Skip to main content

More on Low Velocity Impacts and a Legal History Lesson

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Headache Cases, ICBC LVI (Low Velocity Impact) Cases, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 1 Comment on More on Low Velocity Impacts and a Legal History Lesson

Yet another “Low Velocity Impact” Injury Claim went to trial and yet again the Court found that a compensable injury existed despite the minimal vehicle damage.
In today’s case (Bourdin v. Ridenour) the Plaintiff was involved in a 2005 Car Crash in Kamloops, BC.  This was a crash that apparently fell into ICBC’s LVI Program as the minimal amount of vehicle damage was stressed at trial by the defence lawyer (the Plaintiff’s vehicle damage cost only $316 to repair). Despite this Madam Justice Hyslop found that the Plaintiff was injured in the crash.  In valuing the Plaintiff’s non-pecuniary damages at $22,500 the Court summarized the Plaintiff’s injuries as follows:

[87] Ms. Bourdin had constant pain for approximately five months after the accident.  However, she acknowledged some improvement during that period.  She was plagued with headaches, the severity of which she had never experienced before.  Dr. Vlahos’ clinical records note that Ms. Bourdin, on February 8, 2008, complained of having a “…new onset of headaches.  Head feels like it is in a vise”.  This description is a similar description of the headaches Ms. Bourdin suffered as a result of the motor vehicle accident.

[88] I do accept that Ms. Bourdin suffered from headaches and that they occurred as a result of the accident.  She has been nauseous and vomited with such headaches, the last of which was two weeks before this trial.  According to Ms. Bourdin, headaches of this nature occurred after the accident.  However, Ms. Bourdin did not describe headaches of this nature to either Dr. O’Farrell or Dr. Travlos.

[89] Ms. Bourdin’s neck, shoulder and mid-back were injured as a result of the accident.  She continues to suffer pain from these injuries today, but they are occasional.  At trial, Ms. Bourdin stated that her neck and shoulder pain are now triggered when she is reaching for something, and sometimes everyday events caused neck and shoulder pain without explanation.  She acknowledged improvement in the spring of 2006 and that this has been ongoing from 2006 to the date of trial.  Her chiropractors, her massage therapists and her comments to Dr. O’Farrell and Dr. Travlos confirm this.  She told Dr. O’Farrell that at the time he examined her, her pain was intermittent.

In discussing the LVI Defence to Injury Claims Madam Justice Hyslop quoted a 2006 case (Jackman v. All Season Labour Supplies Ltd.) in which Mr. Justice Smith of the BC Supreme Court pointed out that the LVI defence is not a principle of law but rather “a creature of policy created by ICBC“.  Specifically Mr. Justice Smith held

[12]      On the issue of vehicle damage, I note the comments of Madam Justice Ballance in Robbie v. King 2003 BCSC 1553, at paragraph 35:

The proposition that a low velocity accident is more or less likely to have a propensity of injury is a creature of policy created by ICBC. Although lack of impact severity is by no means determinative of the issue as to whether a person could have sustained an injury, it is nonetheless a relevant consideration particularly with respect to soft tissue injury. Ultimately, the extent of Ms. Robbie’s injuries are to be decided on the evidence as a whole.

[13]      Although lack of vehicle damage may be a relevant consideration, it has to be balanced against the evidence of the plaintiff and the medical evidence, including the complete lack of any medical evidence to support the assertion that the injuries are inconsistent with vehicle damage.

Now for the legal history lesson:

While it is well accepted by BC Courts that ICBC’s LVI Policy is not a legal defense to a tort claim, rather, vehicle damage is just “a relevant consideration” ICBC Defence Lawyers often quote a 1982 case from the BC Supreme Court (Price v. Kostryba) in which Mr. Justice McEachern quoted another BC Supreme Court decision (Butlar v. Blaylock) in which the Court held that:

I am not stating any new principle when I say that the Court should be exceedingly careful when there is little or no objective evidence of continuing injury and when complaints of pain persist for long periods extending beyond the normal or usual recovery…

An injured person is entitled to be fully and properly compensated for any injury or disability caused by a wrongdoer. But no one can expect his fellow citizen or citizens to compensate him in the absence of convincing evidence — which could be just his own evidence if the surrounding circumstances are consistent — that his complaints of pain are true reflections of a contuining injury.

However, this often cited quote comes from a case that was overturned on appeal.  In 1983 the BC Court of Appeal overturned the trial decision of Blaylock and held as follows:

12 With the greatest respect, I am of the opinion that there is no evidence upon which one could reasonably conclude that the appellant did not continue to suffer pain as of the date of the trial. After careful consideration of the expert testimony and the evidence of the appellant and his wife, I have reached the conclusion that the only finding open to the learned trial judge was that as of the date of trial the appellant continued to suffer moderate pain and in the words of Dr. Lehmann, his symptoms “will gradually subside with further time. Having been present for approximately two and a half years, it is doubtful that they will disappear completely.” (underlining mine).

