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More on ICBC Claims and Lack of Objective Signs of Injury

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Soft Tissue Injury Cases, Uncategorized. 48 Comments on More on ICBC Claims and Lack of Objective Signs of Injury


As I’ve previously written, objective signs aren’t always present to verify an injury.  Often times victims of motor vehicle collisions experience pain and limitations but the source of the injury can’t be documented through objective tests such as X-rays, CT Scans and MRI’s.  If an injury can’t be objectively verified does that prevent a successful lawsuit for compensation?  The answer is no and reasons for judgement were released today demonstrating this fact.
In today’s case (Sandher v. Hogg) the Plaintiff was involved in a 2006 motor vehicle collision.  Her vehicle was rear-ended by the Defendant’s.  The Defendant admitted fault for the crash.  The trial focused on the nature and extent of the Plaintiff’s injuries.
The Plaintiff’s doctors gave evidence that she suffered injuries to her connective tissues (often referred to as soft tissue injuries) and that these have not fully healed.  The Plaintiff went on to experience chronic pain as a result of these injuries with a chance that the pain would continue indefinitely.
The Defendant’s lawyer argued that all of the Plaintiff’s complaints are subjective and can’t be verified.  He argued that the Plaintiff was exaggerating her symptoms to advance her personal injury claim.  Madam Justice Dardi rejected these arguments and awarded the Plaintiff $40,000 for her non-pecuniary damages.  In doing so the Court provided the following useful comments illustrating that objective signs are not necessary in a personal injury lawsuit:

[67]         The absence of objective physical findings is not determinative of whether Ms. Sandher continues to suffer from chronic pain. Since pain may well be a subjective phenomenon not easily measurable by independent objective indicia, the assessment of Ms. Sandher’s soft tissue injuries to a certain extent turns on the assessment of her subjective complaints and reported symptoms:  Szymanski v. Morin, 2010 BCSC 1 at para. 106; and Shapiro v. Dailey, 2010 BCSC 770 at para. 35.

[68] The defence contends that the minor damage to Ms. Sandher’s vehicle is inconsistent with the severity of her reported injuries. While evidence of vehicle damage is relevant to the assessment of injuries, ultimately the extent of her injuries is to be assessed on the evidence as a whole:  Robbie v. King, 2003 BCSC 1553 at para. 35….

[70] I accept the evidence of Ms. Sandher that her back and shoulder pain has not resolved. I reject the defence suggestion that she is exaggerating her symptoms to advance her litigation objectives; the evidence does not support such a finding. The overarching frustration and emotional distress she has experienced as a result of her persisting discomfort and pain was evident in her testimony. I find her complaints of continuing shoulder and back pain generally consistent with the surrounding circumstances and evidence…

[72]         On the totality of the evidence, I conclude that there is a realistic prospect for significant improvement in the foreseeable future, but there is also a realistic prospect that Ms. Sandher may never recover to her pre-accident levels of fitness.

[73]         In summary, having considered Ms. Sandher’s own evidence and all of the medical evidence, I conclude that as a result of the accident Ms. Sandher sustained soft tissue injuries to her shoulder and upper and lower back, and that these injuries have caused her pain and suffering. I accept that Ms. Sandher continues to experience pain from her injuries. I find on balance that there will be some continuing chronic pain suffered by Ms. Sandher in the future for an uncertain period of time….

[84] Having reviewed all of the authorities provided by both counsel, and in considering all of Ms. Sandher’s particular circumstances, I conclude that a fair and reasonable award for non-pecuniary damages is $40,000.

Pain and Suffering Without Objective Signs of Injury

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Wage Loss, Uncategorized. 47 Comments on Pain and Suffering Without Objective Signs of Injury


The easiest personal injury cases to prosecute are those involving objective injuries.  If a person suffers a broken arm or leg in a car crash there is no dispute as to what the injury is or what caused it.  There may be some disputes regarding the consequences of the injuries but generally there is a lot of room for agreement in these types of lawsuits.
On the other end of the spectrum are chronic pain cases.  Many people involved in traumatic events go on to suffer long term chronic pain.  The pain can be invasive and sometimes disabling.  It can interrupt domestic, vocational and recreational activities, it can even negatively impact personal relationships.   Often the source of chronic pain cannot be objectively identified and people suffering from chronic injury face not only the pain but also the stigma that they are somehow exaggerating or even faking their injury.  This skepticism can take a further toll and add to the cycle of chronic pain.
These cases bring challenges in prosecution and create a sharp focus on plaintiff credibility.   Despite their challenges chronic pain disorders can be properly compensated at trial as was demonstrated in reasons for judgement released today by the BC Supreme Court.
In today’s case (Kasidoulis v. Russo) the Plaintiff was involved in a 2005 intersection crash.  Fault was admitted by the driver of the opposing vehicle.  The trial focused on the extent of the Plaintiff’s injuries and their value.
The collision caused several injuries to the Plaintiff which eventually turned into a chronic pain disorder.   As is sometimes the case there was a lack of objective proof of the Plaintiff’s injuries.  Dr. Travlos, the Plaintiff’s treating physiatrist gave the following evidence about the Plaintiff’s injuries:

[21] Dr. Travlos was of the opinion that the complaints reported by Ms. Kasidoulis to Dr. Kneifel, which included headaches, chest pains, neck pains; back pains and emotional difficulties were a direct result of the accident.  He was unable to identify any clinical or objective findings with respect to the back pain but was clearly of the view that Ms. Kasidoulis was genuinely experiencing the pain that she reported.  There does not seem to be any serious dispute between the parties that Ms. Kasidoulis’ pain is genuine and I accept that this is the case.

