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Achieving-Justice

Beware ICBC classic

Diligently pursuing and following care recommendations will thwart ICBC “victim blaming” you for not doing enough to get better.

But beware the magic-pill defence.

It’s an ICBC classic.

They wait until the end of the process and identify some yet untried care idea they say will miraculously cure you. With no time to try it, your compensation is slashed based on an optimistic prognosis that is unlikely to transpire.

Thwart this tactic by learning about and proactively pursuing standard magic-pill cures. With the added benefit of optimizing your recovery.

The most classic of magic pills is “active rehabilitation.” Most typically, this involves engaging in stretching, strengthening and cardio exercises under the supervision of a kinesiologist.

Sessions with a kinesiologist typically start out weekly, becoming less frequent as you require less supervision. It is critical to do your part, diligently performing the prescribed exercises between sessions.

It is likely to take months to achieve optimal results. Don’t allow some arbitrary number of kinesiology sessions “allowed” by ICBC to hold you back.

One top medical specialist I consult with recommends a minimum of 24 sessions.

Have your therapies been interrupted by COVID-19? 

Consult with your doctor about using the time at home to pursue this aspect of your care. While not optimal, home exercise programs can be supervised by Skype. And your doctor might recommend other exercise that doesn’t require supervision.

Another classic magic pill is mental-health care.

Mental health can have a significant impact on recovery. It’s a vicious cycle. Chronic symptoms are bound to impact your mood. In turn, reduced mood compromises your ability to recover.

Psychological care can help prevent, or stop, that cycle. Sometimes medication is necessary.

The longer you allow a lowered mood to continue, the more likely it will progress to depression and be more difficult to treat.

Help your recovery and avoid handing ICBC a mental-health care magic pill by being vigilant about your mental health and following through with whatever care is prescribed.

This can be tricky!  We might be the least able to identify our own mental-health issues. And reluctant to ask for help given prevailing mental-health stigma.

Enlist those close to you to help identify if your mental health becomes compromised. And ask for help. 

This is another aspect of your care that should not be held back by COVID-19. Psychological care can be provided by video conferencing and ICBC has approved funding for that delivery method.

Let me know if you have difficulty finding a care provider.

There are three more magic-pill care items that I will briefly mention.

One is care to improve sleep. Compromised sleep can compromise your recovery. If you are not enjoying a full and fitful sleep, please consult with your doctor. Care can range from education about good sleep hygiene to medication and could require a formal assessment at a sleep clinic.

Another common one is weight loss. Crash injuries often lead to inactivity and weight gain. And there can be pre-crash weight challenges. Added weight can compromise recovery and aggravate symptoms.

And finally, an assessment by a pain specialist to explore whatever additional tools might be in their tool box to treat/manage chronic symptoms. After all other care ideas have been followed through with, ask your doctor whether or not a referral is indicated.

I wish you as full and complete a recovery as can be achieved. You will increase the chance of achieving that goal by following the pointers I have given in this three-column series.

 And by doing so, you will avoid ICBC arguments that you didn’t do enough to get better, or that there’s some other “magic pill” in the wings that could cure you.



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Be diligent to beat ICBC

Doctor Paul is back for more pointers on how to best recover from car-crash injuries.

Maximizing your recovery is not only best for your health, it’s critical for achieving justice in an ICBC claim.

You want to avoid ICBC having any opportunity to “blame the victim,” pointing their finger at you for not doing enough to try to get better.

Or slashing compensation for your ongoing symptoms on the basis of some miraculous cure “magic pill” they come up with late in the day, when there’s no longer time to test it out.

My first pointer was working closely with a doctor.

This might seem obvious. But many people self-direct their care, popping in to see a doctor only as needed to get referrals for ICBC funding. 

True, your physiotherapist, chiropractor or other hands-on caregiver is much more in tune to what’s going on with your body. 

But you need someone with a big picture outlook who can continually and critically evaluate your course of care, and who has all care weapons in their arsenal.

Your doctor will appreciate getting whatever information and feedback they can from you and your hands on caregivers so that they are best informed to direct your care.

