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$67,500 Non-Pecuniary Assessment for Chronic Soft Tissue Injuries With Depression

Written by admin on . Posted in ICBC Psychological Injury Cases, ICBC Soft Tissue Injury Cases.

Reasons for judgement were released today assessing damages for chronic soft tissue injuries with secondary depression following a collision.
In today’s case (Dhanji v. Holland) the Plaintiff pedestrian was struck in a marked cross walk by a vehicle driven by the Defendant.  The Defendant admitted fault for the collision.
The Plaintiff suffered a variety of soft tissue injuries, some of which were chronic in nature and developed depression secondary to this.  In assessing non-pecuniary damages at $67,500 (a figure which was arrived at following a 10% deduction in damages for the Plaintiff’s failure to mitigate damages by refusing to attend recommended counselling) Mr. Justice Pearlman provided the following reasons:

[108]     The plaintiff is 39 years old.  As a result of the soft tissue injuries she sustained in the accident, Ms. Dhanji has experienced constant back pain, usually of mild to moderate intensity, but at times severe.  While her low back pain had substantially resolved within 14 months of the accident, she continues to suffer from neck pain, which at times is severe.  According to Dr. O’Connor, whose opinion I accept, the plaintiff will probably experience mild to occasionally moderate mid back pain indefinitely.  If she is able to maintain an active exercise regime, and improve her mood through the treatment of her depression, she may realize some reduction in pain.  There is however a very real chance that if her mood and conditioning do not improve, her pain may persist in the moderate to occasionally severe range.  It is more probable than not that Ms. Dhanji will have to cope with mild to occasionally moderate chronic mid back pain throughout her life.

[109]      As a result of her chronic pain, the plaintiff has experienced persistent mild to moderate depression since the accident.  With the benefit of psychological counselling there will likely be some improvement in the plaintiff’s mood, and her ability to manage her pain.  However, given the persistence of her symptoms of depression over the past three and a half years, there is a real possibility that she will experience intermittent bouts of depression or low mood indefinitely.  

[110]     The pain and discomfort the plaintiff experiences during prolonged periods of sitting required her to undertake a graduated return to work over a six-month period. Ms. Dhanji is capable of working full-time with the accommodations available to her at the forensic lab.  Through the use of an ergonomic chair, the application of heat, and taking short breaks during long periods of sitting, she is able to manage the pain and discomfort she experiences during the workday. However, by the end of the week she is fatigued and requires the weekends to recover.  Ms. Dhanji is resilient and dedicated to her work.  However, the pain and discomfort she experiences during the work day have diminished her enjoyment of her work.

[111]     While the plaintiff’s contact with some of her friends has reduced as a result of changes in their lives, I find Ms. Dhanji’s chronic mid back and neck pain has also impaired her social life.  As a result of her fatigue, she tends to stay at home more on the weekends.  Her friends, Ms. Woodall, Ms. Hutchinson and Ms. Ostenall all corroborated Ms. Dhanji’s evidence that she has been less outgoing since the accident.  Although she continues to host dinners from time to time, and to travel with her friends, she does so at a diminished level.

[112]     With respect to physical activities, she is capable of exercising but her tolerance for repetitive activities involving the use of her shoulders and arms is reduced.  Her recreational activities are restricted.  Ms. Dhanji no longer hikes.  She found that activity aggravated her back pain…

[124]     Taking into account the plaintiff’s particular circumstances; all of the Stapley factors, including the probability that the plaintiff will live with chronic mid back pain indefinitely; my finding that her depression is largely but not entirely caused by the defendant’s negligence; and after considering all of the authorities cited by counsel, I assess the plaintiff’s damages for pain and suffering and loss of enjoyment of life in the amount of $75,000.  I reduce that amount by 10% for the plaintiff’s failure to mitigate and award Ms. Dhanji non-pecuniary damages of $67,500.

