New Calgary Office Opened, Second Location in Alberta

Posted on by Mussio Goodman

Two Locations are Now Located in Alberta

Mussio Goodman Hamilton is proud to announce our new office location. We now have two office locations in Alberta and six in British Columbia.

The Calgary office location is being overseen by Albertan personal injury lawyer, Mark Hamilton. Mark opened the Edmonton office location, the first in Alberta and outside British Columbia. Hence, Mark made it a success while also representing his clients and hopes to do the same in Calgary.

The new office allows our clients to reach us easier in Alberta. Previously, Calgary clients had to drive up to three hours to visit our only Alberta location, now it’s just down the street.

Our new Calgary office address and phone number is:

CALGARY OFFICE
#909 17th Ave SW
4th Floor
Calgary, A.B / T2T 0A4
Tel: 780 652 0974
Fax: 604.336.8001

Alberta’s Minor Injury Cap – What You Need To Know

Posted on by Mark Hamilton

Alberta’s Complex Minor Injury Cap Law Explained

Alberta’s “minor injury caps” are rooted in a complex set of laws that were implemented under the pretense of reducing insurance costs.  This objective has largely failed, and the law is perceived to have profited insurance companies at the expense of injured victims’ rights.  Recently, these rights have been further eroded through amendments to the minor injury laws.  The recent changes warrant a comprehensive review of the current minor injury laws in Alberta.

 

Background

The“minor injury cap” on compensation for pain and suffering was introduced in 2004, and expanded in 2018.

Prior to 2004, compensation for pain and suffering for injuries arising from motor vehicle accidents was assessed based on court precedent. In other words, judges would decide what was fair in any particular case, and those decisions would be used to determine what was fair in subsequent cases, and so on.

In 2004, the Alberta government changed the law to limit the compensation available for pain and suffering for certain “minor injuries” arising from motor vehicle accidents. Now, if an injury is deemed “minor”, then the compensation for pain and suffering is capped.

The cap is currently $5,080 as of 2018, and it increases every year with inflation.

 

What is a “Minor Injury”

Unfortunately, the “minor injury” laws were poorly drafted, leaving significant confusion and ambiguity as to what qualifies as “minor injury”.

The law currently provides that a minor injury is:

  • a strain, sprain, whiplash associated disorder (with no neurological signs), certain temporomandibular disorders (TMJ), and related physical and psychological symptoms;
  • that does not cause serious impairment such as long-term problems with work, leisure or other regular activities;
  • that is not expected to improve substantially.

The courts have interpreted the minor injury law somewhat narrowly, meaning they have limited the application of the minor injury definition, particularly where the injury is long lasting. What constitutes “long lasting” varies from case to case, but the courts tend to classify injuries that seriously impact a claimant for longer than six months as chronic.

 

How To Determine Whether An Injury Is Minor?

There are generally three ways that an injury may be classified as “minor”.

The first is if the claimant fails to follow certain diagnostic and treatment protocols that are dictated by the government. If a claimant fails to follow these protocols, then the injury may be deemed minor unless the injury results in substantial impairment, and the claimant can show that following the protocols would not have improved the situation. The protocols allow a claimant to access up to 21 therapy treatments over 90 days, and the cost of the therapy will be paid by the claimant’s own auto insurer without the requirement for pre-approval of the cost.

The second way that an injury may be classified as minor is through an individual medical assessment made in accordance with the above noted protocols. In other words, either party (i.e., the claimant or the insurance company) can decide that the claimant should attend an assessment with a medical professional for the purposes of a medical opinion on the question of whether the injury is minor.

Finally, if the parties disagree with a finding that the injuries are minor, then the claimant can go to court for a final determination.

 

What Injuries Are Not Capped?

Other Injures:

The minor injury cap does not apply to injuries other than strains, sprains, whiplash associated disorder (with no neurological signs), certain TMJ disorders, and related physical and psychological symptoms. Such other injuries may include: concussions and brain damage; neurological injuries; fractures; internal bleeding; vestibular injuries, among others.

