ICBCadvice | OTHER ISSUES
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OTHER ISSUES

Dealing with Doctors and Therapists

 

This section provides valuable information about how the interaction with your doctor and therapists affects your ICBC claim. Overall you need to involve them early and often in your injury claim. Also, you will learn how doctors and therapists try to trick you into having an exaggerated claim.

When to See a Family Doctor / General Practitioner

Unfortunately, ICBC defense tactics in a personal injury claim require that you make regular visits to and from your family doctor, regardless of whether there is really much benefit from an injury recovery perspective. Also, it’s important that you see your family doctor right away after an accident to record your injuries.

 

The reason being, the family doctor is required to make notes in your clinical chart of each visit and the complaints at each visit. Then, at some point, the family doctor will be required to provide a medical legal report setting out the various visits you had with the doctor as well as the complaints you made. Next, the doctor will provide an opinion, which includes a diagnosis of your injuries, together with the determination of any long-term effect the injuries may have on you.

 

In most personal injury claims, the clinical records of your family doctor are provided to ICBC. The adjuster and/or defense lawyer will carefully review the records for inconsistencies, lack of reporting of injuries, intervening events, pre-accident health issues, etc. Hence, your family doctor really becomes a “sounding board” for all your complaints before and after the accident. This fact necessarily requires you to provide a complete summary of your complaints to your family doctor whenever you go to see your doctor.

 

If you do not see your family doctor for several months at a time, ICBC will take advantage of this fact. ICBC will use this lack of treatment to suggest that you have not been seeing your family doctor because you have recovered, or, alternatively, your injuries are so minor that it was not necessary for you to go see a doctor. Therefore, if you still have problems from your car accident, it’s necessary to continue to see your family doctor, even if you are just updating the doctor on your condition. While this approach might not be cost effective for the Medical Service Plan, the reality of the situation is that ICBC has forced claimants to document their injuries in this matter through the family doctor.

Clinical Records - A Key Document in an ICBC Claim

The vast majority of medical practitioners, whether doctors, physiotherapist, massage therapists or chiropractors, will be keeping notes of each visit you make to them whether it is before or after the accident. The notes are called clinical records.

 

The doctors and therapists in British Columbia vary dramatically in their ability to record complete and accurate clinical notes. Therefore, you are really at the mercy of the doctor or therapist in terms of whether they are accurately and completely recording what you are telling them.

 

The unfortunate part is that ICBC spends a tremendous amount of effort obtaining all the clinical records of any doctor or therapist you may have seen both before and after the accident. ICBC will go through the clinical records in great detail and will try to find inconsistencies, lack of reporting, information that will minimize your claim, etc.

 

Although you do not have control over whether your doctor or therapist is a good note-taker, you should at least give them the opportunity to record complaints by being as accurate and complete as possible in your self-report to the doctor/therapist. Your only hope is that much of what you are telling the doctor/therapist is making its way accurately into the clinical records.

 

You should go on the assumption that if you tell your doctor or therapist about something, it will show up in the clinical records and ICBC will eventually see it. This is because the doctor or therapist has a duty to ensure that everything significant is recorded in the clinical records.

 

If ever questioned by ICBC or the defense lawyer on certain notations in the clinical records, you do not have to agree that you told the doctor or therapist the particular entry if you did not. We all know that everyone is human and errors will be made regularly especially when the doctor or therapist is running a very busy practice

Seeing a Medical Specialist for Your Family Doctor

In the course of your recovery, your family doctor may want to send you to a specialist such as an orthopedic surgeon or physical and rehabilitation specialist. You should be cautious about who you see because often times, the specialists tend to be overly optimistic about your recovery by downplaying the extent of your injuries. It is their job to be positive. Also, they see you for a very short period of time and may not necessarily accurately record your history.

 

As a result, ICBC will often get a hold of the consultation report from the specialist through disclosure of clinical records. These consultation reports tend to provide ICBC and its defense counsel with a lot of ammunition against your claim.

 

For example, if you have a pre-accident back injury and it is not noted in the consultation report, the defense lawyer may turn around and suggest you were hiding that information from the specialists, even though the topic was never raised in the appointment.

 

Also, ICBC often tries to rely on the optimistic outlook of these specialists by sending notice to the Plaintiff’s lawyer that they intend to call the specialist as an expert at trial. ICBC will argue that the specialist is unbiased and so the optimistic opinion of the specialist should be accepted over the opinion of an expert retained by your lawyer.

 

Based on the foregoing, unless your family doctor insists that medically you need the specialist referral don’t push the point. It is better to rely on your family doctor for advice then a specialist that may see you for under an hour total. Leave it to your lawyer to retain the expert to advance your claim.

 

Overall, if your family doctor wants you to see a specialist and you have hired a lawyer, contact your lawyer and discuss the issue. If you do not have legal representation, this may be a good time to go for a free initial consultation with a lawyer to see if the specialist is a good choice for you.

Traditional vs. Non-traditional Medicine

Although you may believe in the benefits of non-traditional medicine, generally speaking, these types of experts do not assist significantly in advancing your ICBC claim from a dollar and cents perspective. The reason being, ICBC often puts very little weight on what a non-traditional medicine expert may say about the injuries. This is unfortunate since these sorts of non-traditional experts are sometimes in the best position to accurately describe your injuries.

 

Rather, family doctors and other specialists in the traditional medical field carry the day with ICBC in terms of proving injuries. Unfortunately, experts like acupuncturists, Chinese medicine specialists or chiropractors have very little influence in how ICBC views the case.

 

The reason for this stems from judgments in the Court. Generally speaking, the Courts place the most emphasis on the opinions of traditional medicine experts. There is also reluctance by the Court to admit into evidence expert opinion evidence from non-traditional medicine experts.

 

Therefore, if you want to maximize the recovery from ICBC, it’s very important to regularly see a physician in traditional medicine, such as your family doctor, or a specialist to whom you are referred by your family doctor. These are the types of experts that will provide the necessary expert opinion evidence to prove your injury claim not your Chinese medicine specialist, chiropractor, acupuncturist, etc.