$100,000 Non-Pecuniary Assessment for Chronic Soft Tissue Injuries With Psychological Component

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Psychological Injury Cases, ICBC Soft Tissue Injury Cases. 72 Comments on $100,000 Non-Pecuniary Assessment for Chronic Soft Tissue Injuries With Psychological Component

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic pain condition stemming from collision related soft tissue injuries.
In today’s case (Karim v. Li) the Plaintiff was injured in a 2011 collision.  The defendant accepted fault for the crash.  The Plaintiff suffered various soft tissue injuries which, coupled with psychological consequences, resulted in an ongoing chronic pain condition.  In assessing non-pecuniary damages at $100,000 Mr. Justice Abrioux provided the following reasons:

(a) prior to the Accident, Mr. Karim was a hard-working and industrious man who had overcome significant obstacles in his past. He was satisfied with his life both personally and professionally;

(b) Mr. Karim’s “original position” included a significant difficulty with stuttering which, although considerably improved from what it had been in the past, was in a fragile or vulnerable state. Had the Accident not occurred, regression was likely were he faced with stressful conditions either in his personal or vocational life;

(c) although I found the plaintiff generally to be credible, he has embellished certain events. For example, he advised Dr. Nader that the defendants’ vehicle was travelling at approximately 80 kph when it struck him. Common sense leads to the conclusion that his vehicle would not have been drivable after the Accident had this been the case and that emergency vehicles would have attended the Accident scene, neither of which occurred. There are also examples of embellishment in his work and educational history;

(d) the plaintiff has a tendency to see things in their worst light. Dr. Gouws characterized this as “pain catastrophization”. This has resulted in the perception that he is much more disabled from a pain and functioning perspective than he is in reality;

(e) the plaintiff sustained moderate to moderately-severe soft tissue injuries in the Accident. He was essentially totally incapacitated from a physical perspective for a period of approximately one year and at intermittent times thereafter. As such, his condition, which includes psychological factors, does satisfy the criteria for “chronic pain” being pain that persists for more than six months. The psychological factors have had a significant negative effect on his ability to recover;

(f) despite the plaintiff’s presentation and the history he has provided to the various professionals who have assessed him, he is capable of much more than what he perceives. I accept Dr. Gouws evidence in cross-examination to that effect;

(g) a component of the plaintiff’s perception of his inability to function may be his psychological makeup. He has, however, demonstrated the ability to overcome disability through his own resources or willpower. An example is his ability to control his stuttering to which I have referred above;

(h) with appropriate professional assistance including a further intensive course at Columbia together with a 16 session cognitive behavioural therapy program as recommended by Dr. Riar, Mr. Karim will largely return to his level of personal and professional functioning experienced prior to the Accident; and

(i) in that regard, I accept Dr. Gouws’ and Dr. Paramonoff’s opinions which identified “catastrophization” and “confounding factors” as the main limitation to Mr. Karim’s recovery. This is the basis for their recommendation that he obtain psychological assistance….

[126]     Based on my findings of fact, I am satisfied that Mr. Karim, who was 25 years old at the time of the accident, suffered moderate to moderately-severe soft tissue injuries at the time of the accident which resulted in physical and psychological consequences. The stress of these injuries also aggravated the significant stuttering condition which existed prior to the Accident. I also find that the consequences of the Accident were instrumental in the termination of his relationship with Ms. Azimi which resulted in an increase in his stress and greatly affected his quality of life for a period of time.

[127]     I have also found that with an appropriate course of treatment both physical and psychological that Mr. Karim should largely return to his pre-Accident level of functioning. Thereafter, there will still, in my view, be some occasions in the future when the consequences of the Accident will affect the plaintiff both professionally and personally.

[128]     I conclude that the authorities referred to by the defendants in particular Andrusko resemble more closely the plaintiff’s circumstances. But that award of $80,000, in my view, should be increased to reflect the contribution that the Accident had on the plaintiff’s relationship with Ms. Azimi. The award should also reflect that although I have concluded that the plaintiff does have the ability to overcome his negative perceptions of how the Accident has affected his life this will take some real effort on his part.

[129]     I award the plaintiff $100,000 under this heading.

