Automobile Accident Law Firm
Hamo vs ICBC 2007
Hamo v. Insurance Corp. of British Columbia
Azez Hamo and Geena Hamo, Plaintiffs,
Insurance Corporation of British Columbia, Defendant
 B.C.J. No. 1298
2007 BCSC 854
50 C.C.L.I. (4th) 242
158 A.C.W.S. (3d) 593
2007 CarswellBC 1376
Vancouver Registry No. S050923
British Columbia Supreme Court
Vancouver, British Columbia
Heard: March 19 – 21, 2007.
Judgment: June 14, 2007.
Insurance law — Automobile insurance — Accident benefits — Medical expenses — Total disability — Application by the insured for payment of medical expenses and disability benefits allowed in part — The insured contended he was totally disabled by a knee injury sustained in an accident — The insurer submitted that the injury was pre-existing, and that the issues of causation and disability could not be determined on a summary basis — The court found that the evidence regarding causation was sufficient — The claim was allowed until a specific point, after which the evidence was insufficient to determine the issue of whether a suitable job was available.
Application by the plaintiff claimant, Hamo, for payment of medical expenses and total disability benefits by the defendant insurer, the Insurance Corporation of British Columbia — The claimant suffered various soft tissue injuries in a motor vehicle accident in 2001 — He contended he was totally disabled due to the injuries to his knee — The claimant never returned to his job assembling truck body parts, which required heavy lifting — He received disability benefits until December 2003 — In 2005, the claimant worked various jobs that he was unable to continue due to problems standing and walking — He had prior problems with his knee that required surgery in 1994, and recurrent visits to a doctor between 1999 and 2001 — The knee was reconstructed following the accident — The insurer submitted that the accident did not cause the claimant’s condition, and that the claimant was capable of working — The insurer submitted that any damage to the claimant’s knee pre-existed the accident, which at most, caused a minor transient exacerbation — The insurer stated that any indication to the contrary required testing through cross-examination — The insurer stated that the issues of causation and disability could not be fairly determined on a summary basis — HELD: Application allowed in part — The medical evidence was sufficient to determine the issue of causation in favour of the claimant — The claimant’s fragile knee was further injured as a result of the accident — The fact that he would have reached a similar state in the future was a matter for assessment of damages in the tort claim — The claimant established that he was disabled from his pre-accident employment — The insurer did not prove that there was an employment or occupation suited to the claimant from the time of the accident until January 2004 — The evidence thereafter was not sufficiently clear on the issue of whether there was any job the claimant was capable of performing — The claim for disability benefits were thus allowed until that point, and the remainder of the claim was renewable upon appropriate material.
Statutes, Regulations and Rules Cited:
British Columbia Supreme Court Rules, Rule 18A
Counsel for the plaintiff: Y. Gertsoyg.
Counsel for the defendant: G. Somers.
1 HUMPHRIES J.:– The plaintiff Azez Hamo was involved in a motor vehicle accident on August 22, 2001. He applies pursuant to Rule 18A for an order that the defendant pay him Part 7 benefits – medical expenses and total disability benefits – pursuant to the Revised Regulations (1984) under the Insurance (Motor Vehicle) Act. The relief requested in the notice of motion is:
The Defendant reimburse the Plaintiff Azez Hamo for outstanding total disability benefits.
The Defendant reimburse the Plaintiff Azez Hamo for the outstanding Part VII expenses submitted to the Defendant.
2 The use of the word “reimburse” in connection with payment of disability benefits is confusing. The Statement of Claim seeks, inter alia, a declaratory judgment, monies due and owing and accruing, and alleges at paragraph 4:
The Plaintiffs’ claim is against the Defendant for monies due and accruing due for medical and rehabilitation expenses and other benefits, including, without limitation, underinsured motorist protection, payable to the Plaintiff pursuant to the provisions of the Insurance (Motor Vehicle) Act, R.S.B.C. 1996, Chapter 318, and the Regulations made thereto, arising out of a motor vehicle collision which occurred on or about the 22nd day of August, 2001 at or near the intersection of 108th Avenue and King George Highway in the City of Surrey in the Province of British Columbia.
3 The defendant pleaded a limitations defence (not pursued), a general denial that injuries were suffered, a denial that benefits, or in the alternative, any further benefits, are payable, and refusal or neglect by the plaintiff to comply with relevant terms and conditions of the regulations.
4 I note the remarks of Esson J.A. in Halbauer v Insurance Corp. of British Columbia, 2002 BCCA 5, at para. 19 which dealt with a similar claim and similarly unhelpful pleadings:
… at a minimum, the plaintiff should have identified the regulation under which he claimed and should have given reasonable particulars as to the dates on which payments were made and terminated, and have identified the ground, based on the language of the regulation, upon which he continued to be entitled. The defendant should, at least, have identified the ground or grounds on which it denied entitlement.
5 The case before me suffers from the same failure to adequately define the issue in the pleadings or in the Notice of Motion.
6 Nevertheless, argument proceeded on the basis that the plaintiff was seeking disability benefits pursuant to Part 7 from the date on which certain other benefits ceased to the present, or at least until the summer of 2005, vocational counselling and retraining, and reimbursement of certain medical expenses. In the accident of August 22, 2001, the plaintiff suffered various soft tissue injuries. The injury of contention in this action is to his left knee. The plaintiff says he is totally disabled, that is he cannot work at any comparable or suitable occupation, because of damage to his left knee, which he says was caused or materially contributed to by the accident.
7 The defendant took the position that liability and causation are in issue, that the accident did not cause the plaintiff’s present condition, and that the plaintiff was not disabled and was capable of working. The defendant says any damage to the plaintiff’s knee pre-existed the accident and none was caused by the accident, or if there was, it was a minor transient exacerbation. Any indication to the contrary is dependent only on the plaintiff’s self-report and must be thoroughly tested through cross-examination. The crucial issues are causation and disability, and without cross-examination of the plaintiff, a number of doctors, and the various vocational assessors, the defendant will not be afforded a fair trial. Therefore this action cannot be fairly determined under Rule 18A and should be referred to the trial list.