If a claimant has injuries other than those classified as minor, it is essential that these be conveyed to the health care provider so that there is proof of the non-capped injury.

 

Serious Impairment:

Again, the minor injury cap will not apply to any injury that results in serious impairment such as long-term problems with work, leisure or other regular activities. The courts have held that a serious impairment may be found in cases where pain continues to impact a claimant’s life for six months beyond an accident. So regardless of the type of injury that you have, it will not be capped if it continues to impact your life on a long-term basis.

Again, it is essential that a claimant advise their doctor of the impact an injury has on their day-to-day life so there is proof of the serious impairment.

 

Concussions:

Concussions (also known as mild traumatic brain injury or mTBI) are increasingly common, but victims of this injury are often unaware that their symptoms are caused by a concussion. Sometimes a concussion may go unnoticed or undocumented by medical practitioners. This is detrimental not only to an injury claim, but to the potential recovery from the injuries as well. Therefore, it is important that a claimant be aware of the prevailing medical consensus that requires the presence of one of three factors before a concussion can be definitively diagnosed:

  1. any period of loss of consciousness after the accident;
  2. any loss of memory for events immediately before or after the accident for as much as 24 hours; or
  3. any alternation of mental state immediately after the accident (ie. feeling dazed, disoriented or confused).

Other common symptoms of concussion may include some or all of the following: problems in arousal, attention, concentration and judgement; spatial disorientation (problems with perception, direction, etc.); slowness of thought processes; slowness and/or difficulty with speech; fatigability; maintaining attention and activity produces fatigue; visual impairment; hearing impairment; hemiparesis (weakness on one side of the body); anxiety and depression; inappropriate behaviours (impulsivity, disinhibition, lack of social judgment, and appreciation of subtleties); agitation/outbursts; sexual dysfunction; loss of social network/isolation; dizziness; sensitivity to light or sound; fogginess; poor memory; blurred speech.

Again, it is essential to report any of the above noted symptoms to the doctor immediately after the accident so that a possible concussion can be properly assessed and diagnosed.

 

Psychological Injuries:

Psychological injuries such as low mood, depression and anxiety may be capped if they are caused by and resolve with a physical injury that is capped. However, psychological injuries will not be capped if they are caused by injuries that are not classified as “minor” by the law, such as a concussion, a fracture, etc. Further, even if a psychological injury is caused by a physical injury that is capped, the compensation for the psychological injury will not be capped if it does not resolve with the physical injury. In other words, if a minor physical injury gives rise to psychological symptoms, and the physical injury resolves but the psychological injury does not, then the compensation for the psychological injury should not be capped.

 

Neurological Signs:

The minor injury cap includes whiplash associated disorders, but not if the injury has “neurological signs”.

These signs may include loss of range of motion, abnormal reflexes, muscle weakness, and or numbness or tingling in the extremities (hands, arms, legs and feet). Such symptoms are often associated with a spinal cord disc protrusion.

 

Certain Dental and Jaw TMJ Injuries:

Although soft tissue injuries to the jaw are subject to the cap, there are exceptions. Injuries to the teeth and jaw bone, and injuries that cause a clicking of the jaw, are generally exempt from the minor injury cap.

 

Non-Motor Vehicle Claims:

The minor injury cap does not apply to non-motor vehicle accident types of claims. For instance, the cap will not apply to injuries sustained as a result of slip and falls. Further, the cap may not apply to motor vehicle accidents that occur off the roadway. It also may not apply to accidents that occur in different jurisdictions, where entirely different systems may apply.

 

Other Categories of Compensation:

Remember, the minor injury cap only applies to compensation for pain and suffering. It does not apply to limit the compensation available for past or future income loss, household assistance, out of pocket expenses, accelerated depreciation of damaged vehicles, future care costs, among others.

