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More on ICBC Injury Claims and Future Wage Loss

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

If you are injured through the fault of another motorist in BC and advance a tort claim with ICBC can you receive damages for future wage loss even if you have sustained no past wage loss by the time of settlement or trial?  The short answer is yes and today 2 cases were released by the BC Supreme Court illustrating this principle.  
In the first case (Kasic v. Leyh) the Plaintiff was injured in a 2004 rear-end collision.  He suffered relatively serious and chronic injuries which were summarized as follows by Madam Justice Morrison of the BC Supreme Court:

[138]      Mr. Kasic’s headaches and neck pain which he suffered immediately after the accident resolved within a fairly short time.  However his lower back pain has not.  Ever since the accident, he has had serious and chronic pain.  That continues to this day.  He has been motivated and compliant with regard to all treatments suggested, with the exception of the Pulsed Signal Magnetic Therapy.

[139]      The medical evidence is not in complete agreement as to the exact diagnosis that is causing the pain in the lower back; Dr. McGraw believes that it is the sacroiliac joint, Dr. Hershler is of the opinion that it is a bulging disc irritating a nerve, or a combination of that and the sacroiliac joint.  But there is agreement that Mr. Kasic’s symptoms are aggravated by his activities.  And there is certainly agreement from all the evidence tendered that Mr. Kasic is in continuous and serious pain.

[140]      Will it be a permanent disability?  Dr. Hershler holds out hope that there could be a significant improvement if Pulsed Signal Magnetic Therapy were pursued.  But this is not a form of treatment widely recognized by the medical profession, and certainly not by Dr. McGraw.  Dr. McGraw seemed to hold out hope that if there were a correct administration of the injection of the therapeutic block, that this could eliminate some or much of Mr. Kasic’s pain.  Certainly the one injection in October 2008 in that area worsened Mr. Kasic’s condition.

[141]      Whether either or both of these suggested treatments are to be tried will be a matter between Mr. Kasic and his medical advisors.  But at the present time, the evidence remains that Mr. Kasic is suffering continuous and debilitating pain, and it has been chronic pain since the date of the accident.  It has changed him physically, mentally and emotionally.

[142]      The changes to Mr. Kasic’s life as a result of his injuries are many.  He continues to need pain medication.  His previous activities of bowling, tennis, soccer, bocce ball, baseball and picnics are no longer activities in which he can participate.  He can help very little around the house, whether it is vacuuming, loading or unloading the dishwasher, moving furniture, or doing yard work.

[143]      He cannot plan to buy his own home, as he can no longer do the jobs and the outside work that he would normally have done.  His leisure activities with his wife and children have been diminished dramatically, as has his intimate and sexual life with his wife.  He has continuous problems sleeping, and his wife often sleeps in another room.  Mr. Kasic’s mood, disposition and temper have changed significantly.  He cannot do the most simple things such as dressing himself, taking a shower or brushing his teeth without unusual discomfort, positioning and pain.

[144]      An undisputed hard worker, Mr. Kasic stated, “I like to work hard to make more money for my family.”  His work history has indicated that, both before and after the accident.

[145]      Mr. Kasic’s ability to earn in the future has been compromised.  It is an asset he has, in part, lost.  His injuries have rendered him less capable overall from earning income from all types of employment, particularly those that require twisting, bending, standing, sitting for any length of time, or involve any kind of heavy work.  He is less marketable or attractive as an employee to potential employers.

[146]      One presumably has an obligation to advise a future employer if there are concerns such as chronic back problems.  This plaintiff has lost the ability to take advantage of job opportunities which he might otherwise have had.

[147]      Mr. Kasic appears to consider himself less capable and less valuable as a person, because of his condition.  He was 45 when this accident occurred.  He is 50 years of age now.  The real probabilities he faces are fewer jobs available to him, the chance of losing a job or jobs, and possibly having to retire early.  His reduced level of energy and inability to sustain work are factors to be considered.

Despite these serious and permanent injuries the Plaintiff had suffered a minimal wage loss by the time his tort claim against the at fault motorist went to trial.  In fact, the Plaintiff’s earnings increased from the time of the collision to the time of trial.  Depsite this the court held he was entitled to damages for loss of earning capacity and in assessing this loss at $100,000 the court reasoned as follows:

[152]      On the issue of loss of earning capacity, clear guidance can be found in the judgment of Huddart J.A. in Rosvold v. Dunlop.  Mr. Kasic’s capacity to earn income is an asset which has been, in part, taken away from him.  I have found that he has a permanent partial disability, and that limits his work in a number of areas, which in turn impairs his earning capacity.

[153]      The defence seems to suggest that Mr. Kasic has reached his goal upon coming to Canada, that his work as a caretaker together with a rental apartment in subsidized housing suggests that he has reached his earning capacity and goals.  They point to his past earnings, and note that he has steadily increased his earnings, which is true.  But as the courts have reminded us, past earnings are only one factor to consider.

[154]      The standard of proof to be applied in making an appropriate damage award under this category is simple probability, not the balance of probabilities.  And the Athey case reminds us that possibilities and probabilities, chances, opportunities and risks all have to be considered, as long as they do not amount to mere speculation.

[155]      Counsel for the plaintiff suggests that there is the possibility that Mr. Kasic will have to retire early, and I agree that this is a possibility.  Counsel argues that even if he had to retire just three years early, this would be a loss equivalent to $150,000.  This is based on Mr. Kasic’s earnings in 2007 of just over $40,000, and both counsel have factored in an additional $10,000 because of the generous housing allowance and benefits.  This would amount to a real loss of $50,000 a year or $150,000 if Mr. Kasic retired three years early.

[156]      Taking into account negative as well as positive contingencies, in my view an appropriate damage award for loss of earning capacity would be $100,000, and I award that amount.  In my view, the position taken by the defence with regard to this issue has been unrealistic, and their suggested figure of $10,000 under this category of damages does not meet the test of fairness and reasonableness.

In the second case released today (Weibe v. Peters) the Plaintiff was injured in a 2003 motor vehicle collision.  The Plaintiff was a career tradesman who worked as a vinyl deck installer.  As a  result of the collision Mr. Justice Grist of the BC Supreme Court found that the Plaintiff “will continue to have long term back pain fron the injuries suffered fron the collision which will restrict him from certain forms of physical activity...”

