ICBC Headache Cases – Page 6

$75,000 Pain and Suffering Awarded for Frozen Shoulder, STI's and Headaches

Written by admin on March 3, 2009. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Headache Cases, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, Uncategorized. 119 Comments on $75,000 Pain and Suffering Awarded for Frozen Shoulder, STI's and Headaches

In lengthy reasons for judgement released today by the BC Supreme Court (Peake v. Higo) Mr. Justicer Brown awarded a 52 year old Plaintiff approximately $170,000 in total damages as a result of a 2003 motor vehicle collision.
The Plaintiff had pre-existing pain in her neck and back and these were aggravated as a result of this collision. Additionally, the Plaintiff suffered a frozen left and right shoulder as a result of this collision.
In justifying a non-pecuniary damages award (pain and suffering) of $75,000 the court summarized the Plaintiff’s injuries as follows:

[145] Considering all the pertinent evidence before me, I find that the plaintiff suffered an aggravation of pre-existing neck and low back pain that she had been experiencing at the time of the accident, together with the imposition of some new soft tissue injuries in those areas. I find that when she was experiencing neck and back pain in the month or so preceding the accident, she was in a highly emotional psychological state that was magnifying her perception of pain at that time. To take her symptoms at this time as representative of her physical health would be inaccurate and unfair, given her medical history as a whole and the accepted evidence of witnesses who testified about her pre-accident functioning and activities. The plaintiff herself acknowledges that 90% would be a fair representation of her pre-accident health. The evidence of Dr. Regan, which I have accepted with some minor qualification, is clear that the 2003 accident cannot be burdened with all of Mrs. Peake’s on-going post accident neck and back symptoms and headaches.

[146] Mrs. Peake exhibited pre-accident degenerative changes in her cervical spine. Dr. Webb commented that Mrs. Peake’s degenerative cervical spine, exhibited by x-ray and MRI imaging, pre-disposes her to more intense symptoms and prolonged recovery. Just the same, she had already experienced symptoms in the neck (and low back) together with headaches pre-accident, with no recent physical trauma and only a heightened emotional state to partly explain the intensity of her symptoms at that time.

[147] Further, the effect of Mrs. Peake’s emotional state in May 2003 on her symptoms, and the fact that, as Dr. Webb comments, Mrs. Peake has suffered depressed mood, anxiety and frustration in relation to her symptoms since the accident, is a factor that I should take into account in assessing the extent to which her symptoms have been influenced by her emotional state post accident—and that this bodes positively for further future improvement as her emotional state continues to improve.

[148] Both Dr. Regan and Dr. Sovio’s opinions negate a direct relationship between Mrs. Peake’s lower back flare-ups and the accident. This is a mechanical condition and the plaintiff has not established that her ongoing back flare-ups, certainly past the summer of 2006, are attributable to the accident. At the same time, Mrs. Peake testified that her low back symptoms are different and more intense then those experienced pre-accident. I find that some small portion of Mrs. Peake’s ongoing lower back symptoms relate to the 2003 accident.

[149] There is little question that the 2003 accident caused Mrs. Peake’s left shoulder injury and frozen shoulder. I accept Mrs. Peake’s sworn testimony that she continues to experience mild periodic situational discomfort and some functional limitation in the use of her left shoulder.

[150] With respect to the more problematic question of the causation of Mrs. Peake’s right frozen shoulder, with recovery from that predicted to extend to some time in 2010, albeit in a less problematic way then was the case for the left shoulder, I find that the plaintiff has proven that her right shoulder injury and eventually frozen state was caused by the accident….

[154] Turning to Mrs. Peake’s neck symptoms and headaches, and Mr. Pankratz’ submission that “but for the subsequent traumatic events of 2006, this condition “would have” resolved completely,” Dr. Regan did not testify that the condition “would” resolve; but “should” resolve. I note that when he wrote his second report, he was aware of ongoing neck complaints and headaches; but made no skeptical comments about their having continued her he last saw Mrs. Peake. Mrs. Peake continues to experience neck pain and headaches that frequently cause her to awaken in the middle of the night with a “terrible headache” that can last for a few days – bearing in mind that Mrs. Peake has a history of pre-accident headaches. Further, Mrs. Peake confirms ongoing improvement; and indeed in the summer of 2006 experienced extended pain-free periods, as stated earlier. I bear in mind as well that she has suffered a right frozen shoulder, but that continues to improve and should resolve completely by 2010; and with improvement in that condition she should see further relief in her neck, noting that she saw considerable improvement when her left shoulder pain and limitation more or less resolved.

[155] The evidence does not support the gloomier aspects of Dr. Webb’s prognosis considering Dr. Regan’s expectations that Mrs. Peake’s neck pain and accompanying headaches, should eventually recover and Dr. Regan’s opinion that negates a continuing connection between her lower back symptoms and the accident. In my assessment of non-pecuniary damages, and considering Mrs. Peake’s pre-accident condition, I see the medical and other evidence going so far as to support a finding of a possibility that Mrs. Peake will in future continue to suffer some minor residual neck sequelae and headaches that are attachable to the accident, although the most likely outcome is complete recovery from those within two years, insofar as the effects of the 2003 accident are concerned.

