ICBC Law

Reasons for judgement were released today by the BC Supreme Court awarding a 22 year old Plaintiff $50,000 for pain and suffering and a further $50,000 for loss of earning capacity as a result of soft tissue injuries.

The court’s findings of injuries are summarized at paragraphs 45-46 which stated as follows:

[45]            In the final analysis, I am unable to place much weight to Dr. Schweigel’s report.  I accept Dr. Anton’s evidence that as a result of the accident, the plaintiff has suffered soft tissue injuries of the cervical and thoracic spine and shoulder girdle, which in turn have given rise to a myofascial pain syndrome. 

[46]            I accept his evidence that while there is some room for improvement, the plaintiff will likely suffer intermittent headaches and neck and upper back pain indefinitely.  She must be careful to modify her activities and avoid bending, leaning, heavy lifting or repetitive lifting—particularly those involving sustained postures of the neck and upper arms or repetitive use of the upper arms—which will exacerbate her pain. 

What interested me most in this judgement was the judges discussion weighing the Plaintiff’s medical evidence against the evidence tendered by the Defendant.  The Defendant relied on Dr. Schweigel, a senior orthopaedic surgeon who is often retained by ICBC to review injury claims and often disagrees with Plaintiff’s physicians regarding the long term prognosis of soft tissue injuries.  In today’s case the court largely rejected his opinion and offered the following analysis:

[36]            The defence relies heavily on the evidence of Dr. Schweigel, an orthopaedic surgeon who examined the plaintiff in January 2008.  Dr. Schweigel concluded the plaintiff suffered no more than a very minor soft tissue injury to the cervical and upper back area. 

[37]            In Dr. Schweigel’s opinion, cervical soft tissue injuries may be classified as either minor, moderate or severe, depending on the presence of various findings and complaints.  In his opinion, a cervical soft tissue injury must be in the moderate to severe category before it will give rise to a chronic myofascial pain syndrome. 

[38]            In his opinion, before being diagnosed with a moderate to severe soft tissue injury the patient must present with a constellation of at least three complaints including:  moderate to severe spasm, moderate to severe deformity, and a moderate loss of motion.  Sometimes the patient will also present with neurological findings and/or x-ray changes and sometimes the patient will require strong pain medication for a few days. 

[39]            Based on his review of Dr. Fahim’s clinical records, including the CL-19 report, which he understood was completed on March 3, 2003, Dr. Schweigel concluded that the plaintiff did not suffer a moderate to severe soft tissue injury.  In his view, since the CL-19 report reflects pain and tenderness of the neck and upper back, a good range of motion of the neck and upper back and mild tenderness of the neck and upper back, the physical abnormalities noted at this time were “extremely minimal”.  He noted that “(s)he had mild tenderness of the neck muscles with good range of motion”. 

[40]            The difficulty here is that the CL-19 report relied upon by Dr. Schweigel was actually authored on March 3, 2004 rather than March 3, 2003.  At that time the plaintiff was in Grade 12, she was dancing regularly and the intensive final examination study period had not begun.  She was in fact doing quite well. 

[41]            This is in contrast to her condition just over a year earlier when Dr. Fahim examined her on February 15, 2003.  At that point he noted her complaints of pain and tenderness in both the trapezius and upper back areas, and the decreased range of motion of her neck in all directions.  There is no recording of “mild” tenderness with a good range of motion as Dr. Schweigel suggests in his report of January 14, 2008. 

[42]            While Dr. Fahim’s clinical records were available for review, Dr. Schweigel made no reference to them in his report.  Nor did he refer to the records of the physiotherapist, Dawn Stevens, who, three weeks post accident, noted that the plaintiff’s neck was “very stiff” and that it was “very hard to mobilize (her) neck”.  

[43]            Quite apart from his erroneous reliance on the March 3, 2004 CL-19 report, I am not persuaded that Dr. Schweigel’s rigid classification of soft tissue injuries and his insistence that a myofascial pain syndrome may only arise in the case of a moderate to severe soft tissue injury case are reliable. 

[44]            While I accept that Dr. Schweigel is a very senior and experienced orthopaedic surgeon, with a long career focused particularly on spinal cord injury, in my view he did not demonstrate the same degree of expertise as Dr. Anton in the diagnosis and treatment of soft tissue injury.  His categorization of soft tissue injuries struck me as both rigid and simplistic.  No peer reviewed journals or other medical literature were produced to support his analysis.  Nor did he demonstrate any in depth appreciation of the characteristics of a “trigger point”, as described by Dr. Anton. 

