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

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


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.

1/3 Damage Reduction For Plaintiff's "Failure to Mitigate"

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


Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, reducing a Plaintiff’s damages following a motor vehicle collision for failure to follow medical advice.
In this week’s case (Hsu v. Williams) the Plaintiff was injured in a 2007 rear-end collision.  The Plaintiff suffered from chronic pre-existing pain.  The Court accepted that the collision aggravated this condition and further that the collision caused a sacroiliac joint injury.   Mr. Justice Savage assessed the Plaintiff’s non-pecuniary damages at $30,000 then reduced this award by 1/3 for the Plaintiff’s ‘failure to mitigate’.  In doing so the Court provided the following reasons:

[42] In Graham v. Rogers, 2001 BCCA 432 (application for leave to appeal dismissed, [2001] S.C.C.A. No. 467), Rowles J.A.(Huddart J.A. concurring) said at para. 35:

Mitigation goes to limit recovery based on an unreasonable failure of the injured party to take reasonable steps to limit his or her loss.  A plaintiff in a personal injury action has a positive duty to mitigate but if a defendant’s position is that a plaintiff could reasonably have avoided some part of the loss, the defendant bears the onus of proof on that issue.  Red Deer College v. Michaels(1975), [1976] 2 S.C.R. 324 at 331, 57 D.L.R. (3d) 386 at 390, and Asamera Oil Corp. v. Sea Oil & General Corp. (1978), [1979] 1 S.C.R. 633, 89 D.L.R. (3d) 1, provide support for that proposition.  In this case, the appellant argues that the respondent did not meet the onus of proof by showing or establishing that the appellant could reasonably have avoided his income or employment losses.

[43] In his very thorough report, Dr. Armstrong gave treatment recommendations.  Although he applied a caveat, that “my remarks are my opinions and should not be understood as directives for the provisions of Ms. Hsu’s care” as that would be “at the discretion of her treating physicians and other care providers”, his report is the only medical opinion before the court.  Those recommendations included (1) a focused and carefully supervised program of rehabilitative exercise aimed at correcting her sacroiliac joint problem; (2) minimizing passive therapies; (3) supervised stretching and posture improvement under the guidance of a physiotherapist; (4) a progressive program of exercise under the supervision of a physiotherapist to strengthen her core muscles; (5) counselling sessions with a clinical psychologist familiar with chronic pain management; (6) a progressive walking program; and (7) time off work to pursue rehabilitation.

[44] The plaintiff has largely not followed these recommendations.  There is no evidence, for example, that she embarked on a supervised program of rehabilitative exercise, counselling sessions, or has worked on stretching and posture improvement under a professional’s guidance.  She did not embark on a progressive program to strengthen core muscles.  There is no evidence that she has sought out a clinical psychologist to assist her in chronic pain management.  Hsu did not take time off work to pursue rehabilitation.  Hsu also continued with, and seeks compensation for, continuing passive therapies.

[45] For example, Hsu claims as special damages acupuncture treatments covering a period from March 2007 to June 5, 2011 ($1,050); massage therapy treatments from 2008-2010 ($1,419); massage treatments in Taiwan ($13,150); massage treatments and a one year gym pass paid for in 2010 ($1,800); acupressure and acupuncture treatments in 2011 ($670.24); undescribed “rehabilitation treatments” ($760); and various prescription medications ($194.72).

[46] Dr. Armstrong’s report was introduced in evidence by the plaintiff.  Although Dr. Armstrong says that the opinions are not directives for future care, and that future care should be at the discretion of her treating physicians and other care providers, there are no opinions of those treating physicians or care providers in evidence.  So there is no evidence that those treatment recommendations should not have been carried out.

[47] The importance of carrying out those recommendations is significant.  Dr. Armstrong opined that the longer chronic sacroiliac joint dysfunction persists, the less favourable is the chance for significant improvement.  Although his prognosis if the recommendations were carried out was guarded, in my view the plaintiff should have undertaken the recommendations by the witness she called to give evidence.  In the circumstances, the plaintiff has failed to mitigate her damages.  I would reduce the general damages award by one-third to account for this factor.

For more recent BC case summaries addressing failure to mitigate you can click here to access my archived posts and here for more recent case summaries addressing pain and suffering awards for sacroiliac joint injuries.

