ICBC Back Injury (soft tissue) Cases – Page 16

More ICBC Injury Claims Updates – The Kelowna Road Edition

Written by admin on August 5, 2009. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Liability (fault) Cases, ICBC Soft Tissue Injury Cases, ICBC Spine Injury Cases, Uncategorized. 57 Comments on More ICBC Injury Claims Updates – The Kelowna Road Edition

I’m just finishing up another business trip to Kelowna BC and have been greeted by a heavy load of ICBC Injury Claims judgments released by the BC Supreme Court. Given this volume (and being pressed for time working on the road) this Injury Claims update will be shorter on detail than usual.
4 cases worth noting were released today by the BC Supreme Court. The first deals with the issue of fault and the others deal with damages (value of the the claims).
In the first case released today (Hynna v. Peck) the Plaintiff was injured in a car accident. She was attempting to cross 10th Avenue, in Vancouver, BC when she was struck by a westbound vehicle near her driver’s side door.
The Plaintiff had a stop sign and was the ‘servient driver’. The court found that the Plaintiff was careless when she left the stop sign as she tried to cross the intersection when it was not safe to do so. Specifically the court found that the Plaintiff entered the intersection when the dominant on-coming driver posed an immediate hazard and the Plaintiff “either did not see him or saw him but failed to reasonably appreciate the threat of his approach”
The court also found that the Defendant was speeding. The court concluded that he was at fault for this and in doing so made the following finding and analysis:

[84] I have found that Mr. Peck was speeding along West 10^th at between 83.5 and 86 km/h as he approached the Intersection. He was moving at that rapid pace when he first noticed the Hynna car stopped on Camosun Street. The evidence demonstrates that but for Mr. Peck’s excessive speed of travel, he would have been able to take reasonable measures to avoid the accident and the accident would not then have occurred. I also find fault with Mr. Peck for failing to keep a proper look-out. He could not have maintained a proper look-out as he sped toward Ms. Hynna after taking the momentary second glance her way. That is why he did not see her pull into the Intersection when he was 62 to 65 metres away. The skid mark evidence, as interpreted by Mr. Brown, together with the testimony of Mr. Dales, establishes on balance that Mr. Peck was significantly closer to the Intersection when he finally noticed and reacted to Ms. Hynna coming into his path and slammed on his brakes. To Mr. Peck’s mind, Ms. Hynna had suddenly appeared in front of him. Yet the evidence shows that was not the case: she did not dart out in front of him at the last minute at a rapid rate of acceleration. The accident here was not tantamount to a head-on collision as in Cooper.

[85] In Mr. Brown’s opinion, had Mr. Peck been doing the speed limit he could have braked to a stop in about 11.9 to 13.1 metres. Adjusting for my finding that Mr. Peck was closer to the area of impact when Ms. Hynna entered into the Intersection than the distance estimated by Mr. Brown, I still find that, had he not been speeding and had been maintaining a proper look-out, he could have stopped in plenty of time to permit Ms. Hynna to complete her manoeuvre without mishap.

[86] I conclude that the conduct of each Mr. Peck and Ms. Hynna was negligent and combined to cause the accident.

Madam Justice Ballance apportioned 60% of the blame for this accident on the Defendant and 40% on the Plaintiff. This case is worth reviewing in full for the court’s discussion of the law in these types of accidents.
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The second case released today by the BC Supreme Court (Lakhani v. Elliott) the issue of fault was admitted and the court had to deal with the quantum of damages.
In this case the Plaintiff was injured in a 2005 BC Car Crash. In awarding just over $105,000 in total damages Mr. Justice Voith summarized the Plaintiff’s injuries and their effect on her life as follows:
88] In my view it is clear that Mrs. Lakhani did suffer from a series of injuries as a result of the Accident. Except for her lower back and left leg, she had never suffered from any of these difficulties prior to the Accident. There is no disagreement between the experts on the issue of causation in relation to these various injuries. While Mrs. Lakhani had experienced symptoms in her lower back and left leg these symptoms were temporarily aggravated as a result of the Accident….

[91] I find that a number of Mrs. Lakhani’s symptoms were fully resolved within one to six months of the Accident. Others have persisted, albeit it to differing degrees, to this date. While I do not accept that these symptoms have consistently been as severe as Mrs. Lakhani indicated, I do accept that they have caused her some pain and discomfort. A number of persons, including a former housekeeper, Ms. Kar, and Mrs. Lakhani’s co-worker Ms. Cousins, have given evidence about her present condition. These witnesses indicated that they have observed Mrs. Lakhani struggling with various tasks. Her husband also gave evidence about Mrs. Lakhani’s post-Accident condition. While his evidence (as with so much of the plaintiff’s case) seem to focus on Mrs. Lakhani’s limitations without any or adequate recognition about her pre-Accident condition, I do accept that the injuries associated with the Accident have increased Mrs. Lakhani’s difficulties. For example, I accept that she had headaches when she studied. I accept that sitting at a computer caused her additional difficulties. I accept that her exercise regime in the gym has changed somewhat so that she no longer exercises with light weights as she once did. I accept that she is required to ensure her workstations are properly set up to minimize difficulties with her neck and shoulder. I also accept that the difficulties Mrs. Lakhani has had in her neck, shoulder and upper back limits her ability to cope with her low back injury. A number of professional witnesses indicated that persons who have low back injuries can often adapt by undertaking more functions or tasks with their upper back and shoulders. In the case of Mrs. Lakhani, the ability to alleviate the strain or load on her low back in this manner has been obviated.

[92] It is also clear that Mrs. Lakhani has consistently sought different types of treatment to assist with her post-Accident condition. For a few months immediately after the Accident she obtained physiotherapy and massage treatments. In about April 2006 she began to see Dr. Khan regularly; she presently sees him every third week or so. Since December 2008 she has been getting cranial massage treatments. All of this is consistent with Mrs. Lakhani continuing to suffer with some of the after effects of the Accident.

[93] Mrs. Lakhani formerly enjoyed needlepoint and would periodically paint small ornaments, particularly at Christmas. She says she no longer enjoys these activities because they cause her some neck pain. I accept this evidence.