8 There is no trial date set for the present action. The tort claim is set for trial in 2008, having been adjourned from an earlier date to allow for the preparation of independent medical and vocational assessments.
The Regulations and payments made to date
9 Section 80 of the Regulations provides:
(1) Where, within 20 days after an accident for which benefits are provided under this Part, an injury sustained in the accident totally disables an insured who is an employed person from engaging in employment or an occupation for which the insured is reasonably suited by education, training or experience, the corporation shall, subject to s. 85 [a seven day waiting period], pay to the insured for the duration of the total disability … [certain amounts].
10 Sections 81 and 83 provide for the deduction of other disability benefit payments and unemployment benefits.
11 Section 81.1(1) provides:
(1) If an insured who is entitled to disability benefits under section 80 becomes capable of engaging in employment or an occupation but, because of injuries suffered in the accident is incapable of earning an amount that exceeds 125% of the disability benefits determined under sections 80 and 81, the insured may keep earnings from that employment or occupation, without deduction from disability benefits, in an amount that does not exceed 25% of those disability benefits, but any amounts earned in excess of 25% of the disability benefits will be deducted from the disability benefits payable by the corporation.
12 Section 96(f) states:
The corporation is not liable to pay benefits under this Part in respect of the injury or death of a person
(f) whose injury or death is caused, directly or indirectly, by sickness or disease, unless the sickness or disease was contracted as a direct result of an accident for which benefits are provided under this Part.
13 In the case at bar, there is no issue that the plaintiff is an insured, was employed, and, if entitled to benefits, would receive $300/week. There is also no issue that he received 26 weeks of benefits from another insurer, 14 weeks of employment insurance, and four weeks of benefits from ICBC (although the date of that payment is not clear – one affidavit says September 2001, one says 2002 – it must be 2001 as there is no suggestion the plaintiff received benefits in late 2002; this is one place where more detailed pleadings would have been helpful). Those weeks, together with the one week waiting period, total 45 weeks.
14 This would cover the period to May of 2002, but the plaintiff deposes that his “Part VII disability benefits” ended in December of 2003, which is somewhat confusing. The letter from ICBC to which he refers in his affidavit states that he has received “$7,200 in Part 7 benefits and/or advances.” The plaintiff’s inclusion of the word “disability” must be an error, as the submissions were based on his having received benefits only to May 2002. In fact, ICBC contends that the payment of September 2001 was made in error, but other than reflecting that position, I have not been asked to do anything with it. Once again, proper pleadings would have been of assistance.
15 The plaintiff underwent three surgeries, the third in February 2006. No rehabilitation benefits have been paid following that surgery.
16 The issues are whether the determination of causation and disability can be fairly done under Rule 18A, and if so, whether and to what extent the plaintiff is entitled to benefits.
17 The plaintiff, who was born in Iraq in 1967 and immigrated to Canada in 1993, was travelling westbound on a street in Surrey on August 22, 2001. He was driving; his sister was in the passenger seat. The defendant in the tort action was eastbound and made a left turn in front of him. They collided. Both vehicles were written off, due to the damage and their age.
18 The other driver pleaded guilty to driving without reasonable consideration, and admitted he had consumed three tall cans of beer prior to the accident. Nevertheless, based on the affidavit of a witness, Ms. Reyner, who said she saw the defendant’s turn signal on, and “as he was turning, [the plaintiff’s car] came out of nowhere and smoked right into the [defendant’s car],” ICBC takes the position that liability is in question. Although liability is not relevant to a claim for Part 7 benefits, ICBC’s position on liability has entered into the consideration of whether it is appropriate to decide Part 7 actions under Rule 18A in various cases to which I will refer later.
19 The plaintiff has always maintained he was wearing a seatbelt. Ms. Reyner, who dialled 911 after seeing the collision and before going to the car, said neither occupant was wearing a seatbelt. Mr. Eastcott, another independent witness, saw the collision from half a block away, drove to the accident, parked, and walked up to the vehicles. He too says neither occupant was wearing a seatbelt.
20 Although acknowledging none of this evidence is relevant to the issues in the Part 7 action, as opposed to the tort claim, ICBC contends that this evidence goes to the plaintiff’s credibility generally and is therefore worthy of consideration on the issue of whether this action can be fairly determined on a summary trial.
21 At the time of the accident, the plaintiff was working as a truck body assembler for Collins Manufacturing, a job he had held since March 20, 2000, with occasional lay-offs due to shortage of work. This required him to do heavy lifting and carrying. He had also been working on weekends for Intoo Security, but had been laid off earlier, with a recall date of June 2001. He did not return to that job at the recall date, so at the time of the accident, was working only as a truck assembler. He has never returned to that job.
22 Since the accident, the plaintiff worked as a delivery driver and fruit picker from June 2, 2005, until he was laid off on August 2, 2005. He also worked from December 26, 2005, to December 29, 2005 as a security guard, but deposes he was unable to continue because he could not stand for long periods. He earned approximately $4,000 and $1,000 in 2005 and 2006 respectively, compared to his earnings of approximately $25,000 per year before the accident.
23 In July of 2006 Mr. Hamo worked for three months at Malhi Farms Ltd. but deposes that his left knee began to swell when he was asked to load and unload boxes. He then got a part-time job at Krause farms as a driver. This lasted from July 24, 2006 to August 22, 2006, when he was laid off.
24 Mr. Hamo, who has married and had a child since the accident, is now on social assistance.
25 The plaintiff had a problem with his knee for some years prior to the accident arising out of an earlier injury. He also has a degenerative left hip condition which pre-dates the accident. ICBC contends that this brings into play s. 96(f) in that they are not liable to pay benefits in respect of an injury which is caused by sickness or disease. While the degenerative hip might be a “sickness or disease,” the plaintiff takes issue with a pre-existing injury being characterized as “sickness or disease.” Other than a passing mention, however, no argument was addressed to this subject. Pleadings would have been helpful on this issue as well.