ICBC Injury Claims and Future Wage Loss

Written by admin on February 24, 2009. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Headache Cases, ICBC Soft Tissue Injury Cases, ICBC Wage Loss, ICBC Whiplash Cases, Uncategorized. 49 Comments on ICBC Injury Claims and Future Wage Loss

One of the most difficult types of damages to value when a person sustains serious and permanent injuries through the fault of another in a BC Car Crash is that of ‘Future Wage Loss’.
Courts in British Columbia often view a person’s ability to earn a living as a ‘capital asset’ and if disabling injuries are sustained then that capital asset becomes diminished. Accordingly BC Courts often assess damages for future wage loss as damages for a ‘diminished earning capacity’.
The basic principles that courts consider in awarding damages for ‘diminished earning capacity’ were set out almost 25 years ago in a BC Supreme Court case named Brown v. Golaiy, These factors are as follows:

The means by which the value of the lost, or impaired, asset is to be assessed varies of course from case to case. Some of the considerations to take into account in making that assessment include whether:

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

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

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

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

In 2007, in a case named Steward v. Berezan, the BC Court of Appeal rejected a trial judges award for diminished earning capacity stating that “… The claimant bears the onus to prove at trial a substantial possibility of a future event leading to an income loss, and the court must then award compensation on an estimation of the chance that the event will occur…“

Ever since Berezan many ICBC Injury Defence Lawyers have argued that the law has changed since Brown v. Golaiy and that there is a higher burden to reach before damages for future wage loss can be awarded.

Reasons for judgement were released today by the BC Supreme Court (Ashmore v. Banicevic) dealing with this argument and concluding that the factors set out in Brown v. Golaiy remain good law. In a thorough analysis Madam Justice Smith gave the following reasons:

[140] While a literal reading of that statement might indicate a change in the law, embodying an express direction to inquire first into whether there is a substantial possibility of future income loss before embarking on assessment of the loss (see Chang v. Feng, 2008 BCSC 49; 55 C.C.L.T. (3d) 203, and Naidu v. Mann, 2007 BCSC 1313, 53 C.C.L.T. (3d) 1), the Court of Appeal inDjukic v. Hahn, 2007 BCCA 203, 66 B.C.L.R. (4th) 314 (at para. 14) limited Steward v. Berezan to its facts, stating:

…The error of the trial judge in Steward was in awarding damages for loss of earning capacity based on the plaintiff’s inability to work as a carpenter in circumstances where he had not worked as a journeyman carpenter for twenty years prior to the trial and, at age 55, did not contemplate any return to the trade. The case turned on its facts and did not establish any new principle of law. Conversely here, the assessment was based on a business actively pursued by both respondents when the accidents intervened and not on any long abandoned occupation without a prospect of their return to it. I am satisfied that Steward has no application in the case at bar.

[141] In Sinnott v. Boggs, the plaintiff was a 16-year-old girl who had been 11 at the time of the accident. The medical prognosis was that she would continue to suffer neck and shoulder aches, ongoing discomfort and intermittent headaches. The trial judge assessed non-pecuniary damages of $35,000, past wage loss of $2,400 and lost earning capacity of $30,000 “for being less marketable as an employee because of the limitations on her ability to work competitively in all jobs previously open to her”. The assessment of damages was upheld on appeal. Mackenzie J.A. referred to the submission of the defendant on appeal that since there was no finding that any particular types of work were foreclosed to the plaintiff, no award for lost earning capacity could be made. He referred to a number of authorities, including Steward v. Berezan, at para. 11, and stated:

All of those cases involved middle-aged plaintiffs in settled occupations. Their continuing symptoms resulted in continuing pain and occupational discomfort but they did not reduce the plaintiffs’ ability to earn income in their chosen occupations. There was no prospect that they would change employment to occupations where their earning capacity would be impaired.

[142] MacKenzie J.A. then stated at para. 13 – 17:

In my view, the limitation on loss of earning capacity awards advanced by the appellant is not supported either in logic or by the authorities.

Three of the four factors outlined in Brown are broad enough to support an award in circumstances where a plaintiff is able to continue in an occupation but the ability to perform and the earning capacity resulting from that ability are impaired by the injury.

The line between non-pecuniary damages and damages for loss of earning capacity is between losses that sound in pain and suffering and loss of non-remunerative amenities on the one hand, and pecuniary losses in the form of a reduced ability to earn income on the other. There is no reason why an injury which permits a plaintiff to continue in a particular occupation but at a reduced level of performance and income should not be compensated for that pecuniary loss through damages for loss of earning capacity.