[94] As mentioned above, Mrs. Lakhani is a very avid gardener. She says the Accident has inhibited her ability to engage in this activity. I will return to this later when I deal with issues related to the cost of future care, but I find that Mrs. Lakhani’s present ability to garden is largely unchanged from that which she enjoyed prior to the Accident.

[95] I have said that Mrs. Lakhani described the sadness she felt in not being able to play with her daughter as she had hoped. I have no doubt that such limitations are very disheartening, but as I have indicated, I find that many of these limitations are a function of her pre-Accident condition. Apart from examples I have already given, Mrs. Lakhani described her inability to help her daughter learn to ride a bicycle. Such an activity, which requires running, bending and strength to balance the bicycle, would have all been extremely difficult for Mrs. Lakhani before the Accident. There are, however, some activities, such as carrying her child when she was an infant, which were likely rendered more difficult and painful as a result of the Accident.

[96] Mrs. Lakhani was a very avid reader prior to the Accident. She said she would often read for over an hour before she went to sleep. At present, she rarely reads more than 15 to 20 minutes. I accept that some of this is likely referable to the Accident. Much of it, however, seems to reflect another significant difficulty with the plaintiff’s case. I have described how carefully Mrs. Lakhani was required to balance her various commitments with her leisure time in order to protect her lower back. This leisure time was necessary to enable her to recuperate from various daily demands. Yet the fact is that Mrs. Lakhani has continued to add obligations and activities to her day-to-day life subsequent to the Accident.

Damages were awarded as follows:

Non-Pecuaniary Damages: $45,000

Income Loss: $8,771.97

Future Loss of Opportunity: $30,000

Special Damages: $12,045.96

Cost of Future Care: $5,500

Loss of Houskeeeping Capacity: $3,721

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The next case dealing with damages (Lidher v. Toews) involved a 2004 BC collision.

The Plaintiff testified that she suffered injuries affecting “her neck, shoulders, arms, back and head.“. Madam Justice Smith found that the Plaintiff indeed was injured in this collision and awarded total damages just above $76,000 then reduced these by 10% for the Plaintiff’s ‘failure to mitigate‘. Specifically the court found that the Plaintiff “did not do what she could reasonably have been expected to do to keep herself from becoming deconditioned, and that some reduction of her award for failure to mitigate would be appropriate“

In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $30,000 the court made the following key findings:

[78] I have concluded that the plaintiff has reacted more significantly to her injuries than someone else might have, and, in addition, that she has exaggerated her symptoms. I note that the stresses and difficulties in her life may have made her more susceptible to pain, and may explain her reaction to her injuries. I also take into account that she is not a sophisticated or highly educated woman, and that her communications with health care providers have often been through interpreters, except where the health care provider is Punjabi-speaking (Dr. Khunkhun and Dr. Johal are able to speak Punjabi). There may well have been miscommunication as a result.

[79] The weight of the evidence satisfies me that the motor vehicle accident caused Ms. Lidher to experience pain and other symptoms from December 11, 2004 to the present. Her symptoms may have been exacerbated by family stress, but to the extent that the family stress has caused her to experience the injuries more significantly than she otherwise would, it is an example of the principle that the defendant must take the plaintiff as she is found. It is possible that family stress would have caused her to miss some work in any event, but I do not find this to be more than a slight possibility.

[80] The evidence as to whether Ms. Lidher will experience a full recovery is unclear. However, both Dr. Hershler and Dr. Khunkhun expressed some optimism, particularly given the good results obtained by the Karp Rehabilitation program in 2008.

[81] On the balance of probabilities, I find that the plaintiff will likely experience further recovery, to the point that her symptoms will be minimal. Her symptoms are already at a modest level.

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In the final personal injury case released today by the BC Supreme Court (Sanders v. Janze) the Plaintiff was injured in a 2002 car crash in Richmond, BC. Fault was admitted and the trial focussed solely on quantum of damages.

The Plaintiff had suffered other injuries in the years before this collision and was still recovering from these at the time of this accident.

Mr. Justice Butler found that the Plaintiff suffered a neck injury and a back injury in this collision. With respect to the neck he found as follows:

[67] The pre-existing degenerative changes in Ms. Sanders’ cervical spine made her more susceptible to injury. She was still experiencing some pain and discomfort in her neck from the 2002 injuries, but it had improved and was not disabling. The Accident aggravated the existing condition of her spine. The nature and extent of her symptoms changed. The pain and inability to function that she experienced after the Accident persisted and ultimately led to surgery in 2004.

[68] Dr. Connell’s evidence that there was no structural change in the cervical spine before and after the Accident based on the diagnostic imaging does not negate the opinion of Drs. Matishak and Watt that the Accident was an effective cause of the neck injuries that led to the surgery in 2004. I accept Dr. Matishak’s opinion as the treating surgeon. He was adamant that the Accident was a cause of the significant problems that Ms. Sanders experienced in her neck. He was cross-examined extensively on the issue. He did not waiver in his view.

With respect to the Plaintiff’s back injury the court found as follows:

[72] I have already found that Ms. Sanders’ low back was not symptomatic before the Accident. She had experienced back pain from time to time since 1993, but after 1999 the low back was quiescent. She worked at physically demanding jobs without experiencing low back pain. In other words, a careful examination of Ms. Sanders’ pre-Accident condition establishes that Dr. Matishak’s assumption that her back condition was quiescent is correct….

[75] There can be no question that the Accident did cause Ms. Sanders’ back to become symptomatic. She continued to experience pain from the date of the Accident onwards. However, Mr. Janze also argues that Ms. Sanders’ absence of impairment on the SLR test in the months immediately after the Accident is objective evidence to show that the Accident did not affect her low back spinal structure. Drs. Watt and Matishak were cross-examined on this issue. Both maintained that this fact did not cause them to alter their opinions. They both noted that there were symptoms of radiating leg pain shortly after the Accident. Approximately six months after the Accident, Ms. Sanders’ SLR test revealed impairment on the right side….