26 The plaintiff saw Dr. Froh, an orthopaedic surgeon, in August of 1994, that is several years prior to the accident. His sister interpreted for him during the interaction with Dr. Froh. The plaintiff reported that he had injured his knee seven years before playing soccer in Iraq. He received no adequate treatment for that injury, and had suffered from intermittent pain while playing soccer, doing a lot of walking, squatting or climbing stairs. The doctor diagnosed a tear of the anterior cruciate ligament (ACL) and recommended a brace, with surgery as a future possibility.
27 The pain and instability continued and Dr. Froh performed surgery in November of 1994. He found a medial meniscal tear in the left knee, extensive wearing of the cartilage at the ends of the thigh bone and a complete rupture of the ACL. The doctor effected various repairs to the area. Dr. Froh told the plaintiff not to do any sports for at least two months and to wear a brace to play soccer, or indeed “any sports, high demand activities or any labouring job”.
28 According to the plaintiff, he did well following the surgery, although his family physician, Dr. Dindo, noted on January 8, 1999 that he had “recurrent [something illegible] left knee” and recommended a brace, something else illegible, and physiotherapy. The clinical notes show three visits to Dr. Dindo in 1999, none in 2000 and one in 2001 prior to the accident. Although almost entirely illegible, none of the notes for those years appear to be related to a left knee problem.
29 Following the accident on August 22, 2001, both the emergency crew report and the emergency nursing assessment state, inter alia, “bilateral knee pain.” The plaintiff saw Dr. Dindo on August 27, 2001. According to Dr. Dindo’s report of March 11, 2002, the plaintiff complained of total body ache, numbness, and specifically, neck, back and chest pain. On September 11, 2001, his complaints were similar, but this time he complained of bilateral knee pain, worse in the left knee. Dr. Dindo prescribed Naproxen, Tylenol 3, physiotherapy, and sent the plaintiff for an X-ray on his left knee. His complaints continued and on September 27, 2001, he was prescribed Zoloft for depression and was referred to physio again, and also to an orthopaedic specialist.
30 On October 9, 2001, the plaintiff complained that the physio was aggravating his back. On November 22, 2001, he complained of ongoing left hip and knee pain. The complaints continued unchanged and by early January 2002, Dr. Dindo thought the symptoms had plateaued and recommended a slow return to work. The plaintiff said he did not want to return to work because of neck, left knee and left shoulder pain. Dr. Dindo suggested he see the orthopaedic specialist, Dr. Shahid, whom he had consulted earlier for his hip. That specialist prescribed Vioxx and said he would see Mr. Hamo in a month.
31 It was Dr. Shahid’s opinion that the plaintiff’s left knee pain was referred from his hip. However, he recommended reconstruction of the ACL to deal with the “longstanding instability of the knee,” and booked the surgery after Mr. Hamo returned to see him the next month.
32 Dr. Shahid said, in his report of February 26, 2002 to Dr. Dindo:
It was made clear to Mr. Hamo that both the hip and knee conditions well preceded the motor vehicle accident. The accident very likely, however, did produce a transient exacerbation of both hip and knee, particularly the former.
33 On April 16, 2002, Dr. Shahid performed surgery to reconstruct the plaintiff’s ACL. Dr. Dindo wrote to counsel for the plaintiff on April 25, 2002 that the plaintiff was currently totally disabled. He was still using a crutch on May 28, 2002, but was expected to dispense with it shortly.
34 The defendant says it is significant and requires cross-examination that Dr. Dindo, after having said Mr. Hamo should try a gradual return to work in January, then said in April that he was totally disabled. However, there was surgery in between, on the recommendation of a specialist. In that light, I do not see the two reports by Dr. Dindo as inconsistent.
35 During the remainder of 2002, the plaintiff complained of “electrical” pain and clunking in his knee, although the stability and range of motion were good. In December 2002, Dr. Dindo sent the plaintiff to Dr. McGraw, an orthopaedic specialist at Vancouver Hospital Health Sciences Centre. X-rays revealed degenerative osteoarthritis. An MRI showed that the reconstructed ACL was not intact and there were extensive degenerative changes. Dr. McGraw said the plaintiff had a “very significant disability in his lower left extremity, principally related to the left knee joint.”
36 It was Dr. McGraw’s opinion, based on the information provided to him, which is not specified, that the motor vehicle accident contributed significantly to the plaintiff’s present disability, which was ongoing because the ACL reconstruction had failed. Both Dr. Dindo and Dr. McGraw agreed that Mr. Hamo could not, in his present condition, do auto body work.
37 Reference was made at paragraph 36 of the plaintiff’s reply argument to a statement from Dr. Dindo of January 30, 2003: “off work totally and indefinitely pending left knee treatment.” This is a handwritten note on a prescription sheet, with no explanation of context or purpose.
38 Dr. McGraw, though still consulting, had retired from surgery, and so asked his colleague Dr. Greidanus to assess Mr. Hamo. Dr. Greidanus suggested another ACL reconstruction and referred Mr. Hamo to Dr. Wright. Dr. Wright performed surgery on November 10, 2003, removed loose material from inside the knee, and found one of the screws from the previous operation to be loose.
39 In his report of February 9, 2004, Dr. Wright reported that Mr. Hamo had told him he had been seen by Dr. Froh in the mid 1990s and had had his knee drained. Dr. Wright learned later, through review of Dr. Froh’s records, that Mr. Hamo had actually had surgery. The defendant contends this is significant in that it tends to show Mr. Hamo was not forthcoming with Dr. Wright. However, the records were obviously available to Dr. Wright before he wrote his report, and the plaintiff had had yet another surgery in 2002 by Dr. Shahid, and was involved in an ongoing round of medical appointments. In my view, it is unrealistic to suggest that the plaintiff was trying to hide his pre-existing knee problems from Dr. Wright.