Written by Mark Hamilton of Mussio Goodman Hamilton

“Injury Caps” and Insurance Company Doctors

Posted on by Mussio Goodman

Unfortunately, insurance companies have a reputation for hiring biased doctors to provide medical opinions on the victims of motor vehicle or other types of accidents.  This happens throughout Canada, including Alberta.

We have written extensively about the situation in British Columbia, specifically with regard to one of ICBC’s favorite “independent medical examiners” Dr. Grypma here and here. Dr. Grypma’s reports have been rejected by the courts more than a dozen times. Judges have described him as being “deliberately or grossly careless”, “argumentative” and “incorrect”, and his opinions have been disregarded as “ill-considered and superficial.”

Now the Globe and Mail has just published a damning exposé on ICBC’s use of Dr. Grypma, which mirrors the very public advisories we previously issued.

Indeed, in spite of their assurances about treating injured claimants fairly, ICBC has hired and continues to hire doctors who have a well-established reputation for bias and other questionable conduct.

Now the BC NDP wants to institute a “cap” on “minor injuries”, which will limit an injured victim’s access to legal representation, rehabilitation, and fair compensation. The question is, who determines whether the injury is minor? The public has every right to be concerned over the prospect of ICBC paying very good money to their stable of reliable doctors to ensure they get the “minor” diagnosis they want.

ICBC was well aware of Dr. Grypma’s dubious reputation for years, and yet they kept hiring him. One can reasonably assume it was to achieve their goal of cutting benefits and reducing compensation. And now we want to give them even more power over injured victims’ access to rehab and fair compensation?

There are other ways to solve ICBC’s financial problems. Punish the bad drivers, not the victims. Call your MLA and say NO to caps.

Press Release: Mussio Goodman Expands to Vancouver Island

Posted on by Mussio Goodman

Mussio Goodman Injury and Estate Lawyers, with offices in Downtown Vancouver, Surrey, Kelowna and Vernon, as well as Alberta, is now proud to announce its expansion to Vancouver Island.

With a full service office located in Nanaimo at #203 – 335 Wesley St., Mussio Goodman can now offer its premier legal services and record of success to injured clients across Vancouver Island.

Managing Partner Wes Mussio, who has been practicing exclusively in personal injury for over 25 years, and who recently purchased the Nanaimo Clippers of the BCHL, stated “since my other business and personal interests have expanded to the island, it only seemed fitting that we open a law office in Nanaimo as well.”

Wes’ partner, Eric Goodman notes that “while our existing infrastructure of 12 lawyers and students, as well as 22 staff across four offices, already allowed us to represent clients all over the province, having a location in Nanaimo gives us a stronger ability to connect with the local community and our clients.”

Wes adds: “I especially look forward to spending more time on the island and serving its residents who have suffered injuries through no fault of their own.”

For more information or a free consultation, please call 250 824 5027 or toll free at 1 855 MUSSIO1, or visit us at mussiogoodman.com.

Mussio Goodman Counsel Obtains $584,560 For Client At Trial

Posted on by Mussio Goodman

Mussio Goodman is pleased to announce Associate Counsel Fred Sierecki’s success after a three week trial.

In Raptis v. Chalabiani, 2017 BCSC 1548, the Court awarded the Plaintiff $584,560 for injuries sustained in a December 2009 motor vehicle accident, which substantially exceeded the insurance company’s final offer of $364,243 before trial.

The Plaintiff sustained a number of injuries in the accident, the most serious of which was to her left hip, which required surgery.  This injury made it difficult to perform her job as an elementary school teacher, and to engage in many activities that he previously enjoyed, such as running.

The insurance company argued that the Plaintiff’s damages should be minimal, stemming from the fact that there was minimal damage to her car.  The Court ultimately disagreed with this argument after listening to several medical experts retained by the Plaintiff testify that minimal vehicle damage does not equate with minimal physical injury.

