Disc Herniation, Nerve Damage and ICBC Claims

Reasons for judgement were released today compensating a Plaintiff injured in three separate BC car accidents, the first in August, 2002, the second in December, 2002 and the third in June 2003. At trial the issues were the extent of the plaintiff’s injuries and whether these were caused by the car accidents or other life events.
A frequent tactic of ICBC defence lawyers is to call evidence to cast doubt on the connection between motor vehicle accidents and trauma and find other explanations for injuries. In this case the defence lawyer pointed to a car accident that the plaintiff was at fault for and a work incident where the plaintiff aggravated his back as potential causes for the Plaintiff’s problems.
In ICBC claims a Plaintiff has the burden of proving the extent of his injuries and their connection to the car accident. If defence evidence can effectively point to another explanation an ICBC claim can be dismissed.
In this case the injuries were fairly serious. An MRI revealed a ‘tear in the annulus at L5/Ss and a disc bulge at L4/5 wit impingement of the L5 nerve root‘.
The court found that in cases where there are multiple potential causes of injury ‘it is most helpful to have the opinion of (the Plaintiff’s family doctor) who treated the plaintiff throughout and has a long history and detailed knowledge of the Plaintiff as a patient.’ The court found the GP’s findings of objective injury persuasive including ‘muscle spasm, reduced range of motion, and visible hypertonicity of the musculature following each of the three motor vehicle accidents’.
The court assessed damages for all three accidents globally. The court concluded that “the Plaintiff has, since December 7, 2002, experienced functional limitations due to his low, mid back, and neck pain with referral pain from the low back to his leg. The Plaintiff is unlikely to achieve a substantial improvement in future, but exercises and care will assist in controlling pain and flare-ups‘. As a result of this finding the court awarded $70,000 for non-pecuniary damages (pain and suffering).
Addressing past wage the court found that there was some failure of mitigation on the Plaintiff’s part. The Plaintiff’s claim for past wage loss exceeded 5 years. The court found that he could have returned to work in some capacity during this time. In all $50,000 was awarded for this loss.
The court also awarded $75,000 in damages for ‘loss of future earning capacity’ finding that

[50] There is no doubt that the plaintiff’s income earning capacity is affected by his chronic pain and physical limitations and disabilities. The plaintiff is by education and experience limited to low income, minimum wage types of employment, although that is reflective of his actual earnings history prior to his injury and disability.

[51] The pool of low income jobs available to the plaintiff is however much diminished as he can no longer work at jobs with a physical component which he can no longer meet. The plaintiff is 49 years old and increasing age will combine to impede access to the work for which he remains qualified.

[52] The plaintiff’s health may be stressed more than the average person requiring that he take more time off work. He may in future be more suited to only part time or work of a sporadic nature.

$40,000 Pain and Suffering for "Very Unique' Ankle Injury

Reasons for judgement were released today awarding a Plaintiff a total of$71,060.06 as a result of personal injuries which were caused by a 2004 BC car crash.
This was a left-turn intersection case involving a semi-truck and a mini-van. The semi truck turned left in front of the mini-van at an intersection causing a collision. The Plaintiff was a passenger in the mini-van. She ‘braced herself (for the collision) by holding the sides of the seat and placing her feet on the dash’.
Fault for the accident was admitted. The issue at trial was the extent of the injuries sustained and their value.
The court concluded that the Plaintiff suffered from soft tissue injuries to her neck back and jaw which ‘had all effectively cleared up within some 6-7 months after the accident‘.
The Plaintiff also suffered injuries to her knee and ankles which ‘progressed to the point where she could return to work in July, 2005‘. The exact nature of these injuries were ‘bilateral ankle bone contusions and patellofemoral discomfort‘. The court found that these injuries were chronic and that ‘she will have continuing pain from time-to-time (in her ankle) of more likely on a diminishing basis‘.
The court awarded $40,000 for non-pecuniary damages (pain and suffering).
This case focused largely on credibility. The court concluded that the plaintiff ‘has exaggerated her ongoing pain’. This case is worth reviewing for anyone advancing an ICBC injury claim as an example of how BC courts deal with the credibility (truthfulness) of a witness.
Here the court found that the Plaintiff was not truthful when describing the extent of her pain and that she misled the court when addressing past wage loss.
Specifically, the court found that:

[56] Following the adjournment of the trial to October, it became clear from the evidence led by the defence from West Jet’s representatives and employment records that the plaintiff’s position on picking up shifts was not true. In fact, the employment records in evidence confirm that the plaintiff began picking up more work than she was scheduled within a month of returning to regular hours of employment in July of 2005. From the evidence of the West Jet supervisor the plaintiff could routinely work 30 hours a week or less simply by working the hours that she was scheduled but it is clear from the employment records she chose to work more than 40 hours per week by picking up shifts from fellow agents following her return to work in July 2005 and commencing in August 2005.