40 In the same report Dr. Wright stated that following the second surgery Mr. Hamo was pleased with his increased knee stability and lessened pain.
41 Dr. Wright said:
It should be noted that he had preceding anterior cruciate insufficiency on the left knee. This is carefully documented by Dr. Froh from his operative note of 1994. There were also tears of the inside and outside meniscus at that time. There was also injury to the surface of the joint at that point. This would indicate that the progressive osteoarthritis that he has experienced and the insufficiency of the knee that he still has is as a result of his trauma in the early 90’s and not the motor vehicle accident that he now is exploring (sic).
He has however experienced increased discomfort in the knee following his motor vehicle accident or August 22, 2001. He was able to do daily activities without worrying or thinking about it. He could do light exercises and was able to work in the auto body trade as well as an assembler.
These have no longer been possible since his motor vehicle accident. He has therefore suffered a decompensation of the left knee as a result of the motor vehicle accident.
This is also accentuated by the fact that he has a congenital problem in the left hip, there is changes in keeping with early arthritis of the left (sic) which can lead to a painful situation down the entire leg. There is often a situation of referred pain down to the left knee. All of these add up to compounding the pain precipitating injury that he had in 2001.
I am unable to comment on the mechanics that caused this. It is unlikely that I would be able to reproduce or understand them. The most important thing on a medical impairment assessment is that he has resultant and continued pain in the left knee since the accident of August 22, 2001. I would therefore feel that he has had an increase in his discomfort as a result of his motor vehicle accident. On a pathological basis, I would feel that he has had more compression injury to the left knee about the soft tissues and the actual surface of the knee. His ligament was previously injured.
42 The defendant says it is significant that the doctor said he could not comment or reproduce or understand the mechanics that caused “this”, which I presume means the entire decompensation process. The defendant says this demands cross-examination as it casts doubt on the plaintiff’s claim to have been wearing a seatbelt. However, the doctor has just set out the complicated set of interrelated factors underlying the plaintiff’s present condition: the previous surgeries, the congenital problem in the left hip, the arthritis, and the motor vehicle accident. I do not read this paragraph as meaning he is suspicious of the plaintiff’s credibility, e.g. in the context of whether or not he was wearing a seatbelt, which is not relevant to the Part 7 claim in any event. There is much more to the mechanics leading up to the current condition of the knee than that, and the doctor has referred to those factors. In his later report of August 12, 2004, Dr. Wright said the plaintiff’s report of both knees hitting the dashboard would be compatible with the injuries he suffered.
43 Dr. Wright went on to say that he expected the plaintiff to reach a plateau in recovering from surgery by the summer of 2004. He said the plaintiff would probably require more surgery but in any event would not be able to get back to his sporting activities. Nor will he be able to kneel, undertake strenuous twisting or pivoting activity, or carry heavy loads. The doctor recommended a brace.
44 The defendant says it is significant that the plaintiff already had a brace prescribed by Dr. Froh, and he should be cross-examined on its use. In my view, that is for the tort claim.
45 Dr. Wright said the chance of the plaintiff having arthritis is 100%. When the knee is strong and in good shape, it can compensate for arthritis; however a significant problem occurs with decompensation, thus making the effects of arthritis more profound.
46 According to Dr. Wright’s report of March 30, 2005, the plaintiff continued to have episodes of instability and pain with his left knee and asked Dr. Wright to perform the next surgery, which took place in February of 2006. This involved removal of the remaining screw and reconstruction of the ACL. Following this surgery, the plaintiff required crutches for some time.
47 Dr. Wright wrote on February 28, 2006:
Following his surgery for arthroscopic debridement and removal of his hardware in November of 2003, he was reasonably happy with the outcome from it. He felt he initially had a decrease in his overall pain. He initially felt more stable, but it becomes quite apparent as I followed him along, that his pain relief was short lived and insufficient to have him feel that he gained anything on a pain relieving situation. He also did not in fact gain any significant stability improvement.
After evaluating him a repeated basis, it became quite evident that he remained more unstable than he was before. I initially had thought I would be able to treat him without a reconstruction. He had had a knee with a history of instability going back to 1994 and up until his motor vehicle trauma in 2001, he had been able to do his sports and activities by keeping his leg in good shape and maximizing his performance in that fashion. [emphasis added]
48 Dr. Wright emphasized that last point several times in the his report:
The most important thing with Mr. Hamo is that he has been decompensated as a result of the motor vehicle accident. Up until that point, he was able to compensate by keeping his strength up, keeping his weight down, and keeping himself in a level of activity that would permit to undertake activities even including some manual work. He worked as an assembler prior to the motor vehicle trauma and has been unable to do so since that time.
He was definitely a greater risk than many other patients would have been with this type of injury. I say this because of his underlying congenital problem with the left hip and the previous ligament injury in the left knee. He was, however, able to compensate this by keeping himself in good physical shape and was, as noted, even able to play soccer before his motor vehicle trauma of 2001.
49 Dr. Wright noted the increase in symptoms from his left hip, which are of course unrelated to the accident, but said:
He has had a decompensation of the function of the left leg since his accident in 2001. Pain from the soft tissue damage in the accident has led to the decompensation.
The causation of his left hip problem is congenital in nature. I would have to say that the symptoms that he was able to negate in the past have become much more profound since his motor vehicle accident of 2001. The left knee had instability and early arthritis preceding the motor vehicle accident in 2001.
He has, however, had the decompensation with increased pain and decreased ability to use that left knee and specifically the entire left leg. This has occurred since the accident in 2001.
While the hip situation may have been a contributing factor to the left knee pain, the fact that he had such an increase in left knee difficulty and pain following his trauma in 2001 would indicate that it is due to more localized soft tissue trauma with decompensation.