[45]            In the final analysis, I am unable to place much weight to Dr. Schweigel’s report.  I accept Dr. Anton’s evidence that as a result of the accident, the plaintiff has suffered soft tissue injuries of the cervical and thoracic spine and shoulder girdle, which in turn have given rise to a myofascial pain syndrome. 

[46]            I accept his evidence that while there is some room for improvement, the plaintiff will likely suffer intermittent headaches and neck and upper back pain indefinitely.  She must be careful to modify her activities and avoid bending, leaning, heavy lifting or repetitive lifting—particularly those involving sustained postures of the neck and upper arms or repetitive use of the upper arms—which will exacerbate her pain.  

BC Courts have heard many ICBC claims involving PTSD and Chronic Pain Syndrome. In reasons for judgement released this week Mr. Justice Cullen heard and dismissed a PTSD claim and Chronic Pain Syndrome claim as a result of a motor vehicle collision.

In 2004 the Plaintiff, who was a passenger in her boyfriend’s vehicle, was involved in a collision where her vehicle rear-ended the vehicle in front of her. The accident occurred on Nanaimo Street in Vancouver, BC. She advanced a tort claim against her boyfriend who was deemed to be the at-fault driver (a tort claim is the legal term used to describe a civil action, such as an ICBC claim for damages against an at fault driver).

ICBC, on the boyfriend’s behalf, admitted fault but disputed the alleged injuries. The Plaintiff claimed to suffer from soft tissue injuries to her neck and back, a myofacial pain syndrome and/or a pain disorder and post-traumatic stress disorder.

As in alsmost all ICBC claims involving alleged chronic pain, the court heard from a number of expert witnesses including the Plaintiff’s family doctor, a physiotherapist, a physiatrist (rehabilitaiton specialist) a psychologist and an orthopaedic surgeon. The orthopaedic surgeon was a defence witness who conducted an ‘independent medical exam’ of the Plaintiff pursuant to the BC Rules of Court.

In the Plaintiff’s case evidence was led that she suffered from a ‘myofacial pain syndrome’ which was described as ‘a central nervous system disorder with peripheral manifestations of muscle tightness and soreness to palpation over areas called trigger points…areas in the muscles that are rich in nerve endings’.

A psychologist testified that the Plaintiff suffered from a Post Traumatic Pain Disorder (PTSD) and also that she suffered from ‘many symptoms of a pain disorder’.

The orthopaedic surgeon, who is often used by ICBC, testified that the Plaintiff suffered from soft tissue injuries to her neck, upper back and shoulders, along with some cuts and bruises. He dismissed the connection of the Plaintiff’s low back complaints to the accident by stating “There is a basic premise in medicine that if a site has been traumatized, that site becomes symptomatic immediately, right after the MVA or certainly within the first few days after the MVA”. He then testified that his physical examination of the Plaintiff was ‘completely normal’ and he regarded any soft tissue injuries sustained by the Plaintiff as resolved.

In the end the court rejected the Plaintiff’s claim for PTSD and Chronic Pain Disorder and found that the Plaintiff suffered mild to moderate soft tissue injuries to her neck, upper back and shoulder. The court also found that the Plaintiff’s low back symptoms which developed 3 months post accident were causally connected to the accident either through compensatory back pain of through myofacial pain syndrome. The court also found that the Plaintiff suffered from anxiety as a result of the accident and awarded $35,000 for pain and suffering, $560 for past out of pocket expenses and a further $700 to permit the Plaintiff to attend further counselling sessions with her pscyhologist to treat her anxiety.

This judgement is worth a quick read if you are advancing an ICBC claim involving chronic pain or PTSD to see some of the factors courts look at when weighing competing medical evidence. The judgement seems to be a compromise between the competing evidence accepting that the Plaintiff’s injuries, while not PTSD or Chronic Pain Syndrome, were not resolved by the time of trial. When considering settling an ICBC claim it is good to become familiar with how courts treat similar injuries and what the various outcomes at trial can be.

Do you have questions about an ICBC claim involving PTSD or Chronic Pain that you want to discuss with an ICBC Claims Lawyer? If so, click here to contact ICBC Claims Lawyer Erik Magraken for a free consultation.