Expert medical evidence

Travel for the injured is rarely a fun experience. Airports, planes, taxi cabs, and trains are not geared towards disability. 

So as I sit in the Vancouver airport waiting for my flight home, I think about my personal injury clients that I send to larger centres like Vancouver or Calgary so they can be examined by medical experts rarely available in the Okanagan.  

Why do I put my clients through the trouble of flying to places like Vancouver or Calgary to visit experts?  

If you are injured and you are not entirely at fault, you are likely entitled to compensation. Categories of potential compensation include: Pain and suffering, past wage loss/loss of opportunity, special damages (out of pocket expenses), future wage loss/loss of opportunity, loss of housekeeping capacity, and future cost of care. 

Expert evidence can be used to support each aspect of your claim and is often needed to level the playing field with ICBC/other insurers. Medical experts will provide information such as your diagnosis, prognosis, functional abilities/work restrictions, and treatment recommendations. 

Some of the more common experts my clients might see are: Physical medicine and rehabilitation specialists (also called physiatrists), neurologists, neuropsychologists, rheumatologists, orthopaedic surgeons, psychiatrists, psychologists, occupational therapists, and vocational consultants. 

The experts selected are based on the client’s medical history, family doctor recommendations and the type of injuries they appear to have sustained.

The unfortunate reality is that experts are expensive, and the wait time to see a specialist in the Okanagan is often long. It is not uncommon for an invoice from a medical expert to exceed $5,000. 

Not surprisingly, ICBC will not typically offer up finances to help you hire an expert or private imaging (i.e. MRI, CT scan, x-ray) to support your injury claim. This is where legal counsel comes in. If the assessment is reasonable to do, the cost will ultimately be paid by the insurer at the end of your claim.  

The bottom line is that paid experts have time to do a comprehensive assessment, and to delve into your issues in more detail. They are paid to look at the entire picture within their area of expertise. To the extent they see issues outside their expertise, they are paid to notice them and make recommendations for additional experts. 

The hope is that every area of your life that has been affected is addressed, otherwise it is difficult to be fully compensated for your injuries.

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Want to be a lawyer?

Unlike some of my colleagues, I had no specific childhood aspirations of becoming a lawyer. 

I did not daydream of winning arguments in court, or putting the bad guy behind bars. I did not obsess over television shows or movies involving the law. In my family, it was simply expected that upon graduation from high school, you would attend university. 

Not knowing what I wanted to do, I enrolled in Arts and Sciences, and graduated with a Bachelor of Arts degree, majoring in psychology. Nearing the end of my first degree, it became clear that it was time to think about a career, so I considered my options. 

One of those options was law. I did volunteer work, wrote the LSAT, and applied to law school. Why did I apply? I am not entirely sure. My mother was a nurse, my father a pharmacist, and there was no one else in my immediate or extended family who was a lawyer or even remotely connected to the practice of law. All I knew about being a lawyer was what I had seen on television or in the movies, but for some reason (maybe because I am competitive and like to argue), I liked the idea of law.  

Law school was and wasn’t as expected. It was hard work, and I didn’t really fit in with the other students (most of them seemed far too keen, and had no life outside of school). However, despite some doubts, I stuck with it. 

I worked various retail jobs throughout both my undergrad and law school. If you aspire to be a lawyer, I would recommend working in the service industry while going to school, it teaches you things law school doesn’t, such as dealing with difficult (sometimes screaming) people. It will also help you relate to your clients, regardless of the type of lawyer you become.  

When you finish law school you have to complete articles, which is essentially an apprenticeship. I applied for an articling position the same way you would apply for any job, by sending in my cover letter and resume to every firm I considered working for. 

I received various “thanks, but no thanks” letters (which I still have), but I also received some invitations for interviews. The best interview advice I heard was, “be you - the person they want to go for coffee with.” The firms who interviewed me were most interested in my martial arts and kickboxing background. I ultimately accepted a position with a large Vancouver firm.

After writing the LSAT, completing law school and articling, before you can call yourself a lawyer you have to complete a 10 week course called PLTC (Professional Legal Training Course) and successfully pass four skills assessments and two qualification exams (the Bar exam). 

Many people fail. I remember being told that no one in the history of my firm had ever failed the Bar exam. No pressure there! Fortunately, I passed and was beyond happy to have that part of my journey in the rear view mirror. In a formal ceremony at the Court House, I was sworn in and could now officially call myself a lawyer. 

Over my career, I have been blessed to work with various lawyers who cared about my education and in my development as a lawyer. I was given encouragement, provided difficult but interesting tasks, and taught ethics and civility. 

