Personal Injury Claims Are Not "Measured by the Number of Doctors Seen"


The value of a personal injury case has little to do with the number of doctor visits a Plaintiff has.  I’ve discussed this topic previously.  Reasons for judgement were released today by the BC Supreme Court, Kamloops Registry, further addressing this matter.
In today’s case, (Tarzwell v. Ewashina) the Plaintiff was injured in a 2007 motor vehicle collision.  She suffered from chronic soft tissue injuries affecting her trapezius muscles and low back.   The injuries were on-going at the time of trial and the Court accepted that the symptoms would linger into the future.  Non-Pecuniary damages of $60,000 were awarded.  Prior to arriving at this assessment Mr. Justice Dley provided the following comments making it clear that the number of doctor visits does not measure the quantum of a personal injury claim:
[67] If a plaintiff’s claim was to be measured by the number of doctors seen or by the number of medical consultations attended, then that would unjustly marginalize victims such as Ms. Tarzwell. She has chosen not to burden the medical system with unnecessary visits to physicians who would give her no further advice than what she had already been provided and followed. She should not be penalized for that.
This case is also worth reviewing for the Court’s comments to the lawyers involved in the litigation for their efficient use of Court time.  Illustrating that meaningful claims can be litigated with little Court time Mr. Justice Dley provided the following compliments:

[5] This case was presented with uncompromising efficiency. Counsel were meticulous in focusing on those matters that were actually in dispute.

[6] The evidence was concluded in a day along with an additional half day for argument.

[7] The medical evidence consisted of two reports. There was no wasted expense by tendering marginal evidence that would have done little to assist the Court.

[8] A case that takes little time to present does not mean that damages are nominal. It is the quality and substance of the evidence that matters. Style should never trump substance.

[9] If an example of proportionality needed a model case, counsel have succeeded here in illustrating how litigation can be conducted.

$200,000 Non-Pecuniary Damage Assessment For Chronic Physical and Psychological Injuries

Reasons for judgement were released last month by the BC Supreme Court, Chilliwack Registry, addressing damages from a 2006 motor vehicle collision.
In last month’s case (Felix v. Hearne) the Plaintiff was driving her vehicle when her boyfriend, who was riding as a passenger, “grabbed the steering wheel causing the vehicle to leave the highway and overturn.”  He was killed in the collision and the Plaintiff suffered numerous physical injuries.
The passenger was found at fault for the crash.   The Plaintiff, who was a verbatim reporter, suffered injuries which seriously compromised her abilities both vocationally and recreationally.  Global damages of just over $800,000 were assessed including non-pecuniary damages of $200,000.  In arriving at this figure Mr. Justice Grist provided the following reasons:




[30] In this case, the physical injuries continuing to affect the plaintiff include: the injury to her left shoulder, left wrist and left ankle; as well as persistent pain in her neck and back. The pain in her neck and back limits her ability to sit for any extended period of time and is associated with the onset of headaches.

[31] The residual effect of the collision, however, is markedly more significant because of the PTSD and depression that she suffers. Combined, there is significant loss in respect of her vocation, family life and social activities…

[33] Ms. Felix’s life has markedly changed following the collision. She is now reliant on her daughters to assist in keeping her home. She receives psychological therapy, is treated with anti-depressant medication and has been prescribed Ativan and Valium to allow her to sleep. She has not been able to work and has been forced to live off of disability benefits and funds realized by re-mortgaging her home. The evidence from her daughter and her two long-time friends who gave evidence on her behalf was that her level of activity and previously bright outlook on life had markedly changed. Her daughter was concerned that, at times, she seemed suicidal. She said that she noted some improvement after she attended the pain clinic in the spring of 2010 and that she seemed a little happier and better able to manage her pain, but that she had regressed since and lacked focus and initiative. She said she often appeared to be in pain, had become short tempered and withdrew from contact with family and friends.