[77] There is no other possible event or cause that could explain the development of the symptomology in this case. The fact that the surgeries did not take place until 2007 does not mean that the Accident was not a cause of the injuries that ultimately led to those surgeries. I have found that the symptoms and back pain were caused by the Accident. Those symptoms persisted and became chronic. The conservative treatment attempted did not provide relief. Consequently, Ms. Sanders chose surgery. The fact that three surgeries were required was a direct result of the condition of her spine after the Accident. In summary, when the temporal connection is examined closely, it does establish that the Accident was a cause of the low back pain.

The court assessed the Plaintiff’s non-pecuniary damages at $150,000 but then reduced this award by 40% t “to take into account the measureable risk that Ms. Sanders’ pre-existing conditions of her spine would have detrimentally impacted Ms. Sanders in any event of the Accident”

This case is worth reviewing in full for anyone interested in the law in BC relating to “pre-existing conditions” and the “crumbling skull” defence which is often raised in ICBC Injury Claims.

Whew…Now to catch my plane.

Mild Traumatic Brain Injury and Chronic Pain Valued at $125,000

Written by admin on July 17, 2009. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Brain Injury Cases, ICBC Chronic Pain Cases, ICBC Headache Cases, Uncategorized. 50 Comments on Mild Traumatic Brain Injury and Chronic Pain Valued at $125,000

Reasons for judgment were released today by the BC Supreme Court dealing with compensation for serious injuries including Mild Traumatic Brain injury and Chronic Pain.
In today’s case (Slocombe v. Wowchuck) the Plaintiff was injured in a 2005 rear-end BC Car Crash. Liability was admitted so the trial focused solely on quantum of damages. The Plaintiff suffered serious injuries. Total damages of over $940,000 were awarded by Madam Justice Morrison including an award of $125,000 for non-pecuniary damages. In assessing the this head of damage the court summarized the Plaintiff’s injuries and their effect on his life as follows:

[197] This was an accident that has caused serious injuries to the plaintiff. He suffered a mild traumatic brain injury that he appears to have recovered fully from at this point in time. Dr. Kaushansky did testify that the plaintiff could be at risk if there were a further blow to his head.

[198] The injury to the plaintiff’s sternum no longer poses problems. There has been a full recovery.

[199] The plaintiff still experiences headaches following the accident. However, the serious headaches have been resolved, and the headaches the plaintiff now gets are certainly real, but they are not of the serious and disabling nature that they were initially.

[200] Mr. Slocombe still complains of some neck problems, but these complaints are periodic, and are not the cause of his serious complaints at this time.

[201] The second worst injury was to the thoracic spine area. This pain continues, and has been referred to as a soft tissue type of injury. Dr. Rothwell was of the opinion that the degenerative disc disease processes have been generated in the spine, including the thoracic spine area by the motor vehicle accident. It is unlikely that there will be further recovery in this area. I accept this opinion.

[202] The most serious area of injury is to the lumbosacral spine area. This injury began at the instant of the double impact of the accident, and has continued to a painful degree to this day. I conclude that the chronic pain has had a profound effect on the plaintiff’s life in all areas, and will continue to do so. I accept the evidence of the plaintiff’s medical experts who find the motor vehicle accident was the cause of this injury.

[203] Mr. Slocombe had a pre-existing asymptomatic spondylolisthesis, and in my view, this became symptomatic as a result of the accident. That is the only conclusion that can be reached, from all the evidence, on a balance of probabilities.

[204] There was medical evidence at trial that there are other areas of injury in the lumbar spine area in addition to the spondylolisthesis that have now been rendered symptomatic.

[205] When working at his carpentry, Mr. Slocombe is making mistakes that he was not making prior to the accident. He is experiencing some cognitive difficulties which the doctors, including Dr. van Rijn and Dr. Mok as well as Dr. Kaushansky attribute to the pain and mood difficulties that he has been experiencing since the accident. These difficulties are particularly apparent the longer Mr. Slocombe works. They have been confirmed by testing and also by the evidence not only of the plaintiff but also of his father and Mr. Graham, one of his clients. These cognitive difficulties are continuing…

[229] Tom Slocombe’s life has changed dramatically due to the accident. He no longer has the high energy, endurance and health to perform the work that he loves, carpentry, or to take part in the social and sporting activities that gave him such pleasure. He is in constant pain, and will probably be for the rest of his life. He was an active, fun-loving 25 year old with a good job, good prospects, and a steady girlfriend who became his fiancée. He had a vehicle that he was making sure he was paying for, and a life that included active sports, travel and social activities with friends and family; he was usually the initiator.

[230] He is no longer able to be independent financially, he has no vehicle, and he has the added difficulty of not being able to sit for any length of time. His passion for carpentry has been lifelong. It is apparent he will not be able to earn his living and continue with this line of work.

[231] His family and others testified to his change in disposition and mood, his inability to join their normal activities, and his difficulties in coping with his pain and sleeplessness. His enjoyment of life has been dramatically altered. There will be an award for non-pecuniary damages in the amount of $125,000.

$75,000 Non-Pecuniary Damages Awarded For Chronic Pain and Headaches

Written by admin on July 16, 2009. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Headache Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 45 Comments on $75,000 Non-Pecuniary Damages Awarded For Chronic Pain and Headaches

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.

$40,000 Non-Pecuniary Damages Awarded for "Plateaued" Chronic Mid Back Injury

Written by admin on July 14, 2009. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, Uncategorized.

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.

The Important Role of Treating Doctors in BC Personal Injury Claims

Written by admin on July 6, 2009. Posted in Civil Procedure, ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Headache Cases, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, Uncategorized.

Reasons for judgement were released today by the BC Supreme Court highlighting the valuable role treating physicians have in personal injury claims.
In today’s case (Deiter v. Briggs) the Plaintiff was injured in 2 BC car crashes. Liability was admitted for both crashes leaving the court to deal with the issue of quantum of damages (value of the Plaintiff’s injuries and losses).
The Plaintiff called 2 physicians in the course of her claim to assist the court with opinion evidence explaining the extent and nature of her injuries. These physicians were her family doctor (Dr. Cordoni) and a well respected rheumatologist, Dr. Shuckett. Dr. Shuckett gave the following diagnosis and prognosis for the Plaintiff’s injuries:

[21] Dr. Shuckett examined Ms. Deiter in December 2008. Based on the patient’s own description of her history and Dr. Shuckett’s physical examination of her, Dr. Shuckett arrived at the following diagnosis as set out in her report:

1. Cervicogenic headaches.

2. Mechanical neck pain, mainly due to musculo-ligamentous injury with bilateral neck pain and some modest decrease of neck mobility. She may very well have zygapophyseal joint capsular injury of the neck.

