Distracted to death?

Distracted driving penalties are increasing. Again. 

And immediate roadside driving prohibitions (like those for impaired driving) might be coming.

Goodness. Much ado about distracted driving.

Would it be fair for distracted driving penalties to be as swift and severe as those for impaired driving?

Consider which behaviour is more deserving of swift and severe consequences.

Which is a clear, conscious choice?

Driving after drinking alcohol is a clear, conscious choice. Absolutely. But that’s not the offence. The offence is doing so with a blood-alcohol concentration at or above 0.05.

Depending on gender, weight and size, it could take as little as two or as many as five drinks over a two-hour period to reach 0.05.

You might get it wrong. Adding to the problem, the consumption of any alcohol will impact on your ability to monitor that consumption!

Don’t you dare interpret me as making light of the serious problem of impaired driving, by the way. I am simply comparing the 0.05 offence with distracted driving on the basis of conscious choice.

Neither cellphone use, nor texting can be “mistakenly” engaged in. Doing so while driving is a conscious choice.

A conscious choice to engage in an illegal driving behaviour that you know is dangerous. Doesn’t that cry out for swift and severe consequences?

Look at speeding as a comparison.

Exceeding a posted speed limit can occur absent-mindedly and results in a fine. Excessive speeding results in the immediate impoundment of your vehicle.

Do we need swift and severe consequences to curb distracted driving? Let’s look at the history of distracted driving penalties in British Columbia.

We prohibited distracted driving as of Jan. 1, 2010, with a fine of $167.

A lack of effectiveness led to a change effective June 1, 2016.The fine increased from $167. to $368, along with four points there was a total financial hit for a first time offender of $543. A second offence resulted in fines and points costing up to $1,256.

That increase didn’t do much to change driver behaviours. According to Solicitor General Mike Farnworth, the number of distracted driving tickets issued between June, 2016 and June, 2017 (44,000) was a reduction of only 13 per cent from the year before.

Now we have another increase coming as of March 1, 2018. No change for first time offenders, but a second offence will come with up to a whopping $1,996 of fines and points.

When announcing the latest change, our Attorney General was quoted as saying:

“Once implemented, this change will treat distracted driving as the serious high-risk behaviour that it is; one that is on par with impaired driving and excessive speeding."

I agree. It is a serious high-risk behaviour on par with impaired driving and excessive speeding. But no, this change does not bring the consequences up to those levels.

A first offender will still drive way with a few hundred dollars of fines and points. We need swift and severe.

But Houston, we have a problem. We have a very big problem.

Let’s say we get there. Let’s say we finally impose swift and severe consequences for distracted driving.

Let’s say that those consequences result in a meaningful reduction of distracted driving.

What would that accomplish? Unfortunately, not fewer distracted drivers.

I’m playing fast and loose with the term "distracted driver."

The law in British Columbia defines a distracted driver as one who is using a handheld electronic device.

The more expensive you make it to use a handheld electronic device while driving, the more financial incentive you give drivers to purchase hands free technology.

So they can engage in the exact same activities hands free. And do so under the full sanction of the law.

But that’s much safer, isn’t it? That’s not distracted driving, is it?

Way back in 2009, the year before we banned the use of hand held electronic devices, the British Columbia government did their research. 

The results of that research was published in a discussion paper, which you can find through this link.

Quoting from the executive summary: 

“In both simulated and real driving environments, the use of electronic devices has been shown to result in crashes and near misses. Drivers fail to process approximately 50 per cent of the visual information in their driving environment when they are using electronic communication devices. Evidence also concludes that there is no difference between the cognitive diversion associated with hands-free and hand-held cell phone use.”

That might blow your mind. I get it. Not only is it difficult to understand, your own government has been telling you since 2010 that it’s the hand-held version that’s dangerous, impliedly putting up billboards saying, “Hands free cellphone use and texting is perfectly safe."

Are you sincerely interested in understanding why the hands-free use of cellphones and texting is just as (if not more) dangerous?  

Please read this very readable explanation called Understanding the distracted brain put out by the United States National Safety Council.

Not a reader? Prefer to learn visually? Please check out this Myth Busters episode comparing hand held and hands free cell phone use. Hardly scientific, but it might help you get it.

