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 ‘icbc’

ICBC Now on Facebook

February 20th, 2012

ICBC is no stranger to social media having an active twitter account for the past two years.  In addition to their active twitter presence they regularly mine social media sites for information in claims investigations.

Despite their social media presence they have neglected opening a Facebook account until now.  Thompson’s World Insurance News reports that ICBC has finally dived into the world of Facebook with their own account.  They report (and I agree) that this is a brave move as there has been no shortage of abuse they receive via twitter which is gracefully handled by the ever patient and diplomatic Karen Basaraba.

ICBC’s Facebook Page can be found here.  Welcome to Facebook Karen.


Who to Sue? ICBC Claims, Fault and Increased Insurance Premiums

October 11th, 2010

When collisions occur in BC typically ICBC is the insurer for all involved.  After the collision ICBC internally decides who to blame and apportions the parties respective degree of fault.  Depending on the decision some of the motorists insurance premiums may rise.  If this happens to you and you disagree with ICBC who do you sue?

The conventional route is to sue the motorist alleged to be at fault for the crash.  The theory being that if another motorist is found at fault in a negligence claim they will be ordered to pay the faultless party’s accident related expenses including increased insurance premiums.  When an injury lawsuit is started its easy to add this additional damage to the claim.  In practice ICBC will honour a court decision respecting fault and overturn their internal decision if its inconsistent with the Court finding.

What if you are not making an injury claim and your only dispute is with ICBC and their apportionment of fault?  Is the offending motorist the only party you can sue to address ICBC’s decision?  The answer, apparently, is no and this was recently discussed by the BC Court of Appeal in reasons for judgement released earlier this year.

In the recent case of Innes v. Bui the Plaintiff sued the Defendant for injuries.  The case made it’s way to the BC Court of Appeal.  The appeal did not focus on increased insurance fees rather it concentrated on the legal doctrine of ‘res judicata’ (You can click here to read my previous article discussing this issue and giving more background on the case).   Despite the alternate focus of the case, Mr. Justice Low provided the following commentary about the proper parties to a lawsuit over increased ICBC insurance premiums:

[6] In her hand-written Notice of Claim, Ms. Bui, with the assistance of a translator, described the collision from her point of view and added, in understandably inexact English, “later ICBC had decided that my fault but they didn’t let me know until I renew my insurance, I think ICBC was unfair when they state that I at fault and I want to [contest against?] this decision”.  The claim was stated to be for “Extra money I had to pay for ICBC” and “return my 40% discount from my insurance – $1095”.  Ms. Bui later amended the Notice and pleaded that “… ICBC put the fault on me, as the result my insurance was up.  I wish to recover the money which ICBC made me pay”.  In completing the portion of the form which requires quantification of the claim, she wrote “Money I paid for ICBC – $1095”….

[31]         The reasons of the Small Claims judge fell well short of deciding the negligence question.  That issue remains alive in the Supreme Court action.  The res judicata arguments of both parties fail.

[32]         The above is enough to allow this appeal.  However, I would like to add a few more observations.

[33] In the Small Claims action, Ms. Innes was the wrong defendant.  She certainly was not a necessary defendant.  That action was not based in tort.  It was either in contract or under statute, or both, and the only issue raised by the pleadings was whether ICBC acted properly or reasonably in administratively assigning responsibility for the collision to Ms. Bui alone.  That was an issue only between Ms. Bui and ICBC.


More on ICBC and "Independent Medical Examinations"

September 15th, 2008

When you sue another motorist in BC Supreme Court for car accident related injuries, they are entitled to ‘level the playing field’ by having you assessed by a so-called ‘independent medical examiner’.

This right is given to Defendants by Rule 30 of the BC Supreme Court Rules. Rule 30 reads as follows:

Rule 30 — Physical Examination and Inspection

Order for medical examination

(1) Where the physical or mental condition of a person is in issue in a proceeding, the court may order that the person submit to examination by a medical practitioner or other qualified person, and if the court makes an order, it may make

(a) an order respecting any expenses connected with the examination, and

(b) an order that the result of the examination be put in writing and that copies be made available to interested parties.