I have made reference to this in the arthroscopic report undertaken by myself in 2003.
50 Dr. Wright noted that a total knee arthroplasty would be required in approximately 15 years.
51 Meanwhile, the plaintiff underwent independent medical examinations by Dr. Schweigel, at the request of the defendant. Dr. Schweigel first saw Mr. Hamo on August 14, 2002. Dr. Schweigel assumed the ACL had been torn in the motor vehicle accident. He had not yet seen Dr. Froh’s records from 1994 and did not know the ACL had been ruptured at that time. Dr. Schweigel filed a second report on November 20, 2002, after seeing those records, retracting his opinion that the accident had caused the tear to the ACL. As well, Dr. Schweigel thought it significant that Dr. Dindo did not document any problem with the left knee five days after the accident, and therefore opined that the accident did not cause any problems with the left knee.
52 On July 5, 2006, Dr. Schweigel, having now seen the emergency crew report and the nurses’ assessment report, realized that the plaintiff had complained immediately after the accident of bilateral knee pain and adjusted his opinion once again. He said:
… [this] leads me to conclude that he probably did traumatize both knees, and the left knee continued to be symptomatic thereafter. I recognize that Dr. Dindo did not mention the left knee on August 27/01, which is five days post MVA, and why it was not mentioned is impossible for me to tell. Regardless, his left knee continued to be symptomatic in the ensuing weeks thereafter, and more likely than not, he did traumatize his knee. Having said that, the blow to his knee must have been minor.
53 Dr. Schweigel then went through the records which led him to conclude the blow was minor, and said:
Therefore I would have to conclude that the knees were probably traumatized with the MVA of August 22/01, but the blow to the knee was extremely minor, causing minor symptoms …. However, as the months evolved after August/01 his symptoms became more consistent and his pain became more uncomfortable.
54 The doctor reviewed the plaintiff’s history and said:
With the above knowledge in mind, I would have to conclude that this gentleman’s left knee was traumatized by the MVA, it was probably a minor traumatic event for reasons already given (no severe swelling, no documentations by two physicians in the first week or two after the MVA of knee pain, no loss of motion) and that his subsequent discomfort he was having in his knee that became more consistent is probably related to the MVA of August 11/01. Having said that, one has to also realize that he was having obviously some increasing difficulty with his knee … [emphasis added].
55 The doctor then discussed the pre-existing knee problems and said that, regardless of the motor vehicle accident, he would have expected the knee to have acted up in 5 – 10 years and to have incapacitated the plaintiff to a similar degree – that is, he would not be able to do vigorous manual work and sporting activities.
56 The defendant submits that the osteoarthritis and injury to the ACL obviously pre-date the accident; therefore, Dr. Wright’s opinion that the plaintiff’s present condition is related to the motor vehicle accident can only be based upon his belief of the plaintiff’s self-report. However, their own expert, Dr. Schweigel, acknowledges the effect of the motor vehicle accident on this fragile knee, and says “it would not have taken much to traumatize [it] because of the extensive wear and tear … documented by Dr. Froh in 1994.”
Result on the issue of causation
57 Based on all of the medical evidence, which, regardless of the defendant’s attempts to demonstrate conflict, is essentially in accord, I am of the view that the issue of causation can be determined in the plaintiff’s favour on the material before the court.
58 I refer to Athey v. Leonati,  3 S.C.R. 458:
(19) The law does not excuse a defendant from liability merely because other causal factors for which he is not responsible also helped produce the harm.
(34) The “crumbling skull” doctrine is an awkward label for a fairly simple idea. It is named after the well-known “thin skull” rule, which makes the tortfeasor liable for the plaintiff’s injuries even if the injuries are unexpectedly severe owing to a pre-existing condition.
(41) … If the injuries sustained in the motor vehicle accidents caused or contributed to the [injury], then the defendants are fully liable for the damages flowing from the [injury]. The plaintiff must prove causation by meeting the “but for” or material contribution test. Future or hypothetical events can be factored into the calculation of damages according to degrees of probability, but causation of the injury must be determined to be proven or not proven.
59 Based on Dr. Dindo’s records which predate the accident, the plaintiff’s employment records, and all of the succeeding medical records, I am satisfied that the plaintiff’s knee, which was fragile because of previous injuries, was further injured in the motor vehicle accident. As a result he was unable to continue to compensate for the instability of the knee to the extent he had been able to do so before the accident. In practical terms, as a result of this decompensation, the plaintiff’s knee became functionally less stable, resulting in discomfort and pain which increased over time. The effect of Dr. Schweigel’s opinion that he would have reached this state in five to ten years in any event is a matter for the assessment of future contingencies in the tort claim.
60 I now move to the issue of disability.
61 The law respecting the onus of proof in this area is established in Halbauer v. Insurance Corp. of British Columbia, supra, and conveniently summarized in Sheflo v. ICBC  B.C.J. No. 744, 2002 BCSC 536 at para. 28:
(a) the initial onus is on the plaintiff to show that he or she is disabled;
(b) a plaintiff can make out a prima facie case that payments should be continued by establishing that benefits have been paid and that he or she continues to be disabled from his or her pre-accident employment and occupation;
(c) if that can be shown, the onus then switches to I.C.B.C. to prove on a balance of probabilities that there is employment or an occupation reasonably suited to the plaintiff by education, training or experience.
62 In the case at bar, the plaintiff was working as a truck assembler at the time of the accident. Although no formal job description was provided, the plaintiff described the work involved in this job, and the vocational assessment charts list it as heavy work. He has not returned to that occupation since the accident. However, it is not only the occupation which the plaintiff had at the time of the accident that is relevant to an assessment of total disability. The plaintiff must be disabled from any employment or occupation reasonably suited to him by education, training or experience. The plaintiff says he is totally disabled from any such occupation that would provide him with a level of income comparable to his pre-accident earnings.