ICBC's LVI Defence Rejected Yet Again

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC LVI (Low Velocity Impact) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

I’ve written about this topic too many times to give a lengthy introduction other than to say it is clear that the “Low Velocity Impact” Defence is not a legal principle.  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, yet again demonstrating this.
In today’s case (Cariglino v. Okuda) the Plaintiff was involved in a 2008 collision.  She was a passenger in a vehicle that was rear-ended.  Fault was admitted.  She suffered various soft tissue injuries.  The vehicle sustained $724 in damage and the Defendant advanced the classic LVI defence arguing that this little damage “indicates the relatively minor nature of the collision and the likelihood that the complaints of injury and loss made by the plaintiff are either not related to this collision or are embellished.”.
Mr. Justice McKinnon rejected this argument and in doing so provided the following comments:

[33] No medical opinions were proffered by the defence, rather defence submitted that the plaintiff’s evidence is “unreliable” as she downplays the role of significant family stressors in her life, fixating on the collision as the sole cause of all of her problems, both before and after the collision. Curiously, defence accepts that the plaintiff is credible but not reliable. That seems to me to be a distinction without a difference.

[34] I found the plaintiff to be generally credible and, for the most part, a reliable historian. Certainly she had stresses in her life that created difficulties but she was able to manage these much more easily before the collision. A defendant takes a plaintiff as he finds her. Here the defendant has caused injury to the plaintiff who was in a somewhat fragile state, given her many family issues.

[35] The defendant contends that the very minor nature of the collision would render “improbable” the nature and extent of the injuries the plaintiff contends she suffers. I was not provided with opinion evidence to support that contention and thus am unable to accept the bald proposition that minor damage equals minor injury.

The Court accepted that the Plaintiff suffered various soft tissue injuries which largely improved in the first year following the crash and with further therapy should fully recover.  Non-Pecuniary damages were assessed at $35,000.

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

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases.

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.

$40,000 Non-Pecuniary Damages for Chronic Whiplash and Possible Facet Joint Injury

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


Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic whiplash injury.
In last week’s case (Fiorda v. Say) the Plaintiff was involved in two collisions, the first in 2008 and the second in 2009.  The Plaintiff was not at fault for either crash.  Both collisions contributed to a chronic whiplash injury with possible facet joint involvement.  The symptoms of pain were still present by the time of trial and these were expected to carry into the future.  In assessing the Plaintiff’s non-pecuniary damages at $40,000 Madam Justice Holmes provided the following reasons:

[25] Dr. Gabriel Hirsch, specialist in physical medicine and rehabilitation, conducted an independent medical assessment on April 4, 2011.

[26] Dr. Hirsch concluded that in the first accident, Ms. Fiorda sustained relatively minor injuries to her neck, upper back, and shoulder girdle region, from which she had made a good recovery by the time of the second accident.  He concluded that absent the second accident, Ms. Fiorda probably would have made a full recovery from the first.

[27] Dr. Hirsch concluded that the second accident caused injuries to Ms. Fiorda’s neck, thoracic spine, and lumbar spine, which probably involved soft tissue structures, such as muscles, tendons, and ligaments.  Given the accident mechanism as Ms. Fiorda had described it, it was also possible that Ms. Fiorda sustained an injury to a cervical facet joint.

[28] Dr. Hirsch recommended that Ms. Fiorda carry out a regular exercise program, ideally in a well-equipped community centre or gymnasium.  Because Ms. Fiorda had recently completed a functional restoration program under the guidance of a physiotherapist and kinesiologist, he felt she should be able to continue with a maintenance program on her own.  He recommended particular components of a regular exercise program for Ms. Fiorda to follow.

[29] Dr. Hirsch also suggested that Ms. Fiorda consider trigger point injections into the neck and shoulder girdle region, her most symptomatic areas.  He noted that those injections are funded by the Medical Services Plan.

[30] Dr. Hirsch noted that “there is some uncertainty” about whether Ms. Fiorda can continue in her work as a costume designer on a sustainable basis because of the long hours and many consecutive days, which do not allow her the opportunity to recuperate from a flare-up. ..

[45] In my view, the particular circumstances of Ms. Fiorda’s case support an award of $40,000.

