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Kelowna ICBC Accident Injury Lawyers

In today’s Kelowna personal injury claim blog, our aggressive and tenacious Kelowna ICBC Accident Injury Lawyers, explain how future wage loss works and how discounts for taxes can apply. Our experienced and aggressive Kelowna ICBC Accident Injury Lawyers also ensure our clients follow a solid strategy to maximizing the money compensation they receive when they are a Kelowna ICBC accident victim. Our Kelowna ICBC Accident Injury lawyers will meet with you for free at our office in West Kelowna at your home or at the hospital.

Kelowna ICBC Accident Injury Lawyers

Kelowna personal injury lawyer Lorne MacLean, QC

Call our Kelowna ICBC Accident Injury Lawyers toll free across BC at 1-877-602-9900.

Our Kelowna ICBC Accident Injury Lawyers also tell all our Kelowna car accident injury victims that following doctor’s orders and other treatment professional’s recommendations is wise. We don’t let our clients ignore recommendations to help them get better. If they do ignore medical advice they may well get less money for their injuries. We won’t let you be foolish and cause yourself to lose thousands of dollars. We know you are busy trying to get back to your life but don’t play into ICBC’s hands get proper medical treatment to enable the best possible recovery.

Recent Case on Mechanic Who Suffers Whiplash and Didn’t Follow Doctor’s Orders Loses Big Time

Our Kelowna ICBC Accident Injury Lawyers will do a separate blog on how to maximize your recover by following doctor’s orders and being totally committed to recovering from your injuries no matter how overwhelming all the appointments and tests can be. For today’s blog just remember the plaintiff in this case lost 20% of his ward for thinking he knew more than his treating doctor’s. Our Kelowna ICBC Accident Injury Lawyers won’t let you make this mistake.

Kelowna ICBC Accident Injury Lawyers Explain Wage Loss Award Rules

[1]             On November 18, 2011, the plaintiff was involved in a motor vehicle accident (the “MVA”).  He was the driver of a vehicle that was stopped at a red light when it was struck from behind by a 10 ton flat-bed truck (“Truck”) driven by the defendant, Rod Kopp and owned by the defendant PNL Logistics Ltd. (collectively the “defendants”).  The plaintiff claims damages for the injuries he sustained in the accident.

4]             The plaintiff is 39 years old.  He is a journeyman heavy duty mechanic, holding certificates in both commercial transport mechanics and heavy duty mechanics.  He is also a certified heavy duty mechanics instructor.

[5]             The plaintiff excels at and very much enjoys repairing machines.

Loss of Future Earning Capacity

[157]     The relevant legal principles relating to loss of future earning capacity were recently reiterated by Justice Voith in Liu at para. 140 as follows:

a) To the extent possible, a plaintiff should be put in the position he/she would have been in, but for the injuries caused by the defendant’s negligence; Lines v. W & D Logging Co. Ltd., 2009 BCCA 106 at para. 185, leave to appeal ref’d [2009] S.C.C.A. No. 197;

b) The central task of the Court is to compare the likely future of the plaintiff’s working life if the Accident had not occurred with the plaintiff’s likely future working life after the Accident; Gregory v. Insurance Corporation of British Columbia, 2011 BCCA 144 at para. 32;

c) The assessment of loss must be based on the evidence, but requires an exercise of judgment and is not a mathematical calculation; Rosvold v. Dunlop, 2001 BCCA 1 at para. 18;

d) The two possible approaches to assessment of loss of future earning capacity are the “earnings approach” and the “capital asset approach”; Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 at para. 7 (S.C.); and Perren v. Lalari, 2010 BCCA 140 at paras. 11-12;

e)  Under either approach, the plaintiff must prove that there is a “real and substantial possibility” of various future events leading to an income loss; Perren at para. 33;

f) The earnings approach will be more appropriate when the loss is more easily measurable; Westbroek v. Brizuela, 2014 BCCA 48 at para. 64. Furthermore, while assessing an award for future loss of income is not a purely mathematical exercise, the Court should endeavour to use factual mathematical anchors as a starting foundation to quantify such loss; Jurczak v. Mauro, 2013 BCCA 507 at paras. 36-37.

[158]     While I accept the functional capacity evaluation opinions of Ms. Andrews as accurately reflecting the plaintiff’s ability to function on December 8, 2014, I find that they are not reflective of his capacity today.  By the plaintiff’s own admission, his symptoms and physical condition have improved significantly over the course of the past year.

[159]     The court would have benefitted greatly by an updated functional evaluation.

[160]     I agree with counsel for the defendants that, in this case, the plaintiff’s future loss of earning capacity is best addressed using the “capital asset approach”, primarily because an assessment of his loss is hard to predict and is significantly constrained by his failure to undergo the rehabilitation programs that were recommended.

[161]     As was stated by Justice Finch in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 at para 8 (S.C.):

The means by which the value of the lost, or impaired, asset is to be assessed varies of course from case to case. Some of the considerations to take into account in making that assessment include whether:

  1. The plaintiff has been rendered less capable overall from earning income from all types of employment;
  2. The plaintiff is less marketable or attractive as an employee to potential employers;
  3. The plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to him, had he not been injured; and
  4. The plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market.
[162]     I am satisfied that each of these considerations is applicable to the plaintiff.  Until such time as he recovers from his MVA-related injuries, the plaintiff will be rendered less capable of working at the Port.  Moreover, he will be less marketable or attractive as an employee to potential employers in that he will be less competitive in terms of his work efficiency.  Finally, I accept the plaintiff’s evidence that his inability to work at the Port has made him feel less worthy as a person.

[163]     The calculation of loss may be aided by some mathematical calculation, but there is no particular formula.  The assessment of loss is a matter of judgment: Jurczak v. Mauro, 2013 BCCA 507 at para. 35.

Our Kelowna ICBC Accident Injury Lawyers can guide you through the treacherous waters of an ICBC claim and we’ll assess and respond to any ICBC statement or position they are taking to ensure you are treated fairly and compensated fully.

Lorne Maclean - ICBC & Personal Injury Lawyer

Kelowna ICBC Accident Injury Lawyers founder Lorne N MacLean, QC



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