ICBC Law

BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Posts Tagged ‘complex somatoform disorder’

$175,000 Non-Pecuniary Assessment For Fibromyalgia and Somtatic Disorder

December 28th, 2016

(The below judgement was upheld by the BC Court of Appeal)

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic physical and psychiatric injuries caused by a vehicle collision.

In today’s case (Kim v. Lin) the Plaintiff was involved in a 2007 collision the Defendants admitted fault for. She suffered soft tissue injuries and eventually developed fibromyalgia and a somatic disorder.  In assessing non-pecuniary damages at $175,000 Mr. Justice Sewell provided the following reasons:

[128]     I am satisfied, based on all of the evidence that I accept, that Ms. Kim has suffered soft tissue injuries to her back and SI joints as a result of the Accident, which have caused her considerable pain and discomfort. I am also satisfied that as a result of a combination of Ms. Kim’s physical pain and her personal circumstances, Ms. Kim developed the psychiatric disorders diagnosed by Dr. Shane and the fibromyalgia and chronic pain syndrome diagnosed by Dr. Krassioukov.

[129]     I find that Ms. Kim would not have developed the psychiatric and somatic disorders diagnosed by Drs. Shane and Krassioukov but for the injuries she suffered in the Accident. I therefore find that there is a substantial connection between the tortious conduct of the defendants and the damages and injuries from which Ms. Kim suffers.

[130]     I also find that there is no credible evidence that at the time of the Accident Ms. Kim was suffering from a pre-existing condition that would have had an adverse effect on her future health or capacity. I therefore find that there is no basis for making any deduction from her damages based on any substantial possibility that her health or capacity would have declined in any event…

[152]     In this case, I am satisfied that Ms. Kim’s disability is permanent, in the sense that it is more probable than not that she will continue to suffer from the injuries caused by the Accident for the foreseeable future. Ms. Kim has, however, not suffered any degree of cognitive impairment. The evidence does indicate that there has been some improvement in her overall condition since she moved to Nanaimo and that she has benefitted from counselling with Miyoung Cho, a Korean-speaking psychologist.

[153]     Taking all of the circumstances into account, I assess non-pecuniary damages at $175,000.


$160,000 Non-Pecuniary Assessment for Major Depressive and Somatic Symptom Disorders

January 16th, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic psychological issues following a collision.

In today’s case (Cornish v. Khunkhun) the plaintiff was involved in an intersection collision in 2010.  Both the Plaintiff and Defendant were found equally to blame for the crash.  The Plaintiff suffered from a  major depressive disorder and somatic symptom disorder following the collision.  Her non-pecuniary damages were assessed at $160,000 and in reaching this figure, prior to factoring in the liability split,  Mr. Justice Skolrood provided the following reasons:

[131]     The evidence of Ms. Cornish’s condition was largely uncontradicted. I find that she suffers from a Major Depressive Disorder, as found by Dr. Riley, as well as a Somatic Symptom Disorder which results in her experiencing chronic pain. I also find that she experiences confusion and memory loss which Dr. Riley notes is consistent with her depressive disorder.

[132]     I also find that Ms. Cornish’s injuries have had a significant impact on her enjoyment of life. Her own evidence, and that of her supporting witnesses, paints a compelling before and after picture of a once vibrant woman who, as Ms. Fraser-Biscoe said, is now a different person…

[139]     The evidence is clear that Ms. Cornish had previously suffered from symptoms of depression and that she had a pre-existing back injury. With respect to the depression, I am satisfied on the evidence that it was in remission at the time of the accident and that her current psychological condition was caused by the accident.

[140]     In terms of her pain condition, prior to the accident Ms. Cornish’s back condition caused some limitations with respect to her physical capacity, particularly as it related to her work. She was only able to do light work. However, I accept that the accident aggravated her condition and is the cause of her current chronic pain or Somatic Symptom Disorder.

[141]     The cause of Ms. Cornish’s confusion and memory loss is less clear as there is no neurological evidence addressing these symptoms. However, I accept Dr.  Riley’s opinion that her condition is related to her depressive disorder which I have found was caused by the accident…

[146]     Given the ongoing nature of Ms. Cornish’s symptoms and their impact on her enjoyment of life, I find that a reasonable award of non-pecuniary damages is $160,000.00.

 


$1,284,279 Awarded for Traumatic 'Complex Somatoform Disorder'

November 3rd, 2008

Reasons for judgement were released today awarding a Plaintiff nearly $1.3 million in damages as a result of a 2002 motor vehicle collision which occurred at UBC.

The Plaintiff was a pedestrian at the time.  She was struck while walking in a marked crosswalk on a dark and rainy evening.  Both fault and quantum (value of the ICBC claim) were at issue at trial.

The court found that the defendant driver was 100% responsible for the collision.  At paragraph 8 Madam Justice BJ Brown noted that

[8]                In my view, (the Defendant) is 100% responsible for the accident.  She was driving in, not through, the crosswalk, in the course of completing a U-turn, looking for a parking space.  She was aware that at that time of night it is quite common for there to be pedestrians about, that there are still students attending classes.  Indeed, she was picking her husband up from teaching a class. 

The Plaintiff was a PhD student looking to earn her degree in chemistry at the tine.  The court found that she suffered some significant injuries which are summarized at paragraph 69 of the judgement:

[69]            (the Plaintiff’s) condition, a complex somatoform disorder (a combination of a pain disorder, somatoform disorder NOS (organically unexplained fatigue) and conversion disorder (psychogenic neurological deficits)), was caused by the motor vehicle accident.  It developed over the days and weeks following the accident, as (the Plaintiff) complained of bizarre, non-organic complaints, such as, on March 19, 2002, speaking in a barely audible whisper and being hypersensitive to exam; on April 17, feeling exquisitely tender; and by May 30 when she saw Dr. Spacey, demonstrating many non-physiological findings, such as a vibration which respects the midline (a test performed by Dr. Spacey which should have been felt all across the forehead, but which Dr. Samuel felt only to mid-way across the forehead) and total body weakness for three weeks which Dr. Spacey thought to be “highly functional in nature”.  Her complaints exceeded the physical signs. 

The court assessed damages as follows:

(i)

Non-pecuniary damages

$   100,000.00

(ii)

Loss of income/capacity:

Future:

Past:

 

$1,000,000.00

$   150,000.00

(iii)

Cost of future care

$     25,000.00

(iv)

Loss of housekeeping capacity

$     15,000.00

(v)

Special damages

$       4,279.53

In noting that $1,000,000 was appropriate in loss of earning capacity, the court noted that ‘chronic conversion disorder, such as demonstrated by (the Plaintiff), usually evolved into a chronic illness.  Despite treatment, the majority of these patients fail to return to work.  Accordingly, it is unlikely that (the Plaintiff) will earn any significant amount of the course of her lifetime.’

This case is worth reviewing for anyone advancing a contested pscyhological injury claim with ICBC as it gives insight into the complexity involved in prosecuting such cases.