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

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

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

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, independent medical exams. 49 Comments on 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. …

Why Frequent Doctor Visits Don't Increase The Value of Personal Injury Claims

Written by admin on . Posted in ICBC Soft Tissue Injury Cases, Uncategorized. 50 Comments on Why Frequent Doctor Visits Don't Increase The Value of Personal Injury Claims


As previously discussed, frequent doctor visits in and of themselves add no value to a personal injury claim.  Seeing a doctor simply to ‘paper’ a personal injury claim really does nothing to add to the amount of compensation a claimant is entitled to receive not to mention that it creates a costly and unnecessary burden on the medical system.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating that medical visits to address ‘inconsequential‘ matters with a view to assisting a personal injury claim are frowned upon.
In this week’s case (Hough v. Wyatt) the Plaintiff was involved in a 2009 collision.  He sued seeking over $350,000 in damages.  The Court largely rejected the Plaintiff’s claim finding that while the collision did cause some injuries these were little more than a ‘minor degree‘ of aggravation of pre-existing injuries.  Non-Pecuniary damages of $15,000 were assessed.
In the course of the judgement Madam Justice Stromberg-Stein had provided the following critical comments:
[9] Mr. Hough was a very difficult witness. He is a poor historian, which is understandable given his extensive medical history. However, he bears the burden of proof. He was argumentative, abrasive, sometimes rude, often unresponsive, and many times inconsistent in his evidence. Mr. Hough clearly demonstrates an attitude of entitlement to insurance benefits, at one point indicating he doesn’t understand the problem here, it is only insurance money. He reports everything, no matter how inconsequential, even a broken fingernail, so if there is a problem in the future, he can get compensation. The trouble for Mr. Hough is he was a medical disaster before the accident, and the defendant is not obliged to pay for all that ails him or ailed him. Mr. Hough’s pre-existing medical condition, his original position, as outlined in the evidence of Dr. Waiz, and what Mr. Hough can recall, would have manifested debilitating effects in any event, regardless of the accident. His original condition would have detrimentally affected him even absent the defendant’s negligence. The defendant is not required to compensate him for debilitating effects not caused by the accident….
[14] Dr. Waiz’s evidence is unsatisfactory on many levels, not the least of which his manner in which he managed Mr. Hough’s care with increasing doses of narcotics. His records are unreliable. He blames computer programs and computer generated forms. He has been willing to fill out reports to benefit Mr. Hough, for example, claiming all Mr. Hough’s drugs were WCB-related so Mr. Hough could be compensated, and claiming a wrist fracture was a WCB injury due to ongoing weakness and pain in his right leg. This is the same broken wrist that Mr. Hough now claims was caused by the accident for the same reason. Where it has suited Mr. Hough, Dr. Waiz has reported to WCB Mr. Hough is unable to work in any capacity. Now he was reporting to this court that, because of the accident, Mr. Hough cannot work. The concern is he is parroting what Mr. Hough wants him to say.
While it is true that serious injuries warrant higher damage awards than minor injuries and that serious injuries typically result in more medical appointments, the mere number of doctor’s visits in and of themselves do not assist in valuing a personal injury claim.  You can click here for a short discussion addressing the factors Court’s often consider when assessing non-pecuniary damages (money for pain and suffering) in a BC personal injury lawsuit.

$30,000 Non-Pecuniary Damage Assessment for "Moderate" Soft Tissue Injuries

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

Adding to this site’s ICBC claims pain and suffering database, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a moderate soft tissue injury.
In today’s case (Olianka v. Spagnol) the Plaintiff was injured in a 2008 collision.  Fault was admitted.   The evidence was not particularly contested and the trial proceeded summarily.  The Court found the Plaintiff suffered moderate soft tissue injuries that were temporarily disabling with symptoms that were expected to linger into the future.  In assessing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $30,000 Mr. Justice Blair provided the following reasons:




[21] Mr. Olianka suffered what Dr. Neumann describes as a moderate soft tissue injury to the neck, a moderate soft tissue injury to the mid-back and a mild soft tissue injury to his lower back. I accept Mr. Olianka’s evidence with respect to his collision-related injuries and that these injuries precluded him from working for a four-month period. I also accept that Mr. Olianka continues to experience intermittent pain in his neck and upper back which is expected to last for some unknown period. Dr. Neumann opined that by January 14, 2011, Mr. Olianka had made a significant recovery from his injuries and concluded that his residual pain should gradually subside in intensity and frequency. He did not expect Mr. Olianka to suffer any permanent consequences from his collision-related injuries.

