any case relating to injuries sustained as a result of a car accident, legibility of medical records is extremely important.  It is the physician’s responsibility to provide ICBC, the patient and the patient’s legal counsel with legible records.  The primary care physician must make clear, accurate and concise records documenting all of the patient’s complaints and injuries.

In his article “The ICBC medical record”, published in the BC Medical Journal, Dr. Martin Ray recommends that, at the initial meeting with a car accident victim, the primary care physician should record the following:
  1. the force and direction of the impact,
  2. the patient’s awareness of bracing before impact;
  3. the area and severity of the vehicle damage;
  4. the actual time of the onset of symptoms following the accident;
  5. findings such as head injuries, with or without loss of consciousness;
  6. relevant pre-existing conditions or other conditions that may complicate recovery.
Dr. Ray also recommends the following:
Patient communication regarding the use of “regular” versus “as needed” medication, rest versus activity, graduated return-to-work duties and activities, and discrimination between hurt and harm are important aspects of directing care and should be documented.  Patients’ descriptions of their physical limitations need to be reviewed and, if possible, verified by an objective clinical functional assessment performed by a trained physiotherapist or occupational therapist.  Appropriately timed follow-up by a consistent primary care physician will provide the best patient outcomes.
The primary care doctor should employ the SOAP method of record keeping to ensure that “subjective complaints” (reports of experience of pain and discomfort) are distinguished from “objective findings”.  In cases where there are multiple or complex injuries, the doctor should use an ongoing problem list, to ensure that problem areas are not left out in subsequent examinations.  Subjective details should be clearly identified by the source: patent, police report or previous records.  Objective physical examinations should be “problem based”, to focus on specific injuries and “system-based” to ensure that occult injuries are identified.  Red flags related to specific problems should be noted as negative or positive.

If you have any doubts about your doctor’s record keeping, the writer advises bringing Dr. Ray’s article to their attention.  The full article can be found here:  http://www.bcmj.org/icbc/icbc-medical-record.

Charles D. Jago

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Sunday, October 14, 2012

$20,000 Awarded for Mild Soft Tissue Injury

Wen v. Tsao (27 April 2012), Vancouver, M082970 (B.C.S.C.)

I represented the plaintiff in this unreported case (a case where an oral decision is given). This case involved a driver injured in a low velocity accident.  Due to the minimal damage to the vehicles involved in the accident, ICBC refused pay any compensation to Mr. Wen for his damages and expenses arising from the accident.

Following a three day "fast track" trial in the Supreme Court of British Columbia.  Madam Justice Gerow awarded the plaintiff $20,000 in non-pecuniary damages for his pain and suffering, plus a small amount for his out-of-pocket expenses. The Court found that the plaintiff had sustained a "mild soft tissue injury" that resolved in ten months with "minor flare ups" thereafter. 

The plaintiff was awarded $11,000 in costs, under the fast track rule.

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Tuesday, February 28, 2012

Court Discusses Cost Consequences of Formal Offers

In the recently published decision of Ward v. Klaus, 2012 BCSC 99, Mr. Justice Goepel addresses the “broad principles of application” underlying Rule 9-1 of the Supreme Court Civil Rules, which allows the court to consider an offer to settle when exercising its discretion in relation to awarding costs and emphasises the “broad discretion” trial judges have in applying that Rule.

The defendant in this case had made two formal offers related to a motor vehicle accident that occurred in February 2002.  The plaintiff was ultimately awarded $433,103.63, but fell short of matching the defendant’s offers.  Consequently, the defendant sought an order depriving the plaintiff of her costs from the date of the first offer and awarding costs to the defendant from the same date.
Justice Goepel awarded the plaintiff her costs up to the date of the first offer, essentially denying her costs of the fourteen day trial and said the following respecting his decision to do so:
[51]         The defendant made a significant offer of settlement. While it may have been reasonable, from the perspective of the plaintiff, to take the case to trial, the defendant’s offer was more than generous and was well in excess of what was awarded at trial.
[52]         The main reason the plaintiff failed to exceed the offer was because the trial judge did not accept her evidence concerning her intentions to return to work. He determined that she was never likely to have earned more than $6,000 a year and awarded only $160,324 for past income loss and loss of future earning capacity. Prior to trial, plaintiff’s counsel had calculated awards under those heads of $475,000. A relatively modest increase in the trial judge’s award under these heads of damage would have enabled the plaintiff to best the defendant’s offers.
[53]         For the reasons I have stated, it cannot be said that the plaintiff should have accepted either offer. That is, however, the beginning, not the end of the analysis. Unlike Rule 37 which mandated the outcome regardless of the circumstances, Rule 9-1 gives the court a broad discretion to determine the consequence of a successful offer to settle. While the Rule is intended to reward the party who makes a reasonable settlement offer and penalizing the party who fails to accept it, the several options set out in Rule 9-1(5) allows the court to determine with greater precision the penalty or reward appropriate in the circumstances.
[54]          In this case, regardless of the merits of the plaintiff’s case, the defendant’s offers to settle cannot be ignored. To do so would undermine the purpose of the Rule. Having decided to proceed in the face of two not insignificant and ultimately successful offers to settle, the plaintiff cannot avoid some consequences. That said, in the circumstances of this case, to deprive the plaintiff of her costs and have her in addition pay the costs of the defendant would be too great a penalty. It would not be fair or just to require the plaintiff to pay the defendant’s costs after the date of the First Offer. Similarly, however, I find that the defendant should not pay the costs of the plaintiff after the delivery of the First Offer, which costs were only incurred because the plaintiff decided to proceed.
Nominal Offers:
In his reasons, Justice Goepel rejected the proposition that the reasonableness of an offer may be decisive in determining the nature of an award of costs and held that nominal offers can have cost repercussions.  He noted the following:

[39]  In that regard it is important to note that the Rule does not make any reference to the impact of “unreasonable offers”.  Further, it is with respect difficult to describe an offer as being “unreasonable” when it provides a better result to the plaintiff than that which he has obtained at trial.  The fact that an offer does not provide an incentive to settle cannot be determinative.
...
[40]  In certain circumstances a nominal offer may in fact be reasonable and should be accepted to spare all parties the costs of an expensive trial.

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