Despite his injuries the Plaintiff lost a minimal amount of time from work by the time of trial.  In awarding $125,000 for the Plaintiff’s diminished earning capacity Mr. Justice Grist engaged in the following useful analysis:

[32]        The wage loss prior to the date of trial in this case is confined to a minimal number of days off because of back pain, with some time loss to attend doctors’ appointments and physiotherapy. The plaintiff has not been able to provide a record of this wage loss and I cannot fix any sum under this head. As to loss of future earning capacity, I accept that Mr. Wiebe took his present form of employment because he was not able to maintain the physical demands of installations of vinyl decks. Further, he was not able to obtain a management position that would have relieved him from the demands of actual installations. He acted appropriately in taking the position he now holds, which pays the same as his past employment without the benefits which that employment offered. Again, there is no evidence of the value of lost benefits. I accept the evidence that the employment through Mr. Hepple has very little security. He is the only employee and dependent on success of both the turkey farm and the concrete mantle manufacturing business. Mr. Hepple is happy with the plaintiff’s work, however, as both the plaintiff and Mr. Hepple acknowledged, the earnings provided are probably more than this form of employment can justify. If Mr. Wiebe cannot continue in this form of work, he will likely have to retrain or find some opportunity as a manager in a deck installation company, a form of work he hasn’t been able to secure despite efforts in the past. In light of the risk inherent in being let go by his present employer, on balance I think it most likely that Mr. Wiebe will have to face this change of employment in the future, and that retraining is the most likely prospect. I keep in mind the factors mentioned in Kwei v. Boisclair, [1991], B.C.J. No. 3344 (C.A.), and Brown v. Golaiy, [1985] B.C.J. No. 31 (S.C.). In setting damages under this head of loss, specifically:

1.         The plaintiff has been rendered less capable overall from earning income from all types of employment;

2.         The plaintiff is less marketable or less attractive as an employee to potential employers;

3.         The plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to him had he not been injured; and

4.         The plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market.

[33]        The plaintiff has been well regarded by his employers and has shown industry and responsibility to his family in retaining employment through the difficulties to the present time. I expect this will serve him well in the future. Nonetheless, retraining and start-up in a substitute form of employment will require a considerable period of time before Mr. Wiebe will be able to reproduce his past level of earnings.

[34]        The cases cited vary widely in fixing the loss of future earning capacity. At the high end, in Fox v. Danis, [2006] B.C.J. No. 1437 (C.A.), damages under this head of loss totalled $750,000. This however, was a case involving an individual likely to lose all forms of full-time employment. In Demedeiros, the head of damage was compensated in the sum of $180,000. This case, however, involved a stone mason who may have lost the opportunity to succeed his father in a fairly remunerative family business. In Kerr, the plaintiff was a 54 year old school teacher who had lost his ability to participate actively in sports, but who continued in his employment. It was judged that he may be forced to retire earlier and may be restricted in gaining employment after retirement. Damages under this head were assessed in that case at $75,000.

[35]        I view the likely loss here as greater in scope than indicated in Kerr but not of the degree of loss in Demedeiros and Fox. I think the appropriate level assessment under this head is the sum of $125,000.

ICBC Pain and Suffering Round-Up

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Headache Cases, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Spine Injury Cases, Uncategorized.

With the Canucks losing game 6 and the series to the Blackhawks I figured its a fitting time to write about Pain and Suffering Claims in BC.
In the first case, Chan v. Kao, the Plaintiff suffered a left shoulder injury as a result of a 2006 motor vehicle collision.   Mr. Justice Verhoeven had credibility concerns with respect to some aspects of the Plaintiff’s testimony.  Despite this he concluded that “I have no difficulty in finding that Mr. Chan did in fact injure his left shoulder in the motor vehicle accident“.
In assessing the Plaintiff’s non-pecuniary loss (damages for pain and suffering) at $22,000 the court summarized his injuries and prognosis as follows:
[65]            I accept that Mr. Chan has continued to have shoulder problems and pain since the accident.  The extent to which this has affected his work is impossible to gauge, in view of the unreliability of his evidence.  It seems likely that Mr. Chan has worked at various times and places since the accident, but has chosen not to testify about that work…

72]            In summary, I accept that the plaintiff’s left shoulder was injured in the motor vehicle accident, and that he continues to suffer, to some extent, from shoulder difficulties initially caused by the accident.  The evidence as to the extent to which the ongoing shoulder problem causes the plaintiff ongoing difficulty and disability with respect to his ability to work is subject to considerable doubt, due to the unreliability of the plaintiff’s evidence in this respect, and the lack of corroborating evidence.

[73]            While Dr. Lui’s prognosis of permanent disability is overly pessimistic, both orthopaedic surgeons are of the view that there are ongoing problems in the shoulder which require treatment.  In my view, treatment options have not been adequately explored.

In addition to referencing several cases dealing with pain and suffering values in BC for shoulder injuries this claim is worth reviewing to see how Mr. Justice Verhoeven dealt with his concerns regarding the credibility of certain aspects of the Plaintiff’s evidence.

The second ICBC Pain and Suffering Claim released today (Mattu v. Fust) involved a 2004 collision.  The Plaintiff was 39 years old at the time.  His vehicle was rear-ended with enough force to push it into the vehicle ahead of him.

The Plaintiff suffered various soft tissue injuries leading to chronic pain and headaches.  The court found that the effects of these would likely be permanent.  Madam Justice Brown summarized the medical evidence of the Plaintiff’s treating family physician as follows:

 

[31]            Dr. Parhar has been Mr. Mattu’s family physician since April 2004. He provided three reports to the court. In his first report of November 1, 2004, he diagnosed Mr. Mattu with paracervical, parathoracic and paralumbar muscle strain, left shoulder strain and muscle tension headaches.  He had received ice, heat, rest, exercises, massage therapy, kinesiology, acupuncture, herbal medicine and medications: anti-inflamatories, analgesics and muscle relaxants.  With respect to prognosis and recommendations, Dr. Parhar was impressed by Mr. Mattu’s motivation to recover and try different treatments, but was concerned that he may be trying too many modalities.  He recommended limiting treatment to massage and physiotherapy and increasing active modalities such as swimming and exercises.  He anticipated further treatment and improvement.

[32]            In his report of May 26, 2006, Dr. Parhar found that Mr. Mattu continued to have decreased range of motion in the cervical spine, tenderness in the paracervical and paralumbar regions.  He found muscle spasm in the paracervical and paralumbar regions.  His diagnosis remained the same.  His prognosis for full recovery had worsened.  Mr. Mattu had tried a variety of treatments with minimal success.  Dr. Parhar’s recommendations were unchanged, but he thought that Mr. Mattu’s condition had plateaued.