[22] In his second report Dr. Travlos concluded that Ms. Kasidoulis suffers from chronic pain disorder.  That pain was affecting her daily activities, both social and work related.  He was of the view that Ms. Kasidoulis would benefit from a long-term “longitudinal” course of treatment designed to permit her to manage and cope with her pain.  On the other hand, Dr. Travlos was clearly of the view that there should be no expectation that the pain would resolve and that it was no more probable than not that she will continue to have permanent on-going pain.

[23] In both his reports, and in particular in his March 2010 report, Dr. Travlos focused considerable attention on the necessity of Ms. Kasidoulis undergoing treatment and having access to the resources necessary to reduce the stressors in her life.  As I read Dr. Travlos’ opinion, he was of the view that if Ms. Kasidoulis is given the opportunity to access a reasonable long-term treatment plan and the resources to relieve her household responsibilities, she could expect significant improvement in her ability to function and in her ability to cope with her pain.

[24] Dr. Travlos was of the view that it was unrealistic to expect that Ms. Kasidoulis would ever be able to work full-time, but that it was reasonable to anticipate that she could work between three and four days a week if the therapies that he recommended were pursued and were effective.

Mr. Justice Sewell accepted this evidence and awarded the Plaintiff over $900,000 for her injuries and resulting disability including $90,000 for her non-pecuniary damages (money for pain and suffering and loss of enjoyment of life).

In arriving at this verdict the Court made the following comments about causation and compensation for chronic pain cases with lack of objective proof:

[36] As is not uncommon in cases of this sort, the critical issue in this case is the extent to which the injuries Ms. Kasidoulis suffered in the accident are the cause of the difficulties described in the evidence…

37]         This case therefore requires consideration of the law as laid by the Supreme Court of Canada and our Court of Appeal with respect to causation.  The law with respect to causation has been recently addressed and reviewed in Athey v. Leonati, [1996] 3 S.C.R. 458; Resurfice Corp. v.  Hanke, 2007 SCC 7 and Hutchings v. Dow, 2007 BCCA 148.

[38]         These cases establish the proposition that to impose liability on the defendant  I must be satisfied that Ms. Kasidoulis would not have suffered her symptoms but for the accident or, in other words, that the injuries she suffered in the accident were a necessary cause of her post accident symptoms.

[39]         I find that Ms. Kasidoulis suffers from debilitating mid and low-back pain.  This pain and attendant low energy have had a significant impact on her life.  I find that the symptoms being experienced by Ms. Kasidoulis are an indivisible injury which would not have occurred but for the injuries she suffered in the motor vehicle accident.

[40]         I base this conclusion on a comparison of Ms. Kasidoulis’ energy and capabilities before and after the accident.  I accept her evidence that she is suffering debilitating back pain.  I also rely on Dr. Travlos’ conclusion that Ms. Kasidoulis is suffering from chronic pain syndrome.  I can see nothing in the evidence which supports the assertion that Ms. Kasidoulis would be experiencing the pain or the level of disability she currently experiences had she not been injured in the motor vehicle accident.  I therefore conclude that the defendant is fully responsible for the consequences of Ms. Kasidoulis’ present condition.

[41]         I make this finding notwithstanding the lack of objective clinical evidence of serious injury.  I note that neither Ms. Kasidoulis nor Dr. Travlos were cross- examined with respect to the genuineness of Ms. Kasidoulis’ reported symptoms.  In his cross-examination of Dr. Travlos, Mr. Robinson did establish that there was a paucity of objective evidence of injury present.  I note, however, that there is no indication that Ms. Kasidoulis was in any way feigning the symptoms she is experiencing.  Given this fact and the fact that there was ample evidence before me contrasting Ms. Kasidoulis’ personality and abilities before the accident from those she presently possesses and demonstrates, I have no hesitation in concluding that the difficulties that she now faces would not have been experienced but the wrongful conduct of the defendant.

In addition to the above this case is worth reviewing in full for the Court’s discussion of damages for ‘diminished earning capacity‘ at paragraphs 52-65.  The Plaintiff was awarded $550,000 for diminished earning capacity despite being able to continue working in her own occupation because the Court was satisfied that the accident related injuries would prevent the Plaintiff from working on a full time basis as a teacher and instead would be limited to working on a part time on-call basis.

Non-Pecuniary Damage Awards Discussed for Chronic Pain with Pre-Existing Depression

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


Pre-existing medical difficulties can and do play a role in the process of awarding a Plaintiff damages for pain and suffering and loss of enjoyment of life (non-pecuniary damages).  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, discussing this area of law.
In today’s case (Beaudry v. Kishigweb) the Plaintiff’s vehicle was rear-ended by a 1/2 ton pick-up truck.  Fault was admitted for the crash.   The Plaintiff sustained a variety of soft tissue injuries affecting her neck, upper back and lower back.  These went on to cause chronic pain and headaches and the Plaintiff never fully recovered from the consequences of her injuries.
Prior to the accident the Plaintiff suffered from some medical difficulties and these included a chronic low grade depression.  Her pre-accident health made her more vulnerable to having a poor outcome following the accident.  The Defendant, who basically conceded that the Plaintiff did suffer from chronic pain as a result of the collision, argued that “whether or not the Plaintiff was a vulnerable individual (as a result of pre-existing conditions), she cannot be put back to a better position than she would have been had the accident not occurred“.
The Court went on to find that the accident did cause chronic pain which was not resolved at the time of trial.  The Court further found that the chronic pain would continue into the future, however, it would not prevent the Plaintiff from working full time or from carrying out her household responsibilities.  In awarding the Plaintiff $85,000 for her non-pecuniary damages Mr. Justice Rice made the following comments about damages for non-pecuniary loss for chronic pain with pre-existing difficulties:

[25]         The difficulty of assessing damages for soft-tissue injuries where the plaintiff has a complicated psychological and behavioural background is described in Rod v. Greco, 2003 BCSC 935, at para. 35:

As to physical injuries, because of the mechanics of the motor vehicle accident [the plaintiff’s vehicle was rear-ended] some must have been sustained by the plaintiff.  However, the complex psychological and behavioural history both pre and post accident outlined above made it difficult to identify them with any precision.