Court Finds High Billing ICBC Expert "Strayed Into Advocacy"

Written by admin on . Posted in ICBC Psychological Injury Cases. 161 Comments on Court Finds High Billing ICBC Expert "Strayed Into Advocacy"

Adding to this site’s archived case summaries addressing advocacy by expert witnesses, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, finding a high billing ICBC expert witness’ evidence should be afforded “very little weight” in part based on advocacy.
In today’s case (Redmond v. Krider) the Plaintiff was injured in a 2010 collision that the Defendant was found solely at fault for.  The Plaintiff suffered various physical injuries along with an accompanying psychiatric condition.  The Defendant retained a psychiatrist who gave evidence “that the plaintiff did not develop a new major psychiatric condition due to this motor vehicle accident”.  The Court rejected this evidence and in doing so Madam Justice Maisonville provided the following critical comments:

[115]     Dr. Levin obtained his initial medical qualifications in the then Soviet Union.  There was much questioning of the nature of certain patient treatment at one of the institutes from where he had received his training. 

[116]     Dr. Levin was also cross-examined on the amount of income he received in 2013 from ICBC, and from the Medical Services Plan. .  Suffice it to say that 91% of his income for 2013 was derived from ICBC reports.  In 2012, it was 87%, in 2011, 78% and in 2010, the year of the accident, 60%.  Plaintiff’s counsel therefore argued that Dr. Levin’s report was not in keeping with the Supreme Court Civil Rules, in that it was biased and so not a neutral opinion rendered by an expert for the benefit of the Court…

[120]     Overall, Dr. Levin testified that the plaintiff did not develop a new major psychiatric condition due to this motor vehicle accident, and he found that her level of functioning was inconsistent with the diagnosis of a pain disorder found in her family physician’s clinical records.  He submitted the fact that she had travelled to Las Vegas and participated in boating with her partner went against the conclusion that she was suffering from a psychiatric condition.

[121]     While I have accepted that Dr. Levin is an expert, I find that his report is to be afforded very little weight given his testimony at trial, and given the extent to which his report strayed into advocacy.  It is difficult to ignore the percentage of yearly income gained by the doctor as an expert for one particular party, ICBC, although this alone is not determinative in my finding that Dr. Levin’s report should be afforded little weight. 

[122]     I note that the doctor was argumentative with counsel.  The Court was often required to direct him to answer, as he would not clearly give his evidence in response to simple questions asked.  On cross-examination, he agreed he was not a practicing physical medicine doctor and that he did not assess the plaintiff’s physical injuries, and would defer instead to the plaintiff’s physical medicine doctors, and yet he commented that the plaintiff’s pain and limitations were inconsistent with her stated injuries.  It was difficult to accept his evidence, for the further reason that Dr. Levin stated that if the DSM-5 criteria were applied as a checklist, everyone in the courtroom would have a number of psychiatric diagnoses.  I do not accept that evidence…

[125]     In his report, Dr. Levin said that the plaintiff does not suffer from somatic symptom disorder, as the requirements of that diagnosis are a catastrophic perception of injuries, pervasive preoccupation with pain, and time-consuming, excessive activities.  However, that is not the criteria set out in the DSM-5 which was put to Dr. Levin.  That criteria requires only that there be “[o]ne or more somatic symptoms that are distressing or result in significant disruption of daily life”.  Somatic symptom disorder is a spectrum disorder, and Dr. Levin agreed with that proposition, and yet in his report, he was clearly evaluating the diagnosis as existing only if symptoms fall at the severe end of the spectrum.

[126]     Most difficult for the Court, however, was the aspect of Dr. Levin’s evidence discussing the somatic symptom disorder as it applies to the plaintiff.  As mentioned, he discussed commentary from the DSM-5 about those symptoms that may occur with severe cases of somatic symptom disorder, rather than the specific criteria.  When cross-examined on the actual diagnostic criteria, it became clear that he had not asked the plaintiff questions to determine if she met the diagnosis set out in the DSM-5.