63 The plaintiff had been working as a security guard as well, but had been laid off prior to the accident and had not returned on the recall date in June of 2001. In the summer of 2001, prior to the accident, Mr. Hamo filled out an application for Employment Insurance benefits after being laid off from the security job. These benefits were denied because the EI commission said he was not in Canada at the time. The defendant says this should impact on Mr. Hamo’s credibility. However, it appears from the documentation that Mr. Hamo had intended to return to work at his security job on the recall date of June 4, 2001, but had been detained by the government in Iraq for two to three weeks. It also appears that the EIC accepted this explanation and allowed Mr. Hamo to apply for benefits retroactively.
64 I will now set out the evidence relating to disability. Some of it has already been referred to in the discussion of causation.
65 The plaintiff saw Dr. Dindo on August 27, 2001, five days after the accident, and throughout the following months. He reported back and chest pain, and knee pain, with decreased ranges of motion. Dr. Dindo suggested he try to return to work in January of 2002, but Dr. Shahid, the orthopaedic specialist to whom the plaintiff was referred, prescribed further drugs and reassessed Mr. Hamo in a month, at which time he scheduled surgery to deal with the instability in the plaintiff’s knee. Dr. Shahid performed surgery on the knee on April 15, 2002, and Dr. Dindo wrote to the plaintiff’s lawyer on April 25, 2002 to say Mr. Hamo was totally disabled at that time.
66 This surgery was unsuccessful, and the plaintiff continued to suffer pain and “clunking” in his knee. An MRI was ordered by Dr. McGraw. Dr. McGraw said in February of 2003 that he agreed with Dr. Dindo that Mr. Hamo could not, in his present condition, perform auto body work. Further surgery was performed on November 10, 2003 by Dr. Wright, as referred to above. Dr. Wright saw the plaintiff for follow-up on November 20, 2003 and January 15, 2004. He said Mr. Hamo had less pain and increased stability, although the surgery had not been aimed at increasing knee stability. Dr. Wright said, in his report following the surgery, that Mr. Hamo would not be able to get back to the sporting activities he had enjoyed prior to the motor vehicle accident, would not be able to kneel, undertake strenuous twisting or pivoting activity, or carry heavy loads.
67 Dr. Wright said, in his report of February 9, 2004:
He will, I think, reach a plateau by the summer of 2004 regarding his improvement from the surgical activity. He will be left with a more painful knee than he had before his motor vehicle accident of 2001. The knee is no more stable.
68 In March 12, 2004, Mr. Hamo underwent a physical capacity examination. The evaluator, Ms. Bergman, gave the opinion that Mr. Hamo had the capacity to work full-time within his physical limits, but was not employable at his previous occupation of truck assembler. She noted that he did not meet the industrial standard of being able to stand for up to two hours. Based on repetitive stair stepping, she said he would have difficulty in job titles requiring running or other fast moving and jarring movements. She said:
With respect to his ability to work in other occupations, test results show that he is best suited to work in the limited to light strength category (being selective in job opportunities in the light strength category), and where he is able to alternate between sitting and standing or at least take breaks every hour, specifically from standing. The majority of his work should be performed between waist and shoulder level, with requirement for use of body dexterity positions, such as to work at knee level, being occasional for short periods only. He is not suited to work where speed of handling/productivity is a significant job component.
69 Since the medical opinions suggested the need for further surgery, with an expected decrease in knee strength in the future, Ms. Bergman recommended vocational counselling. The cost of future care assessment report dated May 3, 2004, refers to information from Dr. Wright that Mr. Hamo will require future surgery to stabilize the knee [apparently this is the February 2006 surgery] and will require physiotherapy for a period of five months post operation and a knee brace.
70 On July 13, 2004, Dr. Wright said Mr. Hamo was doing much better but it was unlikely he could return to a heavy labouring job. Dr. Wright noted that Mr. Hamo worked hard at keeping his knee stabilized. He repeated this in his reports of August 12, 2004 (in which he noted that Mr. Hamo reported being able to walk 10 blocks, and then getting pain behind his knee and numbness and heaviness in the leg), and January 28, 2005. In March of 2005, Dr. Wright noted that he had booked Mr. Hamo for a third surgery, but this would not affect his Private Security Course or his employability afterwards. I have looked through the extensive material in search of a reference to explain the “Private Security Course” but have not been able to locate one.
71 In June of 2005, Mr. Hamo obtained work as a delivery driver and fruit picker. He was laid off after three months.
72 In December of 2005, Mr. Hamo attempted to work as a security guard, but complained of pain in his left knee from standing 9 hours a day. Although the defendant says there is nothing to support this but his own self-report, I note Ms. Bergman’s testing results from 2004 which showed he could not stand more than two hours. The defendant’s capacity evaluator, Mr. Cooke, noted similar results in 2006.
73 In his report of February 28, 2006, Dr. Wright said Mr. Hamo was totally disabled from working at his previous job. He said Mr. Hamo is partially disabled from a job that requires extended sitting. He noted that Mr. Hamo missed his sports dearly and found it difficulty to think that he could not undertake them.
74 Also in February 2006, Dr. Parikh, his current family doctor, advised him to seek a sedentary job and obtain the necessary retraining.
75 A work capacity evaluation done in February 2006 by Mr. Cooke for the defendant found Mr. Hamo unable to do heavy work, but he demonstrated sufficient strength, body dexterity and limb coordination to work as a delivery driver, welder (a job he was in the process of learning at Collins Manufacturing), and security guard/commissionaire type work. While capable of medium strength work, the evaluator suggested occupations in the light range might be better in the long run.
76 The defendant’s vocational assessor, Mr. Hohmann, who assessed Mr. Hamo in August 2006, said Mr. Hamo must seek jobs of a light, sedentary, or select medium nature, which do not require prolonged squatting, standing or walking, with sufficient flexibility to accommodate positional change and movement. He reported that Mr. Hamo was open to retraining and recommended vocational counselling.