[22] Nevertheless, the optimism expressed by Dr. Neumann and reflected in Mr. Olianka’s increased activity level does not overshadow Mr. Olianka’s difficulties for the 27-month period between the collision and Dr. Neumann’s report dated January 14, 2011. In that period, Mr. Olianka, due to his injuries, was unable to work for four months and subsequently those injuries compromised his ability to fully perform his work as he had done prior to the collision. In addition, he was unable to enjoy the leisure activities in which he had participated prior to the collision. This 27-month recovery period must be considered when ascertaining the non-pecuniary damages award to which Mr. Olianka is entitled. I accept that he continues, to some lesser degree, to suffer intermittent pain from his collision-related injuries as described by both Mr. Olianka and Dr. Neumann…





[28] Based on the authorities and the unique evidence found in this case, I find that the appropriate award for Mr. Olianka’s non-pecuniary damages is $30,000, taking into account all contingencies, given the extent of the soft tissue injuries to his neck and back, the disability period of 27 months post-collision, as well as the lingering and ongoing aspect of his injuries, the limitations that the injuries imposed, not just on his ability to work, but also on his ability to partake in those physical activities which occupied his life prior to the collision and which he has only recently been able to resume albeit to a limited extent.

Gross Past Tort Payments Deductible in ICBC UMP Claims

Written by admin on . Posted in ICBC Soft Tissue Injury Cases, ICBC Thoracic Outlet Syndrome Cases, ICBC UMP Cases. 60 Comments on Gross Past Tort Payments Deductible in ICBC UMP Claims


This is the second in my series of UMP Case Summaries.  In today’s case (LD v. ICBC) the arbitrator had to address whether legal fees can be taken into account when considering the deductibility of past tort payments.
In LD the Claimant was involved in as 2003 collision in California.  The Claimant was insured with ICBC and had UMP coverage.  The at fault motorist only had $25,000 in Third Party Liability coverage and ICBC agreed that the Claimant’s claim exceeded this amount.
The parties agreed to have the value of the claim determined via UMP Arbitration.  Total damages of $86,608.31 were assessed.  Prior to this the Claimant already settled with the Defendant’s insurer for the policy limits of $25,000.  She had to hire counsel to achieve this result and after legal fees she received $16,054.
The Claimant argued that only the $16,054 should be deducted from the UMP damage assessment.   The arbitrator (Donald Yule) disagreed and deducted the full $25,000.  In doing so he provided the following reasons:
ICBC, however, submits that the correct deductible amount is what the M’s liability insurer was obliged to pay, namely $25,000.   (This position) is supported by the decision of Arbitrator Paul Fraser, Q.C. in Cederberg v. ICBC (May 18, 1995)….As Mr. Fraser concluded, the obligation to pay attorney’s fees arose out of a separate and independent contract with the attorney which, in no way, reduce the amount paid by the tortfeasor or payable by the tortfeasor’s insurer.  I agree with his analysis.  The full amount of the settlemetn of the M’s liability insurer is therefore a deductible amount.
This decision is also worth reviewing for the non-pecuniary damage assessment.  The Plaintiff suffered various soft tissue injuries.  Non-pecuniary damages were assessed at $55,000.  In doing so Arbitrator Yule made the following findings:
I find that in the accident Mrs. D suffered a Grade III whiplash associated disorder injury, bilateral thoracic outlet syndrome and right ulnar neuropathy, a Grade II lumbosacral spinal strain injury and myofascial pain in her shoulder ridge areas, and bruising to the knee.  These injuries caused headaches, interference with sleep, fatigue, irritability and anxiety.  The bruising resolved in short order.  The low back symptoms resolved within 2 years.  Headaches, and neck pain extending into the shoulders, while significantly inmproved by September, 2005, have nevertheless persisted to the date of hearing…
…I assess Mrs. D’s non-pecuniary damages at $55,000.
I should note that, adjusting for inflation, this assessment is closer to $58,000 in today’s dollars.