13 There are three basic reasons which, in my view, support the conclusion that the plaintiff continued to suffer pain as of the date of trial. Firstly, the plaintiff testified that he continued to suffer pain. His wife corroborated this evidence. The learned trial judge accepted this evidence but held that there was no objective evidence of continuing injury. It is not the law that if a plaintiff cannot show objective evidence of continuing injury that he cannot recover. If the pain suffered by the plaintiff is real and continuing and resulted from the injuries suffered in the accident, the Plaintiff is entitled to recover damages. There is no suggestion in this case that the pain suffered by the plaintiff did not result from the accident. I would add that a plaintiff is entitled to be compensated for pain, even though the pain results in part from the plaintiff’s emotional or psychological makeup and does not result directly from objective symptoms.
14 Secondly, all of the medical reports support the view that the plaintiff continued to suffer pain and that it was not likely that his symptoms would disappear completely.

15 Thirdly, and of great importance, is the report of Dr. Lehmann, which was not before the learned trial judge for his consideration. In that report, Dr. Lehmann stated that there were degenerative changes in the cervical spine which pre-existed the accident. He said “they were probably asymptomatic before the accident but I think are probably contributing to his prolonged discomfort.” (underlining mine). In my view, as this evidence is uncontradicted, these objective findings cannot be disregarded and should be given great weight.

I hope this ‘history lesson’ helps anyone confronted with ICBC’s LVI Program denying a tort claim because of little vehicle damage.

The Art of Valuing Pain and Suffering in ICBC Injury Claims

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, ICBC Spine Injury Cases, ICBC Whiplash Cases, Uncategorized. 49 Comments on The Art of Valuing Pain and Suffering in ICBC Injury Claims

Today reasons for judgment were released by the Vancouver Registry of the BC Supreme Court in 2 separate Injury Claims where Pain and Suffering was valued.  In each case the Plaintiffs suffered different injuries which affected their respective lives to different degrees.  Yet both Plaintiffs were awarded exactly $55,000 for their non-pecuniary damages.  How can this be?  The answer is that valuing claims for pain and suffering is an art, not an exact science.
When asking a personal injury lawyer how much a claim for pain and suffering is worth it is difficult  if not impossible to value a claim at an exact dollar figure.  The only accurate answer is “whatever the judge or jury gives you“.  Instead of attaching an exact dollar figure to any claim personal injury lawyers learn that claims can best be valued within an approximate range of damages.  One judge can award a plaintiff $50,000 for a disc herniation and another can award a plaintiff with the exact same injuries $80,000 and there is nothing wrong in law with this so long as the award falls within the accepted range of damages for similar injuries.
Today’s cases demonstrate this quite well.  In the first case (Morrison v. Gauthier) the Plaintiff was injured in a 2006 BC Car crash.  Her vehicle was rear-ended in Coquitlam BC.  The Defendant was fully at fault for the crash.
The Plaintiff suffered fairly severe injuries which included an L4-5 disc herniation which from time to time “puts pressure on the L4 nerve root and that the result for the plaintiff is not just pain in the low back – which is always her lot – but intense pain that, amongst other things, travels down the back of her leg“.  In addition to this the Plaintiff suffered soft tissue injuries and a concussion in the collision.
Mr. Justice Stewart found that the effects of the Plaintiff’s back injuries were likely permanent and had a rather profound impact on her.  He stated that “the effect…on the Plaintiff’s life was dramatic…her capacity to (keep her work and home environment in order) has been severely reduced . ”  He went on to find that the Plaintiff was incredibly athletic before the collision and “was a woman who on the basis of the evidence placed before me, I can only describe as a dynamo” and as a result of the car crash “she became…ornery.  She withdrew from her friends.  She became moody and – stunning for her – one who sat idly watching television and gaining unwelcome weight.  To some extent she became – utterly new to her – a chronic complainer.”  Lastly he stated that (the defendant) “managed to reduce a woman operating at an athletic level undreamt of by 99% of the population to a woman who must now, often, be helped out of a chair.  (the Plaintiff’s) compensable loss if overwhelming“.
Mr. Justice Stewart awarded the Plaintiff $55,000 for her non-pecuniary damages.,
In the second case (O’Rourke v. Kenworthy) released today by the BC Supreme Court the Plaintiff was involved in a 2004 BC Car Crash.  The Defendant was 100% at fault.  Madam Justice Wedge found that the Plaintiff was injured in the crash.  Specifically the court found that the Plaintiff suffered from neck and back pain which was “severe for several months, which then alleviated considerably over the next year or so.”  The Plaintiff curtailed many of the physical activities which she enjoyed by after about a year she “resumed most of these activities despite continuing ot experience pain“.   By the time of trial she “continued to have pain in her neck and back, but it is not disabling.  She has been able to work, and she is currently able to work.  She participates in numerous sporting activities and continues to hike, which is her first love.  She has continued to travel extensively.   No medical professional offered the opinion that (the Plaintiff’s) pain is chronic in nature, or that it is caused by anything other than soft tissue injuries.  They all agreed that her symptoms are expected to improve and will likely resolve gradually over time…At most (the Plaintiff) is at risk of suffering exacerbation’s of her pain if she engages in certain rigorous activities.”
Scrutinizing the facts of the above two cases the first Plaintiff appears to have suffered more severe injuries which had a more profound effect on her life.  Yet both were awarded the exact same figure for pain and suffering.  This does not necessarily mean that either award was wrong in law, rather the difference can readily be explained by the fact that pain and suffering awards are assessed within rather large ranges of acceptable damages.  A more severe injury valued on the lower end of its respective range of damages can equal a more minor injury valued on the generous end of its range.
In the end, cases like this speak to the art of assessing pain and suffering in BC Injury Claims.  As with any art ‘feel‘ becomes important and this is gained through time and experience.  The more cases you read, the better you will get at the art of valuing non-pecuniary damages and determining the potential value of any given BC Injury Claim.

