ICBC Law

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, awarding a Plaintiff just over $300,000 in total damages as a result of injuries and loss sustained in 2 BC Car Crashes.

In today’s case (Roberts v. Scribner) the Plaintiff was involved in two collisions, the first in 2005, the second in 2006.  She was not at fault for either crash.  The trial focused solely on the issue of the value of the Plaintiff’s ICBC Injury Claims.

The Plaintiff’s injuries affected her neck, mid back, low back, left shoulder collar bone and caused headaches.  She also suffered from depression and PTSD.

In assessing non-pecuniary loss (money for pain and suffering and loss of enjoyment of life) at $95,000 Madam Justice Bruce made the following findings about the Plaintiff’s injuries:

[173] I am satisfied that the soft tissues injuries Ms. Roberts suffered to her back, and to a lesser extent, her neck, have caused her substantial pain and disability since November 2005 when the first accident occurred. After the second accident she further aggravated her physical injuries, which developed into a chronic pain condition. In addition, Ms. Roberts’ psychological illnesses have aggravated her physical pain and suffering and have clearly contributed to the cycle of continuing pain. I note parenthetically that there is no dispute that Ms. Roberts’ PTSD symptoms and depression stem from the trauma of the accidents. Even the defence specialist, Dr. Smith, was of this view. At p. 5 of his report Dr. Smith says:

The most common sequel of motor vehicle accidents, particularly rear-end-type accidents, is the development of soft tissue injuries. If the soft tissue injury pain goes on for a number of months, individuals develop poor sleep and then are at risk for depression. I believe this is exactly what has happened with Ms. Roberts as a result of the two accidents.

[174] All of the specialists who examined Ms. Roberts have guarded prognosis for her complete recovery from the soft tissue injuries given the length of time they have persisted despite her tremendous efforts to rehabilitate herself. While Dr. Shah opined that some improvement could be expected in the future, he was unable to say at what point this might occur and to what extent Ms. Roberts’ condition would improve. Certainly there is some hope that different therapies may assist Ms. Roberts; however, her physical condition has plateaued since mid 2006 and she has not improved substantially since that time…

[177] The injuries caused by the accidents have also adversely affected Ms. Roberts’ ability to enjoy the recreational activities she loved to do before the collisions. She has attempted to return to snowboarding, but has not been able to tolerate more than one or two hours before the pain makes her stop for the day. Ms. Roberts has given up competitive horseback riding and the other sports she enjoyed before the accidents. Hiking and camping are also activities that she now finds too difficult to do because of the back pain she experiences when walking on an incline and sleeping on the ground. The physical and psychological injuries have also affected her social life; she is not able to sit for long periods at friends’ homes or in a movie theatre and thus spends most of her time at home seeking out a comfortable position. Her sleeplessness has affected her relationship with Mr. Harvey. They now have to sleep in separate rooms.

[178] Ms. Roberts has also undergone a complete personality change due to the injuries caused by the accident. The collateral witnesses testified about how fun- loving and comical Ms. Roberts was before the accidents and how depressed, sad and serious she has become since these events occurred. She does not enjoy life anymore and appears to function physically like a far older woman, moving slowly and stiffly and constantly attempting to find a comfortable position.

[179] Mr. Pakulak tested Ms. Roberts’ functional capacity overall, and in respect of several different movements that may be required for work, household chores, and recreational activities. There is no doubt that Ms. Roberts in many respects is functioning at a high level. However, it is also apparent that she has a reduced capacity in several functions, some of which are critical in her line of work. While the fact that she is unable to lift over 30 lbs does not render her disabled from performing the work of a graphic designer, Ms. Roberts’ reduced capacity for sitting and other movements related to working at a computer desk adversely affect her ability to carry out these duties efficiently and over an extended period. It is also important to consider that while Ms. Roberts may appear to be able bodied compared to many people, it is the changes in her life that are relevant to an assessment of damages. Before the accidents, Ms. Roberts was a youthful, extremely fit and active woman who had no difficulty whatsoever managing a full-time job, a busy social life, and an active recreational and exercise program. The functional limitations that now govern Ms. Roberts’ activities clearly represent a substantial change for her. Thus the impact on her ability to enjoy life cannot be underestimated. Moreover, in light of the guarded medical prognosis for her complete recovery, it is likely that these functional restrictions may, to some extent, continue to govern her life for the foreseeable future….

[181] Turning to the issue of quantum, it is well established that each case must be decided on its own facts. The authorities cited by the parties are useful as a guide in regard  to quantum; however, each particular case has unique factors that must be considered when awarding damages for pain and suffering and loss of enjoyment of life. In this regard, I found the authorities cited by Ms. Roberts, and in particular, the circumstances in Gosal, more closely mirror the facts in this case than the authorities cited by the defendants. Given my conclusions regarding the nature of Ms. Roberts’ injuries, the impact these injuries have had on her life, the length of time she has continued to suffer, and the guarded prognosis for her complete recovery, I find an award of $95,000 is appropriate in the circumstances.

An interesting side note to this judgement was the Court’s critical commentary of Dr. Sovio.  ICBC hired this doctor to conduct an ‘independent medical examination‘ of the Plaintiff.  As I’ve previously pointed out there are a handful of doctors who do a lot of these independent examinations for ICBC and it is not unusual for some of the reports generated by some of these physicians to contradict the opinions of treating doctors.  That indeed was the case in today’s judgement and Madam Justice Bruce pointed this out and gave ‘little weight‘ to Dr. Sovio’s opinions.  The Court made the following critical comments:

[131] Bearing in mind the anomaly of Dr. Sovio’s report, his lack of independent recollection of the interview, and the failure to cross examine Ms. Roberts on what is recorded in his report, I find little weight can be placed on his recorded history of her complaints and symptoms. It is also important to note that Dr. Sovio did not record Ms. Roberts’ exact words. Thus there may be errors of interpretation in his assessment of her pain levels, as well as her history of past and current symptoms…

While Dr. Sovio has come to a conclusion that Ms. Roberts is no longer suffering from her soft tissue injuries, I find his opinion is clearly inconsistent with the considered opinions of a variety of different specialists. As such, I find little weight should be placed on his assessment.