The insurance company also argued that the Plaintiff should not be awarded any past wage loss because she simply chose to work half-time due to her two young children, one of whom was diagnosed with Autism shortly after the accident.  The insurer also argued that the Plaintiff shouldn’t have undergone the hip surgery which her surgeon felt could help reduce some of her pain.  In awarding $125,000 for past wage loss, the Court held that:

[175] In my view, it was reasonable for the plaintiff to seek the support of her physicians to work on a part-time basis following her second pregnancy in circumstances where she had struggled working full time and she was scheduled to have surgery on her hip — which ultimately occurred in January of 2015. I note that Dr. Sam expressly supported the plaintiff working on a 50% basis.

The insurer argued that the Plaintiff should not be awarded any loss of future income because she was attending a CrossFit gym which they argued was evidence of a lack of physical impairment.  The Court agreed with Mr. Sierecki’s submissions that there was a real and substantial possibility of future income loss and awarded $295,000 on the basis that she would likely only be able to work 4 days per week instead of full-time in the years ahead.  The Judge stated as follows:

[182]     In this case, I find that the plaintiff has established that her earning capacity has been impaired and that there is a real and substantial possibility that the diminishment in earning capacity will result in a loss of income. I do not agree that the plaintiff’s limitations can fairly be described as causing her mere “discomfort”. I conclude that the evidence supports her continuing to have functional limitations affecting the performance of her teaching duties on a daily basis, such as her ability to perform tasks associated with sustained or repetitive postures. As noted above, the evidence of Dr. Masri and Dr. Gilbart was that her chronic pain in her hip and lower back will likely continue and the evidence of Dr. Lamba was that her pain has an emotional component which affects how she deals with stressors. While she has been able to make a number of work modifications, they do not wholly alleviate her limitations.

While 98% of injury claims settle, this case demonstrates the importance of hiring experienced trial lawyers who won’t hesitate to advance your claim to trial to get the compensation you deserve.

Injured Client Awarded $683,810 at Trial After Rejecting Final Offer of $280,000

Posted on by Mussio Goodman

We are pleased to announce our success in the case of Ackermann v. Pandhar, 2017 BCSC 880.

The Court awarded our client $683,810 for injuries sustained in a 2011 motor vehicle accident, which substantially exceeded the insurance company’s final offer of $280,000 before trial.

Our client sustained a number of injuries in the accident, the most serious of which was to his right wrist, described by our orthopedic expert as “chronic and static with a very high likelihood of deteriorating over time.” This injury made it impossible to perform his job as a tile setter, and to engage in many activities that he previously enjoyed.

The insurance company argued that our client should be held 25% at fault for not wearing his seatbelt at the time of the Accident. We pointed out that our client had a legitimate medical reason for not wearing his seatbelt (a recent bladder surgery), and that, regardless, the insurance company failed to prove that his wrist injury would not have occurred had a seatbelt been worn. The Court agreed with our position.

With regards to past wage loss, we argued that our client should be awarded an amount that falls between his actual earnings before the Accident and the higher average wage for a tile setter, with which the Court agreed as follows:

[146] [T]he figure proposed by Mr. Ackermann’s counsel — the mid-point between average tile setter earnings and the actual earnings as I have found them — fairly reflects the rate increases that the business would certainly have commanded in the years since the accident (and which Andreas now enjoys in his own business) without indulging in speculation about business growth.

Our client was also awarded $385,000 for future loss of earning capacity after we successfully argued that our client had planned to work well into his 70s and had significant language barriers that likely precluded him from alternative employment. The Court agreed as follows:

[160] I conclude that the possibility of Mr. Ackermann obtaining paid employment in the future is so low that his remaining earning capacity must be considered minor at best. If he does become employed I predict that at best he is looking at entry-level service-type jobs, with virtually no possibility of replacing his pre-accident income.

While 98% of injury claims settle, this case demonstrates the importance of hiring experienced lawyers who won’t hesitate to advance your claim to trial to get the compensation you deserve.