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

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.

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

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

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.

BC Supreme Court Awards $58,000 for Soft Tissue Injuries and Depression

In a judgement released today by Madam Justice Humphries, a total of $58,000 was awarded to a 37 year old plaintiff as a result of a 2004 motor vehicle accident in Vancouver, BC.
The Plaintiff suffered soft tissue injuries in her neck, shoulder and low back. The accident also caused depression which was, according to the court, at least as debilitating as the physical injuries. The court found that the physical and psychological injuries were inter-connected.
The Plaintiff did suffer from pre-existing injuries in all of the above areas as a result of a 1996 motor vehicle accident. Evidence was presented that she was largely recovered from her pre-existing soft tissue injuries and depression by the time of the 2004 accident.
The court summarized her injuries as follows:
From all the medical reports and from her own evidence, (the Plaintiff) appears to have recovered from the physical effects of this accident by late 2005 or early 2006 in the sense that she had ceased experiencing daily and ongoing pain. However, she continues to have and can expect to have bouts of pain depending on her activities. This is somewhat similar to the same state she was in prior to the accident, when she could work long hours, attending physiotherapy once in awhile if she was experiencing discomfort caused by her job. However, I accept that the effects of over-exertion and work-related activities since the second accident are more limiting than they were just prior to it
In the end the court awarded $45,000 for pain and suffering (non-pecuniary damages), $3,000 for past wage loss and $10,000 for loss of earning capacity.
If you have an ICBC claim and have suffered from pre-existing injuries that were re-injured or aggravated by a subsequent car accident this case is worth reading to see some of the factors courts consider in these circumstances.
Also of interest is the courts reasoning in awarding some money for past wage loss despite the “flimsy” evidence that was advanced in support of an income loss claim. The Plaintiff was a self-employed photographer and there was no hard evidence of lost income. The court, at paragraph 40, held as follows:
It is only common sense that a self-employed person whose work depends on dealing with the public, persuading people to hire her, and being able to carry heavy cameras and position herself quickly in order to take pictures must be able to rely on physical agility and a pleasant personality in order to work to her full capacity. I accept that (the Plaintiff) was putting in many hours building her contacts and working on various facets of her business just prior to the accident, and due to her temporary physical limitations and some periods of depression, she was able to work less after the accident for a period of time. However, the amount of the loss is not amenable to a calculation, and many of the hours she put in were not necessarily hours for which she would be able to bill a client. As well, her earnings in the years prior to the accident were very low; in fact, she made more in 2004 than she did in 2002 and 2003. I assess an amount of $3,000 for past wage loss based on the plaintiff’s evidence of the restrictions she faced in carrying on with her existing business and the delay in her plans to expand her baby/pet photography.
If you are having difficulty agreeing to settlement of an ICBC claim because of pre-existing injuries or because of a disputed claim for past-loss of income from a self-employed business this case is worth a read to see how our courts sometimes deal with these issues.
Do you have any questions about this case? If so feel free to contact the author.

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

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

Plaintiff Awarded $173,000 for Physical and Psychological Injuries

In a judgment released today by the British Columbia Supreme Court, a plaintiff was awarded a total of $173,442.92 for her damages and loss as a result of a 2004 motor vehicle collision.
The Plaintiff was involved in a fairly serious rear-end collision while stopped at a red light. The Plaintiff’s vehicle was struck by a tractor-trailer causing significant damage to the Plaintiff’s vehicle.
The Plaintiff’s injuries included a soft-tissue injury to her right shoulder, sternum, rib cage and lower abdomen, as well as a mysofascial sprain affecting the neck, shoulders, and posterior cervical spine. She went on to develop myofascial pain which her treating physiatrist described as a ‘complicated
chronic pain syndrome”.
In addition to these physical injuries, evidence was presented that the Plaintiff suffered from a Panic Disorder and a Post-Traumatic Stress Disorder (PTSD) as a result of the collision.
The trial judge concluded that the injuries resulted in a partial disability which was likely going to continue into the forseeable future.
The assessed damages included $81,000 for pain and suffering, $22,700 for past wage loss, $60,000 for loss of earning capacity, $5,130 for housekeeping services, just over $1,000 for past expenses and $3,549 for future care.

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

ERIK
MAGRAKEN

Personal Injury Lawyer

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

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