[57] From a review of her employment records relating to her employment before the accident it became crystal clear that since she began working at West Jet Ms. Polson has routinely lobbied her fellow agents for more work as evidenced from commentary in work reviews directed to her in 2005 and 2006.

[58] Primarily relative to these inconsistencies relating to her employment following the accident, I have, regretfully, come to the conclusion that the plaintiff, in her direct evidence, led the court to believe that she was unable to work additional hours that she had worked prior to the accident and wanted fewer hours of employment because of the pain working additional hours caused her when, in fact, she volunteered for and obtained additional hours notwithstanding the additional pain she asserts.

[59] Likewise, with respect to the medical evidence and her contention that the pain levels at the time of trial were in the ranges she described, this level of pain is inconsistent with her attendances at her treating physician’s office. As indicated previously, following her return to work in July 2005 I can count, from the clinical records, only one occasion prior to her attendance for a medical/legal report to be provided by Dr. Gorman some 13 months after returning to work. While there are complaints of depression, as already indicated, there is ample clinical notations to indicate pre-existing problems with depression and fatigue which cannot be causally connected to this motor vehicle accident without more.

[60] Although the plaintiff testified that she routinely suffers from pain in her neck at a 7 out of 10 pain level when at work, and frequently rubs her neck as a result, only one witness testified that she had seen the plaintiff sometimes stretching her neck, perhaps once a week, and only occasionally sitting on an exercise ball provided by her employer. With respect to rolling her ankle at work and the resulting limp thereby occasioned, Ms. Polson described herself rolling her ankle frequently at work and limping frequently at work for approximately 3 or 4 times a day, but no witness testified to having seen Ms. Polson limping or rubbing her ankle. While her co-worker Amanda Fraser-Doyle testified that Ms. Polson had slowed down since the accident, this would be inconsistent with the actual hours worked and voluntarily picked up by Ms. Polson after returning to work.

[61] One other matter of evidence also needs to be dealt with. Tricia Spencer, the administrative assistant for West Jet at the Prince George operations, testified to having observed the plaintiff at the Christmas party in December 2006 where she described the plaintiff as “enjoying herself on the dance floor for a relatively substantial time and was unable to notice any pain behaviour while she was dancing”. While Ms. Spencer agreed that she did not have much casual conversation with the plaintiff at this time, she maintained her observations of the plaintiff’s abilities on the dance floor.

Credibility of a Plaintiff is vital in all ICBC injury claims, particularly those where the injuries cannot be verified through objective measures such as X-rays or MRI findings. In such cases courts are very careful in assessing a Plaintiff’s credibility prior to awarding damages for injuries. Cases such as this one are worth reviewing if you are proceeding to trial in an ICBC injury claim to see what kinds of factors the court can consider when weighing a person’s credibility.

More on Soft Tissue Injuries, ICBC, and Expert Evidence

Reasons for judgement were released today awarding a Plaintiff $12,000 for ‘pain and suffering and loss of amenities‘ (non-pecuniary damages) for ‘a mild soft tissue injury which had essentially cleared within 3 months or so. ‘.
The Plaintiff was rear-ended in 2006 in North Vancouver. The court found that the impact was significant. The Plaintiff complained of headaches, neck pain, low back pain, mid back pain, left elbow and forearm pain and occasional pain shooting to his knees.
In what can be described as a very unusual occurrence, the trial proceeded without any medical opinion evidence addressing the extent of injury. The Plaintiff attempted to have his GP testify but the court would not permit it as proper notice of the ‘expert opinion’ was not provided per Rule 40-A.
The court admitted the doctor’s clinical notes into evidence. The Plaintiff then tried to treat these as notice of what the doctor was going to testify to. The court found this improper and did not permit the doctor to give opinion evidence stating that:

During the trial and following submissions on the issue, I ruled that medical/clinical records cannot be said to meet what was meant by the above-quoted Rule.

[12] In my view, the basis of Rule 40A is to provide adequate notice of evidence which is to be tendered by way of an expert’s opinion to avoid trial by ambush, to avoid unnecessary delays, and to generally permit trials to be run in an orderly fashion. Use of clinical records in the manner suggested by counsel for the plaintiff does not approach, let alone meet, that objective. Rarely is a concise and clear expression of any opinion capable of being gleaned from such records, provided that they can even be deciphered, which is indeed problematic in this case. Further, there is usually nothing in those records that might clearly identify what, if any, of the facts contained therein are being relied upon for any such opinion. Finally, clinical records often contain consultation reports which, while they may be evidence of their existence, most probably cannot be relied upon without proof of the facts or opinions contained in them. I am sure that there are other objections as well.