3a. Myofascial pain syndrome of the left neck and shoulder girdle region with palpable muscle spasm.

3b. Myofascial pain syndrome of right shoulder girdle region with palpable muscle spasm.

There is some myofascial pain syndrome with spasm of the muscle and rounding of the muscle adjacent to the right medial scapula.

3. Right shoulder impingement and rotator cuff tendonitis suspected (appears to be mild).

[22] Dr. Shuckett gave the opinion that the symptoms suffered by the plaintiff were related to the first accident and but for the accident, Ms. Deiter would not have these symptoms or diagnoses. As to the future prognosis, Dr. Shuckett reported that the prospect of further recovery is guarded now that two and a half years have passed since the accident. Dr. Shuckett gave the opinion that:

It is really not possible to measure degree of disability or impairment from work in an objective sense with chronic soft tissue pain. I cannot rule out that she may find herself unable to pursue fulltime work in the longer term future due to her injuries, but this is not something I can predict. However, based on her current status, it appears that she finds it difficult to contemplate increasing her work hours.

And further:

She may not improve from her current status as her pain is chronic by this time.

The Court largely accepted this evidence and awarded damages of just over $144,000 for the Plaintiff’s injuries and losses.

The Lawyer for the Defendants made critical comments about Dr. Shuckett’s expert opinion. In rejecting the defence lawyers submissions Madame Justice Griffin said the following with respect to the important role treating physicians play in BC Personal Injury Lawsuits:

[28] The defendants suggested in argument that Dr. Shuckett was an advocate but I do not accept that characterization. I found her to be very clear and objective in her evidence which she was well qualified to give. I pause here to note that the defendants appeared to me to show a lack of objectivity when assessing the role of physicians in litigation of this nature. The defendants stated in written and oral argument:

In contrast to Dr. Shuckett, Dr. Cordoni presented as a [sic] impartial and unbiased physician which is highly unusual for a general practitioner.

[29] This submission is what is known as a back?handed compliment. It is a gratuitous attack on Dr. Shuckett to suggest that she was not impartial, a proposition which is entirely unfair on the evidence. It is a suggestion that appears to praise Dr. Cordoni while it insults general physicians as a group, as if to say they are typically not able to provide independent medical evidence in soft tissue injury cases. This cynical submission is outrageous and unduly partisan.

[30] This court hears many cases involving plaintiffs with claims that someone else’s negligent action caused them personal injuries. These are persons who are entitled to damages under the common law of this country if their claims are proven. These are persons who may be suffering greatly from their injuries. This court could not perform its function of determining these important claims without the help of treating medical physicians including general practitioners.

[31] Thus, physicians who do testify despite the inconvenience are performing a very important professional and public duty. Coming to court to testify and to face cross?examination may be the last thing a busy physician wants to do, faced with the burdens of practice. Often a general physician is the one physician who knows the patient best and who will have the longest history of treating the plaintiff before and after the incident giving rise to the claim. This court is extremely appreciative of the role physicians play in giving evidence. I sincerely hope that counsel for the defendants in this case reflected only his views, and not a general culture amongst legal counsel who represent defendants or defendant’s insurers, when he decided to advance his submission which was so disrespectful of the important role of family doctors in personal injury cases. It is true that in some cases a medical practitioner may be impartial but it reflects poorly on the defendants to simply advance this as a general proposition.

ICBC Soft Tissue Injury Claims Round-up

Written by admin on July 5, 2009. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Headache Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

On Friday the BC Supreme Court released reasons for judgement in 2 cases dealing with soft tissue injuries which I summarize below to continue to grow this free database of ICBC Injury Claims Judgements. Additionally, both of these cases contain a useful analysis of Plaintiff credibiilty and are worth reviewing for anyone interested in this area of the law.
In the first case, Skusek v. Gill, the Plaintiff was injured in 2 BC car crashes, the first in 2000 and the second in 2006. Liability was admitted in both cases leaving the court to deal with quantum of damages (the value of the plaintiffs injuries and losses).
The Plaintiff was 22 years old by the time of trial. She suffered various soft tissue injuries in both collisions which did not fully resolve. Mr. Justice McEwan of the BC Supreme Court largely accepted the evidence of Dr. Ames who summarized the Plaintiff’s injuries as follows:

[20] The plaintiff saw Dr. Janet Ames on August 22, 2007. Dr. Ames took a history which suggested significant ongoing pain from the first accident which was seriously aggravated by the second:

After the first accident on January 12, 2000 the symptoms included headaches, neck pain, lower back pain, pain between the shoulder blades and bilateral hip pain. She commented her entire back hurts. At the time of the second accident she was still going for chiropractor treatment and physiotherapy. The patient would place her recovery at about 50 percent before the second accident.

After the second accident the patient describes becoming a lot worse in all of the previously symptomatic areas and specifically the right hip became worse. There were bruises from the seat belt. The left anterior ribs felt “out of place” (later resolved with chiropractor care).

[21] She note the following symptoms on her examination:

1. There is pain across the low back, left greater the right. The pain does not consistently radiate down the legs. There is occasional pain down both anterior thighs not going past mid thigh. There is no tingling or numbness associated with this. There is no history of bowel or bladder control problems. The patient describes pain in the area of the right hip and points to the lateral aspect of the hip.

2. There is pain in the mid back area, left worse than right. This does not radiate around the chest or through to the front. There is no history of tingling or numbness.

3. There is a history of headaches described as frontal, temporal and from neck tension. The frequency and severity varies. There is no pain down the arms and no tingling or numbness. Caffeine intake is 1 c. of coffee or tea every two or three weeks and chocolate about twice a week. The patient will be seeing a Neurologist in February 2009, arranged by Harris Johnsen.