…

[34]         With the virtual admission by the defendants that the plaintiff now suffers from chronic pain, I must first of all decide what the condition of the plaintiff was just before the accident.  Clearly she was not in the best of shape and that must be taken into account.  She was susceptible to pain and worse, depression, some of which could be said was the result of lifestyle mistakes made in the past.  Having recovered from most of those, I agree that it is not fair to reduce what she would otherwise receive simply on the basis of a greater susceptibility because of her past.  On the other hand, to the extent that those past experiences would have revisited her earlier in life than is normal, account must be taken of that too.

[35]         Considering the whole of the evidence, I find that, indeed, the plaintiff suffers chronic pain as a result of the collision.  I award her $85,000 in non-pecuniary damages.

Non-Pecuniary Damages Update – the Kelowna Road Edition

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Dental Injury Cases, ICBC Headache Cases, Uncategorized. 51 Comments on Non-Pecuniary Damages Update – the Kelowna Road Edition


I’m writing today’s non-pecuniary damages case update in Kelowna, BC where I’m finishing up some work on a handful of ICBC claims.
Reasons for judgement were released earlier this week by the BC Supreme Court awarding non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) for headaches and chronic pain following soft tissue and TMJ injuries.
In this week’s case (Ho v. Dosanjh), the Plaintiff was injured in a 2006 BC motor vehicle collision.   It was a rear-end crash and the Plaintiff’s vehicle sustained over $7,000 in damage.   The Plaintiff’s injuries continued to cause him problems by the time of trial (nearly 4 years after the collision).  Mr. Justice Silverman awarded the Plaintiff $75,000 for his non-pecuniary loss and in reaching this figure the Court noted the following about the extent and severity of the Plaintiff’s injuries:

[21]         As a result of the subject MVA, the plaintiff suffered pain in his neck, upper back, shoulder, jaw, numbness down the left arm, headaches, and insomnia.  He was on a variety of medications for a period of time and was unable to work.

[22]         The most serious and ongoing consequences of the MVA are the TMJ and the headaches, which leave him in constant pain.

[23]         Dr. Mehta confirmed that the plaintiff suffers from pain in his jaw, teeth, and  related areas, and that he suffers from headaches as a result of the MVA.

[24]         He testified that these areas of concern had not improved significantly in the four years since the MVA and further recovery was unlikely; that the plaintiff will suffer long-term symptoms that impact on all aspects of his functioning; and that he should avoid any activities that involve jumping or jarring.  Dr. Mehta recommended conservative care, including continuation of various treatments which were already ongoing, such as physiotherapy and massage.

[25]         Dr. le Nobel diagnosed the plaintiff with diffuse myofascial pain syndrome, TMJ, and chronic headaches.  He testified that the plaintiff’s capacity for recreational pursuits has been compromised and that this will continue for the foreseeable future.  He testified that, given the amount of time that has passed since the MVA, there is unlikely to be any further improvement.

[26]         Dr. Weiss confirmed that the plaintiff has chronic neck, back, and TMJ pain and that, in his opinion, “they will remain a long term issue.”  He noted that the plaintiff had a pre-existing degenerative condition, which made him more susceptible to injury from the MVA.

[27]         Dr. Gilbart provided an independent medical report and was called as a witness for the defence.  He confirmed that the MVA aggravated the plaintiff’s pre-existing degenerative condition in his neck.  He opined that the “prognosis for significant further improvement in his symptoms at this point is guarded.”  He noted that the plaintiff was asymptomatic prior to the MVA and was functioning at a very high level in all aspects of his life.  Dr. Gilbart also noted that, despite the post-MVA pain complained of by the plaintiff, he still appeared to be functioning at a very high level.  Finally, he opined that, given the pre-existing condition of the plaintiff as well as his prior history, he likely would have had flare-ups in the future even if the MVA had not occurred.

[28]          With respect to the jaw pain and headaches, Dr. Gilbart deferred to the expertise of Dr. Mehta.

[29]         Presently, the plaintiff has not returned to most of his pre-MVA athletic activities.  He no longer is involved in volleyball, softball, aggressive hiking, or skiing.  He does still rollerblade, although not as aggressively as before, and he has recently begun to swim with the encouragement of his girlfriend, who is a physiotherapist’s assistant.

[30]         Various friends testified that the plaintiff’s personality has changed.  He is moody, irritable, withdrawn, quiet, rarely socializes, and not as pleasant to spend time with as he used to be.  It was clear to me, when watching the plaintiff in the gallery of the courtroom that he was distressed when he heard this testimony.  He subsequently testified that he had not actually heard these witnesses say this before…

76]         I am satisfied that the plaintiff has suffered neck, back, jaw, and shoulder pain, and that he continues to suffer on a daily basis, particularly from TMJ and headaches.

[77]         I am satisfied that it has affected his recreational and athletic activities, which were an important part of his life.

[78]         I am satisfied that there is unlikely to be much further improvement.

[79]         I am also satisfied that, while he is suffering pain, he is nevertheless able to function in a reasonably normal way.  He certainly appeared to be reasonably comfortable when giving evidence.  He also continued to work full-time after a period of months during which he was unable to work, although I accept that work is much less physically comfortable for him than it used to be.