(Please note the below case was partially overturned on Appeal with a slight reduction in the Court’s assessed damages for cost of future care.  The BC Court of Appeal judgement can be found here)

Reasons for Judgement were released today by the BC Supreme Court, Vancouver Registry (Penner v. Silk), awarding a Plaintiff just over $555,000 in total damages as a result of injuries and loss from a 2005 BC Car Crash.

The collision occurred while the Plaintiff was rear-ended on a highway in Langley, BC.   The issue of fault was admitted at trial by ICBC leaving the court to deal with the assessment of damages.

The Plaintiff sustained a variety of soft tissue injuries that largely recovered in 6 months.  His knee, however, sustained long term injury.  Dr. Hirsch, a well respect specialist in physical medicine and rehabilitation, gave evidence that the Plaintiff suffered from “chronic knee pain caused by post-traumatic patellar tendonopathy as well as the development of patellofemoral joint syndrome.”    Dr. Hirsch testified that the Plaintiff would likely be left with ongoing problems as a result of this accident related injury.

In assessing the Plaintiff’s non-pecuniary damages (compensation for pain and suffering and loss of enjoyment of life) at $80,00 Mr. Justice Sewell made the following findings:

[36] Based on the whole of the evidence, I have reached the conclusion that Mr. Penner is suffering from chronic pain in his left knee and that that chronic pain is significantly impairing his ability to function, both at work and at home.  Pain is, of course, inherently subjective.  Based on the evidence before me, I conclude that there is a psychological component to Mr. Penner’s pain perception and that his quality of life and perception of pain would benefit from a course of vigorous, physical exercise and psychiatric intervention.  Dr. Riar and Dr. Smith agree that Mr. Penner is suffering from either adjustment disorder with depression or Major Depression.  Both are of the view that he would benefit from psychiatric intervention.  That intervention would probably consist of counselling with a psychologist or psychiatrist and the prescription of appropriate anti-depressant medication…

[39] As indicated above, my observation of Mr. Penner is that he is a driven, somewhat obsessive individual.  It is my view that much of Mr. Penner’s self-esteem is wrapped in his job performance.  Before the accident he was able to draw on very high levels of energy to permit himself to devote considerable energy both to work and his social and home life.  It is apparent to me that the symptoms he is experiencing, whether from depression or his organic injury, have contributed directly and indirectly to a significant diminution in Mr. Penner’s energy levels.  The preponderance of evidence before me satisfies me that Mr. Penner will continue to experience pain and mobility difficulties regardless of whether he avails himself of psychiatric intervention and/or a regime of physical exercise.  However, I am also of the view that a combination of such treatment, exercise and lifestyle changes would result in a significant improvement in the quality of Mr. Penner’s life and a diminution of his pain perception.  My view is that a necessary component of Mr. Penner’s adjustment to his altered circumstances would be for him to reduce the amount of time and energy he is devoting to his employment.

[55] Mr. Penner has satisfied me that the pain which he is experiencing is “real” in the sense that it is genuine and that he has honestly reported it in his evidence and to his treating physicians.  I am also satisfied, and it appears to be common ground, that the psychological component of Mr. Penner’s pain was caused by the defendant’s negligent act.  I am satisfied that Mr. Penner’s life has been significantly changed for the worse as a result of the defendant’s unlawful conduct.  Given his present condition and, in particular, the persistent pain he experiences, the dramatic degradation of the quality of his social and family life, his loss of libido and loss of ability to engage in activities that he formerly found pleasurable, or at least significant restriction in his ability to engage in those activities, I assess non-pecuniary damages in this case at $100,000 before taking into account the reasonable prospect that Mr. Penner’s condition could be significantly improved if he acts on the recommendations made by the medical experts in this case.

[56] The medical evidence in this case is that a regimen of exercise coupled with psychiatric treatment would be beneficial for Mr. Penner.  According to Dr. Smith such treatment would result in a very significant reduction in Mr. Penner’s perception of pain.  Dr. Riar and Dr. Gouws are of the view that Mr. Penner would benefit from psychiatric intervention to address his depressive symptoms.  Dr. Hirsch is of the view that Mr. Penner would benefit from a regimen of physical exercise.  I am, however, mindful of the fact that all of the doctors agree that Mr. Penner will continue to experience symptoms and that none of the medical evidence in this case quantifies with any specificity the probability that the recommended treatments will be effective.  It is also my view that psychiatric intervention and treatment of depression are somewhat problematic in terms of lasting benefits given the underlying causes of Mr. Penner’s depression.  Finally, I must take into account the substantial possibility that Mr. Penner’s psychiatric problems may recur or be worsened if he loses his current employment. In his report, Dr. Smith says this:

With effective treatment Mr. Penner’s problems will improve. Without treatment he may become more dysfunctional, and if Mr. Penner for some reason loses his job his mood would likely crash as a good deal of his self- esteem is built around his work performance.

[57] Taking these contingencies into account, I assess Mr. Penner’s compensable non-pecuniary damages in this case at $80,000.

Reasons for judgement were released today by the BC Supreme Court Awarding damages as a result of a BC Car Crash.