Subsequent examinations

(2) The court may order a further examination under this rule.

Questions by examiner

(3) A person who is making an examination under this rule may ask any relevant question concerning the medical condition or history of the person being examined.

Order for inspection and preservation of property

(4) Where the court considers it necessary or expedient for the purpose of obtaining full information or evidence, it may order the production, inspection and preservation of any property and authorize samples to be taken or observations to be made or experiments to be conducted on or with the property.

Entry upon land or buildings

(5) For the purpose of enabling an order under this rule to be carried out, the court may authorize a person to enter upon any land or building.

Application to persons outside British Columbia

(6) Rule 27 (26) applies to examinations and inspections ordered under this rule.

On behalf of Defendants, ICBC has a handful of doctors that they use regularly to conduct these ‘rule 30’ medical exams.

What if ICBC has already sent you to a doctor? Can they send you to a second? The answer is it depends on the circumstances. As you can see above, Rule 30(2) permits a court to order a second examination. Our courts have held that, depending on the circumstances, ICBC can send a Plaintiff to a second examination with a doctor with different qualifications than the first. There are numerous cases interpreting this rule and the specific cases either allowing, or disallowing, multiple medical examinations are too numerous to count. Reasons for judgement were released today permitting a Defendant to have Plaintiff injured in a 2004 BC Car accident assessed by a neurologist when that Plaintiff had already been assessed by an orthopaedic surgeon on behalf of the Defendants.

Some of the factors courts consider when deciding whether they should order a ‘further’ examination under Rule 30(2) were laid out in the recent BC Supreme Court case of Walch v. Zamco. In Walch, the court summarized the factors that ought to be considered as follows:

      • *
        The court’s discretion must be exercised judicially on the basis of the evidence;
      • *
        A second examination may be appropriate where there is some question which could not have been dealt with on the first examination;
      • *
        A second examination will not be allowed simply because the magnitude of the loss is greater than that previously known;
      • *
        A passage of time alone is not a sufficient reason to order a second examination;
      • *
        Where a diagnosis is difficult and existing assessments are aged, the court may consider a second examination;
      • *
        Differences of opinions between medical professions is not sufficient reason to order a second examination where the first examiner could have discovered the issue on the first examination.

The overriding question is whether a second medical examination is required to ensure reasonable equality between the parties in their preparation for trial: Wildemann v. Webster.

Reasonable equality does not mean that the defendant must be able to match expert for expert and report for report: McKay v. Passmore.

In order to obtain an order for a subsequent medical examination, the defendants must satisfy the courts that there is some question or matter of which could have been dealt with at the first examination: Jackson, supra.

When considering whether to grant a subsequent medical examination the court should take into account the timing of the application in light of the requirements of Rule 40A and practical issues relating to trial preparation: McKay, supra. The authorities do not require that the application be supported by medical evidence indicating that a subsequent medical examination is required: McKay, supra.

When deciding whether to consent to a second ICBC medical examination it is good to consider the above factors. Last, but not least, it is important to know that such an examination is ‘discretionary’ and certain judges/masters of the BC Supreme Court may grant an application in circumstances where others may deny.


The Civil Consequences – ICBC and Drunk Drivers

August 25th, 2008

As a BC personal injury lawyer that started out my career in criminal defence work I have seen both the civil and criminal consequences of drunk driving. Most people know about the criminal consequences but the civil consequences can be much worse.

If you are convicted of impaired driving, you will lose your license for some time, you will have a criminal record, you may even spend a little time in jail. When all is done you pick your life up and carry on. The civil consequences, on the other hand, are not always so easy to get away from.

Imagine these facts: You drive drunk. You hit another car and are at fault. Both cars are totaled. You are injured. The other driver is injured. What can the civil consequences be?