77 Ms. Bergman was of the opinion that Mr. Hamo gave full effort during the assessments. Mr. Cooke noted some limitations but did not conclude that Mr. Hamo was underperforming, stating that such limitations could be due to other factors, such as failure to understand instructions or fear of reinjury.
78 The defendant says Dr. Dindo told Mr. Hamo to try to go back to work in January of 2002. However, as already mentioned, the specialist, Dr. Shahid, to whom he was referred at the same time, prescribed further medication, had him return in a month, and shortly thereafter performed surgery on Mr. Hamo’s knee.
79 Other than this tentative suggestion on Dr. Dindo’s part, which he soon retracted, there is nothing to suggest that Mr. Hamo could return to his job as a truck assembly person. All the evidence is to the contrary, and the defendant did not seriously attempt to assert otherwise, other than to challenge Mr. Hamo’s credibility generally.
80 Despite the lack of evidence from the plaintiff’s previous employer to say they have no job for him, I am satisfied, based on all of the evidence before me, that Mr. Hamo has established that he was disabled from his pre-accident employment or occupation, that is, truck assembler, following the accident. As already noted, he received 45 weeks of benefits, including four weeks from ICBC.
81 The next question is whether ICBC has proven that Mr. Hamo is not totally disabled from employment or an occupation reasonably suited to him by education, training or experience.
82 The defendant produced some excerpts of video surveillance conducted over a number of years which showed Mr. Hamo kneeling on a balcony preparing some food in February 2004 (despite the report of Dr. Wright in February of 2004 that he is unable to kneel for religious purposes – the duration of periods of kneeling for worship was not provided), walking briskly with his wife for a few blocks in December 2004 and February 2005, walking at a normal pace at various times during the spring and summer of 2005, and jogging a few blocks in January of 2006.
83 The defendant says Mr. Hamo could have worked at various jobs in the past, including a sales person, a security person, or a delivery man, and based on the consultant reports, these are viable occupations for which he is suited by education, training and experience.
84 The defendant says Mr. Hamo filled out a form for EI benefits saying he had tried unsuccessfully to obtain numerous salesclerk positions in 1997, so he could have obtained employment as a sales person. However, both Mr. Kelly, the plaintiff’s vocational consultant, and Mr. Hohmann, the defendant’s vocational expert, noted that, despite having post-secondary education in Iraq, Mr. Hamo’s ability to speak English is limited. Neither vocational consultant suggested occupations which require fluent English, and Mr. Kelly said Mr. Hamo’s sense of salesmanship is at the 6th percentile level. However, he included retail salesperson as an example of a job that Mr. Hamo would be physically capable of.
85 Mr. Hohmann listed pre-injury occupations as: landscaper, gardener, painter, truck van assembler, light delivery driver, farm worker, trades helper and security guard. As for post-injury jobs, Mr. Hohmann included “retail sales” as a possible occupational group, following vocational counselling and retraining. The other occupations he listed – locksmith, upholstery repair, electronic service technician, plastics processing, machine operator and light fixture assembler, would also require retraining. The only job similar to Mr. Hamo’s pre-injury jobs was light courier driver. He has indeed obtained several short term positions as a driver.
86 I have already noted that, in respect of the security job, defence says there is only Mr. Hamo’s self-report in December of 2005 that he found standing for nine hours difficult, but in fact this is supported by the testing of both capacity evaluators. As well, although he was shown jogging for a few blocks, the results of the tests done by both evaluators do not support any ability to set off running in pursuit of an intruder if required to do so in the course of a security incident, which Mr. Kelly, as well as common sense, suggests many employers require.
87 Mr. Hamo deposed that he obtained two jobs in the summer of 2006. The first was at Malhi Farms, and lasted only a few days as Mr. Hamo found he could not load and unload blueberry boxes as a result of knee pain. He then got a job as a driver at Krause Farms. This job lasted from July 24, 2006 to August 22, 2006 when he was laid off.
88 On a consideration of all of the evidence, I conclude that the defendant has not proven that there was employment or an occupation suited to Mr. Hamo during the period following the accident, up to and including his first surgery, and during the period where it was becoming clear that the surgery in April of 2002 had been unsuccessful, and a second surgery in November 2003 was necessary. He was in considerable pain, the knee was unstable, he could no longer compensate for that instability because of the effects of the motor vehicle accident, and in addition to the instability and pain, his knee was clunking, the second surgery had been unsuccessful, and there was a loose screw in his knee as a result. This was corrected in the surgery of November 2003. Based on Dr. Wright’s report of February 9, 2004, Mr. Hamo was recovering well from the surgery at his follow-up visits on November 20, 2003 and January 15, 2004. I am satisfied that Mr. Hamo was totally disabled until that date.
89 It is not an answer to say that all of this depends on the plaintiff’s self report. Although the plaintiff did report some subjective symptoms, the medical examinations, screenings, and surgeries showed objective bases for them. As well, the plaintiff’s work history shows that he was in fact a determined worker, holding down two jobs. On his work capacity evaluations, he put forth a good effort.
90 The evidence respecting 2004 and following is not so clear on the issue of whether there was any job Mr. Hamo was suited to and capable of performing. In fact, there is very little information about this period, aside from the work capacity evaluations and the medical report following the February 2006 surgery. Dr. Wright said in his report of February 9, 2004 that he expected the plaintiff’s surgical recovery to plateau by the summer of 2004, but the plaintiff performed fairly well on his work capacity evaluation in March of 2004. The work capacity evaluations show that the plaintiff is suited to be a delivery driver and he did in fact obtain such employment in June of 2005 for a short period before being laid off. It is not clear why he could not obtain such employment in 2004, or what the demands of the marketplace have to do with a claim under Part 7; nor was the relationship of s. 81.1(1) to marketplace layoffs addressed.
