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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

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Posts Tagged ‘Gap in Clinical Records’

Injury Claim Succeeds Despite 4 Year Gap in Treatment by “Germaphobe” Plaintiff

March 13th, 2018

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for injuries sustained in a vehicle collision.

In the recent case (Moody v. Hejdanek) the Plaintiff was involved in a 2013 collision that the Defendant admitted fault for.  The crash was significant resulting in the Plaintiff’s vehicle being written off and the Defendant’s vehicle sustained over $17,000 in damage.  THe Plaintiff sought medical attention shortly after the crash but by March of 2013 stopped treatment and did not see a doctor again until 2017 for medico-legal purposes.

Despite this gap the Court accepted the Plaintiff suffered a compensable level of lingering injury and assessed non-pecuniary damages at $55,000.  In reaching this quantum Mr. Justice Steeves provided the following reasons:

[51]         The plaintiff testified that immediately after the accident he felt pain in the middle of his back and in his shoulders. This continued into the evening and night. He did not return to work on the day of the accident and he told Dr. Robinson that he was off work for a “couple of days.” He attended at a walk-in clinic on January 15 and January 23, 2013. He was prescribed pain medication but he told Dr. Robinson that he doubted that he took it. He had four massage treatments in March 2013. Dr. Winston stated that there were no references to headaches in the record he saw from the walk-in clinic or massage therapist…

[54]         Nonetheless, the fact that there are no records of medical assessment or treatment of the plaintiff for his injuries from the March 2013 accident until he obtained expert evidence for his trial is significant. He saw Dr. Robinson, an expert in neurology and headaches, in May 2017 and Dr. Stewart, a specialist in physical medicine and rehabilitation medicine, in September 2017. He also saw Dr. Winston in October 2017. Typically, in this type of litigation, there is information, sometimes extensive information and chart entries, from a plaintiff’s family physician. In the subject case, this evidence is absent.

[55]         This situation creates a number of complications for the plaintiff. First, it requires the doctors that he saw in 2017 to make judgments about the medical consequences of the 2013 accident with limited medical information about his history. The primary, or only, source of information available to the doctors for the 2013 to 2017 period is the account of the plaintiff four years after the fact. For example, Dr. Robinson stated in his May 2017 report that “[e]ver since the accident [the plaintiff] has had headache, neck, shoulder and upper back pain.” The only way that this could be known is from what the plaintiff told Dr. Robinson. This is not so much a credibility issue as a problem establishing continuity of medical history.

[56]         I conclude that the absence of contemporaneous medical information about the plaintiff between 2013 and 2017 raises an issue of the weight that is to be given to the plaintiff’s expert evidence.

[57]         A further conclusion that can reasonably be drawn from the absence of medical information between 2013 and 2017 is that there were minimal injuries caused by that accident. Accepting that the plaintiff talked to his golf clients who had medical training, his own evidence is that none of them suggested making an appointment for an examination or treatment. It cannot be the case, as urged by the plaintiff, that conversations on the golf course with people with medical training is the same as seeing those people in their offices and undergoing an examination. Put another way, even on the evidence of the plaintiff, these medical professionals did not think it necessary for him to be examined in their office.

[58]         As partial explanation for this, the plaintiff says he has an aversion to doctors and he is a “germaphobe.” I accept the plaintiff’s evidence that he is uncomfortable seeing doctors but he has seen them for other reasons in the past (for example, an abscessed tooth). He also saw three specialists and underwent a functional evaluation for this litigation without any recorded problems. He apparently did not take pain medication prescribed when he attended at a walk-in clinic in January 2013 but he currently takes Advil for pain. I conclude that the plaintiff would have sought out further medical attention after March 2013 if the injuries he suffered from the 2013 accident had been serious enough, as any sensible person would do.

[59]         According to the defendant, the lack of medical attention at the time of the January 2013 accident means that the plaintiff did not take reasonable steps to mitigate his injuries. There is a logic to that submission but, as above, I conclude that the situation is one of weight to be given to the plaintiff’s expert evidence rather than of mitigation.

[60]         Turning more specifically to the expert evidence, Dr. Robinson has opined that the plaintiff’s history is “… consistent with a diagnosis of chronic posttraumatic headache related to soft tissue injury to the neck (whiplash) sustained in the January 6, 2013 motor vehicle accident.” Similarly, Dr. Stewart reviewed the plaintiff’s history and stated in her report of September 6, 2017 that, “[b]ased on this history it is my opinion that he sustained soft tissue injury to his neck and back in the collision.”

[61]         For his part, Dr. Winston certainly disputes that the plaintiff has any ongoing impairment. However, he does not opine on the specific issue of causation. He notes the initial medical treatment at the walk-in clinic and he apparently had the chart from the physiotherapist available to him. The latter was two months after the accident, in March 2013, and there is no reference on the chart to headaches. He notes that the plaintiff “never sought medical attention again” after March 2013 and he does not believe there was impairment after that. Dr. Winston does not state it expressly, but I take his opinion to be that there was an accident and it did cause some mild soft-tissue injury. However, there was no impairment to speak off after March 2013.

[62]         From these opinions, I conclude that the plaintiff did suffer a soft-tissue injury to his neck from the January 2013 accident, as described by Dr. Robinson. I conclude that headaches are included in this assessment. As above, Dr. Winston’s opinion is broadly consistent with this at least on the initial causation issue (but he is very skeptical about any ongoing impairment). In her opinion, Dr. Stewart includes an injury to the back but in cross-examination, she agreed this was possible but not probable. It is also not the opinion of Dr. Robinson. I do accept the opinion of Dr. Robinson that “[c]hronic insomnia is probably a factor in the persistence and severity of his posttraumatic headaches”…

[73]         Overall, I conclude that non-pecuniary damages in the amount of $55,000 are appropriate in this case.