You will be in breach of your ICBC insurance. ICBC will not cover your medical expenses. ICBC will not pay for your lost wages. ICBC will not fix your car. ICBC pays off the other driver’s vehicle damage claim (let’s say $20,000). The other driver’s injury claim gets settled, lets say for $100,000. Now ICBC will come after you for the extent of the other drivers claims, $120,000 in this example.

Where does this leave you

1. No car (maybe still making car payments on a totaled car)

2. Injuries with mounting medical and rehabilitation debts

3. Lost wages

4. A massive debt to ICBC. Don’t feel like paying? Good luck having your insurance and driver’s license renewed. Thinking of driving on your suspended license? Say hi to your criminal lawyer when he visits you in jail.

The civil consequences can be a lot worse for impaired driving in BC than the criminal consequences. These can include a debt so great that it will take a lifetime to pay off. There are countless sound reasons not to drive drunk and the civil consequences of impaired driving will hit you hardest in pocket book.


ICBC Claims, Limitation Periods and Infants

July 7th, 2008

Let me begin by saying that when people talk about “ICBC claims” they typically refer to two different types of claims. The first has to do with ‘own insurance’ that is, you are insured with ICBC, something occurs that requires you take advantage of this insurance and you apply for your own insurance benefits. This is commonly referred to as a ‘first party claim’.

The second, and perhaps more frequently discussed, has to do with ‘third party insurance.’ That is, someone insured by ICBC injures you and you claim pain and suffering and other monies from that person, who in turn, is insured by ICBC and thus you deal with ICBC in that capacity.

The main focus of my blog has to do with ICBC third party claims, however, interesting reasons for judgment were released today by the BC Court of Appeal discussing limitation periods and ICBC first party claims.

The following facts are taken from the reasons for judgment based on the Plaintiff’s pleadings.

The Plaintiff was involved in a serious accident in 1995 when he was 6. His bicycle was involved in a collision with a motor vehicle. He suffered serious injuries including a head injury.

The Plaintiff was insured with ICBC and advanced a first party claim. In April 2003 ICBC refused to fund further services recommended for the Plaintiff’s brain injury ‘because Part 7 benefits were no longer available to the Plaintiff because legal action had not been commenced in a timely way‘.

This case focused on the Limitation Act (Which postpones certain limitation periods from running until a person’s 19th birthday in BC) vs. s. 103 of the Insurance (vehicle) Act which provides a 2 year limitation period in many circumstances to advance a claim against ICBC for first party insurance benefits.

I strongly recommend that this case be reviewed along with the applicable limitation periods for any parent involved in an ICBC claim on their children’s behalf. If you don’t have a lawyer for your child’s ICBC claim, it is vital that you are well aware of these potential limitation periods.

In this case the Plaintiff sued ICBC, not claiming his PArt 7 benefits, rather, claiming that ICBC was negligent ‘in adjusting the Plaintiff’s claim for PArt 7 benefits and that ICBC breached its duty to act in good faith‘.

ICBC brought an application to strike out portions of the Plaintiff’s statement of claim.  In other words, tried to dispose of the lawsuit even before it could go to trial.  The trial judge dismissed parts of ICBC’s application and ICBC appealed.

In this case the BC Court of Appeal held that “It is my view that section 103 does not apply to a non-contractual claim against ICBC as long as the claim is not an indirect attempt to enforce the contractual right to benefits. In this case, although ICBC’s alleged breach of duty resulted in the plaintiff failing to obtain Part 7 benefits, the loss of those benefits is not the damage claim being pursued by the Plaintiff. Rather, the plaintiff is seeking damages for his worsened condition as a result of his failure to obtain those Part 7 benefits.”

In terms of whether ICBC has to tell an injured ‘insured’ person about the limitation periods ICBC argued that ‘it is plain and obvious that (ICBC) did not owe a duty of care to the plaintiff to advise him or his mother regarding the coverage available to them under Part 7 of the Regulation (including advice about the kind of therapy and treatment that could be funded and the existence of the section 103 limitation period).”