$50,000 Non-Pecuniary Damages for "Mechanical Spine Pain"

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

Reasons for judgment were released today by the BC Supreme Court, Victoria Registry, awarding total damages of just over $95,000 as a result of a 2005 BC Car Crash.
In today’s case (Mar v. Young) the Plaintiff was rear-ended while in a vehicle on the Island Highway near Nanoose, BC.   Fault was not formally admitted.  Mr. Justice Bracken found the rear vehicle 100% liable for the collision.
A physiatrist who gave evidence on behalf of the Plaintiff explained that he suffered from mechanical spine pain as a result of the collision and this was different from a soft tissue injury because “mechanical spine pain originates in the tissues that are part of the spine itself and not the muscle or soft tissue that surround the spine.  These tissues lay quite deep under the skin and provide support for the spine itself.”
In assessing the non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $50,000 Mr. Justice Bracken summarized the accident related injuries and their effect on the Plaintiff’s life as follows:

[37] On all of the evidence I conclude that the plaintiff suffered injuries to his thoracic and lumbar spine and that while his condition has improved he has not yet fully recovered.  The physical examinations conducted by Dr. Wahl and Dr. McKean indicate that the plaintiff has good range of motion of his neck and hips, but that he still has pain in his mid and lower back.  Both doctors testified that the plaintiff says that his pain and discomfort prevents him from carrying out his normal day-to-day activities of work and recreation, but the doctors disagree on his prognosis.  Dr. McKean considers it quite possible that the plaintiff will continue to experience some pain that will affect him for the foreseeable future.  Dr. Wahl is more optimistic and believes that there will at least be significant improvement and possibly full recovery.

[38] I find that the plaintiff still experiences pain 4 years post accident and it is likely that he will do so for some time to come.  It is clear from the evidence that he can carry out many of his normal activities, but not without some pain.  He has limited many of his activities somewhat and says that he is still prevented from participating in others.  There is no supportive objective medical evidence other than the disc bulge and early degeneration in the lumbar spine that Dr. Wahl considered to be within the normal range for the plaintiff’s age.  The plaintiff has been able to continue working, at times for long periods at a time, but he has experienced pain and discomfort and says that he must get up and move around and stretch at frequent intervals to ease his discomfort.  Former co-workers corroborate his evidence on his work related limits.  He purchased an expensive chair for use when he is working at his computer, but while it helps him, it does not completely eliminate pain and discomfort.

[39] The defendant noted that the plaintiff seemed to move easily and without obvious pain while he was in the courtroom.  I agree that the plaintiff seemed to have a reasonable range of flexibility when rotating from his hips and he could move his arms easily.  That does not seem inconsistent with the observations of both Dr. McKean and Dr. Wahl, but both note that the plaintiff continues to complain of pain in the mid to lower back.  The plaintiff testified that he still experiences some pain in that part of his back and his wife and friends corroborate his evidence.  There is no evidence before me to contradict that evidence.  No doubt the injuries have taken some time to resolve, but I accept that the plaintiff still has some pain and discomfort from the injuries caused by the accident.

[40] While each of the cases referred to above were cited as cases that had similar fact patterns, as it was stated in Tong v. Sidhu, above, no two cases are exactly alike and in the final result each case stands on its own facts.  In this case I find that the plaintiff’s injuries are more serious than the range suggested by the defendant.  The injuries have lasted with diminishing disability for 4 years and will likely continue to affect the plaintiff for a considerable period of time to at least some degree.