The law firm I articled with, and first worked for, was a full-service firm with the exception that they did not practice criminal law. As a result, I had the opportunity to experience a broad range of practice areas. Right out of the gate I was most interested in being a trial lawyer (I wanted to go to court). I was inspired and motivated to become the best. I owe a great deal of gratitude to a few lawyers who took me under their wing.  

However, despite great mentors and the enjoyment with the work I was doing, I learned that becoming a lawyer was far more challenging than I ever expected. Challenges lay in the demands of clients, the demands of opposing counsel, the demands of the court, the never ending learning process, the evolution of the law, and the seemingly insufficient amount of time to meet the demands of everything.  

Women drop out of this profession in droves, and it’s not surprising, given the demands placed on us, particularly if we are trying to balance family and work life. 

Very early in my career, I was told that it is impossible to be both a good mother and a good lawyer. So, like most things I am told I can’t do, I set out to prove it wrong. I have three children, and have stayed in private practice (as opposed to going in-house or switching professions), but to suggest for a moment that it has been easy or perfect would be a lie. 

It is difficult to be both a good mother and a good lawyer, although not impossible. Sometimes, it is even an advantage to be both. I can relate to many of my female clients in ways most of my male colleagues can’t. However, it is still hard when I have to miss the school play or other activities because of work demands.

With the benefit of hindsight, becoming a lawyer was the easy part (and I am not saying that it was at all easy). Being a lawyer and continuing to strive for excellence in a profession that is unforgiving in its demands and expectations is truly the hard part. Fortunately, the time commitment and stress endured can be very rewarding. 

I was lucky to find an area of the law that I am passionate about. I work with some amazing people, and look forward to coming to work every day. If you, or someone you know, is considering a career in law, be sure to do your research, and talk to as many lawyers as you can.

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ICBC anti-fraud campaign

ICBC recently launched its anti-fraud campaign, and needless to say, I am less than impressed.  At first I thought it was just a simple news article, but then I heard the radio ads. They call it the ICBC Hall of Shame, and the first example listed is a man who says he can’t help his wife do the dishes but he can lift some boxes.

If you have recently been injured and ICBC has not called you, responded to your email, or provided you with desperately needed financial assistance (i.e. you do not know how you are going to pay your next month’s bills because you are unable work as a result of your accident), I am sure you are as thrilled as I am that ICBC has chosen to invest money in advertising campaigns about fraud instead of helping innocently injured victims in need of assistance.  

Most ICBC claims are NOT fraudulent

Just to be clear, there is no question that fraud is wrong, and I appreciate that it costs the corporation money. I also accept that it is important for ICBC to investigate claims they feel are fraudulent. 

However, in my opinion, ICBC’s ad campaign is not about fraud. It is smoke and mirrors. It is about stigmatizing injury claims, trying to create fear in the innocent claimant and laying the publicity ground work for the next insurance rate hike or some other controversial plan. 

Quite simply, intended or not, it is a distraction from the real issues within ICBC that you should be concerned about. The reality is that the large majority of claims made with ICBC are not fraudulent (ICBC admits this). They are innocent people who deal with ICBC in good faith. They deserve help, justice, and the proper, timely administration of the insurance scheme that we must all buy into for the privilege of driving.

Outdated practices cause damage

The real issues that should be front and centre for ICBC (where money should be spent, policy changes made, and media attention given) are not fraudulent practices, but what I view as unfair, unreasonable, and outdated practices of ICBC. 

Practices such as:

Not providing timely assistance during your hour of crisis.

Denying you or your family desperately needed rehabilitation services and financial assistance when they are legally obliged to provide assistance. A Layman’s Guide to ICBC Part & Benefits

Keeping benefits down at historical rates so that you have to pay user fees you cannot afford.

Advising you that you don’t need a lawyer. ICBC says I don’t need a lawyer

Arbitrarily cutting off your treatment.

Advising you that you do not have an injury claim when you actually do. Do I have an ICBC claim?

Taking advantage of your financial crisis and offering to settle your injury claim for a small fraction of your claim’s actual value.

Trying to settle your claim before you have recovered or reached maximum medical improvement. When should I settle with ICBC?

Forcing your case to go to trial when they know, and their own experts have told them, that your case is worth more than what they are offering.  

The above examples are some of the things that I have personally witnessed in my practice.  And while I will not go so far as to say that ICBC is the one acting fraudulently, I will say that if ICBC treated everyone fairly then people would not need to hire lawyers. 

Now, if you are one of the lucky ones, and your claim lands in the lap of a seasoned and compassionate staff member within ICBC, you may not experience these unfair practices, at least not initially. 

Until ICBC decides to address these very real issues, if you do not want to be taken advantage of, you need to educate yourself on your rights, and advocate for yourself or hire a lawyer to do it for you. 