Has the ban of hand held-electronic devices done anything to make our roads safer? No. Not only are the penalties still inadequate, but the very best outcome is a transition to the hands free version that’s just as dangerous.

I am going to take this a step further. Banning hand-held electronic devices while driving, with increasing penalties, is actually making things worse.

Before the change in the law in 2010, the driving public was starting to understand that we should keep our phones in the truck of the car. By imposing a ban on only the hand held version, we sent the loud and clear message that hands free cell phone use and texting are safe. 

As we became more and more dependent on our electronic devices, we became more and more inclined to use them while driving. Safety conscious drivers have been led to believe, by government policy, that it is safe so long as we put the money into hands free technology.

I think it’s important to note that our government specifically considered this possibility back in 2009. Quoting from their very own discussion paper:

“Legislation that bans only hand-held cell conversations conflicts with the research that has consistently found no difference in the degree of distraction between hand-held and hands-free cell conversations. As a result, these laws may not provide the expected benefits and may even generate harmful indirect impacts such as a false sense of security for those who talk on hands-free devices while driving.”

A conspiracy theorist would think that the government is somehow profiting from the huge hands-free technology industry.

We need an outright ban of the use of electronic devices while driving. We needed it back in 2010 and we need it even more now. A clear message must be sent to the driving public that cell phone use and texting have no place behind the wheel.

Do you agree? Sign my petition

Disagree? Please do the miniscule amount of research it will take to become informed and then sign my petition.


ICBC unfair with seniors

Seniors will be hit the hardest (announced changes to ICBC).

Take this with a grain of salt. Heck, a bucket of salt. I am directly, financially interested in the future of our injury claim system.

Seniors occupy a significant portion of my personal injury practice. I pay my own, as well as the mortgages of a lot of staff, by pursuing justice for seniors.

They come to me, typically, a year or so after some bonehead has driven into the back of their car.

That’s the most common collision in my practice. It’s maddening. The answer to fixing ICBC stares me in the face every day. Simply eliminate the rear-ender and the government can go back to scooping up hefty ICBC profits.

Did I just regress, again, into road safety? 

Yes, I did.

It’s not tail-gating rear-enders. It’s rarely icy roads. The vast majority are where you have come to a stop on dry pavement. There’s a long pause, and then boom.

How easy is it to avoid driving your car into a stopped vehicle ahead of you? 

It takes more than keeping your eyes on the road. It’s a difficult lesson to learn because it seems to defy common sense. And it’s a lesson that ICBC and our other government leaders have utterly failed to put marketing resources into teaching.

Your eyes are not enough. Your mind has to be there too. 

Science has proven that with eyes squarely on the road, a distracted mind (such as by a hands free cell phone discussion which bizarrely continues to be legal while driving) will cause you to “miss” (fail to notice) fully 50 per cent of what your eyes are “seeing”.

The offending driver didn’t quickly glance away. The distracted driver was on autopilot.

Seniors don’t do that. Sure, I’m making a generalization, but really. The stereotypical senior is white knuckled. In my practice, seniors rarely cause these nonsense rear-ender crashes.

And when they’ve been injured by some moron “young ‘un” (anyone under 60!), they’re very reluctant to talk to me.

Immediately after shaking my hand in the waiting room, they’re explaining themselves: 

  • “I didn’t want to have to talk to a lawyer”
  • “All I want is to be reimbursed for my expenses”
  • “I’m not looking for some big payout.”

I’ve learned over my 20-plus year career that seniors on the whole view lawsuits as for “bad people”. If you’ve been charged with a criminal offence, you must be guilty. If you’re suing ICBC, you must be screwing the system.

It’s ironic that if ICBC had only “approved” the further care recommended by their doctor, they would never have consulted with me.

It’s not like they ran out of ICBC coverage. British Columbian drivers already have access to up front rehabilitation benefits of up to $150,000. It’s an extremely rare senior rear-ender case where that fund is accessed by more than $5,000.

And ICBC has full opportunity to provide whatever other up-front financial help they want.

But they don’t. 

They choose to leave pension earning seniors to build up debt that they’ve avoided their entire lives saying. “We’ll reimburse that at the end of your claim."