In today’s case, (KT v. AS) The Plaintiff was involved in a motor vehicle collision while seated as a passenger in 2005.  It was a significant intersection collision.  The Plaintiff was 17 years old at the time.  The Plaintiff claimed that she suffered both physical and psychological injuries as a result.

Madam Justice Ballance largely rejected the Plaintiff’s claim for accident related psychological injuries but did accept the claim for physical injuries.  In awarding the Plaintiff $70,000 in non-pecuniary damages the Court summarized the Plaintiff’s accident related physical injuries as follows:

[210]     According to the plaintiff, since the accident she has felt an ache along with tightness and sore muscles in her low back.  She says that every few weeks the pain is so intense that she keels over.  She testified that in the first six months or so following the accident, her neck and muscles were stiff and knotted, particularly when her head was bent.  Her headaches would follow at least once per week, building up slowly from the back of her neck.  At times they lasted an entire day.  Unlike the headaches that she experienced prior to the accident, eating did not alleviate the pain in her head.  Also within the initial six months time frame, the plaintiff said she would feel a sharp pinching sensation in her upper back/trapezius area a few times each month that seemed to come out of nowhere.  She testified that at her last appointment with Dr. Smith roughly 22 months post-accident,  her neck was still stiff and she was still experiencing intermittent sharp pinching pain in her shoulder blade/trapezius area.  Her low back continued to produce a dull ache most of the time that fluctuated considerably in intensity depending on her activity.

[211]     The plaintiff says that she has not had a pain-free day since the accident.  In terms of her current symptoms, the plaintiff claims that her low back pain, of variable intensity, persists and is her dominant problem.  Physical activities such as soccer, jogging and extensive walking, climbing up or descending stairs can cause a flare-up of pain.  However, the postures that are most aggravating are those which appear to be innocuous, such as sitting and static standing for prolonged periods.

[212]     The plaintiff also continues to experience episodic pain in her neck and upper trapezius area.  She claims that the jabs of pain in her shoulder blade area have become infrequent, flaring up roughly once per month.  Although she still suffers headaches, especially when she sits down for long periods to study, they have substantially diminished in their frequency.  Her hips and “upper butt” area have not caused her difficulty for a very long time.

[213]     The defence concedes that the plaintiff sustained mild to moderate soft tissue injuries to her neck and back.  As to her low back injury, the defendants assert that, at most, the accident caused a temporary aggravation of an “ongoing injury process” due to her pre-existing injuries and core weakness.  It should be evident from my discussion of the expert medical evidence and, specifically, my disapproval of Dr. Hepburn’s opinion, that I find the evidence does not support the defendants’ position that the plaintiff’s current low back pain is basically the same as the dysfunction in her upper “butt” sacroiliac joint or hip regions experienced before the accident.

[214]     The evidence amply establishes that the accident caused musculoskeletal injuries to the plaintiff’s neck, upper trapezius (left shoulder area) and her lumbar spine.  Relying on Dr. Hershler, Dr. Jung and Ms. Cross, I also find that it is more probable than not that the accident injured the facet joints of the plaintiff’s lumbar spine.  I find, as well, that it caused her headaches secondary to her neck pain, injured her left sacroiliac joint and aggravated her pre-accident difficulty with the right side of that joint.  On balance, I am not persuaded that she suffered a costovertebral injury as opined by Dr. Jung.

Another interesting aspect of this decision was the Court’s discussion of the Defence Medical Evidence.  The Defence hired Dr. Hepburn, a retired orthopaedic surgeon, to conduct a so-called ‘independent medical exam‘ of the Plaintiff.  Madam Justice Ballance largely rejected this expert’s evidence and in doing so made the following critical comments:

191]     Since his retirement in 2007, Dr. Hepburn’s medical practice has been solely devoted to conducting independent medical examinations.  Virtually every referral examination he receives comes from defence counsel and ICBC.

[192]     By his own admission, a mere 10%-15% of Dr. Hepburn’s practice prior to his retirement involved soft tissue injuries, and even then he was not involved in their ongoing management and treatment.  Dr. Hepburn testified that, while in practice, he did not treat patients with back injuries who had not suffered a fracture, slipped disc, disc prolapse or other type of injury requiring surgical intervention.  Generally, he would not even see such patients and would typically refer them to a specialist better trained to treat ongoing non-orthopaedic soft tissue injuries, such as a physiotherapist and physiatrist.

[193]     Dr. Hepburn could not recollect treating any costovertebral joint injuries, and testified that he only treated orthopaedic facet joint injuries (dislocations and fractures) for which surgery can produce some benefit.

[194]     As Dr. Hepburn testified, it became apparent that, although he was qualified as an expert in the diagnosis and prognosis of soft tissue injuries, his expertise lies almost exclusively in the field of orthopaedics.  This, however, is not an orthopaedic case.  It is a claim involving chronic soft tissue injuries which cannot be repaired through surgical intervention.

[195]     The plaintiff told Dr. Hepburn that her major problem related to her low back.  She also complained of pain in her left shoulder, a stiff neck, and headaches.  Dr. Hepburn agreed that the plaintiff likely suffered some soft tissue injury to her neck and knee from the accident.  However, he found it unclear as to whether her lower back pain was connected to the accident.  In this regard, he seemed to place some reliance on his understanding that there had been no complaint of back pain noted in the plaintiff’s medical records in the months following the accident.  That is a misconception.  The physiotherapy records are replete with the plaintiff’s complaints of low back pain in the months immediately after the accident.  The treating physiotherapist’s discharge note, which formed part of Dr. Smith’s file, leaves no doubt that the plaintiff’s lumbar spine was the chief area of treatment throughout the many sessions.  I can only conclude that Dr. Hepburn’s review of those records was superficial.