[127]     I do not accept Dr. Levin’s evidence.  I prefer Dr. Anderson’s evidence over that of Dr. Levin.  Dr. Anderson candidly conceded matters, such as that the plaintiff would have a better prognosis if the physical component of her pain disorder was removed, and Dr. Anderson deferred to the physical medicine doctors respecting the plaintiff’s physical pain.  In contrast, Dr. Levin assumed this responsibility and asserted that, as a consequence, the plaintiff did not suffer from any a new psychiatric condition.

[131]     I do not accept Dr. Levin’s opinion and give it no weight.

$160,000 Non-Pecuniary Assessment for Major Depressive and Somatic Symptom Disorders

Written by admin on . Posted in ICBC Psychological Injury Cases. 50 Comments on $160,000 Non-Pecuniary Assessment for Major Depressive and Somatic Symptom Disorders

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic psychological issues following a collision.
In today’s case (Cornish v. Khunkhun) the plaintiff was involved in an intersection collision in 2010.  Both the Plaintiff and Defendant were found equally to blame for the crash.  The Plaintiff suffered from a  major depressive disorder and somatic symptom disorder following the collision.  Her non-pecuniary damages were assessed at $160,000 and in reaching this figure, prior to factoring in the liability split,  Mr. Justice Skolrood provided the following reasons:

[131]     The evidence of Ms. Cornish’s condition was largely uncontradicted. I find that she suffers from a Major Depressive Disorder, as found by Dr. Riley, as well as a Somatic Symptom Disorder which results in her experiencing chronic pain. I also find that she experiences confusion and memory loss which Dr. Riley notes is consistent with her depressive disorder.

[132]     I also find that Ms. Cornish’s injuries have had a significant impact on her enjoyment of life. Her own evidence, and that of her supporting witnesses, paints a compelling before and after picture of a once vibrant woman who, as Ms. Fraser-Biscoe said, is now a different person…

[139]     The evidence is clear that Ms. Cornish had previously suffered from symptoms of depression and that she had a pre-existing back injury. With respect to the depression, I am satisfied on the evidence that it was in remission at the time of the accident and that her current psychological condition was caused by the accident.

[140]     In terms of her pain condition, prior to the accident Ms. Cornish’s back condition caused some limitations with respect to her physical capacity, particularly as it related to her work. She was only able to do light work. However, I accept that the accident aggravated her condition and is the cause of her current chronic pain or Somatic Symptom Disorder.

[141]     The cause of Ms. Cornish’s confusion and memory loss is less clear as there is no neurological evidence addressing these symptoms. However, I accept Dr.  Riley’s opinion that her condition is related to her depressive disorder which I have found was caused by the accident…

[146]     Given the ongoing nature of Ms. Cornish’s symptoms and their impact on her enjoyment of life, I find that a reasonable award of non-pecuniary damages is $160,000.00.

 

$120,000 Non-Pecuniary Assessment For Chronic PTSD and Soft Tissue Injuries

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Psychological Injury Cases, ICBC PTSD Cases, ICBC Soft Tissue Injury Cases. 46 Comments on $120,000 Non-Pecuniary Assessment For Chronic PTSD and Soft Tissue Injuries

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries and post traumatic stress disorder caused by two motor vehicle collisions.
In today’s case (Luis v. Marchiori) the Plaintiff was involved in two collisions, the first in 2008 and the second in 2011.  ICBC admitted fault for both defendants. The Plaintiff sustained chronic injuries and in valuing non-pecuniary damages at $120,000 Madam Justice Gray provided the following reasons:

[178]     I would summarize the significant factors as follows:

a)    Ms. Luis is 49 years old;

b)    In the accidents, Ms. Luis suffered predominantly soft-tissue injuries which have led to painful shoulder surgery, chronic disabling pain in her neck and right shoulder and lower back, moderate to severe major depression, PTSD, and significant weakness in her dominant right hand;

c)     Ms. Luis’s pain has been severe, particularly since the Second Accident, and it is unlikely that her pain or depression or PTSD or right hand weakness will resolve;

d)    As a result of the accidents, Ms. Luis is completely disabled from working and driving and is significantly disabled from personal care, home care, and personal activities; and

e)    Ms. Luis has suffered from the loss of her sense of well-being, the impairment of her relationships with her husband and children, and the loss of the social connections from work.