By choosing not to play fair with seniors, some of them come to me. And man, does ICBC pay for their mistake.

Once I’m involved, they know they’re hooped. The boat has sailed on their opportunity to get away with paying far less than fair compensation.

But they still try. The most common argument they make about senior claims is that an elder should receive less compensation because they have fewer years to endure the pain.

But the law says otherwise.

Here’s a nutshell of the “golden years doctrine” recently recognized by Madam Justice Griffin in the 2010 case of Fata v. Heinonen, 2010 BCSC 385:

“[88] The retirement years are special years for they are at a time in a person’s life when he realizes his own mortality. When someone who has always been physically active loses his physical function in these years, the enjoyment of retirement can be severely diminished, with less opportunity to replace these activities with other interests in life. Further, what may be a small loss of function to a younger person who is active in many other ways may be a larger loss to an older person whose activities are already constrained by age.”

If you want a more full description, I invite you to read my column on this subject from way back in 2013 (Senior compensation).

How will changes to ICBC impact seniors?

There are three general categories of losses. 

  • One is income loss. 
  • Another is expense. 
  • The third is often referred to as “pain and suffering”, to compensate for pain, stiffness, impact on activities, loss of enjoyment of retirement, etc.

According to the announced changes and ICBC’s website defining a “minor” injury, the “pain and suffering” for the vast majority of senior claims is going to be “capped” at $5,500.

What is a minor injury? Have a look at the ICBC page explaining this. As of my drafting of this column, everything is minor unless:

  • It is a “major or catastrophic” injury;
  • There are broken bones or brain injuries;
  • You are still not able to go to work or school, or have to modify your work hours or duties for more than 12 months; 
  • You are unable to care for yourself for more than 12 months.

Instead of fair compensation for the stripping of enjoyment of the retirement years, which the courts have determined starts in the range of $40,000 and goes up the higher the impact, most senior claims will be capped at $5,500.

But the government has announced that we will have an option. Pay more for your insurance and the cap will not apply to your claim.

Seniors on fixed incomes, least able to afford higher insurance premiums, paying more to be able to achieve fair compensation from the actions of bad drivers?

How about make the bad drivers pay? 

If we refuse to take concrete action to reduce crashes, why not make bad drivers pay a $10,000.00 deductible for running into the back of stopped vehicles rather than passing the loss onto the victims?

The law has not yet been written. A politician has made an announcement. We can fix this. How? I hate politics, and that’s what this is. 

I’m clearly not politically savvy as can be seen from my utter failure to have a road safety impact after years of columns on the subject.

I’ve signed this petition: R.O.A.D. BC Petition. I invite you to do the same.

Ignore ICBC roadblocks

My qualifications are in law, not medicine.

But the bulk of what I do is reviewing and advising my clients about their medical care.

Because if I don’t, many of my clients will face the legal consequence of achieving less than full, fair compensation.

Injured victims, hoping to be compensated for their injuries and losses, have a legal duty to take reasonable steps to recover from their injuries as quickly and fully as possible.

That legal duty directly aligns with the goal of everyone who is injured.

But it’s not as easy as it sounds.

The first roadblock is often a financial one.

ICBC’s up front financial support is often short lived and restricted.

I am regularly consulted by victims whose care has been based on what ICBC agreed to fund instead of on medical recommendations.

I hear reports of “I had my 12 ICBC authorized physiotherapy sessions,” and “I had the four sessions with a kinesiologist my adjuster approved”.

When I ask why they ended a particular type of care: “ICBC told me I could do one or the other, not both."

ICBC adjusters don’t have medical training. Why would you allow their funding decisions to dictate your care?

Care decisions must be left to your doctor and others on your medical team, not an ICBC adjuster.

Many don’t have a choice. It’s either ICBC funded or they cannot afford it.

Financing has to be found. Somehow. I recommend taking a “beg, borrow or steal” approach to affording care.

No. Don’t steal. But those words help with thinking outside the box.

As upsetting as it might be to have to ask a friend or family member for help weathering the financial storm of an injury, it’s less upsetting than “facing the music” of unfair compensation.

One classic ICBC defence argument is that you didn’t do enough to get better.

That argument might not fly if you took a “beg, borrow or steal” approach and still could not afford care.