[196]     As an aside I would also note that the plaintiff’s controversial ICBC statement tendered into evidence by the defence itself refers to complaints of low back pain within the first two weeks following the accident.

[197]     In addressing the plaintiff’s pre-accident physical difficulties, Dr. Hepburn seemed to suggest that it would be legitimate to interpret her physiotherapist’s notations of sacroiliac joint pain as being medically equivalent to a notation of unspecified low back pain.  The implicit suggestion was that the plaintiff’s post-accident low back pain is the same as her sacroiliac joint complaints before the accident and, accordingly, was not caused by the accident.  He went so far to say that, in all likelihood, the plaintiff actually had low back pain and not sacroiliac joint dysfunction when she saw her physiotherapist before the accident.  I have previously made clear that I reject the free-floating notion that a physiotherapist would confuse those distinct anatomical areas.  His evidence on this point distinguished Dr. Hepburn from the other medical experts who gave evidence on the point.  It caused me considerable concern.

[198]     I also found it strange that in his report, Dr. Hepburn described the plaintiff’s headache complaints as falling beyond his area of expertise.  The preponderance of all of the other medical opinion evidence, which I find credible, is that the plaintiff’s post-accident headaches probably stem from her injured neck.  In his report, Dr. Hepburn did not allow for the prospect that the plaintiff’s headaches could be cervicogenic in origin, and represented referred pain from her injured neck.  He was only prepared to admit that potential in cross-examination.  Instead, in his report he had implied that the plaintiff’s headaches had a psychological source by suggesting that they could be addressed by medication for anxiety.  In my view, Dr. Hepburn’s assessment of the plaintiff’s ongoing headaches was not evenly balanced.  That too was of concern.

[199]     Dr. Hepburn did not find a restricted range of movement in the plaintiff’s spine.  He explained that the dual inclinometer applied by Dr. Jung is not used by him or any orthopaedic surgeon to his knowledge.  That does not mean that measurement with that device is not the gold standard.  I was most impressed with Dr. Jung’s explanation of the frailties of the so-called “eyeballing” assessment of range of motion and the superior measurement capability of the device he used.

[200]     Dr. Hepburn was adamant that the manner in which Dr. Jung and Dr. Hershler purported to diagnose a potential facet joint injury was not adequate.  He testified that a definitive diagnosis cannot be made without proper imaging studies such as a bone scan, CT scan or MRI.  He stood by his opinion that there was no facet joint injury that he could detect on his examination of the plaintiff.  Dr. Hepburn’s comments regarding the diagnosis of facet joint injury illustrates the difference between the medical approach to diagnosis for the purposes of determining causation, and the legal approach to the question of causation.  As noted by the Supreme Court of Canada in Snell v. Farrell, [1990] 2 S.C.R. 311, [Snell ] at para. 34:  “Medical experts ordinarily determine causation in terms of certainties whereas a lesser standard is demanded by the law.”

[201]     With respect to Dr. Jung’s diagnosis of costovertebral injury, Dr. Hepburn opined that such an injury is quite rare and would normally be associated with severe trauma such as in an individual with broken ribs.  He suggested that it would take a “divine talent” to diagnose this type of injury based on physical/clinical presentation alone.

[202]     Relying on Dr. Hepburn’s opinion, the defence argues that the plaintiff’s subjective pain complaints which have continued for more than four years after the accident are inconsistent with the fact that her spine has suffered no structural damage or other ominous pathology.  The underlying logic appears to be that pain and chronic injury do not occur in the absence of orthopaedic or other structural injury.  That notion offends common sense and is blind to the credible explanations given by Drs. Jung and Hershler and Ms. Cross as to the nature of soft tissue injury.

[203]     In the end, I consider it unsafe to give any weight to the opinions expressed by Dr. Hepburn.

Reasons for judgement were released yesterday dealing with an appropriate award of damages for soft tissue injuries and chronic pain lasting for over 6 years.

In yesterday’s case (Gosal v. Singh) the Plaintiff was involved in 2 BC Car Crashes.  The first in 2003, the second in 2005. The first crash was a rear end collision.  Fault was admitted.  As the Plaintiff was recovering from her injuries from the first collision she was involved in the second collision.

The second crash happened when the Defendant, who was parked, pulled out in front of the Plaintiff’s lane of travel.  Fault was not admitted but Madam Justice Loo held that the defendant was 100% at fault finding that he “moved his vehicle from a parked position without first determining that he could do so safely, and that (the Plaintiff) had no opportunity to avoid the collision.”

The Plaintiff suffered from various soft tissue injuries and chronic pain which lasted for over 6 years and still bothered the Plaintiff by the time of trial.  In valuing the Plaintiff’s non-pecuniary damages (pain and suffering and loss of enjoyment of life) at $95,000 Madam Justice Loo made the following findings:

[49] Ms. Gosal suffered mild to moderate soft tissue injuries to her neck, upper back, shoulders, and mid and lower back, which caused severe headaches. She was treated with physiotherapy, massage, and chiropractic treatments, but her recovery took longer because of her depression and anxiety. She was recovering when the second accident exacerbated her injuries, including her depression and anxiety.

[50] Dr. Khunkhun states that Ms. Gosal’s long-term prognosis is guarded because her symptoms have not resolved after such a long period of time since the accidents. She does not consider Ms. Gosal to be at an increased risk of any long-term sequelae such as osteoarthritis. She believes Ms. Gosal would continue to benefit from body conditioning and strengthening exercises. She observed that in the past Ms. Gosal benefitted from regular exercise and when she stops exercising regularly, her mood deteriorates and her pain increases.