[41] The plaintiff has a sedentary job and to some extent that is an advantage as he is not likely to be exposed to the need for any hard physical labour in the course of his work.  However, he will likely spend the majority of his working life sitting at a desk working on a computer.  The impact of even mild pain or discomfort in his back will be a problem that will affect his concentration and ability to focus on his work.  He will have to take frequent short breaks from his work to compensate.  He will be at least somewhat limited in his recreational and home maintenance activities, although I accept Dr. Wahl’s view that the impact of his injuries will likely diminish over time as his condition improves and his disability lessens.

[42] On all of the evidence, it is my view that an award of $50,000 is appropriate for non-pecuniary damages.

"Moderate to Severe" Soft Tissue Injury Non-Pecuniary Damages Assessed at $55,000

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

Reasons for judgment were released earlier this week by the BC Supreme Court, Vancouver Registry, awarding a Plaintiff approximately $85,000 in total damages from a 2004 BC Car Crash.
This case (BMM v. MLV) contains lengthy reasons that largely deal with the Plaintiff’s pre and post accident psychological difficulties.  Ultimately the Court rejected the Plaintiff’s claim that her pre-existing depression was affected by the accident.  Madam Justice Ballance concluded that “the evidence does not show that the Plaintiff’s pain and discomfort from her physical injuries caused by the Accident, exacerbated, compounded or intensified her Depression.”  Paragraphs 159-190 contain the Court’s reasoning behind this conclusion and are worth reviewing for anyone interested in seeing how BC Courts can deal with a claim that pre-existing psychological injuries are aggravated by a collision.
The Court did find, however, that the Plaintiff suffered “moderate to severe” soft tissue injuries and assessed the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $55,000.  In reaching this figure Madam Justice Ballance summarized her findings and engaged in the following analysis:
[199] The plaintiff experienced moderate to severe soft tissue injuries to her neck and back as a result of the Accident. Although her shoulders were also implicated and she had initial sleep disturbance and was plagued with low-grade headaches that occasionally developed into migraine-like discomfort, the primary area of injury was her low back and her related left hip discomfort. I accept that during their acute phase, these injuries caused persistent and sometimes severe discomfort and pain to the plaintiff, and disabled her from attending work. Following her leave from work in 2005 and her intensive physiotherapy program, her symptoms improved significantly. She continued to be susceptible to flare-ups of her symptoms throughout the summer of 2005. Her discomfort prompted the plaintiff to attend a program at the CBI which she found considerably beneficial in improving her soft tissue injuries.
[200] I find that by the end of 2005, the plaintiff’s physical symptoms had largely settled, but had not resolved entirely. She was not restored to her pre-Accident condition at that time. I am satisfied that after that stage, the plaintiff experienced intermittent low back symptoms and associated pain throughout 2006 and continuing forward. Those episodes were infrequent but sufficiently bothersome to prompt her to obtain treatment from Dr. Weiss in late 2007 and endure two excruciating injections. I think that the plaintiff will probably experience intermittent bouts of low back discomfort caused by the Accident into the foreseeable future. The evidence indicates that those episodes will continue to be infrequent and rather mild in nature.
[201] I accept that the physical symptoms caused by the Accident brought about unwelcome and disruptive changes to the plaintiff’s enjoyment and quality of her life, especially during the first twelve months after the Accident. She was no longer the fun-loving and enthusiastic person familiar to her son, sister and co-workers. In time, she was able to gradually reintroduce and enjoy certain pursuits such as walking and some gardening, and bike-riding using her electric bike. I have found it challenging to attempt to parse out the changes in the plaintiff’s personality and life which can be said to be attributable to her physical injuries from the Accident, from those associated with her ongoing and severe bouts of Depression, which adversely affected her life but are unconnected to the Accident. I conclude that the enjoyment of certain of her activities was negatively affected at times by her low mood. Even the plaintiff agreed that her gardening could be affected by her mood. While I accept that in the first year or so following the Accident, the plaintiff’s physical symptoms made it uncomfortable for her to attend the usual family functions and pursue her normal community and political interests, I find that her sustained withdrawal from those endeavours and detachment from her sister and other extended family, are due to the plaintiff’s psychological state unrelated to the Accident….
204] Having reviewed the authorities provided by the parties, and considered the totality of the evidence pertaining to the plaintiff’s specific circumstances, I conclude that a fair and reasonable award for non-pecuniary damages is $55,000. A deduction of 5% is to be taken to reflect the measurable risk that her low back symptoms would have manifested without the Accident.

Can a Plaintiff be Awarded Significant Funds for Future Wage Loss when their Pain and Suffering is Relatively Minor?