[34] Many of the same comments were made by her friends who commented on the difficulty in getting her to attend social functions, her lack of participation and stamina, and her fragile emotional state.

[35] For a time, she formed a relationship with an individual she met through a common friend, but they have since separated which she attributed to her depression and inability to join in social activities he wanted to participate in. She relates that she began to abuse alcohol to the point she feared she was alcoholic…





[38] It is now six years subsequent to the collision and, although there have been some areas of recovery, there would appear to be, at best, only a modest hope for further improvement…
[47] On balance, I think an appropriate assessment in light of this authority in this case to be $200,000.00 in non-pecuniary damages. The combined effects of residual physical injuries, specifically the neck and back pain and associated headaches, loss of function in her left wrist, and injury to her left shoulder and ankle, along with the pervasive emotional disorder resulting from the effects of her injuries and the trauma of the collision, have been devastating to Ms. Felix’s personal and vocational life. She has lost much of her ability to be self-reliant and to participate in many of the activities that have been the foundation of her social life. The injuries are now assessed as chronic and I think she will continue to struggle with the depression and emotional upset that has marked the six years subsequent to her injuries.
It is worth noting that none of the Plaintiff’s evidence was tested through cross-examination as the Defendant’s estate did not file an appearance and ICBC, for reasons that were not clear in the judgement, “declined to participate” in the defence of the claim.  Despite this, the case still has value as a precedent for non-pecuniary damage assessments for chronic pain following a motor vehicle collision.

$75,000 Non Pecuniary Assessment for Chronic Low Back and Shoulder Soft Tissue Injuries

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic shoulder and low back injury caused by a motor vehicle collision.
In this week’s case (Juraski v. Beek) the Plaintiff was involved in a 2007 collision.  Fault was admitted by the Defendant.  The Plaintiff suffered a chronic shoulder injury which remained symptomatic at the time of trial.  Her prognosis for complete recovery was poor.  She also had mechanical back pain.  In assessing the Plaintiff’s non-pecuniary damages at $75,000 Madam Justice Humphries provided the following reasons:

[42] Dr. Regan, an orthopaedic surgeon, diagnosed myofascial pain in the plaintiff’s left trapezius and cervical spine, anterior left shoulder pain, and chronic left mechanical low back pain.  His report is dated November 26, 2010.

[43] He testified that Ms. Juraski has supraspinus tendonosis, a chronic condition of the shoulder tendon.  He said a tear was possible but upon seeing the MRI of March 31, 2011, agreed it did not support that suggestion.  He agreed with Dr. Nobel (see below) that pain block injections would allow more accurate diagnosis, but in view of the passage of time, he did not foresee the shoulder pain settling…

[77] The accident occurred 4 years ago.  I accept that the plaintiff now lives with chronic pain in her shoulder and lower back and will continue to do so, although exercise and strengthening may alleviate her symptoms to some degree, particularly in her back.  On a consideration of the medical evidence, including that of Dr. Leith, there is a difference of opinion about the mechanisms causing Ms. Juraski’s pain.  However, there is no question but that the chronic pain in her shoulder area and lower back are caused by the accident.

[78] The plaintiff is obviously a determined and energetic person who will do what is required to make ends meet.  However, I am satisfied the quality of her life has been altered by the pain she copes with daily.  She is unable to keep up the high standards of housework and household accomplishments she maintained before the accident.  To some extent, her ability to live her life as she did is affected by her unenviable work schedule – without that she would probably be able to devote more time to housework and her garden, but she would still have to cope with chronic pain as she did it.  Her symptoms are not incapacitating – she works hard and long hours- but her enjoyment of life is considerably curtailed.  She admitted on discovery that her sleep is back to normal.

[79] However, given the time that has passed, the doctors, while recommending strengthening exercises and other treatments, are guarded in their prognosis for improvement in pain and discomfort in the future, especially with her shoulder.  On the whole, while some improvement in symptoms might be forthcoming through exercise and core strengthening, the medical practitioners suggest she will have to learn to live with and manage chronic pain.