4. The patient comments that she has a lot of stomach aches daily.

5. Sleep varies depending on the pain level.

[22] The prognosis was as follows:

The prognosis for the various injuries is good as there are no clinical findings consistent with a serious injury. This excludes the problem with the headaches. The patient will be assessed by a Neurologist who will comment on the diagnosis and prognosis with regards to the headaches.

Determining when the symptoms will come under good control and/or resolve is very difficult. The patient may benefit considerably from low dose Amitriptyline to improve sleep and a consistent core stability/strengthening program with one or one supervision. The supervision from a Pilates instructor would continue until she was on a full program and was aware of how to progress the exercises. This usually takes about eight sessions over eight weeks. The patient then graduates to doing the exercises on their own or joining a small group.

Damages of $50,000 were awarded for the Plaintiffs non-pecuniary loss (money for pain and suffeirng and loss of enjoyment of life) and $60,000 was awarded for the young Plaintiff’s diminished earning capacity.

Paragraphs 41-48 of this judgement are worth reviewing for anyone interested in some of the factors courts look at when weighing a Plaintiff’s credibility in soft tissue injury cases.

In the second soft tissue injury case released on Friday (Mohamadi v. Tremblay) the Plaintiff was awarded $10,000 for non-pecuniary damages as a result of injuries sustained in a 2006 BC car crash. In valuing the Plaintiff’s injuries at this modest figure Mr. Justice Truscott of the BC Supreme Court summarized the injuries as follows:

[91] It is extremely difficult to determine the value of the plaintiff’s claims with all of the inconsistent evidence he has given and the lack of supporting evidence from his doctors.

[92] I do accept that in the motor vehicle accident of February 14, 2006 the plaintiff sustained soft tissue injuries to his neck, back and left shoulder, accompanied by headaches.

[93] I am prepared to accept that his soft tissue injuries lingered on for a period in the order of two years on a mild basis but thereafter I conclude that he had recovered with no long term consequences.

[94] I accept that his headaches lasted for a short period of time but thereafter this complaint is not supported by his physicians and I reject his evidence that his headaches continued thereafter.

This case is also worth reviewing for the court’s discussion of plaintiff credibility in soft tissue injury claims. Many of the Plaintiff’s claims were rejected by the Court. Specifically in paragraphs 95-113 the court gives reasons for rejecting many of the Plaintiff’s claims and these paragraphs contain a useful discussion for anyone interested in some of the factors courts consider important when weighing credibility in ICBC Injury Claims.

$35,000 Non-Pecuniary Damages for Moderate Soft Tissue Injuries

Written by admin on June 22, 2009. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

Reasons for judgment were released today by the BC Supreme Court awarding just over $40,000 in total damages as a result of injuries and loss sustained in a 2006 Richmond, BC Car Crash.
In today’s case (Lo v. Chow) the Plaintiff was injured when his vehicle was struck by the Defendants. Liability (fault) was admitted by the Defendant leaving the court to decide quantum of damages (the value of the plaintiff’s losses and injuries).
In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $35,000 Mr. Justice Sewell of the BC Supreme Court highlighted the following findings:

[19] As I have already indicated many of Mr. Lo’s symptoms resolved within a relatively short period after the accident. His on-going complaints relate mainly to his lower back and are aggravated by heavy exertion at work. Mr. Lo did not give any evidence about curtailment of recreational activity which he has suffered as a result of the accident.

[20] I conclude that Mr. Lo suffered a mild to moderate soft-tissue injury as a result of the accident. On the evidence before me, and in particular given the duration of his symptoms, I conclude that he will continue to be symptomatic for the foreseeable future. At the same time, the intensity of his symptoms is not severe and they do not appear to be in any way debilitating. My impression of Mr. Lo is that he has coped well with his pain. Nevertheless, he has continued to experience pain for over 3 years and, as I indicated above, that pain is likely to continue indefinitely. In all the circumstances I award Mr. Lo non-pecuniary damages for pain and suffering of $35,000.00.

In addition to the discussion addressing damages for pain and suffering this case is worth reviewing for some of the ways ICBC defence lawyers use entries contained in clinical records to try and impeach a Plaintiff at trial. This type of impeachment with ‘prior inconsistent statements‘ is a common method used in personal injury claims.

In this case the defence lawyer argued that the Plaintiff’s evidence was inconsistent with statements recorded in certain documents. Mr. Justice Sewell put little weight in this argument and in rejecting it noted the following:

[13] In his submissions counsel for the defendant submitted that Mr. Lo’s credibility was in issue and that I should be very sceptical about the evidence which he gave as to his condition. Having observed Mr. Lo in the witness box and taking into consideration the whole of the evidence I find that Mr. Lo was a credible witness and that I should accept his evidence as credible. He did not seem to overstate his symptoms and gave forthright answers to questions even when the answers did not advance his case.

[14] Defence counsel’s criticisms of Mr. Lo’s credibility are centered on two particular documents. The first is a document described as a Discharge Report prepared by Mr. Troy Chen, a personal trainer who supervised an exercise program to Mr. Lo between August 29, 2006 and October 12, 2006. Counsel submitted that Mr. Lo’s evidence that he continues to have difficulty and pain when called upon to do heavy work cannot be reconciled with some of the comments attributed to him in the Discharge Report. In particular, counsel points to the following passage on page 2 of the Discharge Report dealing with client activities:

“Mr. Lo indicated the following:

Working fulltime as a packager for BEPC Apparel. No time for any sporting or recreational activities. On October 12, 2006, Mr. Lo indicated that he was now able to perform all job-related duties without assistance.”

[15] Counsel submits that this statement is inconsistent with Mr. Lo’s evidence that while he was employed at BEPC he required assistance in lifting heavy objects and packages. He therefore invited me to make adverse findings of credibility against Mr. Lo.