My next pointer is to be very diligent about following through with whatever care recommendations you are given.

If referred to physiotherapy, for example, attend at whatever frequency your doctor or physiotherapist recommends.

Most physiotherapists will give you exercises to do between sessions. Get crystal clear instructions so you know exactly what is expected of you and follow them.

If prescribed a medication, take it.

What if the prescribed care, exercises or medication seem to make things worse or has side effects? 

Adverse effects might be a necessary evil. Your medical team needs to know about them, but if you are directed to follow through anyway, please do.

What if the care seems to be doing nothing to help you? Why follow through with something that’s not helping? 

Recovery can take time. Again, your medical team needs to know. Report the lack of improvement, which might or might not result in an adjustment of your course of care.

And please be careful to diligently follow any specific recommendations for care. 

A recent example of ICBC “blaming the victim” for failing to follow through diligently with care recommendations is Pasemko v. Kosolofski, 2020 BCSC 246 

The lawyer for ICBC had pitched that Ms. Pasemko should lose 30% of aspects of her claim because she failed to follow a medical specialist’s recommendation that she participate in a supervised exercise program. 

Ms. Pasemko thought she was doing enough. She was doing Pilates at home with guidance from friends and internet research. She also continued to do exercises that had previously been recommended by her physiotherapist. 

But the specialist had specifically recommended that the exercise program be supervised so that exercises would be individualized and Ms. Pasemko would have feedback about how to correctly perform them. 

The court agreed that Ms. Pasemko had failed to diligently follow through with the care recommendation and took away a portion of her compensation.

Fortunately, for Ms. Pasemko, the reduction was half of that pitched by ICBC’s lawyer, but she was still left uncompensated for over $30,000 of her losses.

Next week I will provide pointers about specific aspects of your recovery and care that I have learned must be addressed and pursued to maximize your outcome.



Tips to beat ICBC

I have some pointers on how best to recover from car-crash injuries.

But what would a personal injury lawyer know about medical care? 

It’s actually a significant part of the legal claim process. I very carefully monitor injuries and care to ensure as quick and full a recovery as possible. 

After the medical system has had its full kick at the can, I often commission the opinions of top medical specialists to review the entire care and recovery history and provide opinions including anything more that might be done.

And I ensure those further recommendations are diligently followed through with. 

Why?

The first days and weeks after a crash are the worst. But that phase passes. At some point, unless you’re lucky enough to achieve a full recovery, you will be left at a plateau with some level of ongoing symptoms.

That permanent outcome, after all care has been tried and “time heals” has run its course, is usually the biggest factor in evaluating fair compensation for your injuries and losses.

ICBC will wait until the end of the process to hire their own medical specialist to go through your care with a fine toothed comb.

They look for anything you might not have fully followed through with, or for some new idea your medical team hasn’t come up with that will miraculously cure you (a “magic pill”).

If they find anything you haven’t fully followed through with, they will blame you for not doing enough to get better. In legal terms, that’s called a “failure to mitigate” your losses, and can result in reduced compensation.

And if they come up with a “magic pill,” they will deny compensation for your future losses saying that after four or five years of struggling to get better, their new idea your medical team hasn’t come up with will magically cure you.

 And by then it’s too late to test out the “magic pill” to prove them wrong.

My formal training is in law, but I have gained much more informal medical training in the legal work that I do. 

My first pointer is to work closely with a doctor.

This can be difficult. Many people don’t have a family doctor. And finding one who will take you on when you have an ongoing ICBC claim can be like finding a unicorn.

Try your best to find a unicorn. The next best thing is to time your visits to a walk-in clinic to see a consistent doctor.

Having your care supervised by a doctor is your best shot at optimal recovery that leaves no stone unturned.

This doesn’t mean going off on your own to access care and then popping in from time to time to get referrals.

This means asking your doctor for care recommendations, following them diligently and returning as frequently as your doctor directs for updated recommendations. 

They get paid the same for a three-minute flu assessment as for a complex crash injury consultation, so please make it easy for them. Come armed to clearly and quickly bring them up to speed with your care and how that care has been impacting on your condition. 