But they still have the “magic pill” defence.

The magic pill defence works like this. Your doctor recommends that you work with a kinesiologist. You have the four sessions that ICBC was prepared to fund.  

Three years later, as a trial date approaches, a specialist in physical medicine and rehabilitation (physiatrist) says that it takes many more sessions to properly establish and supervise an active rehabilitation program that will optimize your recovery.

You are given an uncertain prognosis. Even though it’s now three years after the crash, you might recover if you follow through with another 20-30 sessions.

So ICBC offers a settlement that includes the money for 20-30 sessions with a kinesiologist. But they won’t offer compensation for a lifetime of pain because of the possibility that that those sessions will act like a “magic pill” and fix you.

I don’t have any formal medical training, but I have had the benefit of over 20 years of monitoring the care and recovery of my clients and reading countless reports by medical specialists.

I have come to learn the following:

  1. It is important to develop a family doctor relationship to give a doctor the opportunity to become familiar with you and properly direct your care. Jumping from doctor to doctor makes continuity of care impossible;
  2. When care is recommended, follow through fully. Diligently attend however regularly and however long you are directed to. Don’t stop without consultation with the therapist and informed approval from your doctor;
  3. But you must keep your doctor informed. If your overall recovery stalls and ongoing passive therapies are giving you only temporary relief, have a serious discussion with your therapist and your doctor about weaning off those therapies and trying something else. Continuing to attend passive therapies might actually hurt you by (in the words of one specialist I’ve consulted with) “perpetuating illness behaviour”;
  4. Active rehabilitation (stretching and strengthening) programs are always, every time, going to be recommended at some point. Be on the lookout for a transition of your care from “passive” (a therapist doing things to you) to “active” (you doing stretching and strengthening).  If it’s not happening, ask your doctor if that transition is appropriate. Once prescribed, it is important to follow through fully, ensuring you are crystal clear about whatever program is being prescribed, how often you should participate in it and for what period of time;
  5. Keep pushing your doctor to get you better. Our medical system is a reactive, not a proactive one. Your doctor’s clinic is unlikely to give you a call if you don’t come in for a year to ensure that your care is on the right track. Ask your doctor how frequently you need to get in for follow-up appointments in order to maximize the prospect of achieving as full a recovery as possible;
  6. If your doctor runs out of ideas for getting you better, ask for a referral to a specialist. My final recommendation is that you keep your eye focused on the prize of a full recovery, not your ICBC claim. By looking after your recovery, you will naturally be doing what needs to be done to maximize the prospect of a fair outcome with ICBC. 

But your primary focus must be on getting better.


Vanessa vs. Goliath

Disability insurance companies have all the power — until a lawsuit pursued by a tenacious lawyer evens the playing field.

Have you ever been unfairly denied disability benefits?

Vanessa Godwin was, when applying for long-term disability (“LTD”) benefits.

She dealt with a claims specialist, an insurance company representative. But as noted in an eventual court decision, that job title was “…in fact the lowest position in the claims department.”

The claims specialist wasn’t satisfied with information and medical opinions contained within the LTD application. More was required. And then more. And then more.

Ms. Godwin was lucky. Her medical doctor, therapist and psychiatrist were exceptionally generous with how responsive they were to the various hurdles facing their patient.

Doctors and therapists do not get into their care giving fields for the purpose of writing letters to support disability applications. Doing so takes them away from their busy practices, treating patients. 

And they don’t charge near what their time is worth for that extra effort.

It took a series of denials and appeals before Ms. Godwin’s initial claim for benefits was finally allowed. In the later court decision, it was determined that deficiencies in the way the “claims specialist” handled the claim resulted in a 10-month delay.

Ms. Godwin faced another set of hurdles after 24 months.  

The initial claim for long-term disability benefits required establishing her inability to perform her own occupation.To recover benefits beyond 24 months, she had to establish her inability to perform any occupation.

Unsatisfied with the opinions of Ms. Godwin’s doctors and therapist, the claims specialist required her to attend a psychiatric medical examination with a psychiatrist, Dr. Alex Levin, hired by the insurance company for that purpose.