[179]     No two cases are alike. I have considered the cases cited by both counsel and Ms. Luis’s particular circumstances.

[180]     Ms. Luis is entitled to $120,000 for non-pecuniary damages.

 

$140,000 Non-Pecuniary Assessment For Predominantly Psychological Chronic Pain Disorder

Written by admin on . Posted in ICBC Psychological Injury Cases. 53 Comments on $140,000 Non-Pecuniary Assessment For Predominantly Psychological Chronic Pain Disorder

Adding to this site’s archived cases addressing damages for psychological injuries, reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for a predominantly psychological chronic pain disorder.
In today’s case (Khosa v. Kalamatimaleki) the Plaintiff was involved in a 2009 collision caused by the Defendant.  The Plaintiff suffered relatively mild objective physical injuries but went on to develop a largely disabling chronic pain disorder with a significant psychological component.  In assessing non-pecuniary damages at $140,000 Mr. Justice Saunders provided the following reasons:
[100]     In view of the testimony of Ms. Khosa and her collateral witnesses, and the medical evidence as I whole, I find on a balance of probabilities that she has been and continues to be both physically and psychologically disabled from her previous employment as an LPN, and from housework…
[103]     As noted above, Dr. Gandhi has opined that Ms. Khosa “likely developed a pain disorder associated with both physical and psychological factors”. I agree. The current physical disability, I find, undoubtedly has a very significant psychological component…
[105]     Given the persistence of the physical symptoms in the absence of any significant organic objective signs I find it likely that the psychological factors are the predominant cause…

[107]     I find that Ms. Khosa, on a balance of probabilities, is and has been impaired largely due to psychological injuries caused by the accident.

[108]     Ms. Khosa, I find, currently lacks the ability, at least psychologically, to undergo any form of retraining or upgrade of her skills, and, even if she could undertake the necessary training, currently lacks the physical and psychological wherewithal to discharge the job duties of a registered nurse. The plaintiff submits that:

The constellation of issues she has around tasks requiring management of stress, memory, and concentration, render her an unlikely candidate for completion of nursing school, let alone meeting the job requirements for nursing set out by her employer – foremost among those is the ability to safely administer medication and perform feeding procedures on her young patients.

[109]     I agree.

[110]     It is also apparent that Ms. Khosa’s injuries have had a profound impact on her self-image and her relationships with her husband and children.

[111]     These injuries, subjective though they may be, are real, were clearly caused by the physical and psychological trauma of the accident, and are compensable…

[121]     Based on the opinions of Dr. Koch and Dr. Gandhi, and on Dr. Estrin’s observations as to her positive responses to the limited CBT and neurofeedback therapy she has had, I find that Ms. Khosa’s current condition is such that there is considerable uncertainty as to her prognosis. I am not satisfied that her condition is such that marked improvement is improbable. As the plaintiff has not met the onus of proving this, I find there to be a probability of her responding favourably to psychological treatment. I find the outcomes that could follow from such favourable response range, in ascending probability, from only having her emotional well-being and her relationships with her family restored, to becoming more physically active, to being able to return to work as an LPN and possibly renew her planned pursuit of a career as an RN. I also find, however, that even within the best of these potential outcomes, Ms. Khosa may remain at least somewhat fragile and possibly susceptible to further episodes of anxiety and depression. I also recognize the possibility that the treatment period may be prolonged.

[122]     Given the inherent uncertainty in her condition, I also find that there is a relatively small, but still significant possibility of Ms. Khosa’s psychological condition being resistant to further treatment, resulting in no meaningful improvement. There is a very small possibility of her condition remaining so persistent and so debilitating that she would end up removing herself from the workforce entirely…

[130]     Bearing in mind both the probability of eventual recovery and the possibility of persistent symptoms into the future, and having regard to the non-exhaustive list of factors outlined in Stapley v. Hejslet, 2006 BCCA 34, I assess her non-pecuniary damages at $140,000.