 

If you believe in non-traditional medicine, as a method of helping you in your recovery, than by all means continue with that treatment but it is still advisable to keep traditional medicine doctors involved in your care. This involvement can be limited to the point of making sure that they are recording your complaints on a regular basis and can be called upon to support your injury claim in the form of an expert opinion report.

Functional Capacity Evaluations

Functional Capacity Evaluations are also called Work Capacity Evaluations. They are generally performed by occupational therapists (“OT”) who have special training and are called Certified Work Capacity Evaluators. Occasionally, doctors perform the same function.

 

A Functional Capacity Evaluation usually takes at least a day and sometimes more. Usually, the assessment is done at the office of the OT but sometimes they are done out of the office perhaps at the workplace setting or at your home.

 

Generally speaking, Functional Capacity Evaluations are a better tool for you than for ICBC because it helps prove your personal injury claim. Functional Capacity Evaluations attempt to determine whether or not an individual, on an objective basis, can do a certain level of activities or work. The OT performs extensive testing and makes a decision as to the functional limits of the individual, whether it is sedentary, light, medium or heavy work or activities. They look at the ability of a Plaintiff to perform a certain job.

 

Since the day long testing involves numerous real life situations which simulate work and activities, it is hard for ICBC to turn around and suggest that the testing process or outcome is somehow invalid. Also, it is easy to argue that the Functional Capacity Evaluation is a better measure of disability than the measure used by an ICBC doctor who performs a 15-30 minute physical exam.

 

Functional Capacity Evaluations are helpful in judging whether you are able to perform your pre-accident employment duties. If you have been able to return to your pre-accident employment, a favorable result from a Functional Capacity Evaluation can still help to establish a loss of capacity claim. This would be the case if the testing process showed that you are unable to perform all jobs and duties that you would otherwise have been able to do had you not been injured.

 

In performing the evaluation, the OT assesses your capacity to do certain activities and then reviews the type of job you did before the accident based on statistics from the Canadian government. If your work capacity does not meet the job duties described by the government then the OT would find that you are not competitively employable to do that job.

 

In terms of when to have a Functional Capacity Evaluation, this test is best performed at a point when ICBC or the disability carrier is pressuring you about returning to work. If you have a favorable test result, which shows your physical capacity does not allow you to work, how can ICBC or the disability carrier cut off the short-term benefits?

 

The other time when a Functional Capacity Evaluation should be performed is within six months of a trial date or a few months in advance of an attempt to settle your claim with ICBC.

 

Unfortunately, Functional Capacity Evaluations are expensive and usually cost in the order of $2,000-$4,000. MSP does not cover this expense and it is unlikely ICBC will cover it upfront either, so that is why you need a lawyer that is willing to spend the money in order to get the assessment done. The Functional Capacity Evaluation expense is what is called a “disbursement”. This type of expense is something you can generally recover from ICBC but only after the claim ends.

 

In terms of when ICBC uses a Functional Capacity Evaluation, they may use a Functional Capacity Evaluation in a situation where they need to provide a contrary opinion to the one that your lawyer obtained for you. The other main reason why ICBC may use a Functional Capacity Evaluation is to establish credibility issues. This is because during the Functional Capacity Evaluation, the OT will run validity tests to make sure that you are giving a maximum effort and not overstating your problems. Remember, these are experts and they are trained to pick out somebody that is not trying as hard as he/she should, or is exaggerating. Therefore, the last thing you want to do when you undergo a Functional Capacity Evaluation is to try to exaggerate or mislead. You will be caught.

Attending the Appointment with the ICBC Doctor

When you have to attend at the doctor’s office, on the request of ICBC, the assessment may have a significant impact on how ICBC deals with your case. The last thing you want to do is give the doctor ammunition to suggest that you are somehow exaggerating your injury complaints or you are not being truthful.

 

To start with, you can assume that this doctor will have clinical records of all your doctors/therapists both before and after your accident. Therefore, you should tell the doctor everything about your pre-accident health history or any intervening events since the accident. Do not feel that you can avoid disclosure of these events/ injuries to the doctor because chances are, the ICBC doctor knows about them. If you do not disclose these events to the doctor, he/she will report to ICBC that you have not been particularly honest or forthcoming regarding your medical history.

 

ICBC doctors will emphasize the fact that you did not disclose certain information to them. This means that you almost have an obligation to disclose information even if you are not asked to do so. In this way, the best thing to do is to provide full disclosure of all potentially important information so that the doctor cannot turn around and suggest you are hiding the information.

 

In terms of reporting your condition, there is really no sense in exaggerating your symptoms to try to emphasize your condition to this doctor in hopes of convincing him/her that you are significantly injured. ICBC chooses very “conservative” doctors to see ICBC claimants and chances are, regardless of your subjective complaints, you will not be able to convince him/her of the serious nature of the injuries unless there are clear objective signs of injury (i.e. broken bone, herniated disc, etc…). Because of their conservative nature, these doctors tend to focus on objective signs of injury. They do not put much weight on the complaints that you self-report to them because they consider these complaints to be subjective in nature. Therefore, do not bother trying to emphasize your injuries in hopes of convincing the ICBC doctor. It is not going to work.

 

Once a defense doctor has asked you about history and your complaints, the doctor then does a physical assessment. During the physical assessment, the doctor is testing you to see whether your complaints are in any way exaggerated. Remember, the doctor is the expert and will easily be able to figure out if you are not giving him/her an accurate assessment.

 

In summary, your priority and focus should be on providing full disclosure to the ICBC doctor. You should not embellish your complaints in the hopes of convincing the doctor of the serious nature of your injuries. The reality of the situation is that there is not a lot you can do to convince the ICBC doctor to write a favourable report for you. Further, you can expect that the ICBC doctor is likely conservative in nature or else ICBC would not be using the doctor.

Avoiding an Exaggerated Claim

When doctors and therapists are assessing you, particularly ones hired by ICBC, often they are looking to see if you may be exaggerating your injury claim. You should remember that doctors and therapists are trained experts and it is difficult to trick them.