Dr. Levin, by the way, is a psychiatrist often retained by ICBC in defence of motor vehicle crash claims. In the later court case, counsel for Ms. Godwin provided a list of court decisions “…that found reports written by Dr. Levin to have strayed into advocacy or to have lacked objectivity, or that otherwise found his conclusions unsustainable."

The opinions of Dr. Levin contradicted the opinions of Ms. Godwin’s doctors and therapist, and were used to deny the claim.

Dr. Levin had assessed Ms. Godwin’s symptoms as not being disabling. 

That was in the context of Ms. Godwin specifically complaining about the way Dr. Levin conducted his assessment of her, continually interrupting her from having the opportunity to describe her symptoms.

It turned out that Dr. Levin’s practise was to audio record his assessments. Ms. Godwin’s lawyer specifically requested that audio recording, but that request was ignored. In the eventual court decision, the following finding was made about that failure:

“I do also find that [the insurance company’s] utter failure to investigate the existence of the audio recording was simply shocking, representing a complete dereliction of duty.”

In the circumstances, it was not enough for the insurance company to blindly rely on Dr. Levin’s opinions.  Quoting from the court decision:

“…Dr. Levin’s report seems less than a balanced assessment, and more like a piece of advocacy. Desjardins’ claims staff ought to have had a sufficient degree of sophistication to recognize it as such and to question whether it could be properly be relied upon.”

After exhausting her appeals with the insurance company, Ms. Godwin’s only recourse was to hire a lawyer to pursue a lawsuit against them.

On the eve of trial, the insurance company finally reinstated Ms. Godwin’s benefits in full.

But that wasn’t the end of the story. The trial proceeded. Not to enforce payment of the disability benefits. The insurance company had folded on that point four days before the trial started.

The trial was to hold them to account for how they had treated Ms. Godwin in their handling of her claim.

I invite you to read the court decision: Godwin v. Desjardins Financial Security Investments Inc., 2018 BCSC 99.

Warning: reading about the way Desjardins treated Ms. Godwin might dig up and aggravate psychological scars from your own experience if you have been given the run-around by an insurance company.

But the court’s rebuke of their claims handling might provide a level of cathartic healing.

The end result, after 12 days of trial, was a judgment against Desjardins for:

  • $30,000 to compensate Ms. Godwin for the added mental distress arising from their “bad faith” handling of her claim; and
  • Another $30,000 awarded because aspects of the handling of her claim “…were so exceptional as to require denunciation in the form of a punitive damages award."

It is yet to be seen what Desjardins will have to pay, in addition to those amounts, in “costs." 

Mr. Justice Saunders provided a time line for each party to provide their submissions on that point, specifically asking that their submissions address the decision of Mr. Justice Neill Brown in Tanious v. The Empire Life Insurance Company, 2017 BCSC 8,] where the extraordinary award of costs was made “…for full indemnification in order to put the plaintiff in the position she would have been in had she not been forced to retain counsel and enforce the contract through litigation."

I cannot say enough about the incredible grit and advocacy shown by the lawyer who pursued this case through a 12-day trial to hold the insurance company to account after the underlying disability benefits case had already been won.

Faith Hayman, I salute you.

Without lawyers like Faith Hayman and a justice system that can give you your “day in court” against the unfairness of a massive insurance company, injustice can run unchecked.

More Achieving Justice articles

About the Author

Paul Hergott began practicing law in 1995, in a general litigation practice. Of the various areas of litigation, he became most drawn to, and passionate about, pursuing fair compensation for injured victims. This gradually became his exclusive area of practice.

In 2007, Paul opened Hergott Law, a boutique personal injury law firm in the Central Interior, serving personal injury clients from all over British Columbia. Paul’s practice is restricted to acting only for the injured victim, never for ICBC or for other insurance companies.

Paul became a weekly newspaper columnist in January of 2007, when his first column entitled “It’s not about screwing the Insurance Company” was published. 

Please feel free to email or call Paul (1.855.437.4688) with legal issues you might like him to write about in his column, or to offer your feedback about something he has written.

Email:   [email protected]
Firm website:  www.hlaw.ca
Achieving Justice Legal Blog:  http://www.hlaw.ca/category/all-columns/
One Crash is Too Many Road Safety Campaign: www.onecrashistoomany.com
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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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