[80] The defendant did not argue that the plaintiff has failed to mitigate her damages.  She has followed the treatment recommendations offered to her, although her busy work schedule interferes with her ability to exercise and stretch.

[81] While there are some parallels between the facts here and those outlined in the cases cited to me, those submitted by the plaintiff tend to describe situations where there were other important effects from the accident in addition to chronic pain – for instance, depression, ongoing inability to sleep, post traumatic stress disorder, inability to work, significant reduction in energy, need for significant rehabilitation and counselling.  The cases cited by the defendant tend to deal with less severe or pre-existing symptoms, symptoms that resolved after a period of time or were improving, or symptoms localized to one area – either back or shoulder, but not both.

[82] It is clear that awards for non-pecuniary damages in cases of chronic pain vary fairly widely, and of course the symptoms and effects on each plaintiff’s life are individual.  Taking Ms. Juraski’s situation in the context of all of the cases referred to me, I conclude that an appropriate award for non-pecuniary damages is $75,000.

$80,000 Non-Pecuniary Award for Chronic Shoulder Injury; Bradley v. Groves Applied

Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, assessing damages for a shoulder injury caused by a motor vehicle collision and subsequently aggravated by an at-work incident.
In last week’s case (Kaleta v. MacDougall) the Plaintiff was injured in a 2008 collision.  Fault was admitted by the Defendant.  As a consequence the Plaintiff suffered from “chronic neck and left shoulder pain”.  The symptoms were due to soft tissue injury and there was a “moderate probability” for long lasting symptoms.
Prior to trial the Plaintiff aggravated his shoulder in an at-work incident.  He made a WorkSafe Claim as a consequence.  ICBC argued the damages need to be reduced as a result.  Mr. Justice Truscott disagreed relying on the BC Court of Appeal’s decision Bradley v. Groves.  In assessing damages at $80,000 the Court provided the following useful comments:

[33] In Dr. McAnulty’s last assessment on March 3, 2011 the plaintiff again reported with chronic neck and left shoulder pain, worse at night. His prior knee and back pain had resolved.

[34] Dr. McAnulty’s diagnostic impression at the time was of chronic myofascial pain post motor vehicle accident affecting the left neck and shoulder and the plaintiff was advised to continue with activity as tolerated.

[35] In his summary and conclusions in his report of March 6, 2011, Dr. McAnulty says that despite the many interventions the plaintiff still remains symptomatic and now has more likely than not reached the point of maximum medical improvement, especially since two and one-half years have elapsed since the motor vehicle accident. He says the plaintiff may well suffer chronic myofascial pain in the future…

[57] I accept the opinion of Dr. McAnulty that the workplace shoulder injury of June 11, 2009 was an aggravation of the shoulder injury suffered in the motor vehicle accident which remained symptomatic, and was not a new injury unconnected to the previous injury…

[61] As a matter of law the defendant remains responsible for continuing problems with the left shoulder after June 11, 2009 (Bradley v. Groves, 2010 BCCA 361)…

[63] It may be concluded from all this that the prospect of a chronic injury in the nature of a permanent or indefinite injury is only a possibility, but in Dr. McAnulty’s report he also says that the patient has more likely than not reached the point of maximal medical improvement and that statement reflects a standard of probability and not possibility.

[64] It is my conclusion that Dr. McAnulty considers the shoulder pain to be a chronic or long-lasting pain as a moderate probability, and I will assess the plaintiff’s damages on that basis…

[70] I award the plaintiff $80,000 for general damages for pain and suffering and loss of enjoyment of life.

