Suite 300 - 1120 Hamilton Street, Vancouver, BC V6B 2S2 604.684.4300 / Toll free: 1.855.684.4300 chris@bungaylawoffice.ca
INJURY AND DISABILITY UPDATE
ISSUE 1 n FALL 2012
Welcome Welcome to the first edition of “Injury and Disability Update”. We are glad that you are one of our very first readers. The purpose of the “Injury and Disability Update” is to provide useful information to our clients, friends, and those in the healthcare field. We want to make sure that everyone we know is kept up to date in the areas of personal injury and disability law. We will be publishing this small periodical four times per year. I hope you will find it to be useful and, occasionally, entertaining. For those of you who have known us for a long time, you will recall that my assistant Stephanie and I worked for a larger firm in Surrey for a number of years. This year, we decided to branch off on our own. The Bungay Law Office opened its doors on March 5, 2012. Our new main office is located in Yaletown, Vancouver. However, we continue to
service clients from the Fraser Valley at a branch location in Surrey. Our practice has expanded over the years. We continue to help people who have ICBC/car accidents and personal injury claims such as slip and falls and assaults. Our other areas of expertise include disability appeals. We help people who have disability claims that have been denied by insurance companies. We also help people with Canada Pension Plan (CPP) claims and workers’ compensation (WCB) matters. In our new office, we have improved our technology. Much of our new office is virtual, meaning we practice law using tools such as the internet, electronic forms and filing. We are now almost 85% paperless. In short, we are very efficient, and very environmentally friendly. The technology we are using now also allows us to
Chris Bungay and Stephanie Emmerson service clients throughout British Columbia. We are proud to say that our client base includes friends from Vancouver Island and Pemberton. If you ever have any questions about any of the articles, or anything at all, please do not hesitate to contact me directly. My office phone number is 604-684-4300, toll-free at 1-855-684-4300, and my e-mail address is chris@bungaylawoffice.ca. If you want to stay current with respect to legal trends in personal injury and disability law, please visit our website any time and check out our blog: www.bungaylawoffice.ca. n
Yaletown offices
ICBC rate increases: Who’s to blame? Many of you will notice that the cost of buying car insurance has increased. Basic insurance rates have increased by 11.2% in 2012. Back in 2011, the former president of ICBC, Jon Schubert, tried to blame injury claims as the main cause for this increase. Mr. Schubert had alleged that paying out claims for car acci-
dent victims had become too expensive. In response to the rate increase, the BC government carried out a review of ICBC earlier this year. Interestingly, the government review cited increases in management payroll and bonuses as a major cause for overspending. The review noted that total compensation costs for manage-
ment increased 50% over the past five years. Shortly after the government review, the former president of ICBC, John Schubert, resigned. It is anticipated that more of ICBC’s management will be laid off over the next two years. This follows a recommendation by the government to cut back on management costs.
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Injured? Disabled?
The facts are important
In personal injury and disability claims, often, there is a lack of “objective” medical evidence. In other words, there is often no specific test, scan or x-ray which shows a specific injury or problem, at least not with 100% accuracy. Some examples of these types of problems are soft tissue injuries and chronic pain. Sometimes dizziness lacks a definitive medical explanation. These types of claims can be difficult for lawyers and healthcare
providers. Lawyers have to prove that the client is suffering from a specific injury or disability. In these types of cases, evidence about a person’s activities i.e. what they can or cannot do, is very important. Success in these cases often comes down to whether or not a person is credible i.e. whether their doctor, chiropractor, lawyer, or judge can believe what they are saying.
