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ICBC, Chronic Pain, and Fair Settlement

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

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.

Rule 68, ICBC Claims and Chronic Pain

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Psychological Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 57 Comments on Rule 68, ICBC Claims and Chronic Pain

In one the first ICBC claims to head to trial under Rule 68 that I’m aware of reasons for judgment were released today awarding a Plaintiff over $180,000 in compensation including $75,000 for pain and suffering as a result of 2 motor vehicle accidents.
For those of you not aware of Rule 68, it initially started out as a ‘pilot project’ and has now been adopted Province wide. It applies to many lawsuits including personal injury actions and ICBC claims where the amount sought is under $100,000. It is supposed to be mandatory for such claims but many BC personal injury lawyers avoid the rule due to perceived short-comings.
I am keeping an eye on how the courts treat this rule with respect to ICBC claims and will blog on any judgemetns involving this rule and ICBC that come to my attention in the upcoming months.
The facts of the case briefly are as follows: The Plaintiff was in 2 accidents. She was 24 years old on the date of the first accident. It was a rear-end crash which resulted in significant vehicle damage. Her car was rendered a total-loss.
The Second crash happened in 2006. This time she was a passenger and again her vehicle was involved in a rear-end collision. Her injuries from the first accident were aggravated in this crash.
The Court found that the Plaintiff ‘did indeed suffer a severe flexion-extension injury (whiplash), with acute symptoms lasting approximately one week, but continuing moderate symptoms which have persisted to today’s date, a full 4.5 years post accident. Her symptoms include not only pain and restriction of movement, but an overlap of psychological symptoms (pain disorder) including anxiety, irritability, frustration, anger, and difficulty modulating her behaviour in the face of day-to-day challenges. I accept Dr. Lamius’ evidence that there is some interplay of her physical and psychological symptoms. As he noted the pain activity triggers ongoing anxiety symptoms, while at the same time, the pain activity is worsened by the increased arousal pattern secondary to her anxiety. The pain and anxiety work together to create a vicious cycle.”
The court awarded compensation for both accidents as follows:
1. Non Pecuniary Damages (pain and suffering) $75,000
2. Loss of homemaking capacity: $11,744
3. Past loss of income: $$6,658.44
4. Future loss of earning capacity: $40,000
5. Cost of Future Care: $50,000
6. Special Damages: $6,211.08
What was interesting about this case is the fact that the court did not hesitate to consider a total award above $100,000. Rule 68 has a ‘soft cap’ meaning it is to be used for claims worth less than $100,000. In this case the Plaintiff sought total damages well in excess of this.
The reason why rule 68 has a ‘soft cap’ is because Rule 68(4) says that ‘nothing in this rule (rule 68) prevents a court from awarding damages to a plaintiff in an expedited action for an amount in excess of $100,000.‘
One thing ICBC is interested in, and ICBC claims lawyers should be interested in this as well, are the ‘precedents’ that will come out of the upcoming rule 68 ICBC claims judgements. In this case the defence lawyer argued that ‘since the Plaintiff elected to use Rule 68…the court ought to infer that this claim, including all heads of damage, does not exceed $100,000, thus resulting in a much reduced award for non-pecuniary damages.”
The court rejected this logic stating that “I am unaware of any authority which suggests the Court may draw such an inference.” The court went on to cite rule 68(4) and then stated that “no defence motion was ever brought to remove the action from the rule 68 procedure. I am unable to draw the inference suggested.”
This case seems to be a positive development for anyone advancing an ICBC injury claim under Rule 68 whose total value may exceed $100,000. I hope the courts continue to adopt a flexible approach in awarding damages above the ‘cap’ in ICBC claims where the evidence justifies such a result.

Mild Trauamtic Brain Injury (MTBI) Claim Dismissed by BC Supreme Court

Written by admin on . Posted in ICBC Brain Injury Cases, ICBC Chronic Pain Cases, ICBC Head Injury Cases, ICBC Psychological Injury Cases, Uncategorized.