[51] Dr. Manchanda last saw Ms. Gosal on September 24, 2008. She told him that she had pain on about four or five days a week, and no pain on about two days a week. She was still looking for employment in counselling. At that time, Dr. Manchanda felt that Ms. Gosal could work in a job that was sedentary or involved light physical duties. He also felt that Ms. Gosal could complete the majority of her household chores, but that she might require a break or assistance with the heavier chores, such as vacuuming or carrying heavy laundry.

[52] Dr. Manchanda’s prognosis has thus far proved to be accurate. Ms. Gosal has worked full-time since October 6, 2008 in a job that is fairly sedentary and involves only light physical duties. There is no evidence that she has taken time off work because of symptoms arising from the accidents…

[67] I prefer Dr. Sandhu’s opinion that Ms. Gosal is not seeking secondary gains. She was looking after the household and her children’s needs as best she could, and doing her best to continue with her studies. Having observed Ms. Gosal, and on all the evidence, I conclude that she is not malingering and that her complaints of pain and depression are genuine.

[68] She continues to improve, albeit slowly. I find that there are two to three days a week when she is not in pain. Full-time employment has assisted her both physically and emotionally. Though it is now more than six years since the first accident, and more than four years since the second accident, she still suffers from depression and pain. I anticipate that over the next few years, with a regular daily exercise program, her physical pain and depression will continue to improve but may not resolve completely.

[71] I find that circumstances of Ms. Gosal’s injuries are similar to those in Foran v. Nguyen, 2006 BCSC 605, 149 A.C.W.S. (3d) 419, where the award for non-pecuniary damages was $90,000, and Jackson v. Lai, 2007 BCSC 1023, 160 A.C.W.S. (3d) 276, where the award was $100,000.

[72] I consider an award of $95,000 for non-pecuniary damages to be appropriate.

In addition to this case’s value as a precedent for valuing non-pecuniary damages for chronic pain, this case is worth reviewing for the Court’s criticism of the expert witness called by the defense.

I’ve previously written about the duty of experts to the court and highlighted judicial criticism when experts ignore this duty.  In today’s case the court made critical findings with respect to Dr. Hymie Davis, a psychiatrist who billed over $290,000 to ICBC in 2008.  Specifically Madam Justice Loo found that Dr. Davis “was presenting a case for the defence rather than providing an impartial expert opinion.  Dr. Davis’ argument that (the Plaintiff’s) injuries should have healed and that she is seeking secondary gains or malingering, is at odds with his article “The Whiplash Injury“.

Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, awarding a Plaintiff damages for accident related injuries.

In today’s case (Cheng v. Kamboz) the Plaintiff was involved in a 2005 BC Car Crash. The other motorist admitted fault.  The issue the court dealt with was quantum of damages (value of the Plaintiff’s claim).

Mr. Justice Myers found that the Plaintiff suffered from pre-existing chronic pain at the time of the crash.  Specifically he found that the Plaintiff suffered from headaches, neck pain, shoulder pain, hip pain and low back pain.  Notwithstanding these pre-accident complaints the Court found that the Plaintiff’s pre-existing “chronic pain” was transformed into a “chronic pain syndrome” as a result of the collision.  In valuing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $45,000 for this aggravation Mr. Justice Myers reasoned as follows:

[39]    I find that before the accident Ms. Cheng was suffering – to a lesser extent – from all the pain of which she now complains.  Ms. Cheng says that she had no hip pain before the accident; however, that is not what she told Dr. Feldman when she mentioned what she referred to as being symptomatic of myasthenia gravis, to which I referred above at para. 29.  Whether it was caused by the myasthenia gravis is, in this context, beside the point.

[40]    Ms. Cheng was suffering from headaches prior to the accident in question.  While she says they are more frequent now, the difference is minimal.  Further, they are often brought on by stress at work and that is a variable which has nothing to do with the accident.

[41]    That said, the accident exacerbated the injuries and escalated chronic pain into chronic pain syndrome.  Causation for the exacerbation and chronic pain syndrome has been shown.  The harm caused by the defendant is divisible from the harm caused by the prior accidents and the plaintiff’s pre-existing condition.  To be clear, this is not the type of case, as was Athey v. Leonati, [1996] 3 S.C.R. 458, in which a pre-existing condition of the plaintiff made him more amenable to a specific injury (a disc herniation).

[42]    Damages are to be assessed on the basis that Ms. Cheng is to be put in the position she was before the accident, but not in a better position.

[43]    Ms. Cheng referred me to cases in which the damage range was between $80,000 and $100,000.  The defendants’ cases ranged from $35,000 to $60,000.

[44]    The injuries will not result in a drastic change of lifestyle for Ms. Cheng.  As I have noted, she was not physically active before the accident.  None of the doctors have opined that she will not be able to resume the limited walking she was doing before the accident.  The same can be said with respect to going to the theatre.  The migraines were present before the accident and her reduced playing of video games because of the migraines cannot be blamed to any substantial degree on the accident.

[45]    On the other hand it must be recognised that the accident did cause her chronic pain syndrome and that it is likely to continue for some time.

[46]    In my view, the proper assessment of damages for the exacerbation of Ms. Cheng’s prior injuries and the addition of the chronic pain syndrome is $45,000.

(Update: December 14, 2011 - the  below decision was upheld by the BC Court of Appeal in reasons for judgement released today)

I’ve written on this topic a few times in the past.  Surveillance in and of itself does not harm a Plaintiff’s ICBC Injury Claim.  It’s when surveillance contradicts a Plaintiff’s testimony that the damage is done.  Reasons for judgment were released today by the BC Supreme Court demonstrating this in action.