[33]            In his final report of September 16, 2008, Dr. Parhar considered the MRIs of Mr. Mattu’s spine taken September 19, 2006, and July 28, 2008, and concluded that Mr. Mattu’s injuries included cervical and thoracic disc herniations.  He said: “… it is unclear if the cervical and thoracic disc herniations were caused by the motor vehicle accident … but certainly, this motor vehicle accident made these spinal lesions symptomatic.”  He commented on Mr. Mattu’s efforts to recover: “… pursued many more modalities of treatment than most patients would have. Despite all of these modalities his pain symptoms persist.”  He concluded that the prognosis for a full recovery was poor, that Mr. Mattu’s condition had plateaued and further improvement in his functioning or symptomatology was unlikely  

In awarding $60,000 for the Plaintiff’s non-pecuniary loss injuries and their effect on the Plaintiff’s life the court accepted the family physicians evidence and stated as follows  

[60]            I found the evidence of Dr. Parhar to be very helpful.  Dr. Parhar has seen Mr. Mattu regularly since shortly after the accident.  I accept his opinion that Mr. Mattu suffered paracervical, parathoracic and paralumbar muscle strain, left shoulder strain and muscle tension headaches from the accident; that his condition has plateaued; and that it is unlikely there will be further improvement.  I also accept the opinions of Drs. Parhar, Hershler and Hunt that the accident likely caused the disc herniations in Mr. Mattu’s back to become symptomatic.  Mr. Mattu will continue to need chiropractic treatment from time to time and would benefit from a personal trainer.

[61]            I have considered the cases which counsel have provided to me.  In my view, an appropriate award for non-pecuniary loss is $60,000.

More on Pain and Suffering Awards for Plaintiff's with Pre-Existing Disabilities

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Headache Cases, ICBC Whiplash Cases, Uncategorized.

Earlier this week I posted about pain and suffering awards in BC for Plaintiff’s with pre-existing severe injuries, today, further reasons for judgment were released by the BC Supreme Court, Vancouver Registry, dealing with this topic. In today’s case (Winkelmans v. Stoffels) the Plaintiff was injured in a rear end car crash in Richmond BC on January 29, 2000.  The Defendants admitted fault for the accident.  
Shortly after the accident the Plaintiff was diagnosed with Multiple Sclerosis.  The Plaintiff did not claim that her MS was caused by the car crash at trial.   The Plaintiff’s MS caused troubling symptoms including “hearing loss, vision problems, fatigue, vertigo, balance difficulties, headaches, problems with memory, speech coordination, weakness, dizziness and stiffness.”. 
The main focus of this trial was whether the Plaintiff had any ongoing symptoms from her car crash by the time of trial or whether her ongoing symptoms were related to other causes such as the MS.  The court found that the Plaintiff indeed was injured in the car crash and continued to suffer from injuries by the time of trial.  In valuing the Plaintiff’s pain and suffering at $60,000 Mr. Justice Curtis made the following comments about her MVA related injuries imposed on her symptoms of MS:

[32]            Having MS has made it difficult for Ms. Winkelmans to recover from her car accident injuries as is recorded in the medical reports.  There are times when she cannot exercise and stretch as she should because of her MS symptoms.  The defendant, through negligence, having injured someone who cannot recover as quickly or as fully as a normal person remains in law on the “thin skull” principle liable to pay compensation for the problems caused by the accident injury, even although they are greater because the plaintiff’s recovery is impaired by her health.  The consequences of the accident injuries to Ms. Winkelmans are, because of her MS, more severe than they would be to a person not burdened with her health issues.  On the other hand, the defendants are not liable to compensate her for what she would have experienced from her previous neck and back problems or for what her MS would have brought on without the intervention of the car accident.

[33]            In summary, I accept that Ms. Winkelmans’ neck and back, including her lumbar spine suffered injury caused by the January 2000 collision and that she suffers a degree of continuing headaches, neck pain and back pain to the present time because of her injuries.  While the extent to which her accident injuries has contributed to her overall condition has not prevented her from working or doing her normal activities, it has introduced continuing pain into her life which will continue in the future – which is particularly difficult for a person who already suffers from MS.  On this basis, I assess Ms. Winkelmans’ claim for general damages for pain and suffering and loss of the amenities of life at $60,000.

$70,000 Non-Pecuniary Damages Awarded for Back and Knee Injuries

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Knee Injury Cases, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases.

(Please note the past wage loss award in the case discussed below was varied slightly on appeal.  The BC Court of Appeal Judgement can be found here)
Here is the latest in my effort to continue to grow this online database of ICBC and other BC Personal Injury Cases addressing damages for pain and suffering.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, (Bradshaw v. Matwick) awarding a Plaintiff $268,389 in total damages as a result of injuries and losses suffered in a 2006 motor vehicle collision.
The crash was a rear end collision which occurred in Port Coquitlam.  Liability (fault) was admitted focusing the trial on quantum of damages (value of the injuries).
The Plaintiff was a 41 year old metal fabricator.  In valuing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $70,000  Mr. Justice Groves summarized the Plaintiff’s injuries as follows:

[32] By the time of trial, the plaintiff’s injuries were close to three years old.  I accept the plaintiff’s evidence that he continues to suffer from some level of disability resulting from the accident—he continues to suffer pain and he continues to have a disability which prohibits heavy lifting, prolonged standing, neck flexion, and sustained and repetitive reaching.  I accept the plaintiff’s evidence that at present, he continues to put all of his physical energies towards his work.  When he is not at work, he is resting and preparing for the next day of work.  The effect of the injuries caused by the accident have created a significantly lower quality of life for the plaintiff.

[33] As for the knee injury, the plaintiff continued to walk with a significant limp in court.  This is consistent with what is reported by:  his spouse, Sandra Bennett; his co-workers Rune Akerbakk and Ron Philbrook; and by his less than sympathetic employer, Rob Charland.  The evidence is suggestive that the medial tear may be repairable by surgery.  Of note, it took considerable time, despite the plaintiff’s desire early on for a MRI, to have the MRI performed.  There is no evidence before me as to when or if surgery to repair this knee is possible or scheduled…

[43] The plaintiff suffered injuries to his back, neck, shoulder and left knee.  He was unable to return to work for over three months after the April 26, 2006 accident, and then only with difficulty and on reduced hours.  Close to three years after the accident, the plaintiff continues to experience considerable pain in his neck and shoulder, back and knee.  The evidence is clear that his job as a metal fabricator involves physically demanding tasks which exacerbate these injuries.  He has not been able to return to his pre-accident performance levels at work.