 

You should not go into the doctor or therapist assessment trying to convince the expert that you are injured. Rather, you should be as forthright as possible with the doctor or therapist and that way, you won’t run into problems where they allege that you are exaggerating your claim.

 

The most common way of checking whether or not you are exaggerating a claim is for the doctor or therapist to assess you for “Waddell Nonorganic signs”. There are basically seven different tests run by the doctor or therapist and if you are positive on more than one then the doctor or therapist can turn around and say you are exaggerating. The tests are:

 

  1. Superficial tenderness- this is where the doctor or therapist touches you slightly and you say it hurts. Wisdom tells the doctor or therapist that you are overstating your injuries.
  2. Deep tenderness- this is where the doctor or therapist is poking you and you say everything hurts. Wisdom tells the doctor or therapist that you should not be tender everywhere.
  3. Axial loading-This is where the doctor or therapist presses down on your head and you say you have low back complaints. Anatomically, this pressure should not cause any low back complaints whatsoever.
  4. Simulated rotation- this is where the doctor or therapist asks you to rotate the trunk of your body and you say you have back complaints. Anatomically, this rotation should not cause any low back complaints.
  5. Straight leg raises- This is where the doctor or therapist asks you to bend over and touch your toes and then tests the exact same movement by placing you on your back on the bench and asks you to lift your legs upwards. The amount of movement on both tests should be identical or pretty close to identical.
  6. Motor weakness- this is where the doctor or therapist analyzes your complaints of weakness and determines whether they are anatomically correct.
  7. Sensory distributions-This is where the doctor or therapist asks you about numbness and tingling and then sees if your complaints make sense when it comes to how the nerves are aligned.

 

Often, a doctor or therapist will be assessing you as you come to and from the office to see if your presentation before you get into the examining room is the same as when you are in the examining room.

 

If you are going for a functional capacity evaluation, the occupational therapist also runs additional tests on you such as:

 

  1. Heart rate monitoring- they monitor your heart rate to see if you are trying during the testing.
  2. Grip strength testing- they see if you are trying your fullest when you are asked to test your grip strength.
  3. They run the same tests later in the day to see if you are consistent over the day.
  4. They run a strength test to see if you are meeting the average expected scores.
  5. They observe your posture and other biomechanical activities during testing to see if you look like you are trying.

 

In summary, the experts, most notably ICBC’s experts, are trying to trick you into showing them you are exaggerating your complaints and injuries. Do not think you can trick the experts.

Dealing With Your Lawyer

 

Hiring a lawyer for your ICBC claim is often a stressful situation because most people haven’t had a lot of contact with lawyers in their life. The lawyer clearly has the advantage over the client because the lawyer has the expertise. This section helps understand when to hire a lawyer, what to look for in a lawyer and how to deal with a lawyer once you have retained that professional.

When to Hire a Lawyer

An individual injured in a vehicle accident is faced with the issue of whether or not to hire a personal injury lawyer. People tend to stay away from lawyers because of the perception that they are expensive. However, in the case of ICBC claims, often they are a necessary component of the claim.

 

If ICBC was prepared to offer full value of the claim to unrepresented claimants then there would be a lot less lawyers practicing in the area of personal injury litigation. However, since most ICBC adjusters are trying to keep their “severities” (the amount they pay per claim) down you are unlikely to get an offer from ICBC that represents the full value of the claim. Hence, using a personal injury lawyer almost always gets you more money at the end of the claim than without a lawyer.

 

In some situations, hiring a personal injury lawyer immediately after the vehicle accident is important. Some of the circumstances include:

  1. The death of a family member in the car accident;
  2. A serious injury requiring hospitalization;
  3. Where liability for the accident is in question and you suffered moderate to severe injuries;
  4. Where ICBC is denying a claim because of the nature of the collision (low velocity impact) and you suffered more than a minor injury; OR
  5. Where there is an anticipation of permanent injury to you resulting in a loss of future earning or the need for future care.

 

The reason being, the personal injury lawyer needs to carry out early investigation before evidence is lost and also needs to obtain a series of expert reports to ensure that the claim is fully developed. Further, the advice given by a lawyer throughout the early stages of the case is usually helpful in ensuring you are heading in the right direction to best document your injuries.

 

Although a personal injury lawyer usually provides a legal bill based on a percentage of recovery from ICBC, in the vast majority of cases, the lawyer will definitely obtain an offer from ICBC well in excess of what you can do on your own. Therefore, in most cases you are likely to yield a greater net recovery with a lawyer, after you pay him/her legal fees, then you can get without a lawyer. Also, you have the peace of mind that you are getting a reasonable offer from ICBC and further, you can avoid having to deal directly with ICBC.

 

There are personal injury claims for which it may not be beneficial to hire a lawyer. For example, if you have suffered a soft tissue injury which only lasts for a few months, you generally don’t need a lawyer. In that type of case, you might be able to convince the adjuster to provide a reasonable settlement proposal to you and then you can settle the case for a reasonable dollar.

 

Most injury lawyers will provide a free consultation so it is worth your effort to walk into a lawyer’s office and get a general idea of the value of your case and their assessment of whether or not an offer from ICBC is reasonable. Often, injury lawyers will agree to charge legal fees on only the settlement amount above the original offer from ICBC. This means that regardless of what happens with your claim, you will stand to obtain a greater net recovery with a lawyer than you would without a lawyer.

 

In summary, the system has evolved to the point where using an injury lawyer is often a necessary requirement to getting a fair settlement for your claim. There are, of course, some exceptions where an adjuster will offer full value without legal representation, but that definitely is not a common practice.

Your Initial Meeting with a Lawyer

The area of personal injury litigation is very competitive and so there are many different personal injury lawyers to choose from. When you are initially meeting with the lawyer, make sure that the first meeting is an initial free consultation. If the personal injury lawyer is not prepared to see you on that basis, try the next one.