Defence Doctor Opinion Rejected for Not Physically Examining Plaintiff


Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, providing comments critical of the practice of obtaining medical opinion evidence without accompanying physical examination of a Plaintiff.
In this week’s case (Ruscheinski v. Biln) the Plaintiff was involved in three collisions.  She sustained soft tissue injuries to her her neck and shoulder in the initial crash.  The following crashes had a ‘cascading effect‘ on these injuries resulting in chronic pain with partial disability.  Non-Pecuniary Damages of $85,000 were assessed.
In the course of the trial the Court heard from competing expert witnesses.  The Defendant’s expert never examined the Plaintiff.  For this reason the Court preferred the evidence of the Plaintiff’s experts and provided the following critical comments:

[82] Dr. Turnbull, a neurosurgeon, provided expert evidence on behalf of the defendants. He was the only medical expert whose opinion was adduced as part of the defendants’ case. His assessment is set out in his report dated April 26, 2011.  In his report, Dr. Turnbull opined:

Ms. Ruscheinski evidently suffered soft tissue injuries in the MVA of February 24, 2006 which may have been aggravated by the MVAs of September 9 and September 17, 2006.

[83] In my opinion, Dr. Turnbull’s choice of the word “evidently” results from the fact that he did not conduct an examination of Ms. Ruscheinski. Dr. Turnbull has not met, nor has he ever examined Ms. Ruscheinski. His opinions are based solely on his review of medical records.

[84] Dr. Turnbull also expressed in an opinion, in his report, that although Ms. Ruscheinski’s “soft tissue injuries have had ample time to heal”, her “symptoms may persist for some time.” He does not recommend any further treatment because, he explained, “passive treatments conducted more than two years after soft tissue injury are recognized as having little value.”

[85] I prefer the evidence of Drs. Feldman and Wasti over the defence expert, Dr. Turnbull. I accept Dr. Feldman’s opinion (supported by Dr. Wasti) that meeting a patient, obtaining their history directly, and conducting a thorough examination are essential to provide an accurate diagnosis of a patient’s injuries and to determine an appropriate prognosis.

[86] In my opinion, when dealing with cases where chronic pain is suggested or suspected, an examination of a patient that is designed to look for objective evidence of injury, such as muscle spasm, as opposed to feigned pain behaviour, coupled with an appropriate and thoughtful approach to taking a patient’s history, will lead to a diagnosis and prognosis that is much more reliable than a records review. I accept Dr. Feldman’s evidence that without a physical examination of Ms. Ruscheinski, it would not have been possible to detect the winging of her scapula.

[87] Dr. Turnbull agreed in cross-examination that muscle spasm and tenderness provide an objective basis for a diagnosis and prognosis. Those objective findings were found by Drs. Feldman and Wasti. Dr. Turnbull is not in a position to contradict the findings of Drs. Wasti and Feldman because he did not examine Ms. Ruscheinski. Further, Dr. Turnbull did not address Dr. Feldman’s findings, the findings from the flexion/extension x-rays, nor the focused treatment recommended by Dr. Feldman that consists of active and passive treatments. Finally, I wish to note that Dr. Turnbull acknowledged that most of his patients with neck and back pain do not have a history of being involved in motor vehicle accidents.

[88] My view of the matter is also supported by the remarks of Burnyeat J. in Dhaliwal v. Bassi, 2007 BCSC 549, 73 B.C.L.R. (4th) 177, where he wrote at paras. 2-3:

[2]        The role of an expert is to assist the Court. I am not assisted by receiving the “opinion” from a psychiatrist who has not seen a person and who bases his opinion only on documentation made available to him where much of that documentation will ultimately not be in evidence. Ordinarily, counsel will provide the factual assumptions to the expert that counsel will then proceed to prove in evidence. Those factual assumptions should be clearly stated in the statement of the expert. It is not for an expert to merely review a number of documents, many of which will not be in evidence and make certain findings of fact. …

[3]        As well, the Court has commented a number of times on it being inadvisable to rely on the opinion of a medical advisor who has not seen a plaintiff: see for instance Parish v. Scott, [1966] B.C.J. (Q.L.) No. 2839 (B.C.S.C.) at paras. 5 and 29. …