$110,000 Non-Pecunairy Assessment For Chronic Rotator Cuff Injury

Written by admin on . Posted in ICBC Psychological Injury Cases, ICBC Shoulder Injury Cases.

Adding to this site’s archives of pain and suffering awards for shoulder injuries, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic rotator cuff injury.
In today’s case (Pistruga v. Garcia) the Plaintiff was involved in a 2008 collision.  The Defendant admitted fault.  The Plaintiff suffered a rotator cuff injury which underwent arthroscopic surgery which did little to improve the plaintiff’s chronic symptoms.  In addition to this the Plaintiff suffered from a major depressive disorder attributed to the consequences of this crash.  In assessing non-pecuniary damages at $100,000 Mr. Justice Burnyeat provided the following reasons:

[100]     Mr. Pistruga is now 50.  I find that he has suffered and continues to suffer both physically and emotionally as a result of the negligence of Mr. Garcia.  I am also satisfied that his pain and suffering has resulted in an impairment of his family life – a restriction of his household duties and a deterioration of his relationship with his wife and son.  I find that Mr. Pistruga suffered severe pain for about three months after the First Accident and for about four months after the shoulder surgery.  Mr. Pistruga has had and continues to have pain in his shoulder.  As a result of the First Accident and the operation that was necessary as a result of the injuries suffered in the First Accident, he continues to suffer and I find that he will continue to suffer emotionally from the injuries caused by the First Accident and that his symptoms can only be partially lessened by prescription and non-prescription medicine.  While medication appears to have eased his mood swings, I find that he remains suspicious and moody from time to time as well as being subject to panic attacks.

[101]     As a result of the First Accident and the necessary operation, Mr. Pistruga has seen an impairment of his recreational activities as well.  Regarding his physical situation, I accept the opinion of Dr. Vorobeychik that the prognosis is “guarded”.  Regarding the emotional health of Mr. Pistruga, I accept the opinion of Dr. Levin that the prognosis for full recovery relating to his chronic major depression disorder “remains guarded and he most likely will require ongoing maintenance psychopharmacological treatment”.

[102]     In the circumstances, I am satisfied that non-pecuniary damages of $110,000 should be awarded.

$140,000 Non-Pecuniary Assessment for ACL Injury With Chronic Depression

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Knee Injury Cases, ICBC Psychological Injury Cases.

Adding to this site’s archived cases addressing damages for knee injuries, reasons for judgement were released today by the BC Supreme Court, Kelowna Registry, assessing damages for a chronic knee injury with associated depression.
In today’s case (Cook v. Symons) the Plaintiff was involved in a pedestrian/vehicle accident in 2010.  The Defendants were found fully liable.  The Plaintiff suffered an injury to his anterior cruciate ligament which underwent three surgeries without successful resolution.  He also suffered from chronic depression following his injury and this combination of symptoms permanently disabled him from his trade as an electrician.  In assessing non-pecuniary damages at $140,000 Mr. Justice Kent provided the following reasons:

[188]     There is no doubt and, indeed, the defendants concede, that the plaintiff’s knee injury and the chronic pain and physical disability caused by the same was a result of the accident.  With respect to the plaintiff’s mental health, it is uncontroverted and I find as a fact that, as set out in the June 5, 2014 report of Dr. Semrau,

·                 the plaintiff suffers from depression and the depression was caused by the accident and its aftermath;

·                 despite treatment, the depression has continued such that the plaintiff has been and will continue to be disabled from time to time;

·                 as a result of the accident, the plaintiff has suffered a loss of sense of purpose, self-esteem, and time structuring, due to a lack of work or other substantially productive activity, as well as a vicious circle reinforcement between lowered activity demands and perceived decreased energy;

·                 the fatigue experienced by the plaintiff, including the increase in fatigue since January 2014, has been caused not only by sleep apnea (which is yet to be confirmed) but also by the plaintiff’s chronic pain and depression;

·                 there is a circular interaction between the plaintiff’s functional and physical disabilities on the one hand and his depression on the other, each reinforcing the other in a manner that is likely to continue in the future;

·                 the plaintiffs depression has impaired, delayed, and interrupted his rehabilitation efforts, including recommended diet and exercise regimens; and

·                 the plaintiff will encounter significant future functional difficulties and related educational and employment disability.  