[44] Two of the expert witnesses, Dr. Spooner and Dr. Vaisler, testified that the plaintiff may have a permanent disability as a result of the accident injuries.  The injuries and the corresponding pain levels have significantly affected the plaintiff’s quality of life and his relationship with his family, as he has little energy or ability to remain active outside of work hours and is frequently irritable and short-tempered as a result of the pain.

[45] The plaintiff’s lifestyle has been dramatically affected by the injuries he suffered in the accident.  The plaintiff, prior to the accident, was an active outdoorsman who regularly went fly fishing with his daughter at remote locations around the Lower Mainland and in southern British Columbia.  Since the accident he has completely curtailed this activity and his relationship with his daughter has suffered.  Prior to the accident, he was an active father with his young son, enjoying activities with his son in the yard, and in the home.  Since the accident his relationship with his son has resorted to playing video games or other activities which involved sitting and lying down, with no physical exertion.

[46] Ms. Bennett describes the plaintiff, prior to the accident, as a “fabulous 100% dad”.  She described that her daughter viewed him as “her god”.  Now the daughter does not want to hang around with her father any longer.

[47] The evidence suggests yard work and snow removal is simply left undone, as the plaintiff can no longer do it.

[48] Ms. Bennett describes her relationship with the plaintiff as “hell”.  She says that when the plaintiff is at home, the family is “walking on eggshells”.  The plaintiff is in near constant pain.  He has to immediately lie down after work.  His interaction with the family is minimal.  He is completed affected by the pain.

[49] His relationship with his wife, Ms. Bennett, who testified, has become tenuous at best.  Prior to the accident they enjoyed an active sex life—they no longer do.  For close to 2½ years, because of his injuries, the plaintiff slept on the living room floor rather than with his wife.  Prior to the accident, the plaintiff vacuumed, did dishes, and cleaned up around the house and was completely responsible for outside yard activities.  The plaintiff and his wife purchased a home on a quarter acre lot.  The home was, to use the vernacular, a “fixer upper”.  The home was repaired by considerable efforts of the plaintiff and the quarter-acre yard was completely landscaped by the efforts of the plaintiff.  Since the accident he has been unable to participate in home repairs or landscaping work.

More on ICBC Claims, Soft Tissue Injuries and Assessment of Damages

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Headache Cases, ICBC Wage Loss, ICBC Whiplash Cases. 54 Comments on More on ICBC Claims, Soft Tissue Injuries and Assessment of Damages

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, (Runghen v. Elkhalil) awarding a Plaintiff just over $147,000 in total damages as a result of injuries and damages sustained in a BC car crash.
The collision occurred in 2004 when the Plaintiff’s vehicle was rear-ended.  The issue of fault was admitted leaving only an assessment of damages at issue at trial.
In awarding $40,000 for pain and suffering (non-pecuniary damages) Madam Justice Fenlon made the following findings with respect to the Plaintiff’s injuries:
[16]            Based on the evidence of the experts, which is largely consistent, I find that Ms. Runghen suffered mild soft tissue injuries to her cervical and lumbar spine as a result of the accident; I further find that due to those injuries, she has headaches and chronic pain that has affected her ability to function both at home and at work.  I also find that Ms. Runghen’s pain and related incapacity are likely to markedly improve once an appropriate treatment plan is put in place.
Madam Justice Fenlon engaged in a thoughful discussion at paragraphs 17-34 of the judgement which is worth reviewing for anyone ingterested in seeing some of the factors courts take into consideration when valuing pain and suffering in ICBC soft tissue injury claims.
The balance of the judgement deals largely with claims for past wage loss and diminished earning capacity.   Awards were made under both of these heads of damages.  The court found that the Plaintiff’s ability to work was diminished as a result of chronic pain and that this would likely continue for at least some time after the trial.  In awarding $35,000 for diminished earning capacity the court engaged in the following analysis:

[50]            As noted earlier in these reasons, I accept that the chronic pain experienced by Ms. Runghen to date has been a limiting factor in her ability to take on longer hours at work.  I expect that limitation will continue to some extent over the next year, as she engages in a rehabilitation exercise program.  After that time, it is probable that she will be able to increase the amount of time she works to be more in keeping with what she would have been doing prior to the accident.  In coming to this conclusion, I recognize that Ms. Runghen had not established her career as a massage therapist and that we do not have a solid base line from which to work.

[51]            I am mindful that there is no certainty possible in terms of predicting what will occur in the future; there is a possibility, even with the correct treatment for her injuries, that Ms. Runghen may still experience some limitations.

[52]            Applying the considerations identified in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.), I find that Ms. Runghen is likely to be somewhat less capable, overall, of earning income from all types of employment and that, in particular, she is likely to be less capable of earning incoming from her chosen field of massage therapy.  Ms. Runghen may have to consider retraining in another field or another area of specialization within massage therapy if she wishes to work full-time.

[53]            In my view, given the potential for marked improvement in Ms. Runghen’s condition that both Dr. Cameron and Dr. McGraw identified in their reports, and based on Ms. Runghen’s own experience with a similar but truncated rehabilitation program with Karp, it would not be appropriate to apply the precise mathematical calculation of future income loss used by Ms. Runghen.  Rather, this is an appropriate case to award a sum that takes into account the various contingencies and possibilities, without overcompensating Ms. Runghen by assuming the status quo and calculating a set wage shortfall over the next 36 year’s of her working life.  I set that sum at $25,000. 

[54]            I find that Ms. Runghen will need approximately six months to put in place and complete a four-month exercise rehabilitation program.  During that time, she will continue to work at her current level.  I therefore award damages of $10,000 to cover loss of income during this period.  

[55]            In summary, I award Ms. Runghen  a total of $35,000 for loss of future income and loss of earning capacity

 

Can Future Wage Loss be Awarded in an ICBC Claim When There is no Past Wage Loss?

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, ICBC Wage Loss, Uncategorized.