In the case at bar, Ms. Sinnott is a young person who has not yet established a career and has no settled pattern of employment. In such circumstances, quantifying a loss is more at large. Southin J.A. commented on this distinction in Stafford

[42] That there can be a case in which a plaintiff is so established in a profession that there is no reasonable possibility of his pursuing, whether by choice or necessity, a different one is obvious. For instance, on the one hand, if a judge of this Court were to be permanently injured to the extent that he or she could no longer do physical, in contradistinction to mental, labour, he or she would have no claim for impairment of earning capacity because the trier of fact gazing into the crystal ball would not see any possibility that the judge would ever abandon the law for physical labour, assuming that immediately before the accident the judge was capable of physical labour. But, on the other hand, if a plaintiff is young and has no trade or profession, the trier of fact gazing into the crystal ball might well consider whether the impairment of physical ability will so limit his future employment opportunities that he will suffer a loss. See e.g. Earnshaw v. Despins (1990), 45 B.C.L.R. (2d) 380 (C.A.).

[43] There is, if I may use the word, a continuum from obviously no impairment of earning capacity from a permanent physical impairment, no matter how serious the impairment, to a very large potential loss which must be based on all the circumstances of the particular plaintiff.

I agree with those observations. Ms. Sinnott is in a category of those who are young and without a settled line of work. The trial judge has found that Ms. Sinnott faces limitations on her ability to work competitively in jobs that were previously open to her. In my view, that finding is an adequate foundation for the trial judge’s award. I am satisfied that there was evidence to support the trial judge’s conclusions on the facts and there is no palpable and over-riding error of fact which would permit this Court to disturb her conclusion or award.

[143] I conclude that the approach I should take to the assessment of lost earning capacity has not changed. Accordingly, I must consider, with reference to the factors listed in Brown v. Golaiy, whether the evidence establishes the basis for an award in this case, and if so, at what level.

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On another note, today’s case dealt with chronic soft tissue injuries and serious headaches. In awarding $80,000 for the Plaintiff’s non-pecuniary losses, the court made the following findings of fact about the Plaintiff’s injuries and prognosis:

[113] I have considered all of the evidence given by treating physicians and other health care practitioners, as well as the evidence of Dr. Jung and Dr. Schweigel, who saw the plaintiff for the purpose of providing medical-legal reports. Dr. Schweigel deferred to the expertise of Dr. Blasberg with respect to the jaw injury; as well, he saw the plaintiff on only one occasion, while Dr. Bowlsby and Dr. Condon both saw him on a number of occasions. Both Dr. Bowlsby and Dr. Condon are very experienced practitioners and struck me as fair-minded witnesses who were not advocating for their patient. Dr. Jung’s two examinations of the plaintiff were thorough and well-documented. I accept the evidence of Dr. Condon, Dr. Bowlsby and Dr. Jung, who all had extensive contact with the plaintiff, and do not accept the evidence of Dr. Schweigel where it is in conflict with their evidence. I also accept the evidence of Dr. Blasberg.

[114] Upon consideration of all the evidence, I find that Mr. Ashmore suffered a whiplash injury in the motor vehicle accident affecting his jaw, neck, shoulders and back. I find that he suffers a continuous low-grade headache and serious headaches at least twice weekly, and that he continues to experience right-sided neck and upper back pain, pain with swallowing, and pain in the region of the jaw joint. There is no evidence that he suffered from these symptoms prior to the motor vehicle accident. I do not find on the evidence that stress causes his symptoms, although it may exacerbate them. I find that but for the accident Mr. Ashmore would not experience the persistent headaches which I find are his worst ongoing symptom, and that but for the accident he would not suffer the other symptoms I have referred to. I find that the plaintiff has met the burden of showing on the balance of probabilities that the defendant’s negligence caused his injuries.

[115] The plaintiff’s symptoms arising from the injuries caused by the accident have caused him frequently to require rest in the middle of the day, necessitating work late into the night. The extent of those symptoms is shown by the fact that they have caused him to give up most of the very active sports he formerly enjoyed, and have constrained his ability to assist with the care of his young children and to enjoy the kind of life he led before the accident. As well, these symptoms have reduced the amount of time and energy he has available for work outside his regular employment. Finally, the symptoms have led him to spend considerable time pursuing relief through various forms of treatment.

[116] Taking into account the opinion evidence of all of the expert witnesses as to the likelihood of further recovery, I find that Mr. Ashmore is not likely to make a full recovery, although he may experience some improvement to the point where he will be able to manage his symptoms better.

A Busy day with ICBC Injury Claims

Written by admin on February 19, 2009. 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, ICBC Whiplash Cases, Uncategorized. 42 Comments on A Busy day with ICBC Injury Claims

Several Judgements were released today by the BC Supreme Court addressing quantum of damages in ICBC Injury Claims. Here are the highlights of these judgements
In Guilbault v. Purser, Mr. Justice Blair from Kamloops, BC awarded a Plaintiff $75,500 in total damages as a result of an ICBC Claim arising from a August 2004 collision. The key findings of fact were as follows:

30] Ms. Guilbault describes the complaints which she attributes to the August 29, 2004 accident as including her right hip, neck and shoulder pain and her headaches as having slowed her down and preventing her from doing things that she has wanted to do. Her horse breaking and wakeboarding activities have largely ended because both activities cause her neck problems. Ms. Guilbault also testified that although her participation in many other outdoor pursuits has been diminished as a result of the injuries she has been able over time to return to those activities, just not as actively as before. She continues to suffer some neck pain and headaches, but not to the same extent as previously and she appears to have developed mechanisms to cope with and diminish her neck pain and headaches.