Our BC Court of Appeal disagreed with ICBC and stated that “It is not plain and obvious that the present situation is not sufficiently analogous to Fletcher for the court to recognize the duty of care in the present case…..I would not give effect to ICBC’s submission that the court should strike out the allegation in the statement of claim that ICBC owed a duty of care to advise the Plaintiff or his mother of the plaintiff’s entitlement to benefits under Part 7 of the Regulation and of any limitations on his entitlement‘.

The Court of Appeal, however, did not go so far as to state that ICBC does owe a duty of care to tell it’s insured about limitation periods for first party claims. All that was decided was the Plaintiff was allowed to have his day in court to decide this issue.

The bottom line is that ICBC may not have to tell you your limitation periods (even if you are the parent of a brain injured child involved in an ICBC claim) and it is noteworthy that ICBC argued in court that ‘it is plain and obvious’ that ICBC does not have to advise this brain injured child’s parents of the limitation period. SO KNOW YOUR LIMITATION PERIODS OR GET LEGAL ADVICE!


Damages of $159,857 Awarded for Soft Tissue Injuries and Migraines

July 2nd, 2008

Reasons for judgment were released today by the BC Supreme Court compensating a Plaintiff for accident related injuries.

The trial concerned a 2001 BC car accident. Her vehicle was struck in a down-town Vancouver intersection by a left-turning van. Liability (fault) was admitted leaving only the issue of quantum (value) of injuries and losses.

The impact was reasonably significant causing the Plaintiff’s head to jerk to the right and hit the window, then snap back.

At the time of the accident the Plaintiff was a 38 year old operations manager at a Vancouver travel agency. As with many ICBC claims that head to trial the Plaintiff’s pre-accident health was explored at trial in some detail. The court found that, prior to the Vancouver car accident, the Plaintiff ‘continued to suffer regularly from migraine and tension headaches, and from neck and back pain due to stress and postural strain. (the Plaintiff’s) tension induced neck and shoulder pain sometimes precipitated migraines.’

The court concluded that despite these pre-accident problems, the Plaintiff ‘continued to funciton without significant compromise‘ prior to her Vancouver car accident.

As is often the case in ICBC injury claims, the court heard from various medical experts including a psychologist, a psychiatrist, an orthopaedic surgeon and an occupational therapist.

After hearing the competing evidence the court found that “the increase in (the Plaintiff’s) headaches and neck and shoulder pain is causally related to the soft tissue injuries she sustained in the accident. I find that her increased neck and shoulder pain sometimes leads to full-blown migraines. In addition, it is related to other painful headaches that she experiences from time to time.”

The court accepted the expert evidence of Dr. Robinson who is a highly-regarded BC neurologist who specialises in headache disorders. He testified in part that “when patients with a stable migraine disorder are exposed to neck trauma they sometimes suffer an indefinite aggravation of their headaches. Due to the neck pain caused by trauma such patients develop a new way to get headaches, which may or may not develop into full blown migraines“.

In terms of prognosis, the court found that ‘with treatment, (the Plaintiff’s) headaches will probably continue to improve over the course of the next five years.‘ and that ‘the low grade neck and shoulder pain caused by the accident will probably persist indefinitely. As a result some aggravation of (the Plaintiff’s) pre-existing headache condition will also persist‘.

The court awarded $65,000 for non-pecuniary damages (pain and suffering). In doing so the court noted that ‘non-pecuniary damages are awarded to compensate the plaintiff for pain, suffering, loss of enjoyment of life and loss of amenities. The compensation awarded should be fair and reasonable to both parties…for purposes of assessing non-pecuniary damages, fairness is measured against awards made in comparable cases. Such cases, though helpful, serve only as a rough guide‘.

Thanks to these reasons for judgment, British Colmbian’s now have one more rough guide to help assess the fair pain and suffering value for lingering soft tissue injuries, aggravation of pre-existing injuries and migraine headaches when considering ICBC claim settlement.

This case is also worth a quick read for anyone advancing a claim for loss of earning capacity (future wage loss) as the court does a good job summarizing some of the leading legal precedents in this area at paragraphs 151-155 of the judgment.