The answer is yes and reasons for judgement were released yesterday (Schnare v. Roberts) by the BC Supreme Court illustrating this fact.  In yesterday’s case the BC Supreme Court awarded the Plaintiff just over $240,000 in total damages as a result of a 2005 BC Motor Vehicle Collision.   
The Plaintiff was a school teacher and was on her way to school when her vehicle was rear-ended.  The crash was significant enough that the Plaintiff’s vehicle was pushed into the vehicle in front of hers.
The Plaintiff suffered various injuries and these and their effect on the Plaintiff’s life are summarized at paragraphs 56-57 as follows:

[56]            Based on the evidence of Ms. Schnare, Dr. Fagan, Mr. McLean and Dr. van Rijn, I conclude that, in the accident on March 14, 2005, Ms. Schnare suffered soft tissue injuries to her neck, upper, mid and lower back, including in and around her sacroiliac region.  As a result of the injuries, Ms. Schnare was left with a mobile sacroiliac joint.  I conclude further that the defendants’ negligence caused Ms. Schnare’s injuries.  While, as of the trial, Ms. Schnare had occasional neck pain attributable to the accident, I find that the most serious result of the injuries Ms. Schnare suffered in the accident has been the mobility in her sacroiliac joint, the pelvic misalignment and rotation, and the associated back pain.  The pelvic rotation was observed and identified (by Mr. McLean) at Ms. Schnare’s first physiotherapy assessment on March 31, 2005 (approximately two weeks after the accident).  Dr. van Rijn’s examination disclosed that Ms. Schnare had a mobile right sacroiliac region and he identified Ms. Schnare’s sacroiliac region as the probable pain generator and source of Ms. Schnare’s back pain.

[57]            I find that, as a result of her injuries, Ms. Schnare continues to suffer some neck pain and significant back pain, and that this pain – particularly her back pain – limits and interferes with most normal and routine activities of her daily life.  Based on the evidence, particularly from Mr. McLean, Ms. Schnare’s condition has improved since the accident, as a result of physiotherapy and Ms. Schnare’s own efforts.  However, I accept the opinion of Dr. van Rijn and conclude that Ms. Schnare’s accident-related symptoms caused by her injuries have resulted in some permanent disability.

In justifying an award for non-pecuniary damages (pain and suffering) for $85,000 the Court highlighted the following facts:

Ms. Schnare’s injuries have had a very significant effect on the quality of Ms. Schnare’s life.  She has back pain regularly, and from time to time flare-ups of severe pain; she fatigues easily; she is unable to enjoy activities such as hiking or car trips with her family; she is unable to participate in her children’s activities (including homework and sports) in the manner and to the degree she would like; household chores are more difficult; she feels like a spectator on family activities, rather than involved and engaged; her intimate relationship with her husband has changed; and her strong desire to pursue a career as a kindergarten teacher has been frustrated.

[63]            Taking into account in particular Ms. Schnare’s evidence, the evidence of Mr. Schnare, Ms. Schultz and Ms. Brebuck concerning Ms. Schnare’s circumstances before and after the accident, and the opinions stated by Dr. van Rijn, I conclude that an award of $85,000 is appropriate in the circumstances.

From there the court went on to discuss the law of diminished earning capacity (future wage loss).  Despite only having a minimal past wage loss the Court awarded the Plaintiff $125,000 for diminished earning capacity.  In doing so the Court summarized and applied the law as follows:

 

[64]            The principles governing a claim for loss of earning capacity are set out in Rosvold v. Dunlop, 2001 BCCA 1, 84 B.C.L.R. (3d) 158.  There, the court confirmed that, “Where a plaintiff’s permanent injury limits him in his capacity to perform certain activities and consequently impairs his income earning capacity, he is entitled to compensation.  What is being compensated is not lost projected future earnings but the loss or impairment of earning capacity as a capital asset.”  The standard of proof to be applied when evaluating hypothetical, future events that may affect an award is simple probability, not the balance of probabilities.  Huddart J.A. continued:

10.     The trial judge’s task is to assess the loss on a judgmental basis, taking into consideration all the relevant factors arising from the evidence:  Mazzuca v. Alexakis, [1994] B.C.J. No. 2128 (S.C.) at para. 121, aff’d [1997] B.C.J. No. 2178 (C.A.). Guidance as to what factors may be relevant can be found in Parypa v. Wickware, supra, at para. 31;Kwei v. Boisclair (1991), 60 B.C.L.R. (2d) 393 (C.A.); and Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.) per Finch J. They include:

1.    whether the plaintiff has been rendered less capable overall from earning income from all types of employment;

2.    whether the plaintiff is less marketable or attractive as an employee to potential employers;

3.    whether the plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to him, had he not been injured; and

4.    whether the plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market.

11.     The task of the court is to assess damages, not to calculate them according to some mathematical formula:  Mulholland (Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248 (C.A.). Once impairment of a plaintiff’s earning capacity as a capital asset has been established, that impairment must be valued.  . . . The overall fairness and reasonableness of the award must be considered taking into account all the evidence.

[65]            Ms. Schnare seeks damages in the sum of $345,600 for lost earning capacity.  This sum is based on a full-time salary of $64,000 per year; on the assumption that, because of her injuries, Ms. Schnare is permanently unable to work more than 4 days per week; and on the further assumption that, but for her injuries, she would begin teaching full time in about 2010 and continue until age 65, a period of 27 years (20% of $64,000 = $12,800 multiplied by 27 years = $345,600).

[66]            When Ms. Schnare worked a full-time week in the fall of 2008, she determined that she could not keep it up, and that she needed the one day a week to recuperate.  Other than that one week, Ms. Schnare last taught full time during the school year September 2000 to June 2001.  At that time, the Schnares’ daughter was about two, and Ms. Schnare was pregnant with their son.  As noted above, the Schnares has discussed Ms. Schnare returning to work full time when their daughter entered grade 7.  Of course, that Ms. Schnare would in fact have returned to work full time once her daughter entered grade 7, but for the accident, is not a certainty.

[67]            Dr. van Rijn addressed the topic of Ms. Schnare’s potential “occupational restrictions” in his June 5, 2008 report.  He noted Ms. Schnare’s plans to move to grade 1, rather than teaching kindergarten, and observed that “some of the job requirements (including sitting on the ground) may not be as necessary, which will hopefully allow her to manage more easily.”  He continued (italics added):

She has permanent restrictions with respect to jobs requiring increasing physical effort and would be competitively unemployable in such work when compared to an able-bodied woman with similar interests and skill sets.  This represents a permanent loss in her work capability and has caused her to suffer a work handicap as a result of her injuries.  She is potentially less desirable an employee to perspective employers as a result of her accident related symptoms.