[13] To have permitted Dr. Marcos to testify as to his opinion on the basis that his clinical records amounted to compliance with Rule 40A would, in my view, have been impermissibly prejudicial to the defendant. In that regard I note that in this case none of the grounds enumerated in Rule 40A(16) had been met. Thus, I am faced with the task of assessing damages due to Mr. Murray based upon his largely uncorroborated testimony alone. I am obliged to be mindful of the observation of Chief Justice McEachern in Price and Kostryba where he said the following:

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.

The court went onto award $12,000 for pain and suffering and $180 for special damages.
This case is a great reminder of the need to comply with Rule 40-A if you are advancing an ICBC injury claim in Supreme Court and wish to call expert evidence to give the court an opinion about injuries, causation, future treatment, and prognosis. Failure to do so can result in the court not admitting the evidence which can badly damage an ICBC claim. Here the court expressly stated that “although an opinion of a medical expert such as a medical/legal report from (the Plaintiff’s) GP may have provided a foundation for a factual finding of continuing pain and discomfort, I unfortunately do not have the benefit of such an opinion.
Another note-worthy result of this judgement is the apparent ‘cost’ consequences.
From reading paragraphs 25-29 of the judgement it appears that the lawyer for the defendant made a formal offer of settlement prior to trial which was greater than the judgement. In such circumstances a defendant can be awarded ‘costs’ for the trial. In this case the court awarded $4,400 in costs which would have to be subtracted from the judgement amount prior to the Plaintiff getting paid. In addition, the Plaintiff would not be reimbursed disbursements for the trial and would be responsible for the Defendant’s trial disbursements. After taking all this into account the true value of the judgement may in fact be $0. When considering ICBC claim settlement it is very important to consider the likelihood of beating ICBC’s formal offer at trial.

ICBC Claims, Ruptured Discs and Causation

Reasons for judgment were released today involving a disc injury with 2 potential causes.
The Plaintiff was involved in 3 car accidents. This lawsuit involved the second accident. The Plaintiff was ultimatley diagnosed with a ruptured disc in her back. The issue at trial was whether the ruptured disc was caused by the first or second accident (apparently no-one blamed the third accident as a potential cause).
“Causation” is often a key issue at many ICBC claims and frequently ICBC takes the position at trial that while a Plaintiff is injured the injury would have existed even without the car accident as it was caused by previous or subsequent events.
In this case a physiatrist and a GP testified on behalf of the Plaintiff. No defence medical evidence was called, instead, the defence relied on their lawyer’s cross examination of the Plaintiff experts.
The Plaintiff had an MRI which showed a moderate sized diffuse disc bulge or protrusion at L-4/5 with associated disc desiccation or drying.
The court was not satisfied with the Plaintiff’s experts explanations linking the disc protrusion to the second car accident. The court instead found that it is more likely that the disc injury was caused by the first car accident and the second accident aggravated this injury for a period of time.
For the aggravation of this disc injury the court awarded general damages (pain and suffering and loss of enjoyment of life) of $30,000. The Plaintiff’s claim for loss of earning capacity and cost of future care were dismissed on the basis that the disc injury was not caused by the accident and any exacerbation of the injury caused by the accident ended in 2005.
This case shows that nothing should be taken for granted when taking an ICBC claim to trial.  Here both doctors seemed in agreement that the second car accident caused the disc injury and no medical experts disagreed with this finding.  After hearing this evidence first hand in court the trial judge did not agree with the Plaintiff’s experts and dismissed the allegation that the second car accident caused the disc injury.  Even where the medical evidence is not contradicted you cannot guarantee that a court will accept it!  This is the risk of trial and cross-examination.  Trial risks need to be accounted for when considering ICBC claim settlement and valuing fair payment for injuries.