[16] I do not think that Mr. Lo’s credibility is in any serious way damaged by the contents of the Discharge Report. Firstly, Mr. Chen testified that he has absolutely no recollection of the matters recorded in the Report. Accordingly, the only evidence that I have from him is in the form of past recollection recorded in the Discharge Report. Mr. Lo speaks primarily in the Cantonese dialect of the Chinese language. Mr. Chen speaks English and Mandarin. He testified that he would have spoken to Mr. Lo through an interpreter but was unable to identify who that interpreter was or the circumstances in which he made notes of Mr. Lo’s comments. I also note that in the portion of the Discharge Report immediately below client activities Mr. Chen noted that Mr. Lo continued to suffer constant discomfort in his lower back and that exertion tended to elicit pain which may linger for several days. Mr. Lo also reported to Mr. Chen that lifting heavy objects elicited pain in his right pectoral area.

[17] The other document which counsel submitted brings Mr. Lo’s credibility into question is a WorkSafe B.C. claim filed by Mr. Lo in June 2007 with respect to a work-related injury. On June 8, 2007 Mr. Lo lifted 30 boxes weighing at least 60 pounds each. Mr. Lo at that time reported back pain and made a claim for wage loss compensation to WorkSafe B.C. In the course of investigating Mr. Lo’s claim WorkSafe B.C. required various forms to be completed. In one of the forms which was completed on behalf of Mr. Lo, in English, he reported that there was no previous condition prior to the injury. I, again, do not find that the contents of these documents cause me to form an unfavourable impression about Mr. Lo’s credibility. The documents, as I indicated above, are prepared in the English language and were prepared on Mr. Lo’s behalf by an employee of BEPC. Mr. Lo testified that the contents of the document were not read to him and he understood that they were an application for benefits. In all of the circumstances, I do not think that Mr. Lo intended to mislead or make false statements in his application to WorkSafe B.C., nor do I think that the contents of these documents are necessarily inconsistent with Mr. Lo’s symptoms as he reported them to his physicians and testified to at trial.

More on BC Personal Injury Claims and the Duty to Mitigate

Written by admin on June 8, 2009. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Spine Injury Cases, Uncategorized.

If you advance a BC Personal Injury Claim (a tort claim) the courts impose a duty on Plaintiffs to mitigate their losses. What this means is a Plaintiff must take reasonable steps to minimize their losses. If a Plaintiff unreasonably fails to follow medical advice or fails to return to work in a timely fashion despite being physically able to do so the court may reduce damages accordingly.
Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, demonstrating this legal principle.
In today’s case (Leung v. Foo) the Plaintiff was injured when travelling as a passenger in a single vehicle collision. Fault was admitted by the driver of the Plaintiff’s vehicle. The Plaintiff sustained ‘moderate soft tissue injuries’ and a disc herniation as a result of this collision. Mr. Justice Cohen valued the Plaintiff’s non-pecuniary loss (pain and suffering) at $65,000 and then reduced these damages by 10% due to the Plaintiff’s ‘failure to mitigate ‘. The Court summarized and applied this area of law as follows:

[112] The defendants submit that any award of damages should be reduced to reflect the plaintiff’s failure to mitigate through her delay in seeking psychological assistance, her refusal to participate in physiotherapy, her being discharged from CBI, and her failure to pursue an active exercise program in the face of medical advice to do so.

[113] Damages are not recoverable for any loss that a claimant ought to have avoided. A claimant has a duty to mitigate losses, which includes taking all reasonable steps to minimize any loss that results from an injury, and bars a claimant from claiming any part of the damages that can be attributed to his or her neglect to take such steps.

[114] Mitigation limits recovery based on an unreasonable failure of the injured party to take reasonable steps to limit his or her loss. A plaintiff in a personal injury action has a positive duty to mitigate, though the onus of proof on this issue rests with the defendant. See: Graham v. Rogers, 2001 BCCA 432, leave to appeal dismissed, [2001] S.C.C.A. No. 467.

[115] In Maslen v. Rubenstein, at para. 11, the Court of Appeal held that where the court finds that injury has been suffered and mitigation issues are raised, the court must decide whether the defendant has established that by following advice which the plaintiff received or ought to have obtained, the plaintiff could have overcome the problem or could in future overcome it. The advice might, for instance, be to eliminate treatment, make “lifestyle changes” or adopt psychotherapy, physiotherapy or an exercise regimen. Where appropriate remedial measures would resolve the problem, damages can be awarded only in respect of the period up to the date when, in the estimation of the fact-finder, the problem ought to have been resolved, or ought to be resolved.

[116] Failure to follow a recommended exercise program commonly results in a reduction in damages for the plaintiff’s failure to mitigate.

[117] The defendants submit that the plaintiff has not given a satisfactory explanation as to why she did not exercise. In addition, the plaintiff would have the Court accept that she did not seek the assistance of a psychologist because she lacked the sophistication necessary to do so in the face of her perception that Dr. Leung refused to give her a referral.

[118] The defendants submit that the plaintiff’s actions do not suggest a woman incapable of securing her own treatment. On the contrary, the plaintiff took several proactive steps in relation to the treatment of her injuries. The plaintiff found another GP in Dr. Wong, having lost faith in Dr. Leung; arranged her own massage and chiropractic treatments; discontinued physiotherapy; and decided against the steroid injections suggested by Dr. Adrian.

[119] The defendants also say that it is clear that counselling was discussed with the plaintiff in March 2008 by Dr. Wong. Yet the plaintiff did not see Dr. Jung until September 2008, approximately six months later. This is not evidence of a person anxious to obtain psychological treatment. Rather, such delay and ambivalence is consistent with a person who was told that psychological treatment was recommended in 2006 (via Dr. Leung’s May 2^nd medical-legal report) but failed to take any immediate steps in that regard. The plaintiff herself admitted that she did not pursue psychological treatment or start an exercise regimen because she was too busy with work. She gave the same reason for missing appointments with CBI.

[120] The defendants submit that plaintiff’s decisions to not pursue treatment may well have delayed or prevented the improvement of her symptoms, a state of affairs for which the defendants should not be held responsible.

[121] I agree with the defence position on mitigation and find that the plaintiff’s failure to mitigate resulted in an extension of her recovery beyond that considered reasonable for her injuries, and that the plaintiff’s general damages award should be reduced by 10%.