[31] I am satisfied that as a result of the August 29, 2004 accident Ms. Guilbault suffered soft tissue injuries to her neck, shoulder and right hip. I accept that her right hip complaint was an exacerbation of a pre-existing condition which followed her being kicked by a horse approximately 10 years before. I also find that as a result of the accident, Ms. Guilbault suffered from particularly distressing headaches. However, I also conclude that over time the complaints emanating from the accident have been largely resolved, although she continues to suffer the occasional headache and some neck pain.

[32] Ms. Guilbault has taken her pleasure in life from the outdoors and has enjoyed a physically active life, whether in her recreational or her employment pursuits. I consider it likely that those interests developed in part because of her dyslexia and attention deficit disorder which made scholastic endeavours difficult to pursue, but that had no or little impact on her ability to perform and thrive on physically demanding work around her family’s farm and her recreational pursuits. Her complaints following the August 2004 accident have impacted, I conclude, on her physical capabilities over the past four and a half years and will continue to impact on those capabilities to some degree into the future. To Ms. Guilbault, who so relies on her physical capacities for her enjoyment of life, such injuries have a more significant impact than on those whose lifestyle is more sedentary. The greater impact of the injuries to Ms. Guilbault and her lifestyle must be reflected in the measure of the non-pecuniary damages to which she is entitled.

The following damages were awarded:

Non-pecuniary damages:	$35,000.00
Special damages:	$8,500.00
Past loss of wages:	$12,000.00
Loss of capacity:	$20,000.00
TOTAL:	$75,500.00

In another ICBC Injury Claim Judgement released today (Haag v. Serry) Just over $120,000 in total damages were awarded to a Plaintiff injured in a 2005 collision which occurred in Surrey, BC.
The Injuries included soft tissue injuries and the onset of symptoms in the Plaintiff’s arthritic facet joints. Damages were awarded as follows:

[109] In summary, my conclusions are as follows:

(a) The accident on October 9, 2005 caused Mr. Haag to suffer soft tissue injuries and activated facet joint arthritis which has resulted in Mr. Haag suffering chronic lower back pain.

(b) I award Mr. Haag non-pecuniary damages in the sum of $63,000, which takes into account a reduction to reflect my conclusion that Mr. Haag comes within the “crumbling skull” rule.

(c) Mr. Haag’s claim for past income loss is dismissed.

(d) I award Mr. Haag $60,000 for loss of earning capacity.

(e) Mr. Haag is entitled to recover special damages in relation to the cost of physiotherapy treatments (including mileage) and for mileage in relation to his visits to Dr. Rebeyka up to the end of 2007 only. I will leave counsel to calculate the dollar amount. The claims for the cost of physiotherapy treatments (including mileage) and mileage in relation to Mr. Haag’s visits to Dr. Rebeyka in 2008 are dismissed.

(f) With respect of the balance of special damages claimed, Mr. Haag is entitled to recover these amounts.

The third ICBC Injury Claim judgement released by the BC Supreme Court today (Majewska v. Partyka) involved a 2007 collision which occurred in Coquitlam, BC. The Plaintiff suffered a soft tissue injury to her neck, lower back and a concussion. Her syptmoms improved by about 80% by the time of trial. The court was unable to conclude whether the symptoms would fully recover or not.

General Damages were assessed as follows:

(a)	Non-Pecuniary Damages	$30,000
(b)	Loss of Income to Trial	$15,000
(c)	Loss of Earning Capacity	$15,000
(d)	Future Care	$ 500

The last auto injury judgement released by the BC Supeme Court today was Moore v. Brown from the Victoria Registry. This case involved serious orthopaedic and soft tissue injuries in a 2005 motorcycle accident. Damages were assessed as follows:

1.	Pain and suffering	$115,000
2.	Past wage loss (gross)	$75,000
3.	Impairment of earning capacity	$262,000
4.	Special damages	$47,400
5.	Future care	$75,000

Whew! Now back to work.

ICBC Expert Rejected in Injury Claim, $100,000 Awarded for Myofacial Pain

Written by admin on January 31, 2009. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Headache Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 115 Comments on ICBC Expert Rejected in Injury Claim, $100,000 Awarded for Myofacial Pain

Reasons for judgement were released today by the BC Supreme Court awarding a 22 year old Plaintiff $50,000 for pain and suffering and a further $50,000 for loss of earning capacity as a result of soft tissue injuries.
The court’s findings of injuries are summarized at paragraphs 45-46 which stated as follows:

[45] In the final analysis, I am unable to place much weight to Dr. Schweigel’s report. I accept Dr. Anton’s evidence that as a result of the accident, the plaintiff has suffered soft tissue injuries of the cervical and thoracic spine and shoulder girdle, which in turn have given rise to a myofascial pain syndrome.