 

Your first meeting with a BC injury lawyer is your chance to assess the lawyer and whether or not you wish to retain him/her. Before hiring the lawyer, you want to be sure that:

  1. The lawyer has the expertise and knowledge to handle your case;
  2. The fees quoted are reasonable;
  3. The lawyer and his/her firm do not work extensively with ICBC; and
  4. The personality of the lawyer is such that you feel you can work with him/her over an extended period of time.

 

In order to get the most out of your first meeting with the injury lawyer, it’s important for the lawyer to have all the information available on your claim. What is helpful is to provide a chronology to the lawyer along with all the documents you have on your ICBC case that have come from ICBC and/or your doctors/therapists. If you provide the lawyer with the information in advance of the meeting, the likely result will be a better discussion at the meeting.

 

Whenever you consult a lawyer, there is solicitor/client privilege. This means that whatever you tell the lawyer cannot be disclosed to other parties without your consent. Therefore, you should provide full disclosure to the lawyer, whether good or bad, so that you can get the best idea of how to proceed. If you hold back information you may be proceeding forward in one direction when you should be going in another. The last thing you want to do is find out halfway through the process that you have no ICBC claim because you forgot to or decided not to disclose critical information to the lawyer.

 

Like a job interview, you may wish to ask a number of questions of the lawyer to see if you feel comfortable with him/her pursuing your ICBC claim. Some questions you may wish to ask are:

 

Questions about the Personal Injury Lawyer:

  • Does your injury law firm have a brochure or website with information about it? (look at the website and brochure)
  • How long have you been practising law in the area of ICBC litigation? (You want a seasoned personal injury lawyer that acts principally for Plaintiffs only and not ICBC);
  • How much ICBC defense do you and your firm do? (You probably do not want someone that works for ICBC)
  • Who will actually be working on my file? (Do you want an injury lawyer who offloads your file to a junior at the firm?)
  • What duties will the legal assistants/ paralegals carry out? (Do you want a lawyer who offloads almost all tasks for your file to a legal assistant/ paralegal?)
  • Have you handled similar cases to mine? (You want an injury lawyer who has worked on similar cases)
  • Have you been in trial in the last year or two? (You want a lawyer who is prepared to go to trial if the ICBC offer is not fair)
  • How many files are you currently working on? (You do not want a lawyer that has a huge number of files and cannot give your file much attention?)
  • What is your policy regarding returning phone calls or e-mail correspondence? (You want a lawyer that is punctual in returning your phone calls or correspondence)
  • Who will fund the disbursements on this case? (If the lawyer is not prepared to fund the disbursements you should look elsewhere as most firms will fund disbursements)
  • Who will fund the treatment expenses on this case? (If the lawyer is not prepared to fund the treatment you should look elsewhere as most firms will fund treatment)

 

Questions about your Case:

    • What is the likely outcome of my case?
    • Can you tell me what the case is worth?
    • What are your recommendations on how to proceed forward and the timelines for doing these various steps?

 

Questions about the Legal Fees:

  • Have the lawyer show you a copy of the proposed fee agreement? (You should avoid lawyers charging 30-33.3% fees regardless of how long the file takes. The best fee agreement for you is one where the percentage charge increases as the case goes on longer and becomes more complicated)
  • If the personal injury lawyer is proposing an hourly charge, find out everything about the proposal including when you are supposed to pay legal fees, the hourly rate, who covers the disbursements, etc. (it is very unusual to hire a lawyer on an hourly charge when pursuing an ICBC claim)
  • What interest rate do you charge on the disbursements and expenses? (Most lawyers charge interest but you want to avoid the ones that charge over 10%)

There are obviously many other questions you may ask but the above questions will probably give you a good idea of whether or not this lawyer is the person for you.

 

In summary, meeting a lawyer for the first time is like a job interview. Not only is the lawyer analyzing you and the case to determine whether he/she will take your case, but you must also decide whether or not the particular lawyer is the best person for you. There are many personal injury lawyers to choose from. You do not have to settle on the very first person you meet.

Paying Your Lawyer

A personal injuries lawyer is generally retained on a Contingency Fee Arrangement, which means that the lawyer receives a percentage of your overall recovery at the end of the case. The advantage of the Contingency Fee Agreement is that you only pay the lawyer at the end of the case once you receive your settlement/judgment from ICBC. If you pay based on an hourly rate, you would have no control over the cost of the lawyers’ fees relative to the size of your claim. Also, you would have to pay the lawyer their legal fees as the case progresses. This would require you to have the necessary cash on hand to fund the litigation.

 

What should you look for to ensure you are not over-charged for the work performed by your personal injuries lawyer?

 

There are many law firms that charge a standard rate of 30-33.3% on all cases. The Contingency Fee Agreement is on a pre-printed form giving you the impression that the fee is standard and not negotiable. You should be very cautious about hiring an injury lawyer who is charging those rates regardless of the amount of work that is performed on the file.

 

The preferable system is to sign a Contingency Fee Arrangement where the lawyer’s percentage of recovery increases depending on how far along your case is when it settles. This is called a sliding scale Contingency Fee Agreement.

 

Where you have suffered serious orthopedic injuries, you should not hire a personal injuries lawyer for 30-33.3% unless there is a major liability problem. Shop around for a better percentage rate because the industry is very competitive and if an injury lawyer is not willing to charge a lower percentage fee for a large claim then you will end up overpaying the lawyer for his/ her services.

 

The only time you should accept payment of 30-33.3% to your personal injuries lawyer is:

    1. Where liability is a serious issue and there is risk of no recovery;
    2. You suffered minor soft tissue injuries without a lot of time off work;
    3. Your claim is arising out of a Low Velocity Impact and ICBC is denying the claim meaning the file will be defended vigorously by ICBC; OR
    4. The lawyer is offering you a sliding scale Contingency Fee Agreement and the 30-33.3% rate kicks in if the matter is going to trial.

 

Overall, you should be looking at a fee in the range of 20-30% for minor/ moderate soft tissue type claims and 10-25% for severe injuries.