$125,000 Non-Pecuniary Damage Assessment for TBI – Adverse Inference Discussed

Update March 21, 2014 – the Liability findings in the below case were upheld today by the  BC Court of Appeal
_____________________________________
Adding to this site’s ICBC Case Summary Archives, reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, assessing non-pecuniary damages for a traumatic brain injury sustained in a BC vehicle collision.
In this week’s case (Meghji v. Lee) the Plaintiff was struck by a vehicle while walking in a marked cross-walk in 2003.  Both the Defendant driver and BC Ministry of Transportation and Highways were found at fault for the crash.  The former for failing to keep a proper lookout while driving, the latter for designing the intersection at question with inadequate overhead lighting.  The driver was found 90% at fault with the Ministry shouldering 10% of the blame.
The Plaintiff suffered a fracture near her left shoulder, left elbow, ankle, knee and a traumatic brain injury.   The consequences of these were expected to cause permanent dysfunction.  In assessing non-pecuniary damages at $125,000 Mr. Justice Johnston provided the following reasons:
 
 
 
 
 
 
 
 
 
 

[134]Mr. Lee struck Ms. Meghji on her left side. That caused a significant fracture to Ms. Meghji’s left upper arm, a less significant fracture just below and into her left knee and an injury to her left ankle, all of which required immediate medical intervention. There were also the soft tissue injuries that would reasonably be expected to accompany such trauma.

[135]Within a day of the accident, Ms. Meghji had surgery to her left upper arm that involved the insertion of a rod that was fixed by screws just below her shoulder and just above her left elbow. She also had a screw placed into her left ankle…

 
 
 
 
 
 
 
 
 
 

[270]Based upon the evidence of Dr. Ali and Mr. Brozak of the substantial change noted in Ms. Meghji during this time, as supported by similar observations from Ms. Chauncey’s and Ms. Wyeth’s description of Ms. Meghji’s abilities in her math class and as a teaching assistant before the accident, I conclude that Ms. Meghji has more likely than not suffered a brain injury in the accident, and that the combination of the effects of the brain injury and the depression and chronic pain disorder, which I also find was caused by the accident or flows from injuries suffered in the accident, are so inextricably intertwined that they cannot possibly be disentangled.

[271]In all of the circumstances, the defendants are ordered to pay Ms. Meghji $125,000 for non-pecuniary damages for pain, suffering, and loss of amenities and enjoyment of life.

This case is also worth reviewing for the Court’s application of the ‘adverse inference’ principle.  In the course of the lawsuit the Plaintiff’s lawyers had her assessed by a neurologist.  The neurologist did not tender evidence at trial.  Mr. Justice Johnston used his discretion to draw an adverse inference in these circumstances finding that the privately hired doctor likely did not have helpful evidence to give in support of the Plaintiff’s claim.  The court provided the following reasons:

 
 
 
 
 
 
 
 
 
 

[240]In ordinary circumstances, I would agree that a claim of litigation privilege should be sufficient explanation for the failure to produce evidence from an expert who examined a party, and no inference adverse to that party should be drawn from the failure to produce the evidence.

[241]However, where, as here, counsel has assumed control of medical management of a plaintiff’s injuries, the circumstances are not ordinary.

[242]Dr. Grimwood would ordinarily have been expected to coordinate Ms. Meghji’s treatment, including referrals to specialists as he thought advisable. In this case, Dr. Grimwood appears to have largely ceded that responsibility to Ms. Meghji’s counsel, largely because counsel were able to arrange examinations by medical specialists much sooner than could Dr. Grimwood.

[243]Where counsel becomes actively involved in arranging treatment, or in treatment decisions, or in selection of treatment providers to the extent that it becomes difficult or impossible to determine whether any particular doctor is involved for treatment purposes, or to advise counsel, the protective cloak of litigation privilege becomes tattered.

[244]In such circumstances, counsel and the party who permit the line between treating physicians and physicians retained to advise counsel to become blurred must accept some risk that the protection ordinarily afforded by litigation privilege might be lost.