In a striking example of how complex brain injury litigation can be, lengthy reasons for judgment were released today dismissing a Plaintiff’s claim that 2 accidents caused/contributed to a Mild Traumatic Brain Injury (MTBI).
The trial lasted over 30 days of court time spanning between November, 2006 – July 2007. The reasons for judgement give insight into just how complex the brain injury trial was. The reasons are well over 300 paragraphs long.
The Plaintiff was involved in 2 accidents. She sued for both and the trials for both claims were heard at the same time. The first accident happened in 2001 in Abbotsford BC when the Plaintiff’s vehicle was struck by a driver who failed to stop at a stop sign. Liability (fault) for this accident was admitted by the defence lawyer. The second accident happened in 2005 when the Plaintiff’s vehicle changed lanes and collided with the defendant vehicle who was pulling out from a parking lot. Liability was denied and the trial judge found the defendant was solely responsible for the accident.
With the determination of fault out of the way the court had to decide what injuries the Plaintiff suffered in both these crashes and their value. The Plaintiff said she suffered from a Mild Traumatic Brain Injury in the first accident and this injury was made worse in the second accident. This allegation was hotly contested by the defence lawyers.
The court heard from numerous witnesses including over 10 doctors. It is very common for ICBC brain injury claims to include opposing medical evidence and numerous ‘lay witnesses’ who give evidence of changes in a Plaintiff’s level of functioning after the accident. ICBC claims lawyers often refer to these witnesses as before and after’ witnesses.
The expert medical evidence included
1. The Plaintiff’s GP who diagnosed a ‘closed head injury‘
2. A Physiatrist who diagnosed ‘a head injury that has resulted in some brain dysfunction‘ along with ‘soft tissue aches and pains‘
3. A psychiatrist who treated the Plaintiff since 2002 who diagnosed ‘impairments…as a result of the accidents‘ and a ‘significant concussive injury in both accidents (which have gone on to become) a post-concussion syndrome, now persistent type…a personality change due to MTBI….a pain disorder that relates to (the Plaintiff’s) headaches and other chronic pain complaints…a post-trauma seizure disorder‘ He concluded that the Plaintiff ‘will continue to have significant disruption of her life and her ability to work is permanently compramised’.
4. A neuropsychologist who accepted the diagnosis of ‘closed head injury, possible seizure activity, chronic pain and post-concussive syndrome.’ He performed numerous tests and concluded that the Plaintiff ‘was suffering from psychological turmoil which was sufficiently severe to affect her score on neuropsychological tests’ and lastly that ‘the pattern of neurological test results was consistent with diffuse brain injury attributed as likely being caused by the car accident‘.
5. A urologist
6. A psychologist who saw the Plaintiff regularly since 2003
7. a Neurologist from the University of Colorado School of Medicine who diagnosed a ‘concussion with amnesia in the first accident and that she subsequently developed post-concussion syndrome’.
8. Another physiatrist who assessed the Plaintiff after the second accident and ‘attributed (her) symptoms after the first accident to post-concussive syndrome’. He also diagnosed various soft tissue injuries.
9. A psychologist who assessed the Plaintiff in 2006 who stated that ‘the plaintiff suffered from a brain injury based personality change arising from a frontal-lobe related impairment and emotional disturbance reactive to the trauma of the accidents‘
10. An orthopaedic surgeon who was hired by the defence lawyer. His opinion differed largely from most of the previous experts and gave evidence that:

Based on my assessment of Ms. Abma on May 9, 2003, she presented as an extremely symptom focused individual whose clinical examination strongly suggested a significant non-organic component to her various musculoskeletal/neurologic complaints. I base this latter opinion, that Ms. Abma has significant nonorganic illness, on the following findings:

1. Multiple areas of complaint.

2. No reported pain free interval.

3. Failure of all treatment modalities to date.

4. Significant pain behaviour and reaction on clinical examination.

5. Multiple areas of non-anatomic pain.

6. Regional numbness affecting her right arm.

7. Abnormal pain diagram.

All of these factors would suggest that there is a significant psychological social component influencing the reporting scenario and duration of Ms. Abma’s multiple musculoskeletal/neurologic complaints. In addition, Ms. Abma’s clinical records indicate that she suffered from anxiety/depression preceding her November 2001 motor vehicle accident, both of which can negatively influence an individual’s pain experience and their self perception of disability.