The court concluded that, as a result of the Vancouver car accident, the Plaintiff ‘is less able to complete the same high volume of computer based work she could before before the accident and it it sometimes obvious that she is exhasted. In these circumstances, it is apparent that her earning capacity, viewed as a capital asset, has been impaired.’ The court went on to award $75,000 for this loss.


Car Accidents, Post Trauma Headaches and ICBC Claims

July 1st, 2008

Short clear reasons for judgment were released by Mr. Justice Savage of the BC Supreme Court yesterday awarding a Plaintiff compensation for car accident related headaches.

This is one of the crispest judgements I have read in quite some time.  I recommend reading the full judgment for anyone advancing an ICBC pain and suffering claim for headaches as the issues are succinct in this case and it does not get bogged down in legalese.

The Plaintiff was injured when she was 4 years old.    She was in a proper infant car seat in her family van when it was broadsided by the defendant who failed to stop at a stop sign.  The accident was in 2002 and the claim finally went to trial in 2008.  For those of you not well versed in ICBC injury claims I should point out that there is nothing unusual about this timeline.  In infant injury claims in BC, most limitation periods are delayed until the infant’s 19th birthday.  One of the reasons for this is because doctors often can’t give a prognosis for an infant’s injuries until they reach adulthood.

In this case most of the Plaintiff’s injuries were not disputed.  She suffered from a broken tooth, some injury to her legs which healed in a few months, soft tissue injuries to her neck and back which took about one year to heal.

What was at issue was headaches.  The Plaintiff claimed that she had on-going headaches over 5 years after the accident and that these were caused by the accident.  The defendant said there are other potential causes for the headaches such as migraines or other trauma.  It is worth pointing out that such a ‘causation’ argument is typical in most ICBC injury claims that go to trial.  Usually the court hears competing theories about the extent of injury and the cause of injury.  (click here to see an example of just how far apart 2 sides can be in an ICBC injury case involving headaches)

The court accpeted that the ongoing headaches were indeed caused by the accident and summarized the accident related injuries as follows: “very mild injuries post-accident that have completely resolved with ongoing significant but somewhat sporadic headaches continuing requiring the occasional use of Tylenol.”

Mr. Justice Savage noted that the headaches have persisted for some six years althogh there has been some improvement.  He went on to value the non-pecuniary loss (pain and suffering) for these headaches at $35,000.


More on LVI's, ICBC Claims and Soft Tissue Injuries

June 30th, 2008

There is no shortage of opportunity to blog about ICBC LVI (Low Velocity Impact) cases as these seem to go trial frequently.   While each case is unique and have varying outcomes based on the severity of injury, the courts reactions to the ‘no crash no cash’ position often advanced on ICBC’s behalf seems to end in a predictable result.  It is typically rejected.

The issue always is, on a balance of probabilities, does the evidence establish that the Plaintiff was injured in the crash?  Not “how significant was the vehicle damage”.

In yet another example of BC courts reactions to LVI crashes, reasons for judgment were released today awarding a Plaintiff $12,000 for various soft tissue injuries.

The accident happend in 2005.  It was a rear-end crash.  The defendant gave evidence that the crash was so minor that ‘he did not hear any impact’.  The Plaintiff, on the other hand, stated that the impact was ‘a jolt that threw her forward although she was restrained by her seatbelt‘.

As is often the case in ICBC LVI cases, the lawyers put into evidence the photographs of the vehicles.  The pictures showed minor damage to the Plaintiff vehicle and no visible damage to the Defendant vehicle.

The court accepted that the Plaintiff was injured in this crash.  The Plaintiff complained of headaches, neck pain, upper back pain, lower back pain, right shoulder pain and right ankle pain.

The Plaintiff suffered injuries in previous car accidents and also in a subsequent fall.  This complicates the courts job somewhat in assessing the extent of the injuries suffered in this LVI trial.