[68]            However, Dr. van Rijn does not say anywhere in his report that Ms. Schnare would be unable, because of her injuries, to work full-time as a teacher.  I compare what Dr. van Rijn says with the evidence referred to in Fox v. Danis, at para. 97, where the court had the benefit of opinion evidence to the effect that the plaintiff had lost the capacity to work full-time.  While Ms. Schnare may have restrictions, and therefore be less employable or “competitively unemployable,” with respect to “jobs requiring increasing physical effort,” Dr. van Rijn does not identify teaching grade 1, or indeed teaching any particular school grade, as a job of this type.  In addition, there is no evidence that Ms. Schnare has ever considered any type of work other than teaching.

[69]            I consider that the approach taken by Ms. Schnare with respect to damages for loss of earning capacity is excessively mathematical.  In my view, it seeks to have Ms. Schnare compensated as if it were certain that she would never work full-time again, and her approach produces a result that, overall, is neither fair nor reasonable, taking into account all of the evidence.  On the other hand, based on the evidence, I do not accept the defendants’ submission that Ms. Schnare should receive no award for loss of capacity to earn income.

[70]            In my view, based in particular on Ms. Schnare’s evidence and on the opinions stated by Dr. van Rijn in his June 5, 2008 report, Ms. Schnare has suffered some impairment of her earning capacity as a result of her injuries.  She has been rendered less capable overall from earning income from all types of employment available to an individual qualified as a teacher, and she has lost the ability to take advantage of all job opportunities that might otherwise have been open to her had she not been injured.  Specifically, Ms. Schnare has lost the ability to take advantage of the opportunity to work full-time as a kindergarten teacher, taking into account the physical demands of that job.  On the other hand, I do not consider that the evidence supports the conclusion that, as a result of her injuries, Ms. Schnare has lost the ability generally to take advantage of opportunities to work full-time as a teacher, should she choose to do so in the future.  In that light, the difference between Ms. Schnare’s likely future income had the accident not occurred and her income now that the accident has occurred may well be small.

[71]            Accordingly, Ms. Schnare is entitled to damages, but the amount should be more modest than what her counsel has submitted.  I conclude that the damages for Ms. Schnare’s loss of earning capacity should be assessed at $125,000.

$63,000 Awarded for Soft Tissue Injuries and Chronic Pain in ICBC Claim

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Psychological Injury Cases, ICBC Soft Tissue Injury Cases.

Reasons for judgement were released this week by the BC Supreme Court (Atwater v. Reese) awarding a Plaintiff just over $63,000 in total damages as a result of a 2006 motor vehicle collision.
The Plaintiff was a pedestrian who sustained injuries when struck by a car.  In my experience ICBC often denies liability in these circumstances with a hope of having the court find the pedestrian at least partially at fault for not keeping a proper lookout.  In this case the ICBC Defence Lawyer argued that while the motorist was at fault the Pedestrian was contributorily negligent.  The first part of the judgement deals with this allegation and in finding the driver 100% responsible Mr. Justice Macaulay stated as follows:

[16]            I do not accept that the plaintiff was negligent in failing to watch the car as she walked in front of it.  Nor do I accept that she could have avoided the accelerating car if she had been watching.  Once in front of the car, the pedestrians were within a foot or so of the car.  There is no evidence to support the contention that the plaintiff, who was walking ahead of her sister, could have avoided the impact in the circumstances.

[17]            The impact occurred because the defendant was going through the motions of driving without actually paying any attention to what was there by way of pedestrian hazard.  I find that the defendant is entirely responsible for the accident.

In assessing the Plaintiff’s non-pecuniary damages at $50,000, Mr. Justice Macaulay made the following findings with respect to her injuries and prognosis:

[38]            I am satisfied that the plaintiff suffers from chronic pain but I share the view of the various professionals that her condition is still amenable to improvement provided she increases her tolerance for recreational activity.  She gave up too easily and must try harder so that she can avoid the physical and emotional downward spiral associated with inactivity.  I am also, however, satisfied that the plaintiff’s pain experience is real and not otherwise subject to conscious psychological control.

[39]            There is, accordingly, a risk that the pain will continue albeit, hopefully, at a lesser level with appropriate rehabilitation.  I do not expect her general pain level to increase nor is the plaintiff at risk of harming herself by increasing her activity level.

[40]            To the plaintiff’s credit, she missed minimal time from work after the accident.  This may have unwittingly contributed to her slow recovery and certainly affected her ability to participate in non-work activities.  She now has moved to more sedentary office work and is not waitressing as much.  The continuing waitressing she does now is of a lighter variety than before.  These changes should help over time, as well.

[41]            In my view, the plaintiff sustained a lower moderate soft tissue injury that has resulted in chronic pain and mild anxiety.  She is capable of achieving greater recovery than she has to date in spite of the time that has passed since the accident.

When trying to value your Non-Pecuniary Damages (pain and suffering) in an ICBC Injury Claim it is important to find cases with similar injuries and a similar prognosis to help establish a range of potential damages.  I intend to keep reporting non-pecuniary damages highlights in ICBC Injury Claims and look forward to growing this database.  As always, any feedback from my readers is welcome!

ICBC Claims and the Onset of Pain in Pre-Existing Conditions

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

Reasons for judgement were released today by the BC Supreme Court (Haines v. Shewaga) awarding a Plaintiff $34,000 in non-pecuniary damages (pain and suffering) as a result of injuries sustained in a 2005 car crash in Nanaimo, BC.
One of the issues in this case which frequently comes up in ICBC Injury Claims is that of pre-existing conditions.
The Plaintiff was 22 at the time of the crash.  He never had mid back pain in the years prior to the collision.   His back was injured in the collision and he continued to have symptoms in his backat the time of trial (some 3 years later).   After receiving medical treatment it was discovered that the Plaintiff had pre-existing (although asymptomatic) condition known as degenerative disc disease.  
The court found that the Plaintiff suffered various soft-tissue injuries in the crash, namely that:
[62]            I accept that the plaintiff sustained a mild to moderate whiplash type injury to the soft tissues of his neck, upper back (on the right side) and mid back, as well as a minor injury to his sternum area (likely from the seatbelt).  I find that the plaintiff had substantially recovered from all of these injuries by the time of trial, except for the injury to his mid back.  I accept that he still experiences pain in that area, after heavy and prolonged physical exertion.  Some aspects of the work that he does as a deck installer will continue to cause him some pain, from time to time.  But based on the whole of the evidence (and particularly on the plaintiff’s work record), I am not satisfied there is a substantial possibility that this pain will disable him from working. 
With respect to the Plaintiff’s pre-existing and but now symptomatic degenerative disc disease Mr. Justice Halfyard found as follows:
[69]            In my view, there is no significant conflict between Dr. Filbey and Dr. Warren on the subject under discussion.  Nor would I discount Dr. Warren’s evidence on the ground that he now works almost exclusively for ICBC.  I accept the opinions of both of these medical experts.  As a consequence, I find that the plaintiff’s complaint of mid-back pain following the accident is strongly corroborated by the medical findings and opinions.  There is no evidence whatever to suggest that the plaintiff had experienced pain in his mid-back before the accident, and he firmly denies this.  I infer from the evidence given by the doctors that pain in the thoracic spine area from whiplash-type injury is far less common than pain in the cervical and lumbar spine.  In the result, I am satisfied on the balance of probabilities that the motor vehicle accident caused the plaintiff’s latent pre-existing degenerative condition to become painful.
So how then, does a court value injuries when a pre-existing condition contributes to the duration of traumatic injury?
Here, Mr. Justice Halfyard reduced the Plaintiff’s award for pain and suffering by 15% to account for the chance that the Plaintiff’s degenerative disc disease would have become symptomatic at some point in time in the future even if the accident did not occur, thus the damages of $40,000 were reduced to $34,000.
On a different note, this claim is worth reviewing to see how BC Courts can deal with the issue of credibility in ICBC Injury Claims.  The credibility of the Plaintiff often plays a crucial role in ICBC Soft Tissue Injury Cases.  Here the ICBC Defence Lawyer challenged the credibility of the Plaintiff.   The court indeed concluded that the Plaintiff was ‘not a credible witness’ and paragraphs 37-60 are worth reviewing for anyone interested in a discussion about factors courts consider when weighing the credibility of a Plaintiff in an ICBC Injury Claim.