11. A Psychiatrist hired by the defence lawyer who noted that ‘there is no objective evidence to support the fact that this woman suffered any type of concussion or brain injury.’
12. An otolaryngolgist hired by the defence lawyer who ‘concludes that the plaintiff suffered a mild/modest neck sprain in the first motor vehicle accident classified as whiplash-associated disorder (WAD) Type 1. He considers that this may have re-activated the neck sprain from her 1996 motor vehicle accidents which demonstrated that her complaints continued for more than three years. Dr. Sinanan states “but for that factor, recovery from a Grade 1 WAD Type neck sprain usually is within six to eight weeks, 12 weeks at most
13. Lastly the court heard from a neurologist also hired by the defence lawyer and it was ‘uncontested’ that this doctor is the ‘foremost epilepsy expert in the Province of BC’. he concluded that the Plaintiff did not have a brain injury.
After all of this the court sided largely with the defence medical evidence. The key findings were made starting at paragraph 308 where the court held that:

[308] The most persuasive view of the plaintiff’s post-accident experience is described by Drs. Anton and Smith. Dr. Anton suggests that the plaintiff is suffering psychological injuries. Dr. Smith is also of a similar view: adjustment disorder with anxiety, which does not result from injuries sustained in either of the accidents, but arising from her belief that she is cognitively impaired as a result of the accident.

[309] I am not finding that the plaintiff is acting dishonestly. She believes that she is suffering from a brain injury. She is relying on the information she has been provided by her treating physicians. She has not proven on a balance of probabilities that she suffered a brain injury in the first accident. I find it much more likely that the psychological difficulties, including the cognitive, emotional and behavioural problems which the plaintiff has experienced, arose from her reaction to the brain injury diagnosis made by Dr. Ancill in April 2002. I do not accept the plaintiff’s assertion that all of her symptoms had their “genesis” in the motor vehicle accidents.

[310] Ultimately, I find that the injuries suffered by the plaintiff in the first accident are the physical injuries and to some extent the depression described in the evidence. The plaintiff suffered the following injuries as a result of the first motor vehicle accident on November 14, 2001:

1. aggravation of previous soft tissue injuries to her neck, back, shoulders and hips;

2. a contusion to the area above her left knee; and

3. some depression and anxiety (exclusive of that related to the diagnosis of a brain injury) attributable to the pain of her injuries.

As a result of this finding the court largely dismissed the Plaintiff’s claims for loss of income past and future, future care needs, and her in-trust claims for voluntary services provided by her family.
Ultimately little more than compensation for pain and suffering for soft tissue injuries was awarded.
As an ICBC Injury Claims Lawyer, one of the highlights of this case for me was found at paragraph 204 of this judgement where the court discussed its view of some of the neuropsychological test results.  These tests, which can be used to see if a pattern of cognitive defecits are consistent with brain injury, have some built in ‘fail-safes’ in them.  These measures are built in to help the neuropsychologist gauge whether the patient is applying their best effort.  In other words, these built in to see if the Plaintiff may be faking the injury.
In this case the “Fake Bad Scale‘ disclosed some ‘suspicious results‘.  The various doctors placed varying levels of importance on this fact.  Madam Justice Gropper made her views quite clear at paragraph 304 where she stated that “If the testing is invalid it does not mean there is something wrong with the test,; it suggests that there is something suspicious about how the individual is responding to the testing and whether she is applying her best effort to it.  It is a factor to be considered, not simply ignored.’
This case, while perhaps lengthy and difficult to read through, is worth reviewing for anyone involved in an ICBC claim alleging Mild Traumatic Brain Injury. This is one of the most aggresively litigated injuries and this case shows just how involved these trials can be, not just from the medical side of things but from the involvement of ‘before and after’ witnesses and many intimate details of a Plaintiff’s life.
Do you have questions about this case or an ICBC claim involving Mild Traumatic Brain Injury?  Do you need advice from an ICBC claims lawyer?  If so click here to arrange your free consultation with Victoria ICBC Claims Lawyer Erik Magraken (services provided for ICBC injury claims throughout BC!)