It is important that an injured or disabled person tells their doctor or healthcare provider exactly what they are doing in their personal lives. Lawyers will obtain medical reports from healthcare providers who treat clients. If these reports do not contain important facts about the client’s personal activities, the results can be catastrophic for a person’s claim. A recent example of this is the case of Brennand v. Sun Life. In this case, Mr. Brennand was suing an insurance company, Sun Life, for denying his disability claim. He had been employed as a customer service representative with TELUS. This was a largely sedentary job. The plaintiff suffered from ongoing chronic pain in his low back. He also claimed to suffer from depression and was treated by a psychiatrist. The plaintiff felt that he was no longer capable of working due to his ongoing back pain. He hired a disability lawyer to fight Sun Life and take his case to court. In court, a doctor who specialized in chronic pain testified on behalf of Mr. Brennand. The doctor stated that the plaintiff was totally disabled from working due to his chronic pain. The plaintiff’s family physician agreed with that diagnosis, as did another physician. Unfortunately, none of these physicians were fully aware of the extensive motorcycle riding activities which the plaintiff undertook during his period of disability. He had taken his motorcycle on a lot of trips during his period of disability, some which were long trips outside of BC. Because the doctors were not fully aware of
these motorcycle activities, the judge rejected their evidence in favour of the evidence advanced by the insurance company. The disability claim was denied by the court. In this case, there was a lack of objective medical evidence supporting the claim for disabling chronic pain. A CT scan and MRI did not reveal objective evidence to support the condition of chronic pain. The judge emphasized that it was necessary for the court to assess chronic pain cases very cautiously in circumstances where there was little or no objective evidence. In such cases, the court emphasized that it was necessary to look closely at the plaintiff’s daily activities to determine the level of disability. This case is a good lesson for anyone who has a personal injury or disability claim. It is a reminder that you must be sure to tell your doctor, chiropractor, physiotherapist, etc. exactly what you are doing in your personal life. The success of your claim often depends upon reports from these healthcare providers. In order for the reports to be of any value, the person writing the report must know what you are doing in your daily life, or what you cannot do in your daily life. Be sure to tell your doctor what your limitations are i.e. if you cannot do housework, etc. But also be sure to tell your doctor what you are doing in terms of personal hobbies and interests. This case is also an important reminder if you are a healthcare professional. It shows the importance of obtaining full and complete information about your patient’s daily activities. Before writing any type of medical report, we suggest that you carry out an in-depth meeting with the patient, in which you ask a number of specific questions about what activities the patient is doing in his or her personal life. n
A history of back pain?
You are still entitled to money for new back injuries In the recent case of Bouchard v. Naudi, the BC Court of Appeal addressed the issue of a car accident victim who had a pre-existing back condition. This individual, Mr. Bouchard, was involved in a rear end collision in 2005. There was no evidence that he had any back pain for a couple of years before this car accident. However, in the past, he
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did have some problems with his back. He was involved in two previous motor vehicle accidents in which he injured his low back. X-rays in the past showed that he was suffering from early degenerative disc disease in his low back. After the 2005 accident, he experienced low back pain once again. This back pain became pro-
gressively worse. He continued to work in his job as a special effects technician. By late 2007, his back pain became so bad that he felt he could no longer continue working. In late 2008, he had back surgery
BUNGAY LAW OFFICE:
WHAT’S NEW? We are growing!
CPP Disability appeals: Change is on the way New laws recently passed by the Conservative government will change the way appeals are heard for CPP disability claimants. Currently, if Service Canada denies a claim, there are two opportunities for appeal: 1) the Review Tribunal and 2) The Pension Appeals Board. Both of these review bodies are made up of a panel of three people. The Review Tribunal is made up of a lawyer, a community member, and a medical professional. The Pension Appeals Board is made up of judges.