Over time, therapies that might be important in the early stages after an injury will lose their value, providing only temporary benefit.

Your doctor needs to know when your overall recovery stalls because that is an important indicator that other options should be explored. 

I will continue with providing other pointers next week.



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Not really a 'minor' injury

What is a minor injury? Crash victims injured on or after April 1, 2019, need to know because pain and suffering compensation for a “minor” injury is capped at $5,500.

For me, the words “pain and suffering” conjure up a heinous torture scene.

It’s just a label. Other labels for the same aspect of loss are “non-pecuniary losses” and “general damages.”

Those labels refer to the aspect of your loss that cannot be measured in dollars and cents.

If someone causes you injury, they must make you whole. Their obligation is passed on to their insurance company, typically ICBC.

You are not made whole solely by putting back into your pocket the dollars and cents you have lost in income and expense.

Something more is required to compensate you for the experience of being injured.

That experience includes such things as pain, headaches, taking time out of your day to attend physiotherapy and other care and coming home after work with flared up symptoms and no energy to enjoy your family.

If you are lucky, with temporary injuries, that experience will end. If not so lucky, that experience will last the rest of your life.

How do you put a dollar figure on that when a life without pain is priceless?

We look at long established legal precedents. For decades, judges have very consistently assessed fair compensation for injury victims.

A recent example where the court explained the process is the case of Sahota v. Slupskyy, 2019 BCSC 2215.

The judge noted at paragraph 112 that because these losses are intangible and not easily evaluated, compensation “should be designed to provide reasonable ‘solace’ for a plaintiff’s loss, where ‘solace’ is viewed in the sense of funding things that might make life more bearable or enjoyable.”

And at paragraph 114 it’s noted that a list of factors has been established to help judges evaluate this loss: “A non-exhaustive list of factors taken into account in assessing any award for non-pecuniary general damages include the plaintiff’s age, the nature of the injury, the severity and duration of the pain, disability, emotional suffering, impairment of life, family, marital and social relationships, impairment of physical and mental abilities, and loss of lifestyle.”

An example of a modest amount of compensation is Hans v. Volvo Trucks North America Inc., 2016 BCSC 1155, where $15,000 was assessed an appropriate compensation for Mrs. Hans who was described as having shoulder and neck pain, the effects of a minor concussion for three or four months, and driving anxiety. All of her symptoms were fully resolved within approximately one year.

A different level of compensation is required for permanent symptoms, such as in Gartner v. Baumeister, 2019 BCSC 1291. The crash victim was left with chronic headaches, but his activities had not been significantly impacted on a long term basis. His compensation for pain and suffering was assessed at $50,000.

The more significant the ongoing symptoms, and the more impact those symptoms have on your life, the higher the compensation assessment.

When our government imposed a cap of $5,500 for “minor injuries,” they did not base it on the factors that our courts consider. The definition of “minor injury” does not consider your level of pain, stiffness and other symptoms, whether or not they might last a lifetime, nor how they impact on recreational activities or relationships.

The starting point is a very broad list of injuries that captures all those occurring in typical car crashes, including PTSD, concussion, whiplash, pain syndromes and TMJ.

The only way for those injuries not to be considered “minor,” is if they disable you from performing the essential tasks of your employment, education or activities of daily living for an extended period of time.

For concussions and psychological or psychiatric injuries, your disability must last longer than 16 weeks.

And for the other injuries, your disability must last more than 12 months.

A “minor injury” cap wouldn’t be offensive if it applied to truly minor injuries.

But how can injuries that completely disable you from working for any period of time, or that leave you with any permanent symptoms, be considered “minor”?

An animal that looks, waddles and quacks like a duck cannot be made into a moose by defining it as one.

The government has pulled the wool over our eyes by announcing a “minor injury cap” that includes moderate to severe injuries.

Does this concern you? Help expose the truth and contact your MLA.



More Achieving Justice articles

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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
Google Plus:  https://plus.google.com/+HlawCanada/posts
Facebook:  www.facebook.com/personalinjurylawfirm
Twitter:   twitter.com/Hergott_Law



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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