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Orthopaedic exams have little value in chronic pain cases.
One of the more frustrating aspects of practicing in disability benefits law that that insurance companies repeatedly send claimants who have soft tissue, chronic pain injuries to orthopedic surgeons for “independent” medical examinations to determine their eligibility for certain benefits or the reasonableness of treatment plans. They are requested to perform these assessments even though they are typically outside their area of expertise. More often than not, the assessment finds “no objective evidence on ongoing impairment”,...
read moreCourt confirms cap for motor vehicle lessor.
On November 6, 2014, the BC Court of Appeal released an important judgment concerning the liability limit of motor vehicle lessors for accidents involving their lessees or drivers operating leased vehicles with the lessee’s permission. Background In British Columbia, the Motor Vehicle Act makes owners, lessees, and lessors of vehicles vicariously liable for accidents committed by drivers of leased vehicles. While a permitted driver or a lessee is liable for the full extant for any damages flowing from the accident, the Motor Vehicle Act...
read moreLimitation period extended by insurer’s failure to provide policy or application.
On November 4, 2014, the Ontario Superior Court of Justice found that an application for long-term disability benefits under a policy issued to his employer, submitted two and a half years after the deadline, was not submitted out of time because the insured had not been provided with the policy or claims documents by his employer. In Nguyen v. SSQ Life Insurance Co., 2914 ONSC 6405, the insurance company made an application to dismiss Mr. Nguyen’s claim for long-term disability benefits under a group policy issued to his employer, on...
read moreJury verdict “perverse” for denying damages.
On October 1, 2014 the BC Supreme Court, New Westminster Registry, ordered a retrial following a “perverse” jury finding in Kasli v Gill, 2014 BCSC 1833. The plaintiff was injured in a motor vehicle collision. A jury found both parties equally to blame and, after factoring the liability split, awarded the plaintiff $10,000 for past wage loss and special damages. The Jury awarded nothing for non-pecuniary loss. Mr. Justice Weatherill ordered a new trial and in doing so provided the following reasons:...
read moreDelaying LTD benefits may be bad faith.
On September 17, 2014, the British Columbia Supreme Court refused to summarily dismiss an insured’s claim against the insurer and adjuster for breach of contract and the duty of fairness and good faith; however, the insured’s claims against the adjuster for inducement of breach of contract and interference with contractual relations were dismissed. In Frank v. Kalokina, 2014 BCSC 1866, the insured’s application for long-term disability benefits was denied by the adjuster for five months after the time of her claim. The insured alleges that in...
read morePunitive damages for denied LTD benefits upheld on appeal.
On March 22, 2013, an Ontario judge ordered an insurer to pay $100,000 in aggravated damages and $200,000 in punitive damages after finding that the insurer had wrongfully denied its insured long-term disability benefits. In Fernandes v. Penncorp, 2013 ONSC 1637, the Honourable Justice Peter Hambly ordered Penncord Life Insurance Company to pay the damages to an injured employee. Facts The facts of the case are rather straightforward. The plaintiff was a bricklayer who had his own company. That company was profitable and had employees. When...
read moreDefence request for 2nd medical exam denied.
On July 24, 2014, the BC Supreme Court, Vancouver Registry, confirmed that a second Court ordered defense medical exam is inappropriate solely in anticipation of an event which may not occur. In Litt v. Guo the plaintiff was involved in two collisions and sued for damages. In the course of the lawsuit the plaintiff consented to a defence medical exam with a physician that addressed the plaintiff’s injuries. As trial neared the defence applied for a further exam with a new physician arguing that the initial report was dated...
read more“Low Velocity Impact” strategy rejected by the Court.
On June 18, 2014, the BC Supreme Court considered and rejected ICBC’s “low velocity impact” strategy. In Dunne v. Sharma the plaintiff sued for damages as a result of two collisions. She alleged both physical and psychological consequences following these collisions. The defendant argued that any injuries the collisions caused were relatively minor as the collisions were modest. In support of the defendant’s argument accident reconstruction evidence was introduced which discussed the forces of the collision. In...
read more$1.8 million diminished earning capacity for non-working plaintiff.
On May 20, 2014, the BC Supreme Court addressed the difficult problem of assessing damages for a lifetime of disability for a plaintiff who has not yet entered the workforce. In Hermanson v. Durkee, 2014 BCSC 877, the plaintiff was involved in a motor vehicle collision and suffered a severe traumatic brain injury which rendered him competitively unemployable. He was 18 at the time, had just graduated high school and had not entered the workforce. He “did not excel academically” and “it became apparently that post-secondary education was...
read moreMediation discussions not always confidential.
On May 8, 2014 the Supreme Court of Canada carved out an important exception to the promise to keep mediation discussions confidential. Companies and their insurers rely on private mediators to settle lawsuits partly because what is discussed at mediation stays confidential. This ensures that business strategy stays under wraps and public scandal for mistakes is avoided. In 2011, Bombardier and Union Carbide tried to settle a decade-long $32,000,000 court battle through mediation. In 1997, 1998 and 2003, Bombardier bought gas tanks from Union...
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