[245]Ms. Meghji testified that she saw Dr. Cameron for headaches. In the face of that evidence, I infer, from the refusal to produce evidence from Dr. Cameron, that any opinion generated as a result of his examination of Ms. Meghji was not helpful to the claims she makes in this trial. I also infer that, while examining for headache, had Dr. Cameron observed any signs that suggested to him that Ms. Meghji had suffered a traumatic brain injury in the accident, his observations or opinion would have been produced at trial.

 
 
 
 
 
 
 
 
 
 

$70,000 Non-Pecuniary Damages Assessment for Chronic Shoulder Tendonitis


Reasons for judgement were released earlier this week by the BC Supreme Court, Vancouver Registry, awarding damages for injuries and loss flowing from a BC motor vehicle collision.
In this week’s case (Garcha v. Duenas) the Plaintiff was involved in a 2007 collision.  He was a passenger in a truck which was struck when the Defendant “made a sudden left hand turn across (the Plaintiff’s vehicles) path“.  Fault for the crash was admitted focusing the trial on the value of the Plaintiff’s claim.
The Plaintiff suffered various injuries, many of which recovered by the time of trial.  One injury unfortunately lingered on, specifically tendonitis in his shoulders.   This inflammation caused pain which limited the Plaintiff domestically, recreationally and vocationally.  The symptoms were not expected to improve with time.  In valuing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $70,000 Madam Justice Boyd made the following findings:
[53] Dr. Parhar holds the opinion that since the accident the plaintiff has been suffering the ongoing effects of a shoulder tendonitis, that is an inflammation of the shoulder tendons, resulting from the acute trauma suffered at the time of the motor vehicle accident.  I note here that on cross examination, Dr. Tarazi also opined that the right shoulder complaints were likely related to the injuries suffered in the motor vehicle accident.  Even if the injury was related to repetitive movements, he believed that this was due to the fact that due to his injuries, the plaintiff was likely posturally over- compensating in some way, thus giving rise to the shoulder complaints.  In the absence of the motor vehicle injuries, he doubted the shoulder complaints would have arisen. ..
[58] On a review of all the evidence I am satisfied the plaintiff has proven on a balance of probabilities that his continuing complaints are legitimate and that they are indeed causally related to the injuries suffered at the time of this motor vehicle accident…
[67] Considering all of the evidence, I find that an appropriate award of general damages for pain and suffering and loss of enjoyment of life is $70,000…
[78] In the end result, I am satisfied the plaintiff has proven that he is now permanently partially disabled.  Adopting the opinion of Dr. Parhar, I am satisfied that given the activation of his osteoarthritis, his condition will likely worsen over time.
For more on this topic you can click here to access my archived posts of other recent BC Court Cases assessing damages for shoulder injuries

$70,000 Non-Pecuniary Damages for Subacromial Impingement

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, discussing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) for an injury causing chronic shoulder impingement.
In today’s case (De Gaye v. Bhullar) the Plaintiff was involved in a 2005 collision in Surrey, BC.   The Defendant ran a red light and struck the Plaintiff’s vehicle with considerable force.  Fault for the crash was admitted.  The trial focussed on the value of the Plaintiff’s claim.
The Plaintiff sustained various injuries, the most serious of which was subacromial impingement to his left shoulder.

Madam Justice Bruce assessed non-pecuniary damages at $70,000 and in doing so made the following findings:
[87] While the expert medical opinions are unanimous that Mr. De Gaye also suffered a left shoulder injury during the accident when he struck the seatbelt harness, there is a dispute as to whether the muscle and ligament damage included thoracic outlet syndrome. Dr. Vaisler and Dr. Stewart-Patterson believe that Mr. De Gaye has a shoulder impingement that would be best managed by arthroscopic surgery followed by a three month recovery period with physiotherapy. Their clinical observations and physical examinations support this opinion. Dr. Vaisler and Dr. Stewart-Patterson also believe that the findings in the ultrasound report are consistent with a shoulder impingement and that this test corroborates their clinical observations. …
[89] On balance, I prefer the opinions of Dr. Stewart-Patterson and Dr. Vaisler. Their opinions are supported by physical tests and clinical observations over a combined period of almost three years between January 2007 and September 2009. While the cortisone injections have not relieved Mr. De Gaye’s pain, there is a significant failure rate in the accuracy of such injections and the ultrasound report suggests there is a mild shoulder impingement according to the opinions of Dr. Vaisler and Dr. Stewart-Patterson…