ICBC Claims, Wage Loss, and Loss of Overtime Opportunities

In reasons for judgement released today Madam Justice Dillon of the BC Supreme Court awarded an injured Plaintiff just over $200,000 in damages as a result of a ‘hit and run’ accident.
The Plaintiff was 56 at the time of the BC car crash. He was on his way to work when he was rear-ended. The crash was significant enough to push the Plaintiff’s car the length of a city block prior to coming to a stop. The Defendant ‘took off around a corner” after the collision.
The Plaintiff is an apparently stoic man who returned to work despite being injured in this crash. He continued to work for several days ‘before (his) neck and back pain, headaches and dizziness steadily increased to the point that (he) was unable to perfrom the heavy work of a millwright.’
The Plaintiff was off work for almost 6 months prior to returning to work full time. Once returning he struggled and needed assistance from his work partners. He also struggled in taking advantage of over-time opportunities.
As in many ICBC injury claims that go to trial, the court heard from various doctors including an orthopaedic surgeon, a physiatrist, a neurologist and the Plaintiff’s GP. Again, as is common in ICBC injury claims, the doctors testifying had varying takes on the nature and severity of the Plaintiff’s injuries and their connection to the car accident.
No issue was taken a trial as to who was at fault for this rear-end accident. The trial focused on quantum of damages (value of the injuries). The theory advanced by ICBC’s expert was that, while the Plaintiff was injured, the Plaintiff ‘probably would have had these problems regardless of the accident because of his underlying degeneration of the cervical and lumbar spine‘.
The court heard evidence from the Plaintiff’s doctors that he had various injuries that would likely impact him well into the future.
The court’s key finding as to the extent of injury can be found at paragraph 28 where Madam Justice Dillon noted that:
[28] There is no medical opinion that the plaintiff would have suffered from chronic neck or back pain, to the extent and severity that he has incurred, but for the accident. Gold has developed severe and disabling chronic neck and back pain, which significantly limits movement. He continues to have headaches. His condition plateaued within two years after the injury and has not improved despite reasonable effort on his part. This has had a significant effect on his ability to work overtime to the extent that he did before the accident and requires cooperation with his work partners to fulfill the mandate of his job without formal accommodation being made. He has suffered a loss of lifestyle and recreational activity.
The court awarded $80,000 for ‘general damages’ (pain and suffering).
The court also made an award for past wage loss, past loss of overtime opportunities and loss of future earnings.
This case raised some common issues which often arise in ICBC claims. Particularly the amount of past loss income when a Plaintiff returns to work but is not able to work as many overtime shifts. I recommend this case for anyone involved in an ICBC injury claim who has missed overtime work as a result of injuries. This case gives an example of how this issue can be dealt with at trial. The personal injury lawyer representing the Plaintiff capably called evidence addressing wage loss and overtime and in the end the court addressed this loss fairly.
In awarding money for loss of future wages, the court noted that “there is more than a substantial possibility that the plaintiff will be unable to work overtime at his historical pre-accident rate into the future.’ and also that, given the Plaintiff’s age and injuries, that he would have ‘a difficult time finding work if his (current) job ended‘, As a result of this the court awarded $70,000 for loss of future earnings / loss of earning capacity.
Lastly, the ICBC lawyers argued that “damages should be reduced by 25% because the plaintiff failed to start an exercise programme as recommended by his general practitioner, his physiotherapist, and the rehabilitation medicine specialist
This argument is known in law as ‘failure to mitigate’. If a person injured in an ICBC claim does not take reasonable steps to recover from their injuries the value of compensation can be reduced.
The court summarized the law of ‘failure to mitigate’ as follows:
[44] To succeed in this submission, the third party must prove, on a balance of probabilities, that the plaintiff failed to undertake the recommended treatment; that by following that recommended treatment he could have overcome or could in the future overcome the problems; and that his refusal to take that treatment was unreasonable (Janiak v. Ippolito, [1985] 1 S.C.R. 146, 16 D.L.R. (4th) 1; Maslen v. Rubenstein, [1994] 1 W.W.R. 53 at 57-58, 83 B.C.L.R. (2d) 131 (C.A.); Fox v. Danis, 2005 BCSC 102 at para. 37). The remedial programme must be likely to achieve resolution of the problem or at least have a positive effect on the plaintiff’s injury arising from the accident (Hepner v. Gill, [1999] B.C.J. No. 1755 at paras. 5 and 7 (S.C.) (QL); Briglio v. Faulkner and Reichel, 1999 BCCA 361, 69 B.C.L.R. (3d) 122 at para. 44; Wong v. Stolarchuk, [1997] B.C.J. No. 2837 at para. 48 (S.C.) (QL)). The reasonableness of a refusal to undertake a recommended programme depends upon the risk that such a programme would impose, the gravity of the consequence of refusing to participate, and the potential benefits to be derived from it (Janiak v. Ippolito, supra).
The court rejected ICBC’s failure to mitigate arguments.
This case illustrates just how important credibility is in ICBC injury claims. The court clearly liked the Plaintiff and he made a good impression on the judge. His stoic attitude certainly helped. Contrary to what some believe, having a tough attitude in the face of injuries does not hurt the value of an ICBC case, as this case illustrates, this postitive attribute can in fact add to the credibilty of an injured person and help result in a good trial result.