BC Personal Injury Claims Round-Up

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Dizziness Cases, ICBC Headache Cases, ICBC Psychological Injury Cases, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 55 Comments on BC Personal Injury Claims Round-Up

On Friday the BC Supreme Court released reasons for judgement dealing with awards for pain and suffering in 3 separate motor vehicle accident cases.
In my continued efforts to create an easy to access data-base of ICBC related claims for pain and suffering here are the highlights of these cases:
In the first case (Driscoll v. Desharnais) the Plaintiff suffered soft tissue injuries to his neck, back and shoulder in a 2003 BC motor vehicle collision.  In justifying an award for non-pecuniary damages (pain and suffering) of $55,000 the court summarized the injuries and their effect on the Plaintiff’s life as follows:

[101]        The trial occurred about five years following the accident.  Mr. Driscoll continues to suffer pain, significant sleep disturbance, and restrictions on his activities.  He is stoic and is inclined to push through pain until it becomes intolerable.  He has a reduced capacity to work, and despite his preference for working alone, he cannot operate his business without hiring other workers.  He is no longer able to participate in some of the activities he enjoyed, such as motorcycle riding, full-contact ball hockey, golf, and rough-housing with his children.  

[102]        The evidence demonstrated on a balance of probabilities that these problems were caused by the accident.  Although Mr. Driscoll had received physiotherapy prior to the accident, the treatments were all at least 18 months prior to the accident, and were for short periods.  All the problems had resolved prior to the accident.  The injury he suffered on the toboggan appeared to be a brief flare-up of his back symptoms, rather than a new injury.

A highlight of this decision for me was the court’s discussion of credibility.  One of the tricks of the trade for ICBC defence lawyers in ICBC Soft Tissue Injury Claims is to challenge the credibility of the Plaintiff.   That appeared to be a tactic employed in this case and the Defendant asked the court to consider the following well-known principle often cited in ICBC Soft Tissue Injury Cases:

[6]                The case of Price v. Kostryba (1982), 70 B.C.L.R. 397 (S.C.), is often cited as a reminder of the approach the court must take to assessing injuries which depend on subjective reports of pain.  I quote portions of pages 397-399 of those reasons for judgment:

The assessment of damages in a moderate or moderately severe whiplash injury is always difficult because plaintiffs, as in this case, are usually genuine, decent people who honestly try to be as objective and as factual as they can. Unfortunately, every injured person has a different understanding of his own complaints and injuries, and it falls to judges to translate injuries to damages.

Perhaps no injury has been the subject of so much judicial consideration as the whiplash. Human experience tells us that these injuries normally resolve themselves within six months to a year or so. Yet every physician knows some patients whose complaint continues for years, and some apparently never recover. For this reason, it is necessary for a court to exercise caution and to examine all the evidence carefully so as to arrive at a fair and reasonable compensation. Previously decided cases are some help (but not much, because obviously every case is different). …

In Butler v. Blaylock, decided 7th October 1981, Vancouver No. B781505 (unreported), I referred to counsel’s argument that a defendant is often at the mercy of a plaintiff in actions for damages for personal injuries because complaints of pain cannot easily be disproved. I then said:

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 a 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.

Fortunately for the Plaintiff a positive finding was made as to his reliability and damages were assessed accordingly.

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The second case released on Friday (Eccleston v. Dresen) involved a 2002 collision which took place in Salmon Arm, BC.  The injuries included chronic soft tissue injuries of moderate severity and a chronic pain syndrome.  Both liability and quantum of damages (value of the ICBC Injury Claim) were at issue.   The Plaintiff was found 60% at fault for the collision.

In assessing the Plaintiff’s non-pecuniary damages at $108,000 Mr. Justice Barrow made the following findings:

[127]        I am satisfied that the plaintiff suffered a moderate soft tissue injury to her neck and upper back.  Further, I am satisfied that she developed and continues to suffer chronic pain as a result.  I am also satisfied that she is depressed and that the proximate cause of her depression is the pain she experiences.

[128]        I am not satisfied that her complaints of pain are motivated by any secondary gain; rather, I am satisfied that she has met the onus of establishing that, as Taylor J.A. in Maslen v. Rubenstein (1993), 83 B.C.L.R. (2d) 131, 33 B.C.A.C. 182, at para. 8 put it:

…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’.

[129]        Further, I am satisfied that the plaintiff’s condition is likely permanent; although it is more likely than not that it will moderate if she follows the advice of Dr. O’Breasail.  He is of the view that with intensive psychotherapy for at least a year, followed by two further years of less intensive therapy coupled with a review of her medications and particularly anti-depressant medication, there is some hope that she will either experience less pain or be better able to cope with the pain she does experience, or both.