PTSD and Chronic Pain Claims Dismissed, $36,260 Awarded for Soft Tissue Inuries and Anxiety

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

BC Courts have heard many ICBC claims involving PTSD and Chronic Pain Syndrome. In reasons for judgement released this week Mr. Justice Cullen heard and dismissed a PTSD claim and Chronic Pain Syndrome claim as a result of a motor vehicle collision.
In 2004 the Plaintiff, who was a passenger in her boyfriend’s vehicle, was involved in a collision where her vehicle rear-ended the vehicle in front of her. The accident occurred on Nanaimo Street in Vancouver, BC. She advanced a tort claim against her boyfriend who was deemed to be the at-fault driver (a tort claim is the legal term used to describe a civil action, such as an ICBC claim for damages against an at fault driver).
ICBC, on the boyfriend’s behalf, admitted fault but disputed the alleged injuries. The Plaintiff claimed to suffer from soft tissue injuries to her neck and back, a myofacial pain syndrome and/or a pain disorder and post-traumatic stress disorder.
As in alsmost all ICBC claims involving alleged chronic pain, the court heard from a number of expert witnesses including the Plaintiff’s family doctor, a physiotherapist, a physiatrist (rehabilitaiton specialist) a psychologist and an orthopaedic surgeon. The orthopaedic surgeon was a defence witness who conducted an ‘independent medical exam’ of the Plaintiff pursuant to the BC Rules of Court.
In the Plaintiff’s case evidence was led that she suffered from a ‘myofacial pain syndrome’ which was described as ‘a central nervous system disorder with peripheral manifestations of muscle tightness and soreness to palpation over areas called trigger points…areas in the muscles that are rich in nerve endings’.
A psychologist testified that the Plaintiff suffered from a Post Traumatic Pain Disorder (PTSD) and also that she suffered from ‘many symptoms of a pain disorder’.
The orthopaedic surgeon, who is often used by ICBC, testified that the Plaintiff suffered from soft tissue injuries to her neck, upper back and shoulders, along with some cuts and bruises. He dismissed the connection of the Plaintiff’s low back complaints to the accident by stating “There is a basic premise in medicine that if a site has been traumatized, that site becomes symptomatic immediately, right after the MVA or certainly within the first few days after the MVA”. He then testified that his physical examination of the Plaintiff was ‘completely normal’ and he regarded any soft tissue injuries sustained by the Plaintiff as resolved.
In the end the court rejected the Plaintiff’s claim for PTSD and Chronic Pain Disorder and found that the Plaintiff suffered mild to moderate soft tissue injuries to her neck, upper back and shoulder. The court also found that the Plaintiff’s low back symptoms which developed 3 months post accident were causally connected to the accident either through compensatory back pain of through myofacial pain syndrome. The court also found that the Plaintiff suffered from anxiety as a result of the accident and awarded $35,000 for pain and suffering, $560 for past out of pocket expenses and a further $700 to permit the Plaintiff to attend further counselling sessions with her pscyhologist to treat her anxiety.
This judgement is worth a quick read if you are advancing an ICBC claim involving chronic pain or PTSD to see some of the factors courts look at when weighing competing medical evidence. The judgement seems to be a compromise between the competing evidence accepting that the Plaintiff’s injuries, while not PTSD or Chronic Pain Syndrome, were not resolved by the time of trial. When considering settling an ICBC claim it is good to become familiar with how courts treat similar injuries and what the various outcomes at trial can be.
Do you have questions about an ICBC claim involving PTSD or Chronic Pain that you want to discuss with an ICBC Claims Lawyer? If so, click here to contact ICBC Claims Lawyer Erik Magraken for a free consultation.