Car Accidents, Post Trauma Headaches and ICBC Claims

Short clear reasons for judgment were released by Mr. Justice Savage of the BC Supreme Court yesterday awarding a Plaintiff compensation for car accident related headaches.
This is one of the crispest judgements I have read in quite some time.  I recommend reading the full judgment for anyone advancing an ICBC pain and suffering claim for headaches as the issues are succinct in this case and it does not get bogged down in legalese.
The Plaintiff was injured when she was 4 years old.    She was in a proper infant car seat in her family van when it was broadsided by the defendant who failed to stop at a stop sign.  The accident was in 2002 and the claim finally went to trial in 2008.  For those of you not well versed in ICBC injury claims I should point out that there is nothing unusual about this timeline.  In infant injury claims in BC, most limitation periods are delayed until the infant’s 19th birthday.  One of the reasons for this is because doctors often can’t give a prognosis for an infant’s injuries until they reach adulthood.
In this case most of the Plaintiff’s injuries were not disputed.  She suffered from a broken tooth, some injury to her legs which healed in a few months, soft tissue injuries to her neck and back which took about one year to heal.
What was at issue was headaches.  The Plaintiff claimed that she had on-going headaches over 5 years after the accident and that these were caused by the accident.  The defendant said there are other potential causes for the headaches such as migraines or other trauma.  It is worth pointing out that such a ‘causation’ argument is typical in most ICBC injury claims that go to trial.  Usually the court hears competing theories about the extent of injury and the cause of injury.  (click here to see an example of just how far apart 2 sides can be in an ICBC injury case involving headaches)
The court accpeted that the ongoing headaches were indeed caused by the accident and summarized the accident related injuries as follows: “very mild injuries post-accident that have completely resolved with ongoing significant but somewhat sporadic headaches continuing requiring the occasional use of Tylenol.”
Mr. Justice Savage noted that the headaches have persisted for some six years althogh there has been some improvement.  He went on to value the non-pecuniary loss (pain and suffering) for these headaches at $35,000.

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

There is no shortage of opportunity to blog about ICBC LVI (Low Velocity Impact) cases as these seem to go trial frequently.   While each case is unique and have varying outcomes based on the severity of injury, the courts reactions to the ‘no crash no cash’ position often advanced on ICBC’s behalf seems to end in a predictable result.  It is typically rejected.
The issue always is, on a balance of probabilities, does the evidence establish that the Plaintiff was injured in the crash?  Not “how significant was the vehicle damage”.
In yet another example of BC courts reactions to LVI crashes, reasons for judgment were released today awarding a Plaintiff $12,000 for various soft tissue injuries.
The accident happend in 2005.  It was a rear-end crash.  The defendant gave evidence that the crash was so minor that ‘he did not hear any impact’.  The Plaintiff, on the other hand, stated that the impact was ‘a jolt that threw her forward although she was restrained by her seatbelt‘.
As is often the case in ICBC LVI cases, the lawyers put into evidence the photographs of the vehicles.  The pictures showed minor damage to the Plaintiff vehicle and no visible damage to the Defendant vehicle.
The court accepted that the Plaintiff was injured in this crash.  The Plaintiff complained of headaches, neck pain, upper back pain, lower back pain, right shoulder pain and right ankle pain.
The Plaintiff suffered injuries in previous car accidents and also in a subsequent fall.  This complicates the courts job somewhat in assessing the extent of the injuries suffered in this LVI trial.
The medical evidence was that the Plaintiff, while injured in this LVI crash, should not have any permanent consequenses as a result of her injuries.  In other words, she should get better.  The Plaintiff’s doctor also testified that ‘a lot of her symptoms arise from ‘something else’ (something other than the crash)… She has an underlying condition of depression and alcohol consumption which makes her depression worse’.
One thing that should come to no surprise to ICBC injury lawyers is the position taken by the defence lawyer in this case.  It was argued that ‘there should be no award as the symptoms are not reasonably attributable to the accident’.  In support of this argument the defence lawyer cited Mustapha v. Culligan of Canada Ltd.   For full background you can read my former blog on this case but for the sake of this blog here are the broad strokes:
In Mustapha the Plaintiff claimed to suffer psychological injury due finding flies in a bottle of water supplied by Culligan.  The Supreme Court of Canada dismissed the lawsuit claiming that such an injury was not ‘foreseeable.’.   Just last week I was discussing Mustapha with a senior colleague ICBC claims lawyer and we concluded it was only a matter of time before an ICBC defence lawyer would bring Mustapha to a court’s attention claiming that injuries from an LVI crash are not ‘forseeable’.  Fortunately, Mr. Justice Savage, rejected such an argument at paragraph 39 of the judgment.
All was not rosy for the Plaintiff, however.  The court found that she ‘tended to exaggerate her symptoms, which, expecially laterrly, are probably not attributabel to the accident.  I accpet, however, that she was injured in the accident but her ongoing symptoms after one year post accident are a result of her failure to mitigate her damages, or other causes’.
For the soft-tissue injuries with headaches and other symptoms which the court found lasted for only one year (at least in terms of being related to the accident) the court awarded non-pecuniary damages (pain and suffering) of $12,000.