 

Other than the percentage fee being charged, a Contingency Fee Agreement will also have numerous other clauses that could impact your net recovery. One of the clauses you should be cautious about is the treatment of disbursements. If your injury lawyer is not prepared to pay disbursements as incurred on the file and expects you to pay them upfront, before settlement, then you should be looking to another law firm because that may tell you this lawyer cannot financially support your ICBC claim.

 

In that regard, your lawyer should have a large credit facility available to enable the lawyer to spend enough money on your case to insure that it is fully developed so that you can maximize your recovery.

 

In recent times, law firms are charging interest on the disbursements they incur before the case is settled. In some instances, the percentage charged by the injury law firm makes the credit card interest charges look reasonable. You should be careful not to agree to pay a large interest percentage on the disbursement expenses.

 

The amount spent on disbursements will vary. On smaller cases, the disbursements are $1,000-$5,000. On larger cases, it is not unusual to have disbursements at $50,000-$100,000 or more. Therefore, if you are paying over 10% interest on disbursements over the 2-3 years your claim is open, you will owe the lawyer a very large amount for interest at the end of the case. The full amount of the interest charge is not recoverable from ICBC.

Firing Your Lawyer

Everyone is entitled to one mistake.

 

If you are unsatisfied with your lawyer’s level of service or you have a personality conflict with him/her, you can certainly shop around for another lawyer without paying more legal fees.

 

Where your lawyer is working on a Contingency Fee Arrangement, the usual situation is that you do not have to pay any more money to have a second lawyer. Rather, the two lawyers work out an arrangement at the end of the case whereby they share in the overall fees charged based on a percentage of work performed by each lawyer.

 

This means that you should not have to pay a greater cost for hiring a second lawyer than you would for staying with the first lawyer to the end of the case. Also, the fees owing to your first lawyer should not have to be paid when you fire him/her, but rather, they should be paid at the end of the case.

 

A word of caution; Some lawyers have you sign a Contingency Fee Arrangement allowing them legal fees of up to 33.3% without reference to the fees owing to the previous lawyer(s). In that case, you would end up paying the previous lawyer(s) for their work plus the new lawyer full fees for his/her work. This could result in you paying up to 40-50% on fees. Avoid hiring any lawyer that is not prepared to cover the existing lawyer’s fees out of the total fees he/she is proposing.

 

Of note, the lawyer you are firing usually has a Solicitor Lien against the file for his/her legal fees owing. The fees are usually determined on the basis of the percentage of completion of the work to the time of being fired although some lawyers try to advance a fee claim based on hours worked on the file. Rarely can you avoid paying legal fees to a lawyer you have fired even if the lawyer was incompetent in your eyes.

 

With respect to any disbursement costs that have been incurred by your first lawyer, the usual practice is for the second lawyer to pay out the first lawyer for the disbursements. Hence, you should not have an obligation to pay any disbursements at the time of moving your file to a new law firm.

 

There is a note of caution in changing lawyers. If you go to a second lawyer and then decide to fire him/her, it becomes increasingly difficult to find a top end lawyer to take your case regardless of the merit of the case. The reality of the situation is that most lawyers are very cautious about taking on a client who has gone through a number of lawyers. You are, in essence, “black listed” unless you have an excellent reason behind the transfer of the file between several lawyers. The impression multiple lawyers gives to the legal community is that you are a difficult client who will never be satisfied regardless of the level of service and the results.

 

Therefore, you really only have a chance to hire maybe 2 lawyers before you may find most of the top lawyers in the legal community reluctant to represent you.

Being Fired by Your Lawyer

Getting fired by your lawyer is a serious blow to your case. ICBC will receive the Notice of the Withdrawal of Solicitor from that lawyer. As well, the lawyer will likely place a Solicitor Lien on the file simply by sending a letter to ICBC and/or the defence lawyer. The Solicitor Lien effectively prevents ICBC from distributing money to you unless the lien is satisfied because the law says that if ICBC distributes money without satisfying the lien they are responsible for the lien payment. In essence, the Solicitor Lien becomes a first charge against the file.

 

If you and your lawyer are having personality conflicts, have different views of the value of the case, wish to take different legal approaches, etc… you should try to move the file to a new lawyer before you get fired. The main reason is it is a lot easier to get a new lawyer if the old one is still working on the case. Also, ICBC does not catch wind of the fact there is a significant issue with you as a client or your file. Indeed, the presumption if a lawyer withdraws is that you are a difficult client or there is a serious issue about the merit and value of the file.

 

The lawyer that fires you “with cause” will have a Solicitor Lien against the file for his/her legal fees and disbursements owing. The fees are usually determined on the basis of the percentage of completion of the work to the time of being fired although some lawyers try to advance a fee claim based on hours worked on the file. Rarely can you avoid paying legal fees to a lawyer even when he/she fires you. The exception is where the lawyer has withdrawn from the case “without cause” and where the Contingency Fee Agreement you sign does not allow for payment in the event the work is not completed in its entirety.

 

With respect to getting your file from the lawyer, usually the lawyer will want his/her disbursements paid up-front. If you cannot get another lawyer to take over the file and cannot afford to pay for the disbursements you can apply to Court to get access to the file. The Courts most often force the lawyer to give up the file as without the file, it is difficult to carry on. However, the lawyer still has the Solicitor Lien with the expectation that he/she gets paid the legal fees and disbursements at the end of the claim.

 

It is usually a very bad idea to continue the case without a lawyer especially if the case is in the litigation stage. The defence lawyer will often take advantage of the situation and ICBC will usually low ball settlement thinking they have a clear advantage.

 

Finally, if you are fired it is best to learn from it. It usually takes a lot for a lawyer to send you out the door as the lawyer risks losing his/her legal fees and disbursements not to mention has one less paying client. When you go out to find the next lawyer, try to eliminate the issues that got you fired in the first place.