The medical evidence was that the Plaintiff, while injured in this LVI crash, should not have any permanent consequenses as a result of her injuries.  In other words, she should get better.  The Plaintiff’s doctor also testified that ‘a lot of her symptoms arise from ‘something else’ (something other than the crash)… She has an underlying condition of depression and alcohol consumption which makes her depression worse’.

One thing that should come to no surprise to ICBC injury lawyers is the position taken by the defence lawyer in this case.  It was argued that ‘there should be no award as the symptoms are not reasonably attributable to the accident’.  In support of this argument the defence lawyer cited Mustapha v. Culligan of Canada Ltd.   For full background you can read my former blog on this case but for the sake of this blog here are the broad strokes:

In Mustapha the Plaintiff claimed to suffer psychological injury due finding flies in a bottle of water supplied by Culligan.  The Supreme Court of Canada dismissed the lawsuit claiming that such an injury was not ‘foreseeable.’.   Just last week I was discussing Mustapha with a senior colleague ICBC claims lawyer and we concluded it was only a matter of time before an ICBC defence lawyer would bring Mustapha to a court’s attention claiming that injuries from an LVI crash are not ‘forseeable’.  Fortunately, Mr. Justice Savage, rejected such an argument at paragraph 39 of the judgment.

All was not rosy for the Plaintiff, however.  The court found that she ‘tended to exaggerate her symptoms, which, expecially laterrly, are probably not attributabel to the accident.  I accpet, however, that she was injured in the accident but her ongoing symptoms after one year post accident are a result of her failure to mitigate her damages, or other causes’.

For the soft-tissue injuries with headaches and other symptoms which the court found lasted for only one year (at least in terms of being related to the accident) the court awarded non-pecuniary damages (pain and suffering) of $12,000.


ICBC Did Not Pay Enough For My Car! Don't Look To Court For Help…

June 26th, 2008

While this blog is primarily concerned about ICBC injury claims against at-fault drivers (tort claims) written reasons for judgment were released today that are of interest to anyone caught up in a dispute with ICBC with respect to their own insurance coverage and the value of damage to their car.

Master Young of the BC Supreme Court clarified the fact that courts do not have jurisdiction to deal with an ICBC dispute regarding the value of vehicle loss.

In this case the Plaintiff’s vehicle was damaged in an accident. The vehicle was a write off. The Plaintiff had collision coverage with ICBC and asked for fair value. ICBC paid $18,000. The Plaintiff said the vehicle was worth $40,000 because it had a new engine and 2 extra large gas tanks installed prior to the accident and this had to be considered when determining fair value.

ICBC argued that the BC courts have no jurisdiction to deal with such a dispute. ICBC relied on section 142 of the Insurance (Motor Vehicle) Act and said this section requires such disputes to be dealt with by mandatory arbitration. For the sake of being accurate, I should point out that this section has since been repealed but been replaced with an almost identical section in the Insurance (Vehicle) Act.

The court held that, under s. 142, ‘the courts have no jurisdiction to deal with coverage disputes, given that there is mandatory arbitration set up by s. 142‘ In reaching this conclusion the Master cited a previous decision from a BC Supreme Court Judge where it was held that “the statute imposes a mandatory forum for the resolution of these disputes, and this Court is excluded from the process‘. Master Young also noted that the BC Supreme Court judge ‘goes on to caution that the claimant, if he wishes to pursue arbitration, must move quickly because he is statue barred two years after the date of loss‘.

The court concluded that this Plaintiff should have gone to mandatory arbitration. Given that the arbitration remedy was not exercised in 2 years the Plaintiff was out of luck, not being able to have the matter decided by a court or by arbitration.

This case serves of an example of the consequences people with ICBC claims can face if they do not comply with the limitations governing their claim. If you are in an ICBC dispute and don’t have a lawyer be sure to know your limitation periods! This is sometimes easier said than done as even Master Young acknowledged that in this case the legislation was ‘confusing‘.

The court obviously sympathized with the Plaintiff and said that she wished she could extend the deadline and if she could she made it pretty clear that she felt that ICBC’s materials showed ‘nothing..to indicate that (ICBC) gave any consideration to the fact that the vehicle had a new engine‘.