ICBC, Chronic Pain, and Fair Settlement

With the exception of experienced BC injury lawyers, most people advancing ICBC claims need to do extensive research to determine fair value for pain and suffering in an ICBC injury claim. One of the best ways to go about this is to look at BC court cases for similar injuries and see just how much, or how little, our courts award for pain and suffering for various injuries.
If you are advancing an ICBC chronic pain case, reasons for judgement were released today that are worth reviewing.
The Plaintiff was involved in a two vehicle accident on January 9, 2006. He stopped his vehicle for a cyclist who was crossing in a marked crosswalk. Shortly afterwards the Plaintiff was rear-ended by a Jeep Cherokee. The impact was significant causing ‘substantial damage’ to the Plaintiff’s vehicle.
The Plaintiff reported several injuries as a result of this rear-end crash including left shoulder pain, dizziness, headaches, neck and back pain, and numbness to his left arm.
The Plaintiff’s family doctor referred him to an orthopaedic specialist who stated that the Plaintiff “has had some soft tissue injuries to the cervical and lumbar spine….he does not require any special investigation as he has no neurological defecits. I would encourage him to return to work
Shortly after this time the Plaintiff switched family physicians. His new treating doctor diagnsosed major depression and soft tissue injury to the neck, shoulder and back. Specifically she diagnosed
a left anterior supraspinatus tear and multiple soft tissue injuries of the neck and back, possible muscle spasm, strains, contusions, cervical facet syndrome and discogenic pain…..(and) two other medical conditions, major depression and peptic ulcers, since the MVA in January 2006. I believe these two conditions were precipitated by the chronic pain and stress caused by the accident.
She went on to state that:
(the Plaintiff) has not been able to return to work, his function remains partially impaired and his level of activity is significantly reduced. His chronic pain and his depression symptoms have significantly restricted his ability to perform a range of daily living activities on ongoing basis such as personal self care, meal preparation, basic housework, daily shopping and use of transportation.
The court also heard from an ‘independent medical examiner’ who stated that “permanent disability is not anticpiated as a result of the accident.’ and that ‘the only objective finding (of injury) was that of restricted movement of the cervical spine. All complaints otherwise were of a subjective nature.’
This doctor made some interesting comments about chronic pain, namely that:
Many authors who have studied chronic pain syndromes have demonstrated that patients have been shown to have beliefs and expectations of chronic pain which are critical cognitive facilitators or impediments to the recovery process. The attribution of blame may be an unrecognized factor co-related to pain behaviour, mood disturbance, and poor response to treatment. It is unlikely that (the Plaintiff) is going to change his perceptions of pain until the issues are resolved for him.
The court made it’s key findings at paragraphs 24 and 25 where Justice Rice stated:

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

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

The court awarded damages for pain and suffering, lost pass of income, loss of future earning capacity, special damages and cost of future care.
The non-pecuniary damage award (pain and suffering) was $63,000.
This case is worth reading for anyone advancing and ICBC injury claim seeking damages for ‘loss of earning capacity’ for Justice Rice’s summary of the law on this topic at paragraphs 75-84 of the judgment.