[92]         While it is apparent that Mr. De Gaye’s loss of enjoyment of life, physical pain, and emotional suffering has continued for over five years since the accident, it is undeniable that the symptoms have drastically improved since March 2005. The back and neck pain reoccur infrequently with extended use or exercise. The primary injury remains the shoulder impingement; however, there is an 80% chance that arthroscopic surgery will relieve the pain symptoms even with repetitive use. The migraine headaches remain problematic but controllable with prescription medication.

[93]         The cases cited by the parties are helpful because they show the range of possible damages for pain and suffering; however, each case must be decided on its own particular facts. In light of the length of time Mr. De Gaye has suffered from his injuries, the serious nature of those injuries and their significant impact on his recreational and work life, balanced against the improvements he has had over time and the high probability of successful surgery for his left shoulder, I find that an award of $70, 000 is appropriate in all the circumstances.

$135,000 Non-Pecuniary Damages Awarded for Torn Pectoralis Major Muscle

(UPDATE: May 9, 2012 … The Trial Judge’s findings regarding liability were appealed.  The Appeal was dismissed today.)

Reasons for judgement were released today by the BC Supreme Court, Nanaimo Registry, awarding just over $450,000 in damages for injuries and losses arising out of a 2006 BC Motor Vehicle Collision.
In today’s case (Power v. White) the Plaintiff was involved in a 2 vehicle collision.  As the Plaintiff was driving down the Island Highway a deer ran into his lane of travel threatening collision.  The Plaintiff reacted suddenly by changing into the right lane and braking as hard as he could.  Unfortunately this was not sufficient and the Plaintiff’s vehicle struck the deer.  Shortly afterwards the Defendant, who was travelling in the right lane, collided with the rear of the Plaintiff’s vehicle.  Fault was at issue however the Mr. Justice Verhoeven found that the Plaintiff reacted reasonably to the threatened collision and that the Defendant was 100% at fault for failing to drive with all due care and attention.
The Plaintiff suffered various injuries the most serious of which was a tear to his pectoralis major muscle.  This injury did not fully heal and was expected to effect the Plaintiff well into the future.  The Plaintiff’s family doctor provided the following evidence with respect to the severity of this injury:

In review, Mr. Power sustained injuries to his right pectoralis major (partial tear) to the right T-6 area as well as some transient injuries to the soft tissues in his right shoulder and base of neck and right buttock area. These complaints started after his accident and have been persistent and continuous since that time. Institution of physiotherapy, chiropractic and exercised based therapy have been useful in increasing some of his functional capacity since the accident, but have plateaued in that the pain from either his right pectoralis area or the T-6 area have limited any further advancement of intensity or duration of his exercise. These injuries have significantly limited his recreational activities, particularly swimming, biking and running as well as his ability to care for his house and yard, particularly the use of his power saw, shovels and mowing his lawn. At work he generally does not have a lot of limitation as he is able to get up from his seat when he needs to but does have limited sitting capacity as has previously been outlined. He does and would have some problems turning some of the heavy valves and climbing the ladders if there is a breakdown at the mill, however he does have a partner and this has generally worked out that the partner has done this.

Mr. Power has sustained significant injuries from the accident. His functional limitations have been outlined in detail. They are significant for his recreational and household and yard activities. At this time I do not see a significant future recovery for these and at the moment I am unable to find a surgeon who would consider repairing this injury, although I will persist in searching the literature for a possible solution for this problem. Mr. Power has shown he is determined to remain active, having returned to work promptly after his accident, followed all of my instructions as well as his therapist’s instructions to the letter and done a persistent and significant job in increasing his activities to what is now his limit due to pain in the aforementioned areas and I do not see his disabilities resolving in the near future.