[80]         While I accept the evidence that he might have suffered another flare-up even in the absence of the MVA, I am satisfied that the MVA was, and is, the primary cause of his current difficulties.

[81]         With respect to ongoing treatments for the rest of his life, I am satisfied that, while these might provide him with some periodic temporary relief, they are not likely to result in any improvement.  Consequently, what the plaintiff might perceive as the “need” for such ongoing treatments, will be reflected as an aspect of the non-pecuniary award.

[82]         In all the circumstances, I award $75,000 for non-pecuniary damages.

Non-Pecuniary Damages for Fibromylagia Assessed at $110,000 in ICBC Claim

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Fibromyalgia Cases, Uncategorized.

(Update March 19, 2012 – The Below Decision was modestly modified by the BC Court of Appeal in reasons for judgement released today, reducing the claim for future care by $32,115.  The other trial findings were left intact)
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, awarding just over $1.4 million in total damages for injuries and loss suffered as a result of a BC car crash.
In today’s case (Shapiro v. Dailey) the Plaintiff was involved in a 2005 intersection crash.  The Defendant driver had been drinking earlier in the day and was operating the vehicle without permission of its owner.  Fault was not admitted but the Defendant driver was ultimately found 100% responsible for the crash.
The Plaintiff was 23 years old at the time of the crash and 29 by the time of trial.  The Court heard from a variety of expert physicians who all agreed the Plaintiff suffered “serious injuries“.  The Court concluded that the Plaintiff did indeed suffer serious and permanent injureis and would struggle to earn a competitive living throughout her career.  Mr. Justice Grauer awarded $110,000 for non-pecuniary damages and $900,000 for diminished earning capacity.  In reaching the award for non-pecuniary damages the Mr. Justice Grauer made the following findings:

[58]         On the whole of the evidence, I am satisfied that, as a result of the motor vehicle collision that is the subject of this action, Ms. Shapiro suffered soft tissue injuries to her cervical, lumbar and sacral spine that, through no fault of her own, have left her with:

·                 disabling cervicogenic headaches, and periodic headaches of a migraine nature;

·                 chronic pain disorder, manifesting itself as myofascial pain syndrome and post-traumatic fibromyalgia syndrome;

·                 depressive symptoms falling short of depressive disorder;

·                 mood disorder including resolving post-traumatic stress disorder, anxiety disorder and panic attacks;

·                 mild, but not insignificant, cognitive difficulties in concentration and memory.

[59]         Whether some of these diagnoses overlap in terms of their symptomatology matters not.  What is clear is that Ms. Shapiro genuinely suffers from the symptoms, and that the whole is greater than the sum of its parts.  This has wrought a profound change in every aspect of her life, from interpersonal relationships with her family, friends and partner to her ability to love, work, play, exercise, relax, sleep, and her ability to move forward with her life.  I find that her prognosis is not hopeless, but is extremely guarded.  Although Ms. Shapiro is the type of person who will work hard to achieve as much improvement as is possible, I am satisfied that, on a balance of probabilities, nothing more than a modest improvement can reasonably be expected.  Accordingly, at the age of 29, Ms. Shapiro faces a lifetime of struggling with pain and fatigue in everything she does.

[60]         I have considered the authorities to which counsel referred me, including Dikey v. Samieian, 2008 BCSC 604; Alden v. Spooner, 2002 BCCA 592, 6 B.C.L.R. (4th) 308;Prince-Wright v. Copeman, 2005 BCSC 1306; La France v. Natt, 2009 BCSC 1147; Pelkinen v. Unrau, 2008 BCSC 375; Whyte v. Morin, 2007 BCSC 1329; Niloufari v. Coumont, 2008 BCSC 816, varied 2009 BCCA 517; and Unger v. Singh, 2000 BCCA 94.

[61]         Each case must, of course, be assessed on its own facts.  Considering all of the circumstances, including her age at the time of the accident (23), the toll her injuries have taken on her, and her prospects for the future, I consider Ms. Shapiro’s plight to be considerably worse than that of, for instance, the older plaintiff in the recent decision of La France($80,000) and worse than the older plaintiff in Prince-Wright ($100,000).  I have considered as well the very recent decision of the Court of Appeal in Poirier v. Aubrey, 2010 BCCA 266, where the 38-year-old plaintiff’s non-pecuniary damages were increased to $100,000.  I assess Ms. Shapiro’s non-pecuniary damages at $110,000.

This decision also has a useful discussion of the law of ‘diminished earning capacity‘ and ‘failure to mitigate’ and is worth reviewing in full for the Court’s comments on these areas of law.

If you’re researching the non-pecuniary value of post traumatic fibromyalgia cases you can click here to access my recent archived posts.

Jury Delivers "Shockingly Unreasonable" Award in BC Injury Claim

Written by admin on . Posted in ICBC Chronic Pain Cases, Jury Trials, Uncategorized. 2 Comments on Jury Delivers "Shockingly Unreasonable" Award in BC Injury Claim


Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, in what the trial judge described as a ‘shockingly unreasonable‘ verdict by a Jury.
In today’s case (Evans v. Metcalfe) the Plaintiff was injured in a BC motor vehicle collision.  Fault was admitted by the other motorist.  The case went to trial before a Jury with Mr. Justice Romilly presiding as the trial judge.
The Plaintiff led evidence that, as a result of her accident related injuries, she was disabled from working and sought damages accordingly.  The Plaintiff’s out of pocket expenses for alleged accident related treatments exceeded $25,000.
The Jury largely rejected the Plaintiff’s claim and assessed total damages at $17,300 which included $1,000 for pain and suffering, $6,000 for special damages and $10,300 for past loss of income.  The Jury then reduced this award by 15% for ‘failure to mitigate‘ for a total award of $14,705.
The Defendant asked the Judge to enter Judgement based on the Jury’s award.  The Plaintiff argued that the Jury’s award was “unreasonable” and that the verdict should be set aside with a new trial ordered.
Mr. Justice Romilly agreed that the Jury was wrong in reducing the damages by 15% for failure to mitigate but concluded that other than increasing the judgement to the original $17,300 any changes to the Verdict should be left to the Court of Appeal.
Jury’s in BC do not give any reasons for their award and they cannot be contacted after they are discharged to gain insight into their deliberations.  Accordingly it difficult for the Court of Appeal to know how a Jury reaches a particular verdict and feedback from the trial judge is welcome.  Anticipating that this matter would be appealed Mr. Justice Romilly voiced disagreement with the Jury’s findings and provided the following criticism:

[51]        Although it has not been specifically requested of me, I feel it necessary to comment on the reasonableness of the jury’s verdict.  In doing so I am taking in mind both the utility of such comments expressed by Southin J.A. in Johnson, and the limits to them as stated by Garson J.A. in Boota.

[52]        In my opinion, as a long-time member of the bench, the jury’s award in this case has surpassed the level of “shockingly unreasonable”.  The amount of damages awarded for non-pecuniary damages represents a fraction of what was sought.  Whatever the reason, the jury felt the need to punish Ms. Evans in a way that does not accord with the law.  In my judgment I have already discussed some failures of the jury to appropriately apply the law to the actual evidence; I believe that these failures (and more) are further manifest in their wholly disproportionate award.  No jury reviewing the evidence as a whole and acting judicially could have reached the verdict issued in these proceedings; the evidence cannot support the verdict.

BC Court of Appeal Discusses Pain and Suffering Damages for Fibromyalgia; Overturns Trial Award

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Fibromyalgia Cases, Uncategorized. 62 Comments on BC Court of Appeal Discusses Pain and Suffering Damages for Fibromyalgia; Overturns Trial Award

Reasons for judgement were released today by the BC Court of Appeal discussing an appropriate amount for non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) for accident related Fibromyalgia.
In today’s case (Poirer v. Aubrey) the Plaintiff was injured in a 2006 rear-end car crash in BC.  She suffered injuries which resulted in chronic pain.  There was evidence that some of the effects of her injuries were likely permanent.  At trial the Plaintiff was awarded just over $220,000 in total damages for her injuries and loss (click here to read my summary of the trial judgement).
The Plaintiff appealed arguing that the damage award was low and the trial judge made an error in finding that there was a ‘real and substantial possibility…that (the Plaintiff’s) pain and discomfort will be relieved and her functioning improved“.  The BC High Court agreed that the evidence did not support such a finding and that the trial award was low.  The Court substituted an award of $528,503 which included an increase in the non-pecuniary damages award of $60,000 to $100,000.
In assessing the Plaintiff’s non-pecuniary loss for chronic pain from soft tissue injuries at $100,000 the BC Court of Appeal noted as follows:

[25]         I consider the evidence establishes that, as the judge said, there is a “real and substantial possibility” Ms. Poirier’s injury will prove to be permanent.  There is no cure.  There is treatment for her condition, but the prospect of her pain being relieved to a significant degree is indeed guarded.  She is unlikely to ever be pain free and can at best hope that, with continued treatment, she may in time achieve a sufficient reduction in her pain and increase in her functioning that would permit her to regain some of the enjoyment of her life she has lost and to undertake part time employment.

[26]         Ms. Poirier cites three awards in particular that she says reflect what plaintiffs who have suffered somewhat comparable non-pecuniary losses to hers have been awarded: Hooper v. Nair, 2009 BCSC 862; Barnes v. Richardson, 2008 BCSC 1349, aff’d 2010 BCCA 116; and Djukic v. Hahn, 2006 BCSC 154, aff’d 2007 BCCA 203.  The respondents cite Heartt v. Royal, 2000 BCSC 1122; Mowat v. Orza, 2003 BCSC 373; and Esau v. Myles, 2010 BCSC 43.  These awards reflect a broad range: those cited by the respondents are $50,000 to $70,000; those cited by Ms. Poirier are $85,000 to $125,000.  I consider Ms. Poirier’s loss to be more consistent with the losses in the awards she cites.  Of particular significance is the permanent nature of her injury that causes her ongoing debilitating pain, the effect it has had and will continue to have on the enjoyment of her life, and the uncertainty there is that her condition will in time improve even to the point of permitting her to return to work part time.

[27]         I would set aside the judge’s award of $60,000 for non-pecuniary loss and substitute an award of $100,000.

Damages for "Chronic Pain" Assessed at $80,000; Dr. Schweigel Criticized

Written by admin on . Posted in ICBC Chronic Pain Cases, Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court awarding an injured Plaintiff just over $112,000 in total damages as a result of 2 BC car crashes.  In reaching verdict the court had some critical words for Dr. Schweigel who is one of ICBC’s biggest billing physicians.
In this week’s case (Frangolias v. Parry) the Plaintiff was injured in two collisions in December, 2004.  Fault was admitted for both crashes.  Both cases were tried at the same time with the Court focusing on the value of the claims.  As is usual in these types of claims there was competing medical evidence.  Ultimately the Court preferred the evidence of the Plaintiff’s physicians and in assessing her non-pecuniary damages at $80,000 the Court made the following findings:

[97]    I find that Mrs. Frangolias continues to suffer debilitating chronic pain symptoms arising from soft tissue injuries caused by the December MVAs. She suffers headaches, and pain that begins in her head and extends down through her shoulders and then extends through her back to her tail bone.