More on Intersection Crashes, ICBC, and Fault

In another example of our courts dealing with the issue of fault and intersection crashes, reasons for judgment were released last week faulting a ‘through driver’ 100% for a crash involving a left hand turner in Langley, BC.
I have previously blogged about this and will blog more on this topic in the future. The issue of fault is probably the most litigated when it comes to intersection crashes involving left hand turning vehicles.
In this case the Plaintiff was attempting to turn left. The Defendant, approaching in the opposite direction, was attempting to go through the intersection. The light was amber or red. This is a common recipe for disaster and indeed they crashed with each other. As is often the case in ICBC claims involving intersection crashes the 2 sides had different versions of evidence, particularly as to whether the light was red or amber at the time.
The court found that the light was red at the time of the crash. While both vehicles where, therefore, in the intersection on a red light, only the ‘through driver’ was found at fault because the Plaintiff was clearing the intersection.
The court quoted a case that is well known to ICBC claims lawyers which is helpful to left hand turning motorists in such a situation. The cases is Kokkinis v. Hall from the BC Court of Appeal where the court held that:

9 This discussion, however, detracts from the more important question of law, which is whether Mrs. Kokkinis was on one hand entitled reasonably to assume that Mr. Hall would stop before entering the intersection or on the other hand, whether she can be faulted for failing to see his van “until it was on top of her”, i.e. constituted an immediate hazard. In this regard, Mr. Johnson cites Feng v. Graham [1988] 5 W.W.R. 137 (B.C.C.A.), (not a left turn case), for the principle that the plaintiff’s entitlement to assume that other traffic will obey the law, is “subject to the proviso” (in counsel’s phrase) that where it is apparent or should be apparent that an oncoming driver is not going to yield the right-of-way, then at that point the other driver must act reasonably and cannot simply proceed into the collision, as it were. At the least, Mr. Johnson says, it was open to the trial judge to find that in the circumstances, Ms. Kokkinis failed to exercise reasonable care for her own safety and the safety of others, and that she must therefore bear some responsibility for the accident.

10 I must say this argument has given me pause; but ultimately I resolve it by asking whether in law Mrs. Kokkinis should be faulted for diverting her attention momentarily from oncoming traffic to check cross traffic at the point in time in question, i.e., as she prepared to start her turn – to see if any of those cars had jumped the light or were going to pose a threat to her turn. Was this an unreasonable or careless thing to do? I think not, given both the realities of the situation (which of course occurred over only a few seconds) and past decisions of this Court that have imposed on left-turning drivers the duty to be aware not only of oncoming traffic, but also of cross traffic, pedestrians, and whatever else may be present in the intersection. To say that the plaintiff can be found at fault because she relied on the assumption that Mr. Hall would stop, and because she checked cross-traffic, would in my view subvert the duty on Mr. Hall to bring his vehicle to a safe stop at the amber light as the other traffic did. An amber light is not, as the current witticism suggests, a signal to accelerate or to pass traffic that is slowing to a stop. Indeed, as Mr. Justice Esson noted in Uyeyama, in a busy city like Vancouver and at a busy intersection like 25th and Granville, an amber is likely the only time one can complete a left turn. Drivers approaching intersections must expect that this will be occurring. Putting a burden on a left turning driver to wait until he or she sees that all approaching drivers have stopped would, in my view, bring traffic to a standstill. We should not endorse such a result.

11 Accordingly, notwithstanding the principle (which I do not doubt) that questions of apportionment are generally questions of fact with which we should interfere only in exceptional cases, I would conclude that the issues I have referred to are ones of law and that the learned trial judge erred in law in placing too high a standard on the plaintiff and in failing to consider the assumptions she was entitled to make. I would not apportion any of the fault to her and would apportion 100 percent to Mr. Hall.

The court held that this was a similar case to Kokkinis and found the through driver at fault.
In terms of injuries the Plainitff suffered from general body trauma, bruising and soreness, soft tissue injuries to the neck, chest wrist and knee. The most significant injury was to the back and the court found that “3 years post-accident the Plaintiff continues to have significant pain from his back. Any prolonged activity, such as sitting in a lecture hall or travelling in a sitting position over 45 minutes causes soreness and pain. The Plaintiff is not recommended to pursue recreationbal activities of a physical nature such as football, which he had formerly done.”
The court awarded damages totalling $74,978.13 including $45,000 for non-pecuniary damages (pain and suffering).

BC Supreme Court Awards $75,000 Pain and Suffering for Soft Tissue Injuries – Disc Herniation Claim Dismissed