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

The answer is yes and reasons for judgment were released today by the BC Supreme Court demonstrating this.
In today’s case (Sidhu v. Kiraly) the Plaintiff was awarded $35,000 for non-pecuniary damages for accident related soft tissue injuries.
Madam Justice Brown found that the Plaintiff suffered “soft tissue neck and back injuries and developed secondary muscle contraction occipital headaches”  These injuries largely improved over time and the Court found that “so long as (the Plaintiff) does not undertake any heavy labour, he has no significant complaints.  If he undertakes heavy work of any kind, his symptoms flare, he has neck, mid-back and shoulder pain as well as headeaches.”
Unfortunately for the Plaintiff, his own occupation at the time of the collision involved heavy labour and once he realized the permanent nature of his injuries he concluded he could not carry on in his occupation.  He retrained for a lighter career as a realtor.  The court found that this was reasonable given the accident related injuries and awarded the Plaintiff $350,000 for his diminished earning capacity.  In arriving at this assessment Madam Justice Brown engaged in the following analysis:

[25] Turning now to future loss of income or future loss of capacity, as I have indicated, I accept that the plaintiff will not be able to return to his work as a heavy duty mechanic and that he is permanently unable to undertake heavy labour of any kind.  This is a limitation on the plaintiff’s “ability to take advantage of all job opportunities which might otherwise have been open to him, had he not been injured”, and a valid consideration in the determination of future income loss: Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 at para. 8 (S.C.).

[26] I also am of the view that his choice of real estate agent as a future career was a reasonable one in the circumstances.  In my view, given the plaintiff’s personality and his persistence, he is likely to succeed as a real estate agent.

[27] The plaintiff relies on the report of Gerry Taunton to calculate future income loss. Mr. Taunton calculates Mr. Sidhu’s without accident income as a mechanic to age 65 at $1,096,233 and his with accident income as a realtor at $561,552, a  difference of $534,681.

[28] The court must consider all of the evidence in assessing what makes a reasonable award for such a future loss.  Projections, calculations and formulas may be useful in determining what is fair and reasonable.  It is important for the courts to look at all relevant factors before fixing an amount.  Any award under this head of damages must be set off against appropriate contingencies.

[29] Having considered the assessment provided by Mr. Gerry Taunton and considering the contingencies in this case, positive and negative, in my view, an appropriate award for future loss of income or capacity is $350,000.  I do not accept the defendant’s submission that one year of income would be appropriate in this case.  As I have indicated, the plaintiff has been permanently disabled from his lifetime occupation as a heavy duty mechanic.  He has been forced to retrain.    There is some prospect that he will earn more than the median income of male realtors in British Columbia.  There is also the prospect that he will earn less.  I have assessed the amount of the award in this case as best I am able, considering all of the contingencies.

Another LVI Case, Another Award for Damages

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

I’ve blogged many times about ICBC’s LVI program.  This program is not unique to ICBC.  Many auto insurers have a similar program where they deny compensible injury in tort claims where little vehicle damage occurs in the collision.
The difficulty with the LVI defence, however, is that to successfully run it the defence lawyer is basically inviting the court to find that the Plaintiff is lying about or exaggerating their injuries.  There have been many LVI cases that have gone to trial recently and the overwhelming judicial response to these was to find that compensible injury in fact did occur. Reasons for judgment were released today dealing with 2 LVI cases and such a finding was made again.
In today’s case (Loik v. Hannah) the Plaintiff was involved in 2 collisions in 2006.  Fault was admitted in each case leaving the Court to deal with the issue of quantum of damages (value of the claims).  The cases were defended on the LVI basis where the defence lawyer denied that the Plaintiff was injured in either of the accidents.
Mr. Justice Goepel rejected this argument and found that, notwithstanding the minor nature of these collisions, the Plaintiff was indeed injured.  The court’s useful analysis is set out at paragraphs 34-36 which I set out below:

[34] Ms. Loik claims damages arising from injuries she alleges to have suffered in what were two admittedly low velocity conditions. If the plaintiff was injured in the accidents, the injuries have persisted much longer than one would normally expect. In determining this case, the comments of Chief Justice McEachern, as he then was, in Price v. Kostryba (1982), 70 B.C.L.R. 397 at 398-99 (S.C.), must be kept in mind:

Perhaps no injury has been the subject of so much judicial consideration as the whiplash. Human experience tells us that these injuries normally resolve themselves within six months to a year or so. Yet every physician knows some patients whose complaint continues for years, and some apparently never recover. For this reason, it is necessary for a court to exercise caution and to examine all the evidence carefully so as to arrive at fair and reasonable compensation. …

In Butler v. Blaylock, decided 7th October 1981, Vancouver No. B781505 (unreported), I referred to counsel’s argument that a defendant is often at the mercy of a plaintiff in actions for damages for personal injuries because complaints of pain cannot easily be disproved. I then said:

I am not stating any new principle when I say that the court should be exceedingly careful when there is little or no objective evidence of continuing injury and when complaints of pain persist for long periods extending beyond the normal or usual recovery.

An injured person is entitled to be fully and properly compensated for any injury or disability caused by a wrongdoer. But no one can expect his fellow citizen or citizens to compensate him in the absence of convincing evidence – which could be just his own evidence if the surrounding circumstances are consistent – that his complaints of pain are true reflections of a continuing injury.