[98]    Mrs. Frangolias’ headaches and pain caused by the December MVAs have had an adverse effect on her life. I accept as accurate the limitations on Mrs. Frangolias’ lifestyle described by Mr. Frangolias and Effie Ainsley. While Mrs. Frangolias is able to carry out light housekeeping duties and do some minor cooking, she is otherwise prevented from engaging in active housekeeping, cooking, and gardening.

[99]    While there are no objective signs of injury at this time such as muscle spasm, Mrs. Frangolias continues to display tenderness during medical examinations.

Mr. Justice Walker went on to make some critical comments of Dr. Scwheigel.  Specifically his objectivity as a witness was questioned as illustrated by the following paragraphs of the judgement:

[85]    The defendants relied upon the medical-legal report of Dr. Schweigel, which followed his independent medical examination of Mrs. Frangolias that took place on October 20, 2008. I have considerable concerns about the reliability of the opinions expressed in that report. My concerns arise in respect of Dr. Schweigel’s opinions relating to surveillance videos of Mrs. Frangolias taken on May 12 to 14, 2006, March 14 to April 26, 2008, and May 17 to May 23, 2008, and in respect of some of the comments contained in his report concerning his findings on examination.

[86]    The surveillance videos were marked in evidence and shown to me during the trial. The videos show Mrs. Frangolias in her front yard, driving to a grocery store, and driving to a medical appointment. Surveillance of Mrs. Frangolias must have been taken at some distance away or with a camera of poor quality since with the exception of one sequence, none of Mrs. Frangolias’ facial features are discernable.

[87]    In respect of the first DVD containing the videos from May 12 to May 14, 2006, Dr. Schweigel wrote:

This lady is seen walking in a very normal fashion. She bends quite easily on repeated occasions to inspect her flowers on the May 13, 2006 section of this video. She rotates her neck in a very agile fashion with no obvious discomfort both right and left.

[88]    I carefully watched the images on the first DVD. There were a number of occasions where Mrs. Frangolias appeared to be moving stiffly, moving her head with her body in a stiff manner, as if they were all one stiff board. There are times when Mrs. Frangolias bends over to look at the flowers in her front garden, but due to the quality of the video images, it is impossible to tell whether Mrs. Frangolias was in discomfort when she did or indeed, at any time. My concern with Dr. Schweigel’s remarks is for overstatement and more importantly, for the failure to remark on those images showing Mrs. Frangolias to be moving more slowly or stiffly…

[96]    The foregoing excerpts as some examples of the remarks that cause me to be concerned that some of the opinions expressed in Dr. Schweigel’s report lack balance and objectivity. I am, therefore, most concerned about the reliability of the opinions expressed in the report. In the circumstances, I prefer to rely upon the evidence of Drs. Liu and Travlos as well as my assessment of Mrs. Frangolias and the accounts provided by Mr. Frangolias and Effie Ainsley.

Non-Pecuniary Damages Discussed for Neck Soft Tissue Injury, Significant Low Back STI

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

2 cases were released today by the BC Supreme Court dealing with non-pecuniary damages in auto-accident cases which I summarize below to add to this ever-growing free online  pain and suffering caselaw database.  The first case dealt with a soft tissue neck injury; the second with a ‘significant’ low back soft tissue injury.
In the first case (Berry v. LaBelle), the Plaintiff was injured in a 2006 rear-end crash.  Fault was admitted leaving the Court to deal with the value of the claim.
The Plaintiff was a 42 year old drywaller at the time of the accident.  He sued for various damages including past loss of income and diminished earning capacity.  At trial he asked for some $600,000 in total damages for his injuries and losses.  He alleged that he suffered from left handed weakness as a result of the collision which negatively affected his ability to work.  After 4 days of trial, however, his claim proved largely unsuccessful being awarded $0 for his loss of income / diminished earning capacity claims.  The Court did find that the Plaintiff suffered a compensable injury and awarded the Plaintiff damages for non-pecuniary loss (money for pain and suffering and loss of enjoyment of life).
Specifically Madam Justice Baker found that “the only injury resulting from the motor vehicle accident…is a strain to the soft tissues on the left side of the neck“.  In assessing the Plaintiff’s non-pecuniary damages at $30,000 the Court noted the following:

[51] Nevertheless, I am satisfied that the strain to the soft tissues on the left side of Mr. Berry’s neck did cause him discomfort for several months after the accident, although it appears that injury did not actually impair range of motion in the neck.  Mr. Berry had full range of motion in his neck the day after the accident; Dr. Fehlau described the range of motion as “good” when Mr. Berry was seen at her clinic on August 17, 2006.  Massage therapy alleviated the discomfort but only temporarily; physiotherapy had more lasting benefits.  The pain did not incapacitate Mr. Berry at work, although he modified some of his tasks to accommodate the injury.

[52] By no later than October 2006 – seven months after the accident, Mr. Berry had returned to his favourite recreational activity – dirt-biking.  According to Mr. Berry’s description, and those of his friend Mr. Van Lingen, cross-country dirt-biking is a very strenuous and even hazardous recreational activity.  Mr. Berry told Dr. Fehlau on October 24, 2006 that his neck became sore after one-half hour of dirt-biking.   I accept that Mr. Berry initially moderated the intensity of his dirt-bike excursions.  However, Mr. Van Lingen testified that before the bike accident in September 2008, Mr. Berry was back to riding as he had before the March 2006 motor vehicle accident.