ICBC, Chronic Pain, and Fair Settlement

June 25th, 2008

With the exception of experienced BC injury lawyers, most people advancing ICBC claims need to do extensive research to determine fair value for pain and suffering in an ICBC injury claim. One of the best ways to go about this is to look at BC court cases for similar injuries and see just how much, or how little, our courts award for pain and suffering for various injuries.

If you are advancing an ICBC chronic pain case, reasons for judgement were released today that are worth reviewing.

The Plaintiff was involved in a two vehicle accident on January 9, 2006. He stopped his vehicle for a cyclist who was crossing in a marked crosswalk. Shortly afterwards the Plaintiff was rear-ended by a Jeep Cherokee. The impact was significant causing ‘substantial damage’ to the Plaintiff’s vehicle.

The Plaintiff reported several injuries as a result of this rear-end crash including left shoulder pain, dizziness, headaches, neck and back pain, and numbness to his left arm.

The Plaintiff’s family doctor referred him to an orthopaedic specialist who stated that the Plaintiff “has had some soft tissue injuries to the cervical and lumbar spine….he does not require any special investigation as he has no neurological defecits. I would encourage him to return to work

Shortly after this time the Plaintiff switched family physicians. His new treating doctor diagnsosed major depression and soft tissue injury to the neck, shoulder and back. Specifically she diagnosed

a left anterior supraspinatus tear and multiple soft tissue injuries of the neck and back, possible muscle spasm, strains, contusions, cervical facet syndrome and discogenic pain…..(and) two other medical conditions, major depression and peptic ulcers, since the MVA in January 2006. I believe these two conditions were precipitated by the chronic pain and stress caused by the accident.

She went on to state that:

(the Plaintiff) has not been able to return to work, his function remains partially impaired and his level of activity is significantly reduced. His chronic pain and his depression symptoms have significantly restricted his ability to perform a range of daily living activities on ongoing basis such as personal self care, meal preparation, basic housework, daily shopping and use of transportation.

The court also heard from an ‘independent medical examiner’ who stated that “permanent disability is not anticpiated as a result of the accident.’ and that ‘the only objective finding (of injury) was that of restricted movement of the cervical spine. All complaints otherwise were of a subjective nature.’

This doctor made some interesting comments about chronic pain, namely that:

Many authors who have studied chronic pain syndromes have demonstrated that patients have been shown to have beliefs and expectations of chronic pain which are critical cognitive facilitators or impediments to the recovery process. The attribution of blame may be an unrecognized factor co-related to pain behaviour, mood disturbance, and poor response to treatment. It is unlikely that (the Plaintiff) is going to change his perceptions of pain until the issues are resolved for him.

The court made it’s key findings at paragraphs 24 and 25 where Justice Rice stated:

[24] I accept that as a result of the motor vehicle accident Mr. Niloufari suffered moderate strains to his neck and back which have caused him substantial pain and suffering over the two years and several months since the accident. I find these injuries have disabled him from any activities, including his work. As it stands now, more than two years have passed since the date of the accident with little hint of improvement in his pain and suffering or capacity to work.

[25] I am satisfied that the plaintiff suffers chronic pain with both physical and psychological components. I am not entirely satisfied that he has done his best to mitigate his loss by exercising and seeking psychiatric and/or psychological advice and treatment. I am not satisfied based on the medical evidence, that Mr. Niloufari should expect to be permanently disabled or disabled at all after a few years from now with diligent attention to his rehabilitation. I would expect him to gradually recover, as Dr. Hill suggested, over the next three or four years, with the expectation he could return to work in a limited capacity within one year.

The court awarded damages for pain and suffering, lost pass of income, loss of future earning capacity, special damages and cost of future care.

The non-pecuniary damage award (pain and suffering) was $63,000.

This case is worth reading for anyone advancing and ICBC injury claim seeking damages for ‘loss of earning capacity’ for Justice Rice’s summary of the law on this topic at paragraphs 75-84 of the judgment.