Mr. Justice Verhoeven awarded the Plaintiff $135,000 for his non-pecuniary damages (money for pain and suffering and loss of enjoyment of life).  In reaching this figure the Court provided the following reasons:

[82]         In this case, Mr. Power has suffered a very significant and permanent loss to the lifestyle he previously enjoyed. Virtually all of his previous physical activities have been severely curtailed. Prior to the accident Mr. Powers physical vigour was central to his life and lifestyle. His mood and emotional well being have been negatively affected. His relationship with his wife has been harmed. His ability to improve and maintain his property, quite obviously a source of great pleasure and pride to him formerly, is all but completely gone. He has not and will not in future be as physically fit as he previously was. It is reasonable to infer that this may affect his health long term. I think it likely that Mr. and Mrs. Power will sell their five acre property and move into a residence that does not require so much effort to maintain…

[84]         In all these circumstances, I assess the plaintiff’s non-pecuniary loss at $135,000.

ICBC Claims and Medical Treatment; How Often Should I See My Doctor?


One common question I’m asked by people advancing ICBC injury claims is “how often should I see my doctor?“.  The short answer is “as often as necessary to properly diagnose and treat your injuries“.  Recovery should always be the main reason behind physicians visits, not litigation.
There is no magic number of times you need to see a doctor in order to be properly compensated for your injuries.  A person who sees their doctor 100 times prior to settling may receive less than a person who only receives medical attention a handful of times.  The severity and duration of injuries are some of the most important factors when valuing loss, not the number of medical treatments.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, highlighting this.
In today’s case (Co v. Watson) the Plaintiff was involved in a “T-Bone” collision in 2006.  Fault was admitted by the offending motorist.  The trial focused on the value of the Plaintiff’s ICBC claim.   Mr. Justice Burnyeat found that the Plaintiff suffered from shoulder pain, back pain, neck pain and some sleep disturbance.  Some of the injuries improved prior to trial while other symptoms continued to bother the Plaintiff.
The Defendant argued that since the Plaintiff did not “regularly” attend to be treated by her GP that the Court should be weary of the Plaintiff’s credibility.  Mr. Justice Burnyeat rejected this argument and went on to award the Plaintiff $27,500 for her non-pecuniary damages (money for pain and suffering and loss of enjoyment of life).  In addressing the topic of frequency of medical treatment the Court stated as follows:

[26]         Ms. Co did not regularly attend to be treated by Dr. Porten.  The credibility of Ms. Co was put in questions by Mr. Watson as a result.  In this regard, I adopt the following statement made in Mayenburg, supra, where Myers J. stated:

The defendants challenge the credibility of Ms. Mayenburg. They point to the limited number of times she visited physicians to complain about her pain. They also refer to the fact that she did not raise the issue of her injuries when she visited Dr. Ducholke on several occasions for other unrelated matters.

I do not accept those submissions, which have been made and rejected in several other cases: see Myers v. Leng, 2006 BCSC 1582 and Travis v. Kwon, 2009 BCSC 63. Ms. Mayenburg is to be commended for getting on with her life, rather than seeing physicians in an attempt to build a record for this litigation. Furthermore, I fail to see how a plaintiff-patient who sees a doctor for something unrelated to an accident can be faulted for not complaining about the accident-related injuries at the same time. Dr. Ducholke testified how her time with patients was limited.

In summary, Ms. Mayenburg’s complaints to her doctors were not so minimal as to cast doubt on her credibility.

(at paras. 36-38).

[27]         Taking into account the injuries suffered by Ms. Co as a result of the accident and the duration of the suffering relating to those injuries, I assess the general damages of Ms. Co at $27,500.00.

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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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