In today’s case (Fan v. Chana) the Plaintiff was injured as a passenger in a rear-end collision in Vancouver BC. The crash happened in 2000 and the Plaintiff was 9 years old at the time.

At trial the Plaintiff testified that she suffered various injuries in this collision and that these continued to affect her at the time of trial some 9 years later.   Mr. Justice McEwan noted that the Plaintiff “twisted, turned, stretched and pushed herself against the edge of the (witness) box almost constantly” while testifying.

The Court concluded that the Plaintiff’s injuries were not as severe as presented and instead found that this crash caused “soft tissue injuries of an immediate duration of less than two years” and awarded $25,000 for the Plaintiff’s non-pecuniary damages.

In coming to his conclusions about the extent and severity of the Plaintiff’s injuries the Court noted the following about video surveillance evidence that was gathered on behalf of the defendant:

[50] The plaintiff was shown a surveillance video taken March 18 and 19, 2009, apparently showing her going about without any apparent pain.  After spending four hours at a wave pool she went to a very long movie without the sort of getting up and walking around that she suggested she needed.  In redirect she identified a few occasions on the video where she appeared to “crack” her neck…

[74] The plaintiff’s case is somewhat unusual in that there appear to be two quite different dimensions in which she moves.  The first is her ordinary, public life.  This is the world of school and teachers and social friends.  In the aftermath of the accident, the plaintiff’s physical education teachers noted no change.  The plaintiff’s marks were those of a diligent, hard working student.  Her social activities are in all respects normal.  The plaintiff’s friends consider her an outgoing, lively companion.  Significantly, the most obvious sign of pain they were able to remark upon was her habit of “cracking” her neck and back, something that is medically of no import according to those who have treated her, including Dr. Hahn.

[75] The surveillance video and the plaintiff’s observed behaviour do not show anything like the pattern demonstrated in court.  There may be a few occasions when the plaintiff “cracked” her neck, but it is very difficult to say.  The observations made by the surveillance operators specifically do not bear out the plaintiff’s suggestions that she is a drag on her friends, frequently holding them up to take rest breaks and unable to sit through movies.  She was observed to sit through a very long film with no trouble.  I recognize the caution with which surveillance of a brief sample of a person’s life must be approached, but I also note that the observers managed to spend a number of hours watching the plaintiff doing things she specifically cited as current examples of her disability, without noting any of the overt signs her evidence would suggest.

In addition to a useful and lengthy discussion on credibility in chronic pain cases Mr. Justice McEwan had the following statement of interest when it comes to doctor’s opinions regarding the severity of Chronic Pain in Subjective Injury Cases:

[72] The balance of the medical opinion divides along lines that depend on the degree of scepticism the doctors bring to the description of symptoms with which they were presented.  These range from very strong endorsements of the plaintiff’s claims (Dr. Kuttner, as reported by Dr. Hahn) to the blunt, contrary opinions offered by Dr. Weeks.

[73] I see very little purpose in parsing the medical reports to sort out who has the greater credibility based on their qualifications (i.e. “paediatric” physiatrists v. “adult” physiatrists).  As courts have observed on any number of occasions, the approach taken by medical professionals is not forensic: they assume that the patient is accurately reporting to them and then set about a diagnosis that plausibly fits the pattern of the complaint.  In the absence of objective signs of injury, the court’s reliance on the medical profession must, however, proceed from the facts it finds, and must seek congruence between those facts and the advice offered by the medical witnesses as to the possible medical consequences and the potential duration of the injuries.

Today reasons for judgment were released by the BC Supreme Court in 2 separate cases dealing with chronic soft tissue injuries.  I summarize these below in my continued effort to grow this public database addressing awards for pain and suffering in ICBC and other BC Injury Claims.

In the first case (Warren-Skuggedal v. Eddy) the Plaintiff was involved in a very serious collision in Prince George, BC.  The defendant was “driving well in excess of the speed limit…(he) lost control and the truck swerved into the lane in which (the Plaintiff) was driving…the force of the impact tore (the defendants) vehicle in half“.

Fault was not at issue, rather, the court dealt solely with the issue of damages.  The Plaintiff unfortunately had some serious pre-existing health issues and Mr. Justice Sewell had to decide “the true extent of Ms. Warren-Skuggedal’s injuries and disabilities and the extent to which they are attributable to the injuries she suffered in the accident. ”

In valuing the Plaintiff’s non-pecuniary damages at $60,000, Mr. Justice Sewell summarized her injuries, their relationship to the collision and their effect on her life as follows:

[19] I conclude that Ms. Warren-Skuggedal suffered soft tissue injuries in the accident which aggravated her pre-existing depression and anxiety.  I find that she genuinely experiences the symptoms she has described although I do think that she does exaggerate and dramatize them to a certain extent….

[23]         I conclude that some of the symptoms Ms. Warren-Skuggedal reports are attributable to the accident but that the more serious ones are attributable to her pre-existing condition.  Specifically I find that the anxiety, depression and cognitive problems she experiences are not caused by the accident.  As I understand the law in this area the onus is on Ms. Warren-Skuggedal to prove, on a balance of probabilities, that her symptoms would not be present but for the negligence of the defendant, which led to the injuries and trauma suffered in the accident.  I do not think that she has met that onus with respect to the difficulties described in this paragraph.  I think it is more likely that she would have continued to suffer from depression, anxiety and cognitive difficulties even if she had not been injured in the accident.  The difficulties were part of her original position.