[53] Mr. Berry and his wife both testified that the neck discomfort had a negative effect on their sexual relationship.  They testified that before the accident, they had sexual intercourse two or three times every day, but that the frequency diminished after the accident because Mr. Berry experienced neck pain during intercourse, particularly when certain positions were attempted.  Mr. Berry and his wife both testified that Mr. Berry was less patient and more irritable when his neck was sore.

[54] Mr. Berry testified that he has given up river kayaking and golfing because of his injuries but I am not persuaded this is true.  Mr. Berry has not made a serious attempt to engage in either of these activities since the accident.  He testified he had gone kayaking once on a lake, and had not attempted river kayaking.  He had not attempted to play golf.  Given that Mr. Berry has been able to continue to do very heavy physical labour at work, and resumed cross-country dirt-biking within seven months after the accident, I do not accept that he is incapacitated from playing a few games of golf annually, or kayaking on a river.  I think it more likely that Mr. Berry has changed his recreational focus to activities he can enjoy with his wife and young son, and to a new interest – on-line computer games – which Ms. Schroeder testified that Mr. Berry plays for hours at a time.

[55] I am satisfied that Mr. Berry has recovered from the injuries caused by the accident.  I consider that an award of $30,000 to be adequate compensation for the temporary impact Mr. Berry’s neck injury has had on his enjoyment of life and, in particular, the discomfort he has experienced when lifting heavy materials at work; while engaging in strenuous recreational activities; and during intimate relations with his spouse.

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The second case released today (Demarzo v. Michaud) considered the onset of pain in a pre-existing but asymptomtic condition, namely a degenerative spine.

The Plaintiff was involved in a March, 2005 rear end collision.  Fault was admitted.  The Court heard evidence that the Plaintiff suffered from relatively severe back pain following this collision.  The parties differed on whether the Defendant was legally responsible for this.  The Defendant argued that he was not stating that the accident related injuries were minor and that a ‘pre-existing degenerative spine‘ and a subsequent event (an incident where the Plaintiff was lifting weights and aggravated her back pain) were responsible for the symptoms. The Defendant argued that the Plaintiff would have experienced her back pain as a matter of course even without the rear-end crash.  (note: this type of a ‘causation’ argument is often advanced at trial in personal injury lawsuits involving plaintiff’s with degenerative changes in their spine).

Mr. Justice Brown largely agreed with the Plaintiff and awarded just over $350,000 in total damages including $85,000 for her non-pecuniary damages.  Specifically he found that the Plaintiff suffered from a “significant soft tissue injury to her lower back” which resulted in chronic symptoms.   In navigating through the Defenses raised and awarding damages Mr. Justice Brown noted the following:

[51] I find that the plaintiff sustained a significant soft tissue injury to her lower back but it is not possible to unravel the plaintiff’s clinical history in such a way that allows a conclusive evidentiary finding on the specific medical legal question of when the plaintiff sustained her annular tear.

[52] The plaintiff’s lower back symptoms have become chronic and I accept Dr. Leete, Dr. Filbey’s medical opinions that she will continue to experience intermittent lower back complaints, especially related to certain activities. This is far from what she was able to do before the accident.

[53] As for the defendant’s contention that the plaintiff’s landscaping activities produced her degenerated spine and that this is the ultimate cause of her symptoms, I prefer the opinions of Dr. Leete and Dr. Filbey that there is no sound medical basis for the proposition that because someone over the years has been active in sports and worked as a landscaper, they are necessarily predisposed to development of degenerative changes in the spine or that such changes are associated with back pain. I understood from the evidence of Dr. Leete and Dr. Filbey that one patient may present with images of a markedly degenerated spine and have no history of symptoms, while another patient may present with marked symptoms, and have images of a perfectly normal spine. I also find that there is no sound medical basis for concluding that the plaintiff would have suffered the symptoms and limitations that she has experienced or that her degenerative spine would have inevitably become symptomatic, absent inducement of symptoms by the trauma of the motor vehicle accident.

[54] The plaintiff’s position is that when she lifted the dumbbells, she experienced immediate onset of pain in the same area she injured in the accident; that this was an exacerbation of the plaintiff’s unresolved injuries; and that there is no evidence to show that she would have experienced her continuing symptoms but for the injuries she sustained in the accident. On the balance of probabilities, I agree with the plaintiff’s position. I find that but for the accident the plaintiff would not have suffered the pain and disability she experienced after accident, including the exacerbation of her injuries on May 29, 2005 and acute flare-up with neurological symptoms in November 2005…

[57] The plaintiff has never returned to her former work as a landscaper or to any of her former recreational activities, at least not with any degree of intensity. She is still unable to play volleyball, cannot run long distances, although she did try running in the last month but at a far lower level than before. She no longer exercises at the gym. She does not enjoy movies in theatres because she finds sitting for long periods very uncomfortable. She explained that the last time she went out with friends, she felt very uncomfortable, but suffered through it as she was too embarrassed to leave. Given her enjoyment of sports and active lifestyle shared with her husband, as well as the loss of her former capacity to be active, this represents a substantial loss for the plaintiff as a person and a spouse. Although the plaintiff will likely improve somewhat in the future, I accept that she will not ever be able return to her former level of participation in recreational activities or regain her former physical capacities; and will continue to experience varying degrees of chronic back pain that will necessitate alteration of her lifestyle.