Disputing Your Lawyer's Bill

We do have a right to dispute an invoice provided by your previous lawyer or your current lawyer. You have one year from the date of receipt of the lawyer invoice to “tax” the invoice before the Registrar. You can dispute not only legal fee entitlement but also the disbursements incurred on the file.

 

The Registrar will look at the Contingency Fee Agreement as a starting point. The reasonableness of the Contingency Fee Agreement can be disputed. The factors the Registrar looks at are:

 

  • The financial circumstances of the Plaintiff;
  • The risk to the law firm where the law firm is carrying the disbursements;
  • The complexity of the issues;
  • The experience and skill of defense counsel;
  • The experience and skill of Plaintiff’s counsel;
  • The risk assumed by Plaintiff’s counsel that there would be no pay for effort expended;
  • The time expended by Plaintiff’s counsel on the file;
  • The importance of the case to the Plaintiff; and
  • Whether the settlement is a good settlement.

 

Where a lawyer has fired you, you may be able to avoid paying any legal fees if you can establish the lawyer did not have “cause” to fire you and the Contingency Fee Agreement did not provide for legal fees in the event of partial services.

Appointment of Defence Lawyers

The appointment of a lawyer by ICBC to defend the claim differs somewhat between Claim Centers and Head Office Claims.

 

In Claim Centers, usually after the service of the Notice of Civil Claim, the ICBC adjuster completes a document known as a Suit Report, where the major issues of the case are set out. The Suit Report is forwarded to ICBC’s Litigation Services Division who reviews the Suit Report and assigns counsel to the defense of the file.

 

At Head Office, the handling adjuster completes a Counsel Assignment Form, and this is once again forwarded to the Litigation Services Division. The major difference, when compared to the Claims Centers, is that in addition to any major issues on the file (injuries, liability, etc…), the adjuster can provide a short-list of firms or specific lawyers he/she would like to see assigned. Hence, a Head Office adjuster can have some input into the counsel selection process.

 

Claims Centers are usually only able to recommend select lawyers or law firms where the file is of special precedential interest to ICBC or the Plaintiff lawyer is “targeted” by ICBC.

 

ICBC has a list of law firms and specific lawyers approved to do ICBC’s defense work. The lawyers can range from the reasonable to the very aggressive and not so reasonable. The defense lawyer, at the end of the case, is given a rating and assessment from the handling ICBC adjuster. These rating impacts on the amount of work the law firm may get in the future. Therefore, the defense lawyer is usually trying his/her best to impress ICBC. In some cases, this might mean that they will deliberately make a Plaintiff’s claim very difficult and will personally attack the Plaintiff.

 

The defense lawyer, in many cases, determines whether or not your claim will go smoothly or become a long, drawn out and hard fought battle. Unfortunately, you really have no control over who becomes the defense lawyer, so it really is the “luck of the draw”.

 

ICBC circulates a Request for Proposals (the “RFP”) inviting lawyers in British Columbia to bid on legal work for ICBC. The work on which bids are sought is primarily the defence of claims arising out of motor vehicle accidents and the prosecution of fraudulent claims.

 

The RFP states that ICBC will require that lawyers retained to act as part of a legal team for ICBC decline to act against it in bringing actions which include allegations of bad faith or claims for punitive, aggravated or exemplary damages. ICBC also requires that law firms that have agreed to act for ICBC in the prosecution of actions alleging fraud decline to defend any such actions.

 

ICBC requires counsel acting for it in defending injury claims to enter into a Strategic Alliance Agreement. Under the Strategic Alliance Agreement, the lawyer(s) agree to not act against ICBC in some kinds of lawsuits, although it does not prevent the lawyer(s) from acting for Plaintiffs against ICBC in other matters.

 

If you are looking for a lawyer to represent you, a consideration is whether or not he/she works for ICBC or his/her firm does ICBC work. A lawyer that is tied into ICBC may not take a strong position for you in fear that he/she may upset ICBC resulting in a decline in the amount of defense work assigned to his/her firm. Also, the lawyer may have a “defence mind” meaning that his/her view of the case are very conservative. The lawyer will then advocate for a low settlement or may allow ICBC to take liberties regarding the discovery process, medical assessments, etc…

 

If the lawyer does ICBC defense work, there is one advantage to you in that the lawyer should know how ICBC works.

What Law Firm is Doing ICBC's Work

Each year ICBC releases financial information including “The Amount Paid to Suppliers for Goods and Services”. Basically, that document shows how much ICBC is paying various companies or individuals such as their defence lawyers each year.

 

The numbers underestimate the amount of defence work a particular law firm does because the numbers do not include work for other insurance companies. Therefore, when you look at the below chart, the numbers represent the minimum amount of defence work that a particular law firm does in any one year:

 