[189]     I also accept the evidence of Dr. Gouws and Mr. Trainor with respect to the plaintiff’s barriers to rehabilitation and employment, and their assessments respecting the plaintiff’s ability to successfully retrain and find/keep employment in the future.  I find as a fact that the plaintiff has chronic knee pain and restricted functional capacity that will permanently preclude him from returning to his previous occupation as an electrician or, indeed, any work that requires prolonged standing or walking.  These physical disabilities have combined with the plaintiff’s depression and emotional/mood problems to trigger significant coping difficulties.  All of this is attributable to the accident.

[190]     I also accept Dr. Gouws’ assessment that the plaintiff continues to be at risk of worsening depression, and that any meaningful rehabilitation will require a team effort on the part of the plaintiff, his family physician (medication management), vocational consultant (job search coaching/assistance), psychologist (counseling and cognitive behavioral therapy), and kinesiologist (viable exercise programming).  While some of the plaintiff’s current medical conditions (diabetes, sleep apnea, low testosterone) may not have been directly caused by the accident, the required team rehabilitation is for the most part necessitated by the combination of chronic pain, restricted functional capacity, and depression, all of which was directly caused by the accident…

[198]     I have read each of these cases and have noted both the similarities and dissimilarities with the present case.  Given the severity of the plaintiff’s suffering, loss of amenities, and loss of enjoyment of life in this case, I award the plaintiff non-pecuniary general damages in the amount of $140,000.  

$50,000 Non-Pecuniary Assessment for Lingering PTSD Following Collision

Written by admin on . Posted in ICBC Psychological Injury Cases, ICBC PTSD Cases.

Adding to this site’s archived posts addressing damages for Post Traumatic Stress Disorder, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing such an injury.
In this week’s case (Field v. Bains) the Plaintiff was 7 year old when her vehicle was struck by a semi trailer and dragged along the highway. She suffered from PTSD which had some lingering symptoms by the time of trial some 10 years later.  In assessing non-pecuniary damages at $50,000 Madam Justice Duncan provided the following reasons:
[44]         Rebecca was a seven-year-old child when she was involved in a frightening car accident with her mother. She suffered from recurrent nightmares about the accident for approximately a year and intermittent nightmares for some time after. She would not get in a car for a number of months after the accident. When she finally did she was hypervigilant, on the lookout for large trucks. The sight of a large truck near the family car caused her to go into a severe anxiety phase. She would curl up in a ball in the back of the car and obsessively talk about the truck. Rebecca also had a fear of loud noises from buses and trucks, which at its most severe caused her to run and hide or avoid taking the school bus for outings with her classmates. She never returned to ballet classes.
[45]         Rebecca is now a mature and well-spoken 17-year-old. She has worked very hard to overcome the effects of the accident by seeking out counselling and successfully integrating coping techniques into her daily life.
[46]         I accept the opinions of Dr. Weiss and Dr. Kaushansky that the plaintiff developed PTSD as a result of the accident. I accept their opinions that Rebecca’s fear of large trucks spilled over into a generalized anxiety about a number of different things. While it appears Rebecca has recovered from the psychological effects of the accident, the PTSD and anxiety are in remission rather than completely eradicated.
[47]         As for the plaintiff’s prognosis, I prefer Dr. Kaushanky’s opinion over that of Dr. Weiss. Dr. Kaushansky was of the view that Rebecca would live quite a normal life but be significantly more affected by life stressors than other people. He described it as a waxing and waning effect which would necessitate periodic visits with a counsellor. This appears to have been the case, as Rebecca sought out assistance from Ms. Hildebrandt when her stress and anxiety levels over the accident as well as family matters became too much for her to deal with on her own. Ms. Hildebrandt’s intervention appears to have been successful in assisting Rebecca with an abatement of her anxiety.
[48]         Dr. Weiss’s prognosis that the plaintiff would have marked functional impairment in her life as a result of the PTSD has not, in my view, come to fruition. Rebecca has managed to attain her driver’s licence despite the frightening after-effects of the accident. She graduated from high school, has a positive group of friends and has realistic ambitions for future career paths which she will further investigate after a year off…
[55]         Taking into account the findings of fact in this case, the factors in Stapley, and the comparable authorities involving children with PTSD, I award the plaintiff $50,000 in non-pecuniary damages.