[58] The accident depressed the plaintiff’s mood, leading to a marriage separation in early spring 2007. Mr. Saliken testified that the plaintiff became depressed, unhappy about living with him in Nanaimo, impatient and angry. Making matters worse was the apparent mindset of Mr. Saliken’s family, who were impatient with the pace of the plaintiff’s recovery and kept asking why she could not work. The plaintiff’s feelings of frustration, augmented by her feelings of diminishment in the eyes of her husband’s family, who she did not yet know well and who had “never seen how hard she could work”, and her feeling that she had become a drain on the household combined with other aggravating factors, ultimately led to arguments and her two months separation from her husband. Fortunately, their bond and commitment to one another were strong enough to allow the plaintiff and Mr. Saliken to weather these adverse emotional affects of the accident and they reconciled. Nonetheless, the plaintiff’s separation from her husband and her emotional distress are emblematic of the degree of suffering and loss of enjoyment of life the plaintiff has experienced. She is entitled to a substantial award for pain and suffering and loss of the enjoyment of life. Bearing in mind that while she will receive compensation for her loss of earning capacity, she has still lost the enjoyment and satisfaction she experienced in her chosen career. I award the plaintiff $85,000 for non pecuniary damages.

Chronic Pain With No Objective Signs Discussed in Injury Litigation

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, Uncategorized.


One set of facts personal injury lawyers frequently encounter are Plaintiffs who sustain injuries in motor vehicle accidents and continue to have chronic pain well beyond the time that the objective injuries have healed.
Pain is an inherently subjective condition and it is well accepted in peer-reviewed medical literature that pain can be present without ongoing objective physical injury.  So how do courts deal with such claims?  Without getting into the many nuances of trial outcomes a general theme in these types of cases is credibility.  If a court accepts that a Plaintiff’s claims are credible then these claims are generally accepted.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with such a claim.
In today’s case (Sylte v. Rodriguez) the Plaintiff was involved in a 2005 motor vehicle collision in Port Coquitlam, BC.  The Defendant failed to yield the right of way to the Plaintiff when he made a left hand turn in front of her.  The issue of fault was admitted leaving the Court to deal with the value of the Plaintiff’s injury claim.
Mr. Justice Sewell awarded the Plaintiff just over $114,000 in total damages for her injuries and losses.  The award included $45,000 for non-pecuniary damages.  In arriving at this figure Mr. Justice Sewell discussed the subjective but real nature of the Plaintiff’s ongoing lower back pain due to soft tissue injuries.  The highlights of the Court’s discussion were as follows:

[12] Ms. Sylte continues to suffer from left side back pain around her sacroiliac joint area.  In Dr. Shu’s opinion this pain is caused by the initial car accident of September 15, 2005, but is definitely aggravated by the second accident.  Dr. Shu does not expect a complete recovery as the pain has been on-going since 2005.  He thinks that Ms. Sylte will experience on-going back pain for the foreseeable future.

[13] I also heard evidence and was provided with medical reports from Dr. Stone and Dr. Duncan McPherson.  I do not think it is necessary to refer to their evidence in any detail.  In this case, the consensus of medical opinion is that Ms. Sylte is suffering from low back pain in the left sacroiliac area.  The doctors also all agree that there is no objective evidence of underlying injury causing this pain.  They are all of the view that as the pain has persisted since June 2005 it will in all likelihood continue to persist for the foreseeable future.

[14] Dr. McPherson’s initial opinion was that there was no objective evidence of disability.  However in cross examination at trial he did agree that he thought Ms. Sylte still had back pain as of the date of his examination in 2006.  I did not take him to be disagreeing with Dr. Shu’s opinion that Ms. Sylte will probably continue to suffer from ongoing back pain for the foreseeable future.  However, I do not think that Dr. Shu considered that Ms. Sylte suffers from any significant disability as a result of her injuries.

[15] The conclusion I have reached is that any restriction on Ms. Sylte’s activities is caused by pain rather than physical limitation.  The pain is however very real to Ms Sylte and the functional effect of that pain is that Ms. Sylte no longer feels able to do all the things she did before the accident.

[16] Based on the evidence before me I conclude that Ms. Sylte suffered a soft-tissue injury to her lower back in the motor vehicle accident which continues to cause her chronic pain in her lower back area.  I also conclude that she developed depressive symptoms which she would not have developed had the accident not occurred…

[18] Ms. Sylte is 51 years old.  She testified that prior to the first motor vehicle accident she was an active, energetic individual.  She enjoyed playing mixed softball, golf and skiing.  She was employed as a nurse’s aide at the Royal Columbian Hospital in New Westminster.  She was a single mother whose adult son, Josh, lived with her.

[19] Ms. Sylte said that as a result of the pain which she is now experiencing she is no longer able to play softball and can golf only very occasionally.  She simply finds these activities too painful to pursue.  In addition she no longer skis.  She indicated that Josh is now required to do many of the more physically demanding tasks around the house.  She also indicated that she finds it difficult to drive long distances and that her general quality of life has deteriorated significantly as a result of her pain.  She indicated that this pain is about 4 out of 10, with 10 being the worst pain imaginable.

[20] Josh gave evidence at the trial.  He generally corroborated the drop in Ms. Sylte’s activity level since the motor vehicle accident.  He also indicated that his mother had become much less social after the accident.  Josh, who is now 31, does much of the heavy work around the house.

[21] Ms. Sylte has suffered a significant impact on her social and recreational life as a result of the injuries she suffered in the accident.  The evidence before me is that these symptoms will be permanent.  I note that Ms. Sylte is no longer able to play softball, participate in golf in any meaningful way or pursue skiing.  She is in more or less constant discomfort from the injuries she has suffered.  As I have found, she is genuinely experiencing the pain which, I have no doubt, has some psychological component.

[22] I have concluded that there should be a substantial award for non-pecuniary damages in this case.  I was referred to in a number of cases which seem to establish a range of approximately $35,000 to $125,000 for non-pecuniary damages for plaintiffs who suffer permanent pain symptoms without significant physical disability.  In my view, an appropriate amount for non-pecuniary damages in this case is $45,000.