BC Supreme Court awards $229,890 for Concussion and Chronic Back Pain

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

In written reasons for judgement released today, a Plaintiff who was injured in a 2003 single vehicle accident was awarded a total of $229,890 for his injuries and losses.
The Plaintiff, who was 18 at the time, was the centre passenger in a pick-up truck that lost control. The accident was significant. The truck “crossed a cattle guard and then hit loose gravel. The Driver lost control and the truck slid off the embankment. It rolled a number of times and apparently flipped end over end once. In ended up lying on its right side.”
For a time, the Plaintiff lost consciousness. He suffered a concussion and for a while suffered symptoms of headaches, light headedness, imbalance and tinnitus (ringing in the ears.) These symptoms resolved by the time of trial. He also had a neck injury which largely resolved and a shoulder injury which fully resolved by the time of trial.
The Plaintiff’s main injury by the time of trial was chronic low back pain.
4 doctors testified on the Plaintiff’s behalf. His family doctor painted a positive picture of the Plaintiff.
A specialist in physical medicine and rehabilitation (physiatrist) testified that the Plaintiff suffered from a soft tissue injuries to the cervical and lumbar spine (neck and low back).
A rheumatologist testified that the Plaintiff suffered from chronic back pain and that this pain “would have a significant negative influence upon his ability to compete in the workforce in the area of strenuous laboring jobs.”
A specialist in occupational medicine testified that the Plaintiff had not recovered from the soft tissue injuries to his back and that “it is unlikely the Plaintiff will have full resolution of his back injuries“.
The defence had the Plaintiff assessed by an orthopaedic surgeon. This is a common choice of ICBC for their ‘independent medical exams” when dealing with soft tissue injuries. The doctor hired by the defence testified that one of the factors leading to the Plaintiff’s ongoing complaints was ‘psychosocial factors‘ and that he would ‘strongly recommend that the plaintiff be assessed by a psychiatrist“.
The court preferred the evidence of the Plaintiff’s physicians and stated that “I conclude there is little, if anything, in (the defence doctors) report that would detract from the evidence from the other medical personnel or the lay witness evidence with respect to the Plaintiff’s present condition“.
In the end, damages were assessed as follows:

Non-Pecuniary Damages

$ 85,000

Past Wage Loss

$ 23,000

Future Wage Loss

$120,000

Cost of Future Care

$ 1,890

Total:

$229,890

Damages of $216,430 Awarded for 2 rear-end collisions

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, ICBC Spine Injury Cases, ICBC Whiplash Cases, Uncategorized.

In reasons for judgement released today the Honourable Mr. Justice Smith awarded a 46 year old mechanic over $200,000 in compensation as a result of 2 rear-end motor vehicle accidents.
The first accident was in May 2002. The Plaintiff’s vehicle was rear-ended with enough force to push it into the vehicle ahead of the Plaintiff. The second accident for which compensation was sought occurred 3 years later in May 2005. The Plaintiff’s vehicle was ‘struck from behind with enough force to break the back of the driver’s seat and push the vehicle into the vehicle ahead‘.
The Plaintiff had pre-existing, asymptomatic, osteoarthritis. A rheumatologist gave evidence that “The Plaintiff’s major current symptoms are in the neck and some pain and restricted movement will likely continue given the established nature of the osteoarthritis“. He went on to state that “asymptomatic arthritis often becomes symptomatic following a motor vehicle accident or other trauma and although the relationship is poorly understood and contraversial, it’s something I often see in practice“.
A physiatrist (a specialist in physical medicine and rehabilitation) who assessed the Plaintiff at the request of the Plaintiff;s family physician gave evidence that “the Plaintiff’s complaints could not be fully explained based upon the physical findings” and he diagnosed a pain disorder.
This diagnosis of a chronic pain disorder was shared by the Plaintiff’s treating psychiatrist.
After hearing all of the evidence the court found that the Plaintiff suffered soft tissue injuries in the first accident with the most severe symnptoms being in his lower back. There was substantial improvement withing the first 6-8 months, and chronic but not disabling pain conintued for another 2.5 years. The court alos found that the back pain was not as “severe or as frequent as the Plaintiff now recalls it“.
Addressing the second accident the court found that “the Plaintiff has had some increase in back pain, but the most significant pain was in the neck, where he has the more significant spondylosis. This pain is likley to worsen as (the Plaintiff) gets older. Again, this pain is nto disabling and the plaintiff could, if necessary, return to either of his former occupations but, given the pain and discomfort he experiences, he is well advised to seek lighter work”
In discussing the connection between the accident and the pre-existing condition the court noted that “the Plaintiff in this case had a degenerative condition that was not symptomatic. He had no prior neck or back pain prior to these accidents. Temporal connection between an accident and the onset of symptoms does not, in and of itself, prove causation…It is not necessary for the Plaintiff to prove that he would never have developed symptoms from his degenerative condition ‘but for’ the accident. He must only prove that ‘but for’ the accident, he would not have developed these symptoms when he did….I find that the Plaintiff has proved, on a balance of probabilities, that his spondylosis would not have become symptomatic when it did but for the third accident.”
In the end the court awarded damages as follows:

For the Accident of May 18, 2002:

Non-pecuniary damages

$30,000.00

Past income loss
(subject to deduction for Income tax)

$5,939.18.