[35] In this case, as in most soft tissue injury cases, the case largely turns on the plaintiff’s credibility. The evidence of her injuries is based almost entirely on her subjective reporting to her doctors and to the Court. In such circumstances, it is important to consider whether the evidence of the witness accords with the circumstances that are proven on a balance of probabilities:  Faryna v. Chorny (1951), [1952] 2 D.L.R. 354, 4 W.W.R. (N.S.) 171 (B.C.C.A.).

[36] I find the plaintiff to be a credible witness. Her evidence accords with the surrounding circumstances. Prior to the accident, she was living a healthy active life, participating in many activities. She no longer is able to do so. I find that the reason she cannot do so is the ongoing pain she continues to suffer as a result of the motor vehicle accidents.

Mr. Justice Goepel found that the Plaintiff suffered soft tissue injuries in these collisions “which have caused her ongoing problems with her neck, back and shoulders.”  He went on to value the Plaintiff’s non-pecuniary damages at $25,000.

In addition to a useful discussion about LVI Accidents, the court went on to discuss a topic that I wrote about yesterday, namely the connection between the value of a claim and the numnber of medical appointments attended.

The Defendant argued that since the Plaintiff did not seek medical treatment between November 2006 and April 2008 her injuries had fully recovered.  Mr. Justice Goepel rejected this argument finding that “She thought she was getting better and continued to do the exercises that had been prescribed for her. When, over the next 18 months, her condition did not improve, she sought further medical treatment. In the circumstances of this case, I find that the failure to seek medical treatment does not establish that the plaintiff had recovered from her injuries by November 2006.”

Can an ICBC Tort Claim be Worth Less for Not Going to the Doctor Regularly?

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

Perhaps with the exception of the “failure to mitigate defence” the frequency of medical appointments attended by a plaintiff is not necessarily tied to the value of an ICBC tort claim.  The value of a claim is largely tied to the severity of injuries and the impact of the injuries on a persons life.  As a matter of common sense one would expect a Plaintiff with very severe injuries to receive more extensive medical intervention than a Plaintiff with relatively minor injuries.  In this sense there may be an indirect connection between the value of a claim and the number of medical treatments.  However, the number of doctor’s visits does not in and of itself add value to an ICBC tort claim and reasons for judgement were released today exploring this area of the law.
In today’s case (Brock v. King) the Plaintiff was involved in a 2006 T-Bone collision in Burnaby, BC.  The Court found that the Plaintiff suffered various injuries and in awarding $50,000 for her pain and suffering summarized the injuries as follows:
I find that the plaintiff continues to suffer from back pain, neck pain and headaches. These injuries continue to interfere with her work and her daily activities. It appears that some further improvement may occur but that some level of ongoing chronic pain is probable.
The Defence Lawyer argued that the Plaintiff’s injuries were not all that serious and in support of this conclusion drew the court’s attention to the fact that “there were large gaps in treatment and medical visits“.
Mr. Justice Punnett rejected this submission and in doing so summarized some of the principles courts consider in tort claims when reviewing the frequency and nature of post accident medical treatment.  The key discussion was set out at paragraphs 58-65 which I set out below:

[58]         The defendants place significant emphasis on the fact that the plaintiff had relatively little in the way of treatment, that there were no referrals to any specialists, that there was limited therapy, that there were large gaps in treatment and medical visits, little in the way of prescription medication and that there were no diagnostic examinations arranged by the family physicians.

[59]         The defendants rely on Mak v. Eichel, 2008 BCSC 1102, and Vasilyev v. Fetigan, 2007 BCSC 1759, in support of their position on the issue of gaps in the plaintiff’s reporting to her physician and the inference to be drawn. In Mak v. Eichel there appeared to be a gap in treatment with no evidence that the discomfort continued during that period and inVasilyev v. Fetigan there were credibility issues. As a result both cases are distinguishable.

[60]         The plaintiff relies on Travis v. Kwon, 2009 BCSC 63, and Myers v. Leng, 2006 BCSC 1582. In both cases there were gaps in the plaintiffs’ attendance on their physicians. InTravis v. Kwon, Mr. Justice Johnston states at paras. 74 and 77:

[74]      …Where a plaintiff gives credible evidence at trial, and is not significantly contradicted by entries in medical records or otherwise, the absence of a full documentary history of medical attendances it not that important.

[77]      In this case the plaintiff is generally credible, and I do not fault her for a commendable desire to avoid making a nuisance of herself by going to a doctor primarily in order to build a documentary records and thus avoid the risk of an adverse inference from failing to do so, or out of a misguided belief that by papering her medical files, she can prove her claim. A sensible plaintiff, having some knowledge of the medical system and its capabilities from her training, would be better advised to go to the doctor only when necessary, and thus avoid accusations that she is exaggerating, or suffering from what some authorities have referred to as “chronic benign pain syndrome”: Moon v. Zachary, [1984] B.C.J. No. 241, 1984 CarswellBC 2000, at para. 100.