[24]         I must also conclude that Ms. Warren-Skuggedal’s inability to find employment since the accident and any impairment of her capacity to earn income in the future are not attributable to the accident.  While I base this conclusion on the whole of the evidence I note that it is consistent with the opinions expressed by Dr. Reddy and Dr. Hirsch, both of whom concluded that the motor vehicle accident did not negatively affect her employment prospects.

[25]         On the other hand, I do conclude that Ms. Warren-Skuggedal does suffer chronic pain as a result of the defendant’s negligence.  I also find that it is likely that she will continue to suffer from that pain for the foreseeable future.  I also conclude that that pain has resulted in some permanent restriction of Ms. Warren-Skuggedal’s ability to enjoy recreational activities and carry out such household tasks as heavier cleaning and gardening.

This case contains a useful analysis of the Courts role in wading through injuries both related to and unrelated to an accident.  The full judgement is worth reviewing for anyone interested in this area of the law.

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The second case released today (Gordon v. Timins) involved a 2005 BC Car Crash.  The Plaintiff’s vehicle was rear-ended by a u-haul truck.  This collision was significant enough to propel the Plaintiff’s vehicle into the vehicle in front of her.

The Plaintiff’s main injury was chronic neck pain.  Mr. Justice Cullen awarded the Plaintiff $45,000 for non-pecuniary damages (money for pain and suffering and loss of enjoyment of life).  He summarized this lasting injury as follows “In the result Ms. Gordon is left with an injury to her neck that, I find, never fully abates and is aggravated by aspects of her work.  I also find that the plaintiff’s neck pain when aggravated is associated with headaches, some dizziness and impaired sleep patterns with consequential fatigue. ”

In reaching this conclusion the court largely accepted the evidence of Dr. Dhawan, a specialist in physiatry, whose evidence was summarized as follows:

[96]         Dr. Dhawan was a specialist in physiatry or physical medicine.  He testified that the neck has a complicated anatomy with soft and hard tissue structures.  It has ligaments in front and the muscles on top of that.  If the muscles or ligaments are torn, it can lead to instability of the structure.  Dr. Dhawan’s diagnosis of the plaintiff when he saw her on July 18, 2008 was that she had torn muscles and ligaments.  He said that ligaments take longer to heal than muscles because they have less blood supply.  Scar tissue can form and it is not as strong as the original ligament and can stretch or tear more easily and can remain inflamed after forming.  He testified that in the case of a rear-end accident, the usual source of pain is the upper facet joints.  In his report, he reported no boney discogenic or neurological injury, characterizing it as a soft tissue injury.  He noted that the plaintiff “was referred to Kevin Tam … who was able to help her tremendously.”  He noted that she has difficulty in extending her head upwards to prune trees.  He recommended injection therapy – local steroid and anaesthetic injections, 2 – 3 times over a 2 – 3 month period.  He testified that those injections with a stretching and posture control program could resolve the syndrome of soft tissue injury.

[97]         He opined there would be no permanent sequelae like development of arthritis or any need for surgery and no disability from her work as a landscaper/arborist.

[98]         Dr. Dhawan concluded, however, that given the chronicity of her symptoms “some symptoms of neck and shoulder girdle pain may remain on a longer term basis and she will have to learn to live with pain and a quick resolution of symptoms is not likely.”…

[100]     Dr. Dhawan noted that although the degenerative changes are unrelated to the motor vehicle accident, “…individuals who have such changes in the neck do not respond well through treatment and have more prolonged symptoms after soft tissue injuries and symptoms of neck pain may persist for several years and may become chronic.”

[101]     Dr. Dhawan noted in Appendix 3 to his July 18, 2008 report that the plaintiff’s neck extension was only 25% of normal without pain.  He concluded that that was an objective symptom and consistent with his diagnosis.

Reasons for judgement were released today (Testa v. Mallison) by the BC Supreme Court, New Westminster Registry, awarding a Plaintiff damages for injuries and losses suffered as a result of a 2004 BC Car Crash.

The Plaintiff’s vehicle was rear-ended while stopped in traffic.  The issue of fault was admitted leaving the court to deal with the issue of quantum of damages (value of the Plaintiff’s claim).  The Plaintiff suffered injuries to her low back, her neck, shoulders, chest and headaches.

Some of the Plaintiff’s injuries fully resolved, others did not.  By the time of trial the Plaintiff complained of the following ongoing problems “constant pain in her neck from the base of her skull up and down the neck to her shoulders and radiating into her head and temple area.  The pain is lowest first thing in the morning but builds up by afternoon and can get quite severe.  She experiences crying from the pain while in her car driving home.  She can’t stand even the sound of having the radio on.  Her sleep is most often disturbed and intermittent.”

In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $75,000, Mr. Justice Holmes accepted the following evidence:

[48] I accept Dr. O’Connor’s opinion that the 2004 motor vehicle accident caused the plaintiff:

1.       aggravation of a pre-existing neck condition and aggravation and worsening of her existing cervical spondylosis.

2.       cervicogenic headaches, with a migrainous component, and most likely triggered by neck pain.

3.       low mood, deconditioning and sleep disturbance.

[49] Dr. O’Connor’s prognosis is that the plaintiff’s ability to function is primarily determined by her ability to cope with her chronic pain.  That pain level has remained constant over a 2 to 3 year period and she rates it as severe.  Dr. O’Connor is of the opinion that the plaintiff’s pain symptoms are going to persist indefinitely.

[50] Treatment options are very limited.  Exercise with emphasis on core conditioning is paramount. A regime of pain and sleep medication is needed.