For the Accident of May 5, 2005

Non-pecuniary damages

$52,500.00

Past income loss
(subject to deduction for Income tax)

$62,499.00

Loss of Future Earning Capacity

$45,500.00

Cost of Retraining

$2,730.00

Cost of Future Care

$15,300.00

Special Damages
(Not apportioned)

$1,926.39

"No Impact Crash" Nets $40,000 Pain and Suffering Award

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Head Injury Cases, ICBC Liability (fault) Cases, ICBC LVI (Low Velocity Impact) Cases, ICBC Privacy Issues, ICBC Psychological Injury Cases, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

In a case with a slightly unusual fact pattern where reasons for judgement were released today, a Plaintiff was awarded nearly $90,000 in damages as a result of a July, 2005 motor vehicle collision in Nanaimo, BC.
In a trial that lasted just over two days pursuant to Rule 66, Mr. Justice Wilson concluded that the Plaintiff sustained a soft tissue injury to her neck and shoulder as a result of the motor vehicle collision. Mr. Justice Wilson concluded that it took the Plainiff several months to “fully functionally recover” from her injuries (meaning she was able to functionally return to work as a painter) but that activity caused ongoing pain at the site of injury. The court accepted the evidence of an orthopaedic surgoen who assessed the Plaintiff and found “a significant amount of trapezius spasm” in late 2007 and attributed this to the motor vehicle collision. The court summarized the effects of the Plaintiff’s injuries as follows:
[63] I thus conclude that Ms. Levy was disabled from her employment duties for approximately three and one-half months; has had ongoing, but decreasing, pain in her neck and left shoulder since that time, now almost three years post-accident; and is likely to have some ongoing pain or discomfort with activities.
What made this judgement interesting is that the Defendant denied that an accident occurred at all.
The Plaintiff testified that her mini-van was rear-ended by the Defendant’s vehicle. The Defendant denied this. He testified that he felt no impact. It is not unusual for ICBC defence lawyers to lead evidence that an impact was ‘low velocity’ but evidence of no crash is certainly quite unusual. The defence lawyer also called an ICBC vehicle estimator who reviewed the Defendant’s vehicle and testified that it revealed ‘no new damage’, however, he did admit on cross-examination that a vehicle with a steel checker-plate front bumper welded to the frame can cause damage to another vehicle without it showing on the steel bumper.
After hearing all the evidence the court concluded that a collision did occur and that the Defendants were liable for this rear-end motor vehicle accident.
In the end Mr. Justice Wilson awarded damages as follows:

a. non-pecuniary damages: $40,000;

b. past loss of income and employment insurance benefits: $9,187.60;

c. loss of future earning capacity: $10,000;

d. special damages: $586.43;

e. pre-judgment interest.

$550,828 Awarded for Chronic Pain and Disc Herniation

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

In reasons for judgement released today, Madam Justice Morrison awarded a total of $550,828 in compensation for an August, 2004 motor vehicle collision.
The Plaintiff was a 45 year old senior commercial lines insurance underwriter. She was injured in a rear-end collision. As in most ICBC rear-end collisions, the defence lawyer admitted fault on behalf of the defendant leaving only quantum of damages (value of the claim) at issue.
A neurosurgeon who testified on behalf of the Plaintiff was found to give ‘compelling’ evidence. In summarizing the Plaintiff’s injuries the neurosurgon stated as follows
“My diagnosis is soft tissue injuries to the lumbar spine, referable to the motor vehicle accident in question, traumatic left L3-4 disc herniation causing left L4 nerve root pain and contributing to low back pain. In my opinion, it is also possible that the motor vehicle accident may have negatively impacted on the eventual outcome from the right L5-S1 disc herniation. The preoperative CT scan did show a focal disc herniation at the right L5-S1 level. This was confirmed on the post motor vehicle accident MRI scan. It is conceivable that the force that was sustained during the motor vehicle accident could have further damaged the compressed right S1 nerve root. In other words, were it not for the accident, her outcome from the right L5-S1 discectomy may have been better“
Commenting on the vocational impact of the injuries the Plaintiff’s neurosurgeon stated that:
“It is my opinion that (the Plaintiff) will be left with permanent back pain. This will result in some limitation of her vocational potential, especially as it relates to jobs that require a lot of sitting, repetitive twisting or turning of the lumbar spine, or lifting.“
The trial judge reached a favourable conclusion regarding the Plaintiff’s claim stating that:
“On causation, I am satisfied, on a balance of probabilities, that the motor vehicle accident of August 8, 2004, more likely than not, was the cause, or contributed to the injuries of the plaintiff. No other conclusion makes sense. The chronic pain would not have occurred except for that accident. I conclude, on a balance of probabilities, that the right-sided pain would not have recurred, but for that accident, and that the left-sided pain was due to the accident, without question“
After accepting virtually all of the Plaintiff’s evidence Madam Justice Morrison awarded damages as follows:
Non Pecuniary Damages (pain and suffering): $100,000
Special Damages: $7,828
Past Income Loss: $73,000
Loss of income earning capacity: $200,000
Cost of Future Care: $170,000