[46] I accept his evidence that while there is some room for improvement, the plaintiff will likely suffer intermittent headaches and neck and upper back pain indefinitely. She must be careful to modify her activities and avoid bending, leaning, heavy lifting or repetitive lifting—particularly those involving sustained postures of the neck and upper arms or repetitive use of the upper arms—which will exacerbate her pain.

What interested me most in this judgement was the judges discussion weighing the Plaintiff’s medical evidence against the evidence tendered by the Defendant. The Defendant relied on Dr. Schweigel, a senior orthopaedic surgeon who is often retained by ICBC to review injury claims and often disagrees with Plaintiff’s physicians regarding the long term prognosis of soft tissue injuries. In today’s case the court largely rejected his opinion and offered the following analysis:

[36] The defence relies heavily on the evidence of Dr. Schweigel, an orthopaedic surgeon who examined the plaintiff in January 2008. Dr. Schweigel concluded the plaintiff suffered no more than a very minor soft tissue injury to the cervical and upper back area.

[37] In Dr. Schweigel’s opinion, cervical soft tissue injuries may be classified as either minor, moderate or severe, depending on the presence of various findings and complaints. In his opinion, a cervical soft tissue injury must be in the moderate to severe category before it will give rise to a chronic myofascial pain syndrome.

[38] In his opinion, before being diagnosed with a moderate to severe soft tissue injury the patient must present with a constellation of at least three complaints including: moderate to severe spasm, moderate to severe deformity, and a moderate loss of motion. Sometimes the patient will also present with neurological findings and/or x-ray changes and sometimes the patient will require strong pain medication for a few days.

[39] Based on his review of Dr. Fahim’s clinical records, including the CL-19 report, which he understood was completed on March 3, 2003, Dr. Schweigel concluded that the plaintiff did not suffer a moderate to severe soft tissue injury. In his view, since the CL-19 report reflects pain and tenderness of the neck and upper back, a good range of motion of the neck and upper back and mild tenderness of the neck and upper back, the physical abnormalities noted at this time were “extremely minimal”. He noted that “(s)he had mild tenderness of the neck muscles with good range of motion”.

[40] The difficulty here is that the CL-19 report relied upon by Dr. Schweigel was actually authored on March 3, 2004 rather than March 3, 2003. At that time the plaintiff was in Grade 12, she was dancing regularly and the intensive final examination study period had not begun. She was in fact doing quite well.

[41] This is in contrast to her condition just over a year earlier when Dr. Fahim examined her on February 15, 2003. At that point he noted her complaints of pain and tenderness in both the trapezius and upper back areas, and the decreased range of motion of her neck in all directions. There is no recording of “mild” tenderness with a good range of motion as Dr. Schweigel suggests in his report of January 14, 2008.

[42] While Dr. Fahim’s clinical records were available for review, Dr. Schweigel made no reference to them in his report. Nor did he refer to the records of the physiotherapist, Dawn Stevens, who, three weeks post accident, noted that the plaintiff’s neck was “very stiff” and that it was “very hard to mobilize (her) neck”.

[43] Quite apart from his erroneous reliance on the March 3, 2004 CL-19 report, I am not persuaded that Dr. Schweigel’s rigid classification of soft tissue injuries and his insistence that a myofascial pain syndrome may only arise in the case of a moderate to severe soft tissue injury case are reliable.

[44] While I accept that Dr. Schweigel is a very senior and experienced orthopaedic surgeon, with a long career focused particularly on spinal cord injury, in my view he did not demonstrate the same degree of expertise as Dr. Anton in the diagnosis and treatment of soft tissue injury. His categorization of soft tissue injuries struck me as both rigid and simplistic. No peer reviewed journals or other medical literature were produced to support his analysis. Nor did he demonstrate any in depth appreciation of the characteristics of a “trigger point”, as described by Dr. Anton.

$55,000 Non-Pecuniary Damages for Musculoligamentous Injuries

Written by admin on November 19, 2008. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Headache Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

Reasons for judgment were released today by the BC Supreme Court awarding a 24 year old Plaintiff just over $100,000 in damages as a result of injuries and loss suffered in 2 BC motor vehicle collisions.
Both collisions were rear-end crashes. The first occurred in February, 2004, the second in July of the same year. Fault was admitted by ICBC on behalf of the Defendants in both accidents. This trial dealt with quantum of damages (value of these injury claims).
The Plaintiff had generally good health before the collisions. After the collisions she suffered from various symptoms. The extent of her injuries and their relationship to the crashes was at issue at trial.
The court found that the Plaintiff suffered from back pain, neck pain and headaches and that these injuries were related to the collisions. The court accepted that these are ‘musculoligamentous strains….(and that the Plaintiff) will be prone to ongoing muscular discomfort in the neck and lower back in the years to come…..and that it is unlikely that her symptoms will settle altogether‘.
The court awarded damages as follows:

(1) Non-pecuniary damages: $ 55,000;

(2) Past Loss of Income: $ 3,000;

(3) Loss of earning capacity: $ 25,000;

(4) Cost of Future Care: $ 15,000;

(5) Special Damages: $ 4,500.