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Should I sue?

Where injury or death is caused by a wrongful act (i.e. car accident, fall, assault, defective consumer product, or negligent medical treatment or care received) you may find yourself asking the question, “Should I sue?”  

In cases involving catastrophic injury or the death of a family member, dealing with your new reality may seem more than enough. The last thing you want to think about is a lawsuit.

However, when the consequences are life-altering, it is often of greatest importance to consider the question. While it may be admirable to not want to sue on the principle that two wrongs do not make a right, most people have insurance to provide compensation when mistakes are made. The benefits that a lawsuit can provide may be in your best interest, or the best interest of your loved one.

While every case is unique, and you will have your own perspective on potential benefits or consequences of a lawsuit, the following are some criteria for you to consider when deciding whether to pursue legal action:

Some factors generally in favour of suing:

  • There are no significant liability concerns. In other words, a person and/or entity is at fault (or is most likely at fault), and caused the injury or death. *Note: The party at fault does not necessarily have to be the only cause of the injury or death in order for you to be successful. See: Proving liability in an injury claim.
  • You are within the limitation period. In other words, you have not missed the deadline to sue.
  • You or your loved one has suffered moderate to serious injury or death.
  • The injury has resulted in temporary or permanent disability.
  • The injury or death has caused, or is going to cause, significant personal or financial loss (i.e. pain and suffering, loss of enjoyment of life, medical and rehabilitation expenses, loss of income, and loss of capacity to work).
  • Financial compensation from a lawsuit would provide for a better life for you or your loved one (i.e. better medical care, better medical equipment, respite services, housekeeping assistance, replaced wages, etc.).
  • You or your loved one has no (or limited) disability insurance or life insurance.
  • The wrongdoer has insurance, or the financial ability to pay a damage award.  
  • You do not want what happened to you or your loved one to happen to others. Lawsuits can serve an important purpose of deterrence and prevention when a person or business has engaged in behaviour that should be discouraged. Lawsuits can also educate the public, those directly involved, and others who may indirectly learn from the wrongdoer’s mistakes. It is one of the few times that you can have the power to change an industry. See: The good lawsuit. 

Some factors generally against suing:

  • There are significant liability concerns. In other words, it is unlikely that there is anyone legally at fault for the injury or death.
  • You have missed the limitation period. In other words, you are out of time to sue, and you do not meet the criteria for extending the limitation period.
  • You or your lawyer will be unable to prove what caused the accident or injury. See: Proving causation in an injury claim. 
  • Your injuries are relatively minor, and you recovered quickly. *Note: Some minor injury claims are still worth pursuing.
  • The damages likely to be awarded are not sufficient to warrant the time and costs required to pursue the claim.
  • You have engaged in illegal activities that, if uncovered, could cause more pain (financial or otherwise) than any amount of compensation that could be gained from a lawsuit.
  • The wrongdoer has no insurance or financial ability to pay a damage award. *Note: In a motor vehicle accident, even where the driver has no insurance or where you are involved in a hit and run, you can often still recover compensation from ICBC if certain criteria is met. 
  • You or your family will have to continue to deal with the person you are suing. *Note: This may or may not present a problem, depending on the specific facts of your case. 
  • You have no interest in financial compensation, or there is no amount of compensation that would make it worthwhile for you to have to deal with the time, stress, or potential emotional consequences of a lawsuit.  

While this column is titled ‘Should I sue?’ it is important to remember that some claims can be settled without commencing a lawsuit. In addition, even when you commence a lawsuit, it does not necessarily mean that you will have to go to trial. 

If you are asking yourself whether you should sue, it is probably worthwhile to have a consultation with a lawyer, and the sooner the better. There are time limits for commencing a lawsuit, evidence can disappear, and memories of key witnesses will fade. 

You may find out that you do not have a good claim, in which case, at least you will know.  Alternatively, you may find out that you do have a good claim, as well as the costs and potential benefits of your case. 

At the end of a consult, you should have all the relevant information to do your own analysis, and make a decision that is right for you.  

*Important Note: The information contained in this column should not be treated by readers as legal advice, and should not be relied on without detailed legal counsel being sought.

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About the Author

Keri Grenier is an experienced personal injury lawyer based at Murphy Battista LLP's Kelowna office. She also holds a B.A. in psychology. Her practice focuses on helping people who have been injured in motor vehicle accidents or due to the negligence of others.

In her column, Keri provides practical information about personal injury claims in a format that is simple and easy to understand.

Email: [email protected]

Website: http://www.murphybattista.com

Twitter:  http://twitter.com/KelownaLawyer

The views expressed are strictly those of the author and not necessarily those of Castanet. Castanet does not warrant the contents.

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