91 He had further surgery in 2006, and there would have been a period of recovery after that surgery, but I can find no evidence of its duration or effect. Dr. Wright said Mr. Hamo was recovering at the anticipated rate but did not say what that was. Mr. Hamo deposed on April 10, 2006 that he was still undergoing rehabilitation, but he was working by the summer.
92 His last job in the summer of 2006 ended because he was laid off. He says he has not been able to find employment since, but no further information is provided. It may be that, without vocational counselling and retraining (recommended by both evaluators), he cannot earn a salary at an amount comparable to his pre-accident level, but the amount, duration and anticipated result of the counselling and retraining, or its significance within the Part 7 context, was not addressed in a manner that allows me to decide the issue.
93 One reason that the evidence following 2004 is hard to assess is that there are no proper pleadings, a problem I referred to at the beginning of these reasons. I refer again to Halbauer, where Esson J.A. set out at paragraphs 56 and 57 the difficulty facing the trial judge in the absence of any clearly defined issue. I am unable to find the necessary facts and fairly determine entitlement or lack thereof after January 15, 2004.
94 It is always preferable to deal with the entire claim at once, and the Court of Appeal has cautioned against litigating in slices on applications for judgment pursuant to Rule 18A. However, despite the undesirability of making a decision on only part of the period in issue, I am of the view that it is appropriate and fair to do so in this case because, having established causation and initial disability, the plaintiff is entitled to receive the benefits of the insurance policy he paid for. Part 7 benefits are not like a tort claim; it is not a one-time shot. They may continue into the future, and continuing claims may be advanced. I note the recognition in Halbauer that additional claims for Part 7 benefits may be advanced even after benefits have been terminated. I do not think if would be fair to simply dismiss the rest of the plaintiff’s claim. I am unable to determine on the material and arguments before me whether the plaintiff can or cannot do any suitable work after January 15, 2004, and I will take a similar approach as that set out by Hunter J. in Tangaro v. Insurance Corp. of British Columbia  B.C.J. No. 911, even though that case was decided prior to Halbauer and appears to put the entire onus on the plaintiff. I allow the claim for total temporary disability benefits up to January 15, 2004. The remainder of the claim may be renewed on appropriate material, which may include an order for cross examination of the plaintiff, or may proceed to trial, and consideration might be given to improving the pleadings.
95 Section 88(1) provides:
Where an insured is injured in an accident for which benefits are provided under this Part, the corporation shall, subject to subsections (5) and (6), pay as benefits all reasonable expenses incurred by the insured as a result of the injury for necessary medical, surgical, dental, hospital, ambulance or professional nursing services, or for necessary physical therapy, chiropractic treatment, occupational therapy or speech therapy or for prosthesis or orthosis.
96 The plaintiff provided a table of medical expenses totalling approximately $1,200, mostly comprised of medication expenses and user fees, as well as an ambulance fee. His counsel conceded that other items worth about $300 – photo of torn clothing, user fees for a massage clinic, and the cost of a doctor’s report – were properly the subject of a claim in the tort action. The other items, some $900, have been denied by the defendant mainly because of their position on causation, and because improper receipts have not been provided for the ambulance invoice. There is support in the reports of Dr. Dindo, Dr. Shahid and Dr. Wright for the prescriptions, physiotherapy and need for exercise for rehabilitation. I have decided the issue of causation in favour of the plaintiff. The claims for medications, the two facility usage passes and the ambulance service fee are allowed, the latter dependant on the production of the original receipt.
97 $64 in bus tickets covering 18 visits to the physiotherapy and massage clinics have been denied because the video shows the plaintiff having access to and driving a car. No dates are provided for 16 of the visits, so I am unable to deal with them. Two are in 2004 when the plaintiff clearly had a car. I am unaware of whether an alternative claim for mileage and parking might be advanced. In short, I cannot decide this very small aspect of the claim on this application.
General comments on credibility and suitability for Rule 18A
98 I was referred by the respective parties to many cases – literally dozens – where courts have and have not been able to decide trials involving a claim for Part 7 benefits on a summary basis. Where courts have declined to decide cases under 18A, the judges invariably cite, as one might expect, conflicting affidavits, conflicting experts, inability to find the material facts, the necessity of having certain evidence cross-examined upon and the unfairness that would result if such cross-examination did not take place. It has been of some comfort to some trial judges, where Part 7 benefits have been in issue, that liability has been admitted, that the tort trial is set imminently, and that damages are likely to exceed the amount required to allow set off of the Part 7 benefits (e.g., see Sheflo v. ICBC, supra and cases cited therein), thus ensuring there will be no prejudice to the defendant. Notwithstanding the situation here, where ICBC takes the position that liability and causation are and will be disputed in the tort claim, and where the plaintiff’s material is confusing and far from perfect, I am of the view that it is appropriate and fair to decide the issue of the entitlement to benefits to the limited extent I have been able to do so.
99 I have tried to mention the many instances where the defendant sought to make the alleged frailties in the plaintiff’s credibility the basis for referring this matter to the trial list. In my view, while there may be areas to be explored on the tort claim, in view of the extensive medical evidence, including the three surgeries, and the lengthy capacity evaluations, the assessment of the Part 7 claim is not, contrary to the position advanced by ICBC, based solely on the self-report of the plaintiff. In particular, the determination of causation is not dependent on his credibility. It is based on the opinions of many doctors, including the defendant’s independent expert, Dr. Schweigel.
100 The claim for disability benefits is allowed to January 15, 2004. The claim for the remainder of the period may be renewed on appropriate material which may include an order for cross examination of the plaintiff, or may proceed to trial. I will hear any subsequent applications if I am available, but am not seized. The medical expenses are allowed to the extent set out in paragraphs 96 and 97.
101 Although I have not been able to decide the entire claim in the plaintiff’s favour on this application, the plaintiff has been substantially successful and should have his costs of this application at Scale B.