$75,000 Non-Pecuniary Damages for Chronic Neck/Back Pain and Headaches

Written by admin on November 10, 2008. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Headache Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 53 Comments on $75,000 Non-Pecuniary Damages for Chronic Neck/Back Pain and Headaches

Reasons for judgement were released today by the BC Supreme Court awarding a Plaintiff just over $190,000 in damages as a result of 3 motor vehicle collisions.
The Plaintiff was 23 years old at the time of trial. He was injured in 3 collisions, the first of which occured when he was only 10 years old.
The Plaintiff was not at fault for any of the collisions and the week long trial focussed on the issue of damages (that is, the value of the Plaintiff’s ICBC claims).
The medical evidence presented established that the plaintiff suffered from neck pain, upper back pain and headaches and that these symptoms have lasted for more than 10 years. The court accepted that the Plaintiff’s injuries still have room for ‘considerable improvement with continued focussed and supervised exercise.’ However the court also found that the synptoms would probably never completely resolve.
Damages were awarded as follows:

Non-pecuniary damages $ 75,000

Loss of Earning Capacity $100,000

Cost of Future Care $ 12,650

Special Damages $ 3,570

Past Income Loss $ 698

ICBC claims involving soft tissue injuries and headaches are often based laregely on subjective findings. That is, often times in these cases one cannot point to an X-ray, MRI or other diagnosistic study that will prove or dis-prove the injury. Thus the credibility of the claimiant is a vital factor in the success/failure of many of these types of cases.
Here, Mr. Justice Smith found that the Plaintiff was credible and that the injuries were genuine. Specifically he noted that:
[19] The opinions of both Dr. McGraw and Dr. Watt are based primarily on the plaintiff’s description of his subjective symptoms. There have been few objective physical findings. However, I found the plaintiff to be a forthright, intelligent, highly motivated young man and I accept his evidence that he has suffered ongoing, although not disabling, pain for 13 years as a result of the first accident, with increased pain and discomfort as a result of the second accident that lasted three years. It is to the plaintiff’s credit that he has been willing to accept that pain and carry on with most activities.

Appeal of $70,000 Soft Tissue Injury Claim Dismissed

Written by admin on October 14, 2008. Posted in Civil Procedure, ICBC Brain Injury Cases, ICBC Head Injury Cases, ICBC Headache Cases, ICBC LVI (Low Velocity Impact) Cases, Uncategorized. 55 Comments on Appeal of $70,000 Soft Tissue Injury Claim Dismissed

In reasons for judgement released today, the BC Court of Appeal dismissed the appeal of a $70,000 award of damages as a result of 2004 BC car accident.
The case possibly fit into ICBC’s LVI criteria based on the fact that the trial judge found that the ‘force applied to the Plaintiff as a resultof the collisions to her rear was actually very little indeed.’
The Plaintiff sued claiming various injuries including soft tissue injury, depression, anxiety, irremediable personality change, brain damage, concussion, post-consussion syndromne, post-traumatic stress disorder and chronic pain syndrome. The Trial Judge recjected the medical diasnoses of brain injury, PTSD and post-concussion Syndrome. In rejecting some of the alleged injuries the trial judge found that the Plaintiff was ‘unreliable’ as a witness.
The Plaintiff sought damages of over $1.7 Million. Given the trial judges findings a total of $70,000 in damages was awarded.
The Plaintiff appealed arguing tha the trial judge disregarded the evidence of four lay witnesses and three expert witnesses. The Plaintiff also argued that the trial judge should have confronted the Plaintiff during the trial to address the court’s concerns with her reliability.
The Court of Appeal dismissed the appeal. In doing so the court found that the trial judge did not disregard the evidence and had this to say about ‘confronting’ the Plaintiff

(a) Confronting the Plaintiff

[33] The plaintiff maintains that the rule established in the case of Browne v. Dunn (1893), 6 R. 67 (H.L.) applies to trial judges as well as opposing parties. The rule is that “if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him” (at 70). The plaintiff says that, before determining that the plaintiff was lying, the trial judge was required to put that proposition to the plaintiff while she was testifying.

[34] The plaintiff cites no authority to the effect that the rule in Browne v. Dunn applies to judges. This is hardly surprising because such a rule would be antithetical to the role of a judge in Canada. In this country, we have an adversarial system, not an inquisitorial one.