Law Firm 2008 2009 2010 2011
Aikenhead Moscovich Jones 1,291,745 1,344,120 1,482,907 1,288,681
Alexander Holburn 3,684,471 4,197,376 3,565,652 3,394,764
Baker Newby 3,901,065 3,678,592 3,062,606 2,030,484
Cassady & Company 1,101,722 887,437 1,237,541 1,125,265
Davidson & Co. 944,222 916,651 723,688 1,046,016
Doak Shirreff 281,734 269,727 309,917 205,683
Dumoulin Boskovich 1,181,632 1,398,738 2,476,815 2,107,587
Fasken Martineau 925,858 1,468,237 1,326,815 1,388,322
Graham & Frame 852,025 708,768 747,648 543,369
Grant Kovaks Norell 2,893,164 2,933,873 2,872,517 1,954,974
Grey Robinson & Associates 525,095 541,590 648,003 843,138
Hamilton Duncan 1,043,075 1,169,677 933,664 774,336
Harper Grey 1,022,546 699,845 805,415 879,649
Harris & Brun 3,275,297 3,255,207 2,934,356 2,816,674
Hartshorne Mehl 3,305,167 3,897,026 4,607,100 3,604,075
Heath & Co. 1,533,484 2,025,423 1,854,975 2,132,778
Heather Sadler Jenkins 1,152,667 1,287,256 1,222,362 1,068,391
Hemmerling & Associates 871,186 963,150 1,116,644 1,103,922
Hungerford Tomyn Larwenson and Nichols 404,687 454,461 494,393 675,522
Jones Emerly Hargreaves 686,916 834,765 1,195,868 1,122,808
Kane Shannon & Weiler 6,090,284 5,867,120 5,792,260 5,028,831
Lindsay Kenney 6,331,149 6,821,130 6,793,109 6,392,304
McQuarrie Hunter 1,564,039 1,253,552 921,325 659,953
Murchison Thomson & Clarke 1,121,647 1,337,360 1,429,500 1,616,061
Pacific Law Group 3,566,309 4,194,877 4,514,601 4,708,716
Paine Edmonds 1,045,584 792,299 805,490 664,360
Pihl & Associates 1,571,945 1,773,942 1,569,187 1,082,384
Pryke Lambert Leathley Russell LLP 1,555,471 1,775,662 1,753,314 1,657,999
Race & Company 1,025,114 1,126,321 1,030,179 1,269,420
Robert Lawler 507,957 585,552 603,634 480,026
Robertson Down & Mullally 2,385,484 2,321,801 1,838,676 1,658,310
Scarborough Herman & Harvey 167,898 345,801 202,472 172,687
Singleton Urquart 3,510,176 4,000,481 4,251,852 4,236,166
Somers & Co. 4,108,003 4,594,366 4,629,428 4,397,430
Stevens Virgin 2,804,298 3,995,603 5,161,638 5,856,853
Stewart & Co 4,486,577 4,368,736 4,632,362 4,378,681
Swadden & Co. 1,576,884 1,930,994 1,890,811 1,716,744
Webster Hudson & Coombe 2,807,047 2,914,804 3,401,034 3,050,471
Wilson King & Company 584,598 385,846 342,723 239,720
Young Noble 681,554 716,653 519,929 133,773

 

If you are planning on hiring a lawyer and you find out he/she works for one of the big ICBC defence firms noted above, you will really have to think about whether or not you want a defense lawyer to work for you against ICBC.

Wes Mussio
Mussio Goodman
2050-1188 West Georgia St
Vancouver, B.C. V6E 4A2
Ph: 604-336-8000
Cell: 604-603-8835
E-mail: mussio@mussiogoodman.com

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Vehicle Issues

 

When your Vehicle is involved in an accident and suffers damages, whether you are at fault or not, dealing with ICBC for the repairs is often a difficult process. Information in ICBCadvice articles should help you reach a desirable outcome.

When ICBC Writes-off Your Vehicle

If you have collision coverage and are responsible for the accident, your vehicle may be written off by ICBC if it costs too much to repair it. The same thing applies if you are not responsible for the accident, regardless of whether you have collision coverage.

 

When your vehicle is written off, in essence you are paid for the fair market value of your vehicle and ICBC gets to receive any money from selling your vehicle for salvage.

 

ICBC’s decision on repairing versus writing-off your vehicle is an economic one. ICBC will assess the costs and take the cheaper approach.

 

In the event that your vehicle is written off, ICBC asks you to sign a Salvage Release form, which transfers your vehicle from your name into ICBC’s name. This allows ICBC to sell the vehicle through a salvage auction. The salvage auction process supplies the majority of recycled parts used by the automobile repair industry in B.C. ICBC “pockets” any money they receive from the salvage auction.

 

ICBC will pay by cheque, the amount that they say is the value less any “collision deductible”, to the registered vehicle owner and any lienholder (i.e. anyone with a financial interest in the vehicle, such as a bank, lease company or repair shop).

 

ICBC also pays the applicable taxes in total loss settlements. If you are owed HST on your settlement, you will be given a HST voucher. You can use this voucher to reduce the HST payable on a replacement vehicle when purchased or leased through a licensed motor dealer.

 

In terms of the fair market value of your vehicle, ICBC generally uses a computer program called Autosource. Many people would say that this computer program underestimates the actual value of the vehicle especially if you check out print media or web sites and determine what vehicles are actually going for in your area.

 

The best way of counteracting ICBC’s valuation is to have your own evidence from print media or web sites to show the price at which similar vehicles are being sold. Also, if you can show that your vehicle is better than the average by way of such things as repair receipts, low kilometers, extra equipment purchases, etc. you will be better able to convince ICBC that your vehicle is worth more than they say.

 

If you bought ICBC’s Replacement Cost and Limited Depreciation coverage on a new vehicle, the amount you receive for your write off is equivalent to the cost of a replacement vehicle vs. determining the actual fair market value of your vehicle when it was totaled.

 

In some situations, if you have a specialized vehicle, such as motorcycles or trailers, you actually declare the value of the vehicle when you pay insurance and that value has a large bearing on what ICBC pays if your vehicle is written off.

Repairing Your Vehicle Versus Writing it Off

Unfortunately, ICBC has the absolute say as to whether or not your vehicle will be repaired or written off when the vehicle is involved in an accident. For obvious reasons, you would rather have your vehicle written-off because often times, once your vehicle has been extensively repaired it is not worth as much as if it was not involved in the accident. Also, extensive repairs are seldom perfect so your vehicle will not be back to its pre-accident state.

 

The reason the ICBC has the decision-making power is set out under Section 117 of the Regulations of the Insurance (Vehicle) Act:

Limit of liability

  • 117 (1) … the liability of (ICBC) for payment of … loss or damage … is limited to the amount by which
  • (a) The cost of repairing or replacing the vehicle…
  • (b) The declared value of the vehicle and its equipment, where appropriate, or
  • (c) The actual cash value of the vehicle and its equipment,
  • Whichever is least.

 

Simply put, the Regulations allow ICBC to take the cheapest method possible even if it has a negative effect on you. That is why you often see ICBC repairing vehicles for tens of thousands of dollars when they could simply write-off your vehicle for a few hundred/thousand dollars more.