[61]         In Myers v. Leng Madam Justice Gropper stated at para. 50:

[50]      I am not troubled by the gap in the plaintiff seeking treatment. His decision not to continue to see a doctor about his neck and back complaints was clearly based on a reasonable conclusion that the doctors could only provide temporary relief from the pain by prescribing medication and physiotherapy. The plaintiff did not consider either to be helpful. It is a sensible and practical approach to medical treatment. If continuous medical treatment can cure you, or make you feel better, then it is worthwhile to attend on a regular basis. If it cannot, there really is no point in taking the doctor’s time. The purpose of a seeing a doctor is not to create a chronicle of complaints for the purpose of proving that you have ongoing pain from an injury arising from a motor-vehicle accident. Rather than detract from the accuracy of the plaintiff‘s complaint, I consider the plaintiff‘s course of conduct, in not seeing the doctor on a continuous basis, to enhance his evidence.

[62]         Mrs. Brock testified that she is not sure if the physiotherapy helped that much and sometimes it increased her pain. Likewise she indicated that she did not like taking prescriptions and preferred to avoid medications other than Tylenol or Advil. She was told to exercise daily doing stretching and other exercises which she did.

[63]         I accept that she was aware that her doctor really could not do much more for her than he had already done. Given that, it made sense not to keep raising her injuries with him on a regular basis or, indeed, each time she visited with him.

[64]         The defendants also argued that the fact that Dr. Nakamara did not order further tests or investigations relating to the neck and back injuries while doing so for an earlier knee injury and a sprained thumb indicates that the neck and back injuries could not have been viewed by him as serious.

[65]         The defendants did not call Dr. Nakamara for the purposes of cross examination on his report. They are asking that the court infer the medical reasons for the lack of a more extensive investigation of the plaintiff’s injuries. That is a medical decision and not one for the court to make. It is likely more probable that he did not order more extensive investigations because in his opinion they were not required. He notes in his report that there was no structural damage. I decline to accept the defendants’ submission on this point.

$45,000 Non-Pecuniary Damages for Aggravation of Chronic Pain

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

Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, awarding a Plaintiff damages for accident related injuries.
In today’s case (Cheng v. Kamboz) the Plaintiff was involved in a 2005 BC Car Crash. The other motorist admitted fault.  The issue the court dealt with was quantum of damages (value of the Plaintiff’s claim).
Mr. Justice Myers found that the Plaintiff suffered from pre-existing chronic pain at the time of the crash.  Specifically he found that the Plaintiff suffered from headaches, neck pain, shoulder pain, hip pain and low back pain.  Notwithstanding these pre-accident complaints the Court found that the Plaintiff’s pre-existing “chronic pain” was transformed into a “chronic pain syndrome” as a result of the collision.  In valuing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $45,000 for this aggravation Mr. Justice Myers reasoned as follows:

[39]    I find that before the accident Ms. Cheng was suffering – to a lesser extent – from all the pain of which she now complains.  Ms. Cheng says that she had no hip pain before the accident; however, that is not what she told Dr. Feldman when she mentioned what she referred to as being symptomatic of myasthenia gravis, to which I referred above at para. 29.  Whether it was caused by the myasthenia gravis is, in this context, beside the point.

[40]    Ms. Cheng was suffering from headaches prior to the accident in question.  While she says they are more frequent now, the difference is minimal.  Further, they are often brought on by stress at work and that is a variable which has nothing to do with the accident.

[41]    That said, the accident exacerbated the injuries and escalated chronic pain into chronic pain syndrome.  Causation for the exacerbation and chronic pain syndrome has been shown.  The harm caused by the defendant is divisible from the harm caused by the prior accidents and the plaintiff’s pre-existing condition.  To be clear, this is not the type of case, as was Athey v. Leonati, [1996] 3 S.C.R. 458, in which a pre-existing condition of the plaintiff made him more amenable to a specific injury (a disc herniation).

[42]    Damages are to be assessed on the basis that Ms. Cheng is to be put in the position she was before the accident, but not in a better position.

[43]    Ms. Cheng referred me to cases in which the damage range was between $80,000 and $100,000.  The defendants’ cases ranged from $35,000 to $60,000.

[44]    The injuries will not result in a drastic change of lifestyle for Ms. Cheng.  As I have noted, she was not physically active before the accident.  None of the doctors have opined that she will not be able to resume the limited walking she was doing before the accident.  The same can be said with respect to going to the theatre.  The migraines were present before the accident and her reduced playing of video games because of the migraines cannot be blamed to any substantial degree on the accident.

[45]    On the other hand it must be recognised that the accident did cause her chronic pain syndrome and that it is likely to continue for some time.