[35] Such a rule would be unworkable with respect to judges in our system. Judges are required to be fair and impartial, and are expected to hear all of the evidence before making final decisions on the credibility of witnesses. They should not be required to confront a witness if they are concerned that there is any possibility that, after hearing all of the evidence, they may not accept all of the testimony given by the witness.

[36] The rule in Browne v. Dunn is not suited for application to judges. The rule stipulates that if the opposing party is intending to introduce evidence contradicting the testimony of a witness, such evidence should be put to the witness so that he or she will have an opportunity to provide an explanation. What is being suggested in this case is not that anticipated evidence be put to the witness, but that the judge should confront the witness with the possibility that the judge may conclude that the witness is not credible. That is not the rule in Browne v. Dunn – the rule does not require opposing counsel to confront a witness with the proposition that the witness is being untruthful before making submissions to the judge at the end of the trial that the witness should be found not to be credible.

[37] In addition, the rule in Browne v. Dunn has not been treated as an absolute rule. Evidence contradicting a witness’s testimony may be admitted despite a failure to put it to the witness, and the failure goes to the weight to be given to the evidence. This feature of the rule is not adaptable to judges.

[38] The plaintiff says the case of Volzhenin v. Haile, 2007 BCCA 317, 70 B.C.L.R. (4th) 15, is an example of what a trial judge is supposed to do in confronting a witness about whose credibility the judge has reservations. The ground of appeal in that case was that the plaintiff had not been given a fair trial because, among other things, “the trial judge intervened excessively, thus giving an inquisitorial aspect to the trial that detracted from the disinterested and impartial hearing to which he was entitled” (paragraph 14). In dismissing the appeal, this Court was not recommending the approach taken by the judge in that case. It simply held that the judge had not “improperly interjected himself into the hearing, or otherwise created an appearance of an unfair trial” (paragraph 25). Indeed, Volzhenin v. Haile illustrates the type of problem that could arise if judges were required to confront witnesses about their veracity.

$25,000 Non-Pecuniary Damages for Neck, Shoulder and Back Soft Tissue Injuries

Written by admin on October 3, 2008. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Headache Cases, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Wage Loss, Uncategorized. 47 Comments on $25,000 Non-Pecuniary Damages for Neck, Shoulder and Back Soft Tissue Injuries

Following a 2 day trial using the Fast Track Rule (Rule 66), reasons for judgement were released today compensating a Plaintiff as a result of a 2005 BC car accident.
The Plaintiff was injured as a passenger. The offending motorist admitted fault and the trial focused on damages (lawful compensation) only.
The Plaintiff had a range of complaints following the accident including pain in her neck, right shoulder and low back, and a significant increase in the frequency of her pre-existing migraine headaches.
In assessing a fair award for pain and suffering the court made the following finding:

[24] I accept the plaintiff’s evidence that she was injured in the August 9, 2005 motor vehicle accident. In this regard, I note that while the physicians who examined the plaintiff also accepted the plaintiff’s assertions, the fact that they did so does not assist the court in making that finding. Their observations thereafter are of considerable assistance in assessing the possible course of the plaintiff’s recovery, however. It does appear, taking account of what is before me, that the plaintiff recovered functionally very quickly although she may suffer some minor aches and pains that will occasionally interfere with her activities.

[25] The plaintiff has suffered some moderate interference with her life due to pain and suffering. The cases advanced as comparables by the parties are of some assistance in locating this case on an appropriate scale. I assess her damages for pain and suffering and loss of enjoyment of life at $25,000.

The Plaintiff also led evidence that she was able to take advantage of fewer overtime opportunities as a result of her injuries. For this loss the court awarded $20,000.
The court found that the injuries should continue to improve but may linger for a while longer. In addressing loss of earning capacity the court awarded $15,000 making the following findings:
She is capable of doing her work and of working considerable overtime. On the basis of the medical evidence there is good reason to expect that she will fully recover in the next few years, with a modest chance of some limited impairment further into the future. I think some allowance must be made for the possibility that the plaintiff may occasionally suffer losses into the future that are related to the injuries she has suffered. I think the evidence suggests that these losses will be incurred, for the most part, in the next few years. I fix the sum of $15,000 for loss of future earning capacity.

Close to $900,000 Awarded for Mild Traumatic Brain Injury (MTBI)

Written by admin on October 1, 2008. Posted in ICBC Brain Injury Cases, ICBC Dizziness Cases, ICBC Head Injury Cases, ICBC Headache Cases, ICBC Psychological Injury Cases, Uncategorized. 59 Comments on Close to $900,000 Awarded for Mild Traumatic Brain Injury (MTBI)