Some of the benefits of the current system are as follows: A medical expert is among the panel members of the Review Tribunal l The expertise and experience of three judges is present In the Pension Appeals Board l When an appeal is heard by both the Review Tribunal and the Pension Appeals Board, the hearing is de novo, which means that fresh evidence can be heard and it is treated as an entirely new case. These two review bodies are being replaced by one review entity known as the Social Security l
to relieve compression of the discs in his low back. The case against ICBC was heard in the BC Supreme Court in 2011. Medical experts gave evidence on behalf of Mr. Bouchard. These medical experts gave evidence that the 2005 accident significantly contributed to the disc problem in his low back. ICBC’s lawyers argued that, because he had a degenerative disc condition in his low back before the accident, the ongoing pain would have happened in the future anyway, even if the 2005 car accident had not happened. The judge agreed with that analysis, and reduced all the damages awarded by 40%. Mr. Bouchard’s personal injury lawyer appealed the case on his behalf to the Court of Appeal. The Court of Appeal did not entirely agree
Tribunal. There will still be two levels of appeal, known as the General Division and the Appeal Division. However, under the new system, there will be some significant differences, including the following: l There will only be one government adjudicator hearing each appeal as opposed to three l The adjudicator is not required to have any medical expertise l If the first appeal fails, new evidence cannot be heard at the second level of appeal. A person would have to prove that there was a serious legal error in order to be successful in the second level of appeal l There will be a significant reduction in staffing in the new system These new changes will not take effect until April 1, 2013. It is not clear what the full impact of these changes will be. However, what is clear is that it will very likely be more difficult for people to obtain CPP disability benefits in the future. If anyone you know is considering applying for CPP disability, the time to do so is now, before these changes take effect. n
We are pleased to report that since opening our doors on March 5th, over sixty new clients have chosen to hire us. We are helping those involved in car accidents and those who are disabled from other conditions. Due to this increase, we have hired a new staff member to help us out. Alicia Poon is now assisting us on a part-time basis, providing reception services every Friday and helping us out at other times during the week.
My family is growing! I am pleased to announce that I got married earlier this year! My wife, Marette, and I had our ceremony on a beach in Tofino. I am also happy to say we are expecting the birth of twins later this year. We are being blessed with a boy and a girl! We look forward to sharing photos of our newborns in the next issue.
with ICBC’s lawyers or the trial judge. The court noted that Mr. Bouchard was 31 years old when his case was heard in 2011. The court referred to medical evidence which indicates that disc degeneration in a person’s back is a normal part of the aging process, and that most people who experienced this disc degeneration will not go on to develop serious back problems which require surgery, as was the case with Mr. Bouchard. The court noted that while there was some evidence that Mr. Bouchard’s back condition may have deteriorated even if the accident had not occurred, the evidence did not support a 40% reduction in damages. The court reduced the reduction in damages from 40% to 20%. n
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Workplace bullying, mental trauma and Workers’ Compensation As of May 31, 2012, the government of British Columbia passed Bill 14. This piece of legislation amends s. 5.1 of the Workers’ Compensation Act. This amendment allows BC workers’ compensation claims to be accepted where a worker has a mental disorder which meets the following criteria:
1) the mental disorder is a reaction to one or more traumatic events arising out of or in the course of employment, or 2) the workers mental disorder is predominantly caused by a significant work related stressor, which can include bullying or harassment, or a cumulative series of significant work-related stressors
In response to these changes, WorkSafe BC created a centralized team in its Richmond office to manage claims for mental disorders. These changes are clearly trying to protect workers who suffered bullying to such an extent that they have developed some form of mental stress/illness which prevents them from working. It is also intended to protect workers who cannot work due to mental trauma caused by some other event that happened while working. As this is new legislation, it remains to be seen how WCB will treat these types of claims. Hopefully, these types of claims will shine a spotlight on employers who choose to harass or bully their employees a regular basis. n
Need auto or home insurance? Contact our friend, Samson Wong, insurance agent TEL: 604.684.3526 WEB: www.allenachong.ca EMAIL: swong@allenachong.ca
Can we help? Do you know anyone involved in a car accident? Has a close friend or family member been denied a claim for disability benefits? We are happy to help with any type of personal injury claim or disability claim. Remember, we offer a free consultation! In car accident claims, if someone is having trouble paying for treatment, we can take action to make sure they get the help they need. Your referrals are appreciated.
Thank you From the bottom of my heart, I want to thank all of the clients who stuck with us in the transition to our new office. Many of you have been with us for a number of years. Your loyalty is very much appreciated. I also want to thank all of the new clients who have hired us over the past few months. I look forward to getting to know you better. Finally, a big thank you to everyone who has helped us build the new firm in 2012. Many of you have been kind enough to refer people to us. Your confidence in us means a lot! n
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Yours very truly,
Christopher M.A. Bungay
Bungay Law Office Injury & Disability Lawyers Suite 300, 1120 Hamilton Street Vancouver, BC V6B 2S2 Appointments available in Surrey upon request
Phone: 604.684.4300 Toll Free Phone: 1.855.684.4300 Fax: 604.684.4302 www.bungaylawoffice.ca