BC Court of Appeal upholds $31,380 Award

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Psychological Injury Cases, ICBC Soft Tissue Injury Cases. 65 Comments on BC Court of Appeal upholds $31,380 Award

In the appeal of an award for total damages of $31,380 for soft tissue injuries and psychiatric injuries, the BC Court of Appeal upheld the trial judgement and concluded that the trial judge did not err in his findings.
The Plaintiff unfortunately had experienced both a number of very significant stressors in her life. These came both before and after the October 2002 car accident that was at issue in the lawsuit.
The trial judge found that the 2002 accident “was very traumatic for (the Plaintiff). I accept that she was a very fragile person mentally before the motor vehicle accident. I accept that the motor vehicle accident increased her level of stress and anxiety that pre-existed the accident. I accept that she is in need of psychiatric counselling for this increased level of stress and anxiety caused by the motor vehicle accident. I also accept, however, that most of (the Plaintiff’s) physical complaints are not grounded in any physical injuries but are grounded in her somatoform pain disorder that preceded the motor vehicle accident.”
The trial judge ultimately concluded that the accident caused some “minor short terms soft tissue injury, but that the main injury that she had from the motor vehicle accident was to her mental state through the increase in her level of stress and anxiety requiring psychiatric counselling.”
The Court of Appeal dismissed the appeal and made no changes to the trial judges awards which included $25,000 for pain and suffering.

Pedestrian Struck in Cross-walk Awarded over $700,000

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

After a trial that lasted over 20 days, A Plaintiff who was struck in a cross-walk in Whistler, BC was awarded $718,331 for his losses and injuries.
The accident was significant. The circumstances are canvassed at paragraph 2 of the judgement where it was held that “The Plaintiff was struck on his left side. He flew over the hood of the Defendant’s vehicle. His face smashed into the windshield. He then was thrown off the car landing on the pavement. ”
The Plaintiff suffered serious injuries including facial lacerations, a fractured nose, soft tissue injuries to the left knee, neck and back, a mild traumatic brain injury (also known as a concussion), dental and TMJ injuries, permanent facial scarring, depression, insomnia, fatigue, anxiety, panic attacks, chronic pain disorder and most significantly cognitive defecits due to his injuries.
As is often the case in ICBC claims involving chronic pain and head injury, the court had to deal with a mountain of medical expert witness testimony both for the Plaintiff and for the Defence.
In addition to obtaining opposing medical evidence, ICBC hired investigators to video the Plaintiff surreptitiously. As stated in my last blog, video surveillance is a common ICBC lawyer defence tactic. While ICBC lawyers defending claims don’t hire private investigators in every case, a safe general rule is that the more serious a Plaintiff’s injuries, the more likely the chance that ICBC defence lawyers have hired a private investigator.
Mr. Justice Williamson made an interesting comment regarding surveillance at paragraph 114 of his judgement where he held that “(the occupational therapist hired by ICBC) testified that there was a sense that (the Plaintiff) did not trust her and that (the Plaintiff) considered her as somehow or other a spy for ICBC. I note that the Plaintiff’ concern that ICBC was spying on him was accurate. The corporation hired investigators to video the plaintiff surreptitiously.”
After weighing all the evidence, the trial judge found that the Plaintiff “suffers from chronic pain syndrome, depression and continuing cognitive defecits.”
$135,000 was awarded for pain and suffering. The other damages awarded were as follows:
$450,000 for Loss of Earning Capacity (commonly referred to as future wage loss)
$101,436 for Past Wage Loss
$31,895 for Cost of Future Care