Following a trial that lasted over 6 weeks, reasons for judgement were released today awarding a Plaintiff close to $900,000 in damages as a result of a 2002 car crash that occurred in Vancouver, BC.
The Plaintiff, while stopped at a red light, was rear-ended by a Ford F150 pick up truck. The force of the collision was found to be ‘sufficiently strong to cause the plaintiff to suffer bruising across his chest where the seat-belt had restrained him’. The Plaintiff was able to drive away from the scene.
The Defendant did not admit fault but was found 100% at fault for this rear-end car crash.
The Plaintiff alleged various serious injuries including a Mild Traumatic Brain Injury (MTBI), Post Concussion Syndrome, Tinnitus, Dizziness, Loss of Balance and Depression.
The defence denied these injuries and insisted that the Plaintiff’s complaints were exaggerated.
The Plaintiff’s claim was largely accepted. The court found that the Plaintiff ‘indeed suffered a mild traumatic brain injury which has resulted in a constellation of problems including a post concussion syndrome, a cognitive disorder, a major depressive disorder with anxiety, a pain disorder; and the significant exacerbation of his tinnitus.’
In the end the Court assessed damages as follows:

(i)	General damages – non-pecuniary	$200,000.00
(ii)	Past loss of income	$171,250.00
(iii)	Future loss of income earning capacity	$400,000.00
(iv)	Loss of opportunity	$10,000.00
(v)	Special damages	$26,955.75
(vi)	Costs of future care	$77,449.00
(vii)	Management and Tax Gross up	(to be determined)

This case is worth reviewing for anyone advancing an ICBC injury claim involving a mild traumatic brain injury. Madam Justice Boyd engages in a thoughtful discussion of the competing medical evidence and provides articulate reasons why the Plaintiff’s physicians opinions were preferred over those of the Defence experts.
The court also makes interesting commentary on Waddell Signs starting at paragraph 34 of the reasons, particularly that:

[34] The defence also stressed the findings of Dr. Sovio, the orthopaedic surgeon retained by the defence, who examined Young in January 2006. He concluded the plaintiff had exhibited significant exaggeration of his symptomology during several tests- thus exhibiting a number of positive Waddell signs. As he put it, the plaintiff’s perception of his symptoms did not match the findings on physical examination. The defence relies heavily on this opinion to support a finding the plaintiff is guilty of malingering or symptom exaggeration.

[35] I accept both Dr. Coen’s, and Dr. Rathbone’s evidence that the Waddell signs are notoriously unreliable for detecting malingering. As Dr. Rathbone testified, the Waddell signs are “distinctly unreliable” in cases where the patient suffers depression. Indeed the literature presented to Dr. Sovio at trial echoed that warning. In cross-examination, Dr. Sovio adopted the extract from the SPINE journal (Exhibit 67, Tab 6, SPINE Volume 23, Number 21, pp. 2367-2371) to the effect that non organic signs cannot be interpreted in isolation. He accepted the following summary at the outset of that article:

Behavioural responses to examination provide useful clinical information, but need to be interpreted with care and understanding. Isolated signs should not be overinterpreted. Multiple signs suggest that the patient does not have a straightforward physical problem, but that psychological factors also need to be considered. …Behavioural signs should be understood as responses affected by fear in the context of recovery from injury and the development of chronic incapacity. They offer only a psychological ‘yellow-flag’ and not a complete psychological assessment. Behavioural signs are not on their own a test of credibility or faking.

Of course, as I will later note, in early 2006 the plaintiff was significantly depressed. I have no doubt that any number of psychological factors were at play in the course of Dr. Sovio’s examination which may well have presented as the non-organic signs detected. However, I do not conclude that the plaintiff was deliberately malingering or exaggerating his symptoms during that examination.

$45,000 Pain and Suffering for Aggravation of Degenerative Changes

Written by admin on September 26, 2008. Posted in ICBC Headache Cases, ICBC Soft Tissue Injury Cases, ICBC Spine Injury Cases, ICBC Whiplash Cases, Uncategorized. 45 Comments on $45,000 Pain and Suffering for Aggravation of Degenerative Changes

Reasons for judgement were released today awarding a Plaintiff just over $100,000 as a result of a 2006 collision which occurred in Vernon, BC.
The Plaintiff was hit from behind when stopped for a red light. The issue of fault was admitted. The accident resulted in minimal vehicle damage. In many ICBC claims defence lawyers try to get the Judge/Jury to focus on the lack of vehicle damage as opposed to the medical evidence. Here the Court noted that “Although the lack of vehicle damage may be a relevant consideration in considering (the Plaintiff’s) injuries,k it has to be balanced against the evidence of the Plaintiff and the medical evidence.”
The court heard from various medical experts including the Plaintiff’s doctor and 2 physiatrists (physicians specializing in rehabilitation).
The court accepted that the Plaintiff suffered a Whiplash Associated Disorder, cervicogenic headaches, and an onset of pain in previously asymptomatic degenerative changes in her neck. The court further accepted that these injuries will linger for some time but should continue to improve in the coming years.
The court assessed damages as follows:

Non-pecuniary Damages:	$45,000.00
Special Damages:	$2,172.30
Past Loss of Earnings/Opportunity to Earn:	$2,500.00
Loss of Future Earning Capacity:	$25,000.00
Cost of Future Care:	$30,000.00
Loss of Past and Future Housekeeping Capacity:	Nil
TOTAL:	$104,672.30