Disputing ICBC’s Decision on Vehicle Repairs

The principal disputes that one comes across when dealing with ICBC and your vehicle repairs are:

 

  • You and ICBC cannot agree on a fair market value for the repairs to your vehicle.
  • You and ICBC disagree on what repairs need to be done to completely repair your vehicle so the vehicle is exactly like it was before the accident.
  • What is the fair market price of your vehicle if it is a “write-off.”

 

Often times, you may just be dealing with a “difficult” ICBC adjuster so it’s worth your time to speak to his/her supervisor at the Claims Centre to see if you can get a more reasonable approach on your claim. If the supervisor is not prepared to move closer to your views, you can proceed through what is called the Evaluation Process. The steps you need to complete are as follows:

 

  1. You need to notify ICBC in writing by registered mail of your intention to dispute their decision. The letter should be sent in care of the adjuster with whom you are dealing.
  2. You must appoint an “evaluator” to act on your behalf within 21 days of sending your letter to ICBC and advise ICBC of your evaluator’s name, address and telephone number. The best thing to do is to hire an evaluator who carries some level of expertise and has been involved in the process before. There are a number of individuals you are not allowed to hire such as family members or individuals with a stake in the outcome. Note that you have to pay the cost of your evaluator.
  3. Within 7 days of being appointed, the ICBC evaluator and your evaluator must meet or communicate.
  4. Within 21 days of being appointed, the ICBC evaluator or your evaluator must exchange written reports.
  5. Within 45 days of being appointed as an evaluator, the ICBC evaluator and your evaluator must attempt to agree on an award and submit the agreed upon award in writing to ICBC or notify ICBC in writing that an agreement was not made.
  6. If your evaluator and the ICBC evaluator cannot come to an agreement on an award within the 45 day time limit then you may apply to appoint an arbitrator who will then decide the matter after a review of the written reports of the two evaluators. Usually, the arbitrator can make a decision based on the written reports, but occasionally more information is required.

 

In summary, ICBC has an internal directive on how to deal with disputes called the Evaluation Process. Because you have to shoulder the cost of the evaluator and arbitrator, often times it is just not economically feasible to pursue your dispute.

 

You can also take the route of Small Claims Court or have this dispute over vehicle repairs dealt with in your personal injury lawsuit by your lawyer.

Pursuing Vehicle Damage Claims Privately Without ICBC

When you are involved in a minor collision with another vehicle, the question of whether to involve ICBC to repair the vehicles will often arise between the parties involved in the accident. Regardless of whether you are the at-fault vehicle or the not at-fault vehicle, the answer is the same. You should involve ICBC.

 

The first reason to involve ICBC is that it does not cost anything to access ICBC and their systems and rates. Second, if you do not report the accident to ICBC and try to use their systems later you may be unable to pursue ICBC for any recovery, if you are outside the statutory deadlines for the claim. As a result, the first thing you should do is, phone ICBC Dial-a-claim and report the accident.

 

The next thing you should do is bring your vehicle into ICBC or a certified repair shop for an assessment through ICBC. This is a free service and does not commit you to having the vehicle repaired through ICBC.

 

You may think that it’s cheaper to go to a private collision repair service and get your vehicle repaired without notifying ICBC. However, unless you know someone at a private collision repair facility who will give you a good deal, chances are that going through ICBC is actually cheaper. This is because ICBC has negotiated rates for labour charges across the Province, based on volume discounts. Therefore, chances are that the hourly rate ICBC gets is going to be lower than the one you can negotiate privately.

 

Just because you use ICBC and repair the vehicle through ICBC does not mean that your driver’s safe driving discount is affected. Rather, the option remains for someone to pay ICBC back the money that they spent in carrying out the repairs. If you pay ICBC back then this accident is not considered an at-fault accident for anyone and does not affect the safe driving discount of any of the parties involved in the accident.

 

In summary, contrary to what some people feel, whenever you are involved in an accident involving damage to your vehicle, regardless of whether you are at-fault or not, access ICBC’s system to get the best possible deal for the repairs. Using ICBC does not affect your safe driving discount where you pay ICBC back for the money spent on the repairs.

Accelerated Depreciation Claims

When your vehicle is damaged in an accident, which is not your fault, and significant repairs have to be done on the vehicle, we all know that this might impact your ability to sell your vehicle down the road because prospective purchasers are often cautious about buying a vehicle that has been involved in a significant accident.

 

If you have to accept less money when selling your vehicle because it was involved in an accident, you have suffered a loss called “accelerated depreciation”.

 

Unfortunately, ICBC has taken the view that they will not compensate anyone for accelerated depreciation claims except in very rare circumstances. The policy reason behind this is obvious. If ICBC paid everyone for accelerated depreciation the amount of compensation paid out to individuals involved in accidents would skyrocket because pretty well everyone involved in more than just a minor accident and who is not at fault for the accident, would make a claim. There are a few instances where accelerated depreciation claims have gone to Court but the frequency of such litigated claims is relatively limited. Generally speaking, the Court is not going to award any damages for accelerated depreciation unless there is direct evidence supporting an actual loss suffered by the owner of the damaged vehicle.

 

In order to establish an accelerated depreciation claim, one must show that he/she actually sold or is in the process of selling the damaged vehicle at a reduced amount. The fact that you may sell your vehicle in the future would not carry the day in Court.

 

You will also require an expert opinion to prove an accelerated depreciation claim. This opinion will say that the existence of the damage to the vehicle has resulted in a lower selling value for the vehicle. Alternatively, direct evidence on this point may carry the day in Court. An example of the direct evidence would be testimony from the purchaser who said he/she paid less because of the previous damage to the vehicle.

 

In summary, if you want to pursue an accelerated depreciation claim, ICBC is almost inviting you to proceed to trial on this point because of their policy not to pay such claims. You must have very strong direct evidence supporting a loss. In most cases, proving such loss is very difficult.

 

The fact that these losses are generally less than $10,000 makes it uneconomical to hire a lawyer. If you want to pursue this type of claim and believe you have direct evidence to prove a loss, you can always pursue the claim on your own in Small Claims Court. ICBC will likely hire a lawyer to fight you, however.