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The final motor vehicle accident case addressing pain and suffering released on Friday (Murphy v. Jagerhofer) involved a Plaintiff who was injured in a 2004 rear end collision in Chilliwack, BC.   The injuries included a moderate to severe whiplash injury with associated chronic pain, disturbed sleep and headaches.  In justifying a non-pecuniary damages award of $100,000 Mr. Justice Warren made the following factual findings after a summary trial pursuant to Rule 18-A:

[112]        The issue of causation in this case is determined by applying the factors in Athey.  Here the defendants argue that there were pre-existing conditions that would have affected the plaintiff in any event.  I disagree.  I find on the evidence of both Dr. Porter and Dr. Bishop that the plaintiff was asymptomatic of the complaints he now has which have arisen from the injuries he suffered in this accident.  Using the rather macabre terms found in other cases, this plaintiff had a “thin skull” rather than a “crumbling skull” and on my reading of those medical opinions I prefer, I find there was no “measurable risk that the pre-existing condition would have detrimentally affected the plaintiff in the future. . . .” Athey, per Major, J. at para. 35. 

[113]        Accordingly, I find that the presenting complaints of the plaintiff were caused by the negligence of the defendant driver and I turn to address the issue of appropriate compensation.  In this, I am strongly influenced by the opinions of Drs. Porter and Longridge and the opinion of Mr. Koch.  The plaintiff suffered a moderate to severe whiplash type injury which had a significant physical and emotional effect upon him some of which have persisted to the day of trial and will continue into the future.  The back and neck pain caused him considerable pain and caused sleeplessness, headaches and general body pain for which he was prescribed pain medication.  Many of these symptoms continued well into 2005 despite his participation in a Work Hardening Programme in the fall of 2004.  I accept that he has tried every mode in an effort to alleviate his symptoms.  In his opinion, Dr. Bishop dismissed passive therapies, but I conclude it was understandable that the plaintiff would follow other professional advice and give these therapies every chance to help.  I say that with the exception of the later cortisone injections, which are painful and of very limited result, and also the later chiropractic attention.

[114]        Added to his back and neck pain, the plaintiff has experienced some hearing loss, tinnitus and episodes of dizziness.  These are frustrating and to some extent debilitating.  He also has jaw, or temporal mandibular joint arthralgia and myofascial pain.  He was given an oral appliance which he is to wear on a daily basis yet he continues to experience jaw stiffness and fatigue. 

[115]        It is understandable that these conditions have affected him emotionally.  The opinion of Mr. Koch corroborates the plaintiff’s evidence.  I accept the opinion of Mr. Koch that the plaintiff “downplays” the difficulties in his life and that the plaintiff has a phobia of motor vehicle travel, post-traumatic stress disorder and related repressive symptoms. 

I hope these case highlights continue to be a useful resource for my readers in helping learn about the value of non-pecuniary damages in ICBC Injury Claims.  As always, I welcome any feedback from all my visitors.

ICBC Claims, Future Wage Loss and the Ability to Work in Your Chosen Profession

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Spine Injury Cases, ICBC Wage Loss, Uncategorized.

Imagine sustaining permanent and partially disabling injuries in a BC Car Accident through the fault of another.  Despite your permanent injuries you are able to carry on in your own chosen profession.  Are you entitled to be compensated for future wage loss in your ICBC tort claim or does the fact that you can work in your own occupation restrict such an award?  Reasons for judgement were released by the BC Supreme Court today dealing with this issue.
In today’s case (Ayoubee v. Campbell) the now 34 year old Plaintiff was injured in a multiple vehicle collision which occurred in September, 2003.    The Plaintiff sustained serious injuries including a herniated disc (at the L5 / S1 Level) with associated pain down his leg and mechanical back pain in the collision.  At the time of the accident he had just begun a computer course at BCIT and intended to make a career from the opportunities that this education would provide.  Despite his serious injuries he was able to complete his studies then found and maintained employment in his chosen field.
In awarding $100,000 for non-pecuniary damages the court accepted that the Plaintiff will have some permanent pain and made came to the following conclusion with respect to his injuries:
[104]        I accept Mr. Ayoubee’s evidence that he has never been pain free since the accident, although he has managed to control the level of pain through exercise and stretching.  He has attempted to function as fully as he can, despite the limitations he now contends with.  In the past year, however, his leg has deteriorated and the quality of his life has diminished even further.  Surgery may help with the pain, but he will likely be left with residual numbness and discomfort, and the back pain will remain.  As a result of the accident, he has lost the quality of life of an active young man.
Madam Justice Humphries engaged in a lengthy discussion addressing the Plaintiff’s loss of future earning capacity.  The court found that given the Plaintiff’s permanent injuries certain occupations will be closed to the Plaintiff, however, the Plaintiff ‘is not foreclosed form the type of job he was training for at the time of the accident, obtained after the accident, and has held full-time employment ever since.’
In assessing the Plaintiff’s impaired earning capacity (future wage loss) at $80,000 Madam Justice Humphries made the following analysis:

[89]            In my view, this is a case in which it would be more appropriate to award a lump sum for loss of capacity.  There are a significant number of jobs that Mr. Ayoubee can no longer do, jobs of the type he once held and which could still provide him with opportunities for part time income enhancement that he now must forego.

[90]            As well, he is not as attractive an employee on the open labour market as he once was, given his chronic pain and inability to work without breaks.

[91]            He will also be unable to work while he recovers from surgery, which it is likely he will undergo once he has seen Dr. Dommisse.  Dr. Yu suggests the recovery time would be two or three months.  The defendants calculate the loss attributable to those months, reduced by the possibility that Mr. Ayoubee might decide not to have the surgery, and suggested that the applicable rate should be his salary level in 2005 when, in their position, he should have mitigated his damages.  The defendants arrived at a figure of approximately $7,700.  The plaintiff did not address that issue.

[92]            Surgery may improve Mr. Ayoubee’s leg pain, although the doctors differ on whether this is still realistic.  In any even he will be left with back pain.  I take into account that, of the two, the leg pain has always been the most severe, and is the cause of his greater restrictions at present.  On the other hand, given the back pain, there is no suggestion that he will be able to undertake moderate to heavy physical employment again.

[93]            An important factor that distinguishes Mr. Ayoubee’s case from those in which very high awards have been made for future loss is that he is not foreclosed from the type of job he was training for at the time of the accident, obtained after the accident, and has held full-time ever since.  He does not require retraining.  His employability does not depend on his ability to do heavy physical labour and he never intended that it should, although there is a substantial possibility that he might have supplemented his income occasionally with the type of job he held at Rona, if he were still able to do so.  

[94]            Considering that some future wage loss will be attributable to the surgery, and considering the diminution in the capital asset of his employability generally, I set his future loss, including his loss of capacity, at $80,000.