In reasons for judgment released today, the BC Supreme Court valued a Plaintiff’s pain and suffering at $75,000 for soft tissue injuries.
The Plaintiff was a nurse’s aid. She was injured in a BC car accident which occurred in 2004 in New Westminster. The crash occurred at an intersection and both liability (fault) and quantum (value of injuries) were in dispute at trial. This is often the case when ICBC injury claims resulting from an intersection crash go to trial.
The Plaintiff was making a right hand turn. When starting her turn she felt it was safe to do so. At about the same time the Defendant was proceeding through the intersection and had recently changed into the right hand lane. Both motorists failed to recognize the hazard they posed to each other until it was too late.
The court found that both drivers were at fault. The Plaintiff was liable for ‘not keeping a proper lookout’ and that she should have seen the Defendant travelling in the curb lane prior to the collision.
The defendant was also found at fault for changing lanes at an unsafe time. The key finding is made at paragraph 70 where the court held that:
I find that at the time that the defendant changed lanes on Braid from the eastbound inside lane to the curb lane, 80 feet west of the intersection of Garrett and Braid, the plaintiff had already left the stop sign on Garrett and was in the process of making a right hand turn into the eastbound curb lane on Braid. I find that in making his lane change at this point on Braid the defendant was in such close proximity to the plaintiff’s car that his lane change could not be made safely. The weight of the evidence leaves no doubt that the defendant’s van was far too close to the plaintiff’s car for the defendant’s change of lanes to be made safely.
When 2 or more people are responsible for a BC car accident the Negligence Act requires a court to apportion fault between the parties. In this case the court held that both the Plaintiff and Defendant were 50% at fault for the accident. In doing so the court stated that “I do not think it can be found that blame for the accident rests more with one party than the other. In my opinion, they are equally guilty of breaching the rules of the road.”
The Plaintiff was a nurse’s aid. She claimed that as a result of the accident she became disabled from not only that job but also from ‘any other employment at a competitive level’
The Plaintiff’s doctor diagnosed the following injuries:

1) New large left central parracentral disc herniation posterior to the L5 vertebral body secondary to new onset degenerative L5/S1 disc change. This would be rated severe.

2) Left L5/S1 nerve root compression, also rated severe.

3) Milder degenerative changes at L3/L4, L4/L5 levels with early neural foraminal stenosis at L4/L5 and L5/S1, which are rated moderate to severe.

4) New onset degenerative CT spine changes rated moderate.

5) Musculoskeletal changes within the left side of her body, left arm, left chest, left hip and left leg, resolved within a week or two after the motor vehicle injury, rated mild.

6) Iatrogenic hypertension secondary to COX-2 inhibitor use for the treatment of the patient’s back injuries.

The bulk of the reasons for judgement focused on causation, that is, whether the above injuries were related to the accident or to other causes. As with most ICBC injury claims, the court heard from several ‘expert witnesses’ who commented on the plaintiff’s injuries and their cause.
In the end the court found that the Plaintiff failed to prove that the accident caused her disc herniation. The key findings can be found at paragraph 317 where the court held that:

[317] In the result, I find that the evidence does not establish a temporal link between the accident and the onset of the plaintiff’s low back symptoms ultimately leading to the diagnosis of disc herniation and disc herniation surgery. In my opinion, the plaintiff has failed to prove on a balance of probabilities that the accident caused or contributed to the plaintiff’s disc herniation. She has failed to prove that her disc herniation would not have occurred but for the negligence of the defendants.

[318] In arriving at this conclusion I accept the opinion of Dr. Maloon, in preference to that of the plaintiff’s medical experts, that the soft tissue injuries the plaintiff sustained in the accident would not have been “significant enough to alter the natural history of her neck or low back condition” and that the “disc herniation would be the result of the natural history of the lumbar degenerative disc disease and not the result of injuries that she may have sustained in [the accident].”

Since the court did not find the disc herniation related to the accident damages were assessed for soft tissue injuries. The court made the following finding prior to valuing the injuries at $75,000 for pain and suffering:

[327] I find that the plaintiff sustained mild to moderate soft tissue injuries to her neck and back as a result of the accident which have had an affect on her personal, employment, social and recreational pursuits and activities. However, I also find that the plaintiff has failed to establish that the injuries sustained by her in the accident have caused her disability from employment.

[328] In the result, I find that the plaintiff’s award for general damages should be based on the fact that her condition had improved and recovered to the stage that by March 4, 2005 he felt well enough to return to work on a gradual basis. Moreover, I find that the fact her physical and emotional condition deteriorated after her fall on March 5, 2005 cannot be attributed to the injuries she sustained in the accident.

The Plaintiff’s award was then cut by 50% to reflect the fact that she was 50% responsible for the accident. This is the direct result of ‘contributory negligent’ in ICBC injury cases. If a Plaintiff is any percent at fault then the value of what can be recovered in tort is reduced by that percentage.
Do you have questions about this case or about an ICBC injury claim involving soft tissue injuries or a disk herniation? If so please click here to arrange your free consultation with Victoria ICBC Claims Lawyer Erik Magraken (Services provided for ICBC injury claims throughout BC!)

Contact

If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy

Disclaimer