[51]         Dr. Shuckett examined the plaintiff September 10, 2008 and as with Dr. O’Conner was provided with comprehensive historic health care provider records of the plaintiff’s treatment for neck, shoulder, back and hip pain and headaches.  Dr. Shuckett’s diagnoses of injury in the 2004 accident are:

1.               cerviogenic headaches with migraine features

2.               whiplash injury of the neck mainly left sided neck pain but also with painfull trigger points

3. myofacial pain syndrome of neck and shoulder girdle region with painful trigger points.

[52] Dr. Shuckett considered causation and concluded at page 11 of her report:

Thus, I believe that her current pain in the neck and shoulder girdles and her headaches are predisposed to by her pre-existing history, but it sounds to me like this pre-existing history was not that significant in the three years before the subject motor vehicle accident of March 23, 2004.  She had mainly left hip girdle pain before the subject motor vehicle accident.

[53]         Dr. Shuckett’s opinion is that the plaintiff “…will be dealing with her symptoms in the long term future.

[54]         I prefer the opinions of Drs. Deernsted, O’Connor and Shuckett to that of Dr. Sauvio in regard to the plaintiff’s March 23, 2004 related injuries, their causation and consequence.

[55]         Dr. Deernsted and Dr. O’Connor have a significant advantage of treating the plaintiff over time.  Dr. O’Connor and Dr. Shuckett concluded a careful review of historic medical clinical records and specifically considered causation issues.

[56]         The plaintiff’s neck and shoulder pain and headaches prior to the March 23, 2004 accident were mainly related to her hip problem that occurred in 2001.  The neck and shoulder pain and headaches by the time of the 2004 accident were much diminished.  They had become only intermittent but she was left more susceptible to injury by subsequent trauma.

[57] The accident of March 23, 2004 aggravated those diminished but active symptoms as well as triggering some that were asymptomatic.  The combined injuries to the shoulder and neck are now very severe in their effect and likely permanent.

[58] The plaintiff’s low mood is a consequence of the injuries and their duration.  The plaintiff had a history of migraine headache experience but hey were generally stress related.  The constant migraine type headache she presently experiences is a consequence of her present injuries and triggered by her neck and shoulder pain.

GENERAL DAMAGES

[59]         The plaintiff’s life has been severely impacted by the result of her injuries sustained in the March 23, 2004 accident.  She has constant pain and headaches and suffers from sleep disturbance and altered mood.  She has experienced a substantial quality decline in her ability to work and in both her leisure and social life activities.

[60] The plaintiff is a motivated lady who will persist in using her long standing fitness and running activity to assist in controlling her chronic pain condition.  Unfortunately at most she may only be able to reduce her pain levels to more tolerable or manageable levels and is unlikely to enjoy a full recovery.

[61] I award general damages of $75,000.

Reasons for judgement were released this week by the BC Supreme Court awarding damages for injuries and loss in an “unusually straightforward” personal injury case.

In this week’s case (Sharpe v. Tidey) the Plaintiff was involved in a 2006 BC Car Crash.  Fault was admitted by the Defendants lawyer leaving only the issue of quantum of damages to be decided at trial.

Mr. Justice Voith summarized the Plaintiff’s injuries as follows:

I find that since the accident Mr. Sharpe has had a constant and relatively significant level of pain in his mid-back area.  This pain increases after strenuous activity; yet nevertheless, as mentioned above, I accept that such activity assists in maintaining Mr. Sharpe’s baseline level of pain at a generally lower level…. I find that Mr. Sharpe’s present levels of back pain will likely remain static for at least the next 3-5 years.  It appears likely that over the longer term his symptoms will either actually abate or will be perceived by him to fade to some degree.  There is a real prospect that even over the long-term Mr. Sharpe will not fully recover from his injuries.

In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $40,000 the court summarized and applied the law as follows:

[44]         In my view, there are a number of cases provided to me by the plaintiff which are of particular value.  These were Kahle v. Ritter, 2002 BCSC 199 22 M.V.R. (4th) 275, Hicks v. GMAC Leaseco. Ltd., 2001 BCSC 1091, and Isert v. Santos, 1999 BCCA 42, 65 B.C.L.R. (3d) 104.  While each of these decisions involves a plaintiff whose claim had attributes that were different from the instant case, they share certain central features.  In each case the plaintiff was generally able to work following their motor vehicle accident, without interruption or with limited interruption.  They involved persons who were particularly active, whose level of activity and enjoyment of such activities defined them, and who had been able to maintain some or all of the activities, albeit in modified or limited form.  Thus, they involved individuals who were not disabled, but who suffered from some impairment of functionality.  Their recovery had largely plateaued.  In my view, however, the impairment suffered by the plaintiffs in these cases was somewhat more severe than that suffered by Mr. Sharpe.

[45]         Mr. Sharpe is a young man in the prime of his life.  Work, sport, travel and his relationship with Ms. Drinkwater are the cornerstones of his life.  Sport and travel, in particular, are central to his social relationships, his sense of well-being, and his activities with Ms. Drinkwater.

[46]         Mr. Sharpe lives with a constant level of pain that is exacerbated when he engages in the very things that give him pleasure.  His recovery appears to have plateaued.  The prognosis for further recovery for at least a number of years is poor.  Furthermore, increased demands arising from his career and the family he hopes to have are a concern for his future.  Conversely, I recognize that if Mr. Sharpe is to undertake graduate studies and have a family in the future, he will have less time to engage in these various sports or activities.  Furthermore, as he gets older it is inevitable that to some extent he would, in any event, be less involved in the more extreme activities in which he has historically participated.

[47]         In my view, in all of the circumstances, the appropriate award for Mr. Sharpe’s non-pecuniary loss is $40,000.