ICBC Claims, Soft Tissue Injuries and Credibility

Written by admin on June 6, 2009. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Whiplash Cases, Uncategorized. 4 Comments on ICBC Claims, Soft Tissue Injuries and Credibility

Soft tissue injuries without objective signs are some of the most frequently litigated claims. One of the reasons why is because credibility plays a vital role in these claims and ICBC often challenges the credibility of Plaintiff’s alleging such injuries.
Reasons for judgement were released on Friday by the BC Supreme Court, Vancouver Registry, dealing with just such a claim. In Friday’s case (Tayler v. Loney) the Plaintiff was involved in a 2005 BC Car Crash. Her injuries included soft tissue injury to her neck and back. These injuries unfortunately continued to linger for many years. By the time of trial the Plaintiff’s pain was ongoing. ICBC’s response to this was that the Plaintiff was no longer injured and was simply ‘lying to the court’.
Mr. Justice Grauer rejected ICBC’s position and accepted that she indeed did suffer injuries in the car crash which continued to bother her to the time of trial. Damages of $42,500 were awarded for the Plaintiff’s non-pecuniary loss (pain and suffering). Since ICBC put the Plaintiff’s credibility squarely in issue the court had to address this head on. In doing so the court engaged in a thoughtful discussion about credibility in ICBC injury claims where there is no objective sign of injury. Mr. Justice Grauer summarized and applied this area of law as follows:

[65] While I have found that the plaintiff is in fact experiencing what she says she is experiencing, I also accept the weight of the medical opinion that there is no objective evidence of ongoing soft tissue injury. In these circumstances, it is helpful to turn for guidance to the authorities to which counsel referred me, always remembering that each case turns on its own unique facts.

[66] In Butler v. Blaylock (7 October 1980), Vancouver Reg. No. B781505 (S.C.), McEachern C.J.S.C. (as he then was) remarked as follows:

I am not stating any new principle when I say that the Court should be exceedingly careful when there is little or no objective evidence of continuing injury and when complaints of pain persist for long periods extending beyond the normal or usual recovery.

An injured person is entitled to be fully and properly compensated for any injury or disability caused by the wrongdoer. But no one can expect his fellow citizen or citizens to compensate him in the absence of convincing evidence – which could be just his own evidence if the surrounding circumstances are consistent – that his complaints of pain are true reflections of a continuing injury.

[67] Counsel for the defendant relied in particular on the judgment of Taylor J.A. for the Court of Appeal in Maslen v. Rubenstein (8 September 1993), Victoria Reg. No. V01071 (C.A.), where the court was concerned with:

… those post-traumatic phenomena – sometimes identified with and sometimes distinguished from conditions known as “idiopathic pain disorder”, “chronic (or chronic benign) pain syndrome”, “functional overlay” and “somatoform pain disorder” – which involve continued suffering in accident victims after their physical injuries have healed.

[68] At paras. 8-12, Taylor J.A. went on to describe the basic principles applicable to these “difficult cases”:

To meet the onus which lies on the plaintiff in the case of this sort, and thereby avoid the ‘ultimate risk of non-persuasion’, the plaintiff must, in my view, establish that his or her psychological problems have their cause in the defendant’s unlawful act, rather than in any desire on the plaintiff’s part for things such as care, sympathy, relaxation or compensation, and also that the plaintiff could not be expected to overcome them by his or her own inherent resources, or ‘will-power’.

If psychological problems exist, or continue, because the plaintiff for some reason wishes to have them, or does not wish them to end, their existence or continuation must, in my view, be said to have a subjective, or internal, cause. To show that the cause lies in an unlawful act of the defendant, rather than the plaintiff’s own choice, the plaintiff must negative that alternative. The resolution of this issue will not involve considerations of mitigation, or lack of mitigation. To hold otherwise, that is to say to place on the defendant the onus of proving that a plaintiff who suffers from a psychological problem had it within his or her own ability to overcome it, would be to require that the defendant, rather than the plaintiff, bear the onus of proof on the primary issue of causation, and would impose on defendants a heavy and unjustifiable burden. If the court could not say whether the plaintiff really desired to be free of the psychological problem, the plaintiff would not, in my view, have established his or her case on the critical issue of causation.

Any question of mitigation, or failure to mitigate, arises only after causation has thus been established.

Where the court finds that psychological injury has been suffered as a result of unlawful conduct of the defendant which the plaintiff has not the ability to overcome by his or her own inherent resources, the court must then, if mitigation issues are raised, decide whether the defendant has established that by following advice which the plaintiff received or ought to have obtained, the plaintiff could have overcome the problem, or could in future overcome it…. Where appropriate remediable measures would resolve the problem, damages can, of course, be awarded only in respect of the period up to the date when, in the estimation of the fact-finder, the problem ought to have been resolved, or ought to be resolved.

Once the principles to be applied are recognized, the rest is a matter for the fact-finder to determine on the basis of the evidence in the case, and it is for this reason that I find little guidance in many of the decisions cited.

[69] Plaintiff’s counsel relied heavily on the judgment of Spencer J. In Netter v. Baas (14 February 1995), Vancouver Reg. No. B930557 (S.C.), where the learned judge commented as follows:

Over the ensuing 33 months, no doctors save one, has been able to find a satisfactory objective cause for [the plaintiff’s] continuing pain related to this accident. All the doctors who filed reports agree that he suffered soft tissue injury and resulting pain, but none explains why the pain should have been so severe and lasted so long. This is the classic case of the plaintiff without objective symptoms who claims an almost total disability from his former physical occupations….

Such cases invite skepticism on the part of the defendant who is asked to pay for such an extreme result. But this is a plaintiff who claims a formerly very physical lifestyle in the outdoors. Although he worked in a sawmill in town for the year preceding the accident, much of his life to age 37 had been spent outdoors as a driller-blaster, a prospector and part-time farmer. His hobbies involve the outdoors too, camping, canoeing, hiking and fishing. Some of the doctors who examined him remarked upon his strength and build. Would such a person willingly abandon the lifestyle he had previously embraced for the sake of the chance of an exaggerated accident claim? There are cases where plaintiffs have done that but generally there is evidence from which that can be determined. No evidence was called to challenge the accuracy of this evidence about his previous lifestyle.