$70,000 Non-Pecuniary Assessment for Chronic Soft Tissue Injuries Perpetuated by Stress

Written by admin on . Posted in ICBC Psychological Injury Cases, ICBC Soft Tissue Injury Cases, Uncategorized.

Reasons for judgement were released today addressing damages for lingering soft tissue injuries compounded by pre-existing emotional distress.
In today’s case (Adkin v. Grant) the Plaintiff was involved in a 2010 rear end collision.  She was 66 at the time of the crash and 69 at the time of trial.  She suffered a variety of soft tissue injuries and some of her symptoms continued to the time of trial.  A perpetuating factor for this was pre-existing emotional distress which exacerbated her symptoms.  In assessing non-pecuniary damages at $70,000 Mr. Justice Halfyard provided the following reasons:
209]     As mentioned, I find that the motor vehicle accident of September 3, 2010 caused injury to the soft tissues of the plaintiff’s neck and upper back and that the injury was of moderate degree. As a result of this injury, the plaintiff suffered pain in these areas and, for a limited period of time, suffered headaches. I find that the injury did not aggravate or worsen the plaintiff’s pre-existing physical conditions, but was super-imposed over them. There may have been minimal injury to the soft tissues of the plaintiff’s lower back, but if so, that injury had healed within six weeks of the accident…
[212]     Both Dr. Salvian and Dr. Kemble agree that the plaintiff is still suffering some neck, upper back and shoulder pain as a result of the soft tissue injury she received in the car accident. It is implicit in Dr. Salvian’s opinion that he says the accident is still causing all of the pain that the plaintiff continues to experience in the soft tissues of her neck, upper back and shoulders. I have rejected that all-encompassing opinion. Dr. Kemble seems to say that most of the soft tissue pain that the plaintiff continues to experience in her neck, upper back and shoulders is being caused (intensified and perpetuated) by her emotional distress (and he says that the emotional distress was a pre-existing condition and was not caused by the accident). I have not accepted those opinions of Dr. Kemble where they conflict with the opinions of Dr. Allison.
[213]     Both Dr. Salvian and Dr. Kemble agree that the plaintiff will continue to suffer physical symptoms as a result of her injury, for an indefinite period of time into the future (although they differ as to the frequency and intensity of such symptoms).
[214]     I accept Dr. Kemble’s opinions to the extent previously identified. I find that some of the plaintiff’s ongoing symptoms of pain in her neck, upper back and shoulders are being caused by the injury from the accident. And I find that she will continue to experience episodes of increased pain in the future, as a result of her injury on September 3, 2010.
[215]     I find that the plaintiff had a pre-existing condition of emotional distress which was affecting her to some extent at the time of the accident. I find also that the plaintiff’s experience of being involved in the motor vehicle accident, her physical injury, and her emotional reaction to that injury caused additional emotional distress to her. That emotional distress adversely affected the plaintiff’s powers of concentration and memory for at least a year, and perhaps longer. However, the effects of the plaintiff’s distress on her memory and concentration was minimal (almost non-existent) by the end of May 2011 when she was examined by Dr. Allison. The plaintiff was continuing to feel emotional distress at the time of trial, and I find that some of that ongoing stress is being caused by the accident of September 3, 2010…
[233]     In all of the circumstances, it is my opinion that a fair and reasonable amount of damages for non-pecuniary loss would be $70,000, and I order that the plaintiff be awarded that amount.