[70] Turning to the present case, there is, as I have noted, no doubt that the plaintiff suffered soft tissue injuries to her neck, shoulders, upper and lower back, causing pain, headaches and disability. I have also found that although she genuinely continues to experience pain and disability, there is no objective evidence of continuing injury. There is no muscle-wasting, atrophy or limitation of motion, and she has been observed to be capable of spontaneous movements inconsistent with continuing physical injury.

[71] What, then, is the explanation for the delay in the plaintiff’s recovery? On the evidence before me, I conclude that the answer lies in a combination of factors, identified by both Dr. Yuzak and Dr. Teal, although in different ways. Dr. Teal described it as a psychological predisposition to the effects of trauma, noting her five previous motor vehicle accidents, and her profession. Dr. Yuzak referred to the three complicating factors of her five previous accidents, her status as a health practitioner, and an environment that was not conducive to healing. I find that all of these have played a part, and explain why the plaintiff has not recovered as one might otherwise have expected.

[72] I do not consider that this psychological and circumstantial predisposition has a subjective, or internal, cause in the sense of being the plaintiff’s own choice, as discussed in the Maslencase. Rather, it is the effect of the defendant’s unlawful conduct upon the plaintiff’s pre-existing state that has resulted in the circumstances in which the plaintiff now finds herself, subject to the issue of mitigation. I do not accept that the stresses in the plaintiff’s life since the accident constitute a novus actus interveniens, as submitted by the defendant. Those stresses are of the sort that many people experience, and but for her injuries, would not in my view have caused the plaintiff any loss.

[73] Accordingly, I find that the plaintiff has established that her ongoing state of experiencing pain and disability was caused by the defendant’s negligence.

$45,000 Pain and Suffering Awarded for Neck, Shoulder and Jaw Injuries

Written by admin on May 20, 2009. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Dental Injury Cases, ICBC Headache Cases, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 109 Comments on $45,000 Pain and Suffering Awarded for Neck, Shoulder and Jaw Injuries

Reasons for judgement were released today (Romanchych v. Vallianatos) by the BC Supreme Court, Vancouver Registry, awarding just over $132,000 in total damages to a Plaintiff injured in a 2006 BC Motor Vehicle Collision.
The collision was a rear-ender on the Alex Fraser Bridge in Delta, BC. The crash was forceful enough to write off the 24 year old Plaintiff’s vehicle.
Madam Justice MacKenzie of the BC Supreme Court summarized the Plaintiff’s injuries as follows:
I find on the totality of the evidence that the accident caused the plaintiff’s neck and shoulder injuries with associated headaches and jaw pain. While her symptoms improved over time, they have not resolved.   She currently suffers chronic neck and shoulder pain. She can manage her pain level if she avoids aggravating her injuries by limiting her activities. The plaintiff is also vulnerable to future episodes of jaw pain. I find in favour of the plaintiff’s submission, except for small adjustments to the quantum of damages claimed.
In awarding $45,000 for the Plaintiff’s non-pecuniary damages (pain and suffering) the court engaged in the following analysis:
Conclusion on Non-Pecuniary Damages
[71] On the whole, the expert opinions support a strong inference that the plaintiff’s injuries are chronic and that they will continue to affect her permanently. Given that she must limit her activities to minimize and manage her pain, the evidence shows that it is probable that her pain and resulting limitations will continue indefinitely.
[72] I find on the totality of the evidence that the accident caused the plaintiff’s neck and shoulder injuries with associated headaches and jaw pain. While her symptoms have improved over time, they have not resolved.
[73] I also find that the jaw symptoms which arose in August 2007 were indeed caused by the accident of July 4, 2006. I also observe that the jaw symptoms experienced in December 2006 may have been related to the accident as well.
[74] Both counsel rely on the non exhaustive list of factors in Stapley v. Hejslet, 2006 BCCA 34, 263 D.L.R. (4th) 19 at paras. 45-46. The award for general damages, will of course, vary according to the specific circumstances of the individual case, but the factors include:
(a) age of the plaintiff;
(b) nature of the injury;
(c) severity and duration of pain;
(d) disability;
(e) emotional suffering; and
(f) loss or impairment of life;
(g) impairment of family, marital and social relationships;
(h) impairment of physical and mental abilities;
(i) loss of lifestyle; and
(j) the plaintiff’s stoicism (as a factor that should not, generally speaking,   penalize the plaintiff: Giang v. Clayton, [2005] B.C.J. No. 163, 2005 BCCA 54 (B.C. C.A.)).
[75] The defendant relies upon the following cases as being reasonably analogous to this case and as supporting an award in the range of $15,000 to $22,500 for general damages: Kain v. Kirkman, 2006 BCSC 1770; Nickerson v. Allen Estate, 2006 BCSC 562; Aulakh v. Poirier, 2006 BCSC 2027, and my own decision in Moore v. Cabral, 2006 BCSC 920. However, those cases are all distinguishable from this case.
[76] The plaintiff relies upon the following cases as supporting an award of $50,000 for general damages in this case: Henri v. Seo, 2009 BCSC 76; Chin v. McCabe, 2006 BCSC 1589; and Pavlovic v. Shields, 2009 BCSC 345. In my view, these cases are reasonably similar to this case and reflect analogous general damages.
[77] Therefore, an appropriate award of non-pecuniary damages in this case is $45,000.
One of the points of interest in this case was the courts comments on Dr. Goldstein. an oral medicine specialist, who ICBC often retains in jaw injury cases. His evidence was rejected over the Plaintiff’s treating oral medicine specialist Dr. Gardner.
Specifically, in finding bias in doctor Goldstein’s evidence, Madam Justice MacKenzie commented as follows:
[66] Dr. Goldstein’s bias in favour of the defendant’s case became evident during cross-examination. His attempt under cross-examination to distance himself from the meaning of the phrase emphasized in the above quote damaged his reliability as a witness.
[67] I also view Dr. Goldstein’s opinion with scepticism because he was not forthright in his report about the fact that flexion extension injury from motor vehicle accident trauma could cause jaw symptoms. Under cross-examination, counsel for the plaintiff put one of Dr. Goldstein’s own articles to him in which he noted the close correlation between TMD and motor vehicle accident trauma.