[46]    In my view, the proper assessment of damages for the exacerbation of Ms. Cheng’s prior injuries and the addition of the chronic pain syndrome is $45,000.

$60,000 Non-Pecuniary Damages Awarded for Chronic STI's and an Anxiety Disorder

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

Reasons for judgment were released today by the BC Supreme Court, New Westminster Registry, awarding a Plaintiff close to $120,000 in total damages as a result of motor vehicle related injuries and losses.
In today’s case (LaFarge v. Natt) the Plaintiff was involved in 3 BC motor vehicle accidents.  The Plaintiff was not at fault for any of the crashes.  The lawyer representing the defendants admitted the issue of liability so the trial focused on the sole issue of damages.
Since all 3 defendants were represented by the same lawyer and fault was admitted for each of the crashes the court did not attribute damages to each specific crash rather damages were assessed globally.  This is not uncommon in BC Injury Claims were ICBC is the insurer for multiple at fault defendants.
Mr. Justice Truscott found that the Plaintiff suffered chronic soft tissue injuries and an anxiety disorder as a consequence of these collisions.  In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $60,000 he summarized the Plaintiff’s injuries and their effect on her life as follows:

[165] I accept that the plaintiff is continuing to suffer from physical injuries sustained in the first accident of March 1, 2002 and aggravated slightly in the following two accidents of October 5, 2002 and May 1, 2003.

[166] I accept that her injuries are now chronic as it is over seven years after the first accident when these injuries were first sustained.

[167] I do conclude that she has developed a restriction of movement as a pain avoidance technique as Dr. Feldman says.  As he states her chronic pain is clouded by her pain focused behaviour without any real pain behaviour being identified…

[169] The critical issue on the plaintiff’s claim for damages for pain and suffering and loss of enjoyment of life is whether her anxiety issues constitute a psychological disorder or something less, and whether they are caused by the injuries she sustained in the motor vehicle accidents…

[180] I conclude that the initial attack in August 2004 has not been proven to be causally related to her motor vehicle injuries, and some attacks since, as Dr. Buch says, are possibly caused by unrelated aversive social transactions or other stresses in her life.  In fact on consideration of all the evidence of the other stresses in her life I find it just as likely that some of her anxiety attacks are not related to her motor vehicle injuries.

[181] Whether or not her anxiety attacks have reached the level of a psychological disorder, I also conclude the plaintiff has satisfied the onus of proving that at least some of her anxiety attacks are causally related to the injuries in her motor vehicle accidents.

[182] Accordingly, with some of these anxiety attacks caused by injuries in the motor vehicle accidents and some by other stresses in her life, the issue becomes what the defendants should be responsible for…

[185] My conclusion that some of the anxiety attacks are causally connected to the plaintiff’s motor vehicle injuries while the initial anxiety attack of August 2004 is not proven to be so causally connected, and other unidentified anxiety attacks thereafter are likely not causally connected appears to fit the legal doctrine described in Athey as the “crumbling skull” doctrine which recognizes a pre-existing condition inherent in the plaintiff’s original position.  The defendants are not obliged to compensate the plaintiff for any disability effects of the pre-existing condition which the plaintiff would have experienced anyway or did in fact experience.

[186] Here it is my conclusion that the plaintiff’s damages throughout should be discounted by 25 percent to reflect my finding that the first anxiety attack in August 2004 was not causally connected to her injuries and also to take into account the likelihood that other identified anxiety attacks since are unrelated to her injuries and are therefore unproven to be causally connected to her injuries.

[190] I consider the plaintiff’s cases to be more appropriate to consider, particularly Pelkinen v. Unrau where the injuries and psychological consequences to the plaintiff there were somewhat similar and the award for non-pecuniary damages was $90,000 less ten percent for failure to mitigate for a net award of $81,000.

[191] Here the plaintiff submits that an appropriate award to her would be $80,000 and I am prepared to accept this figure for general damages subject to a reduction by 25 percent to allow for the unrelated anxiety attacks to include the August 2004 attack.  The award for non-pecuniary damages will therefore be in the amount of $60,000.

More on ICBC Claims: Chronic Pain, Surveillance and Credibility

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Privacy Issues, ICBC Soft Tissue Injury Cases, Uncategorized.

(Update: December 14, 2011 – the  below decision was upheld by the BC Court of Appeal in reasons for judgement released today)
I’ve written on this topic a few times in the past.  Surveillance in and of itself does not harm a Plaintiff’s ICBC Injury Claim.  It’s when surveillance contradicts a Plaintiff’s testimony that the damage is done.  Reasons for judgment were released today by the BC Supreme Court demonstrating this in action.
In today’s case (Fan v. Chana) the Plaintiff was injured as a passenger in a rear-end collision in Vancouver BC. The crash happened in 2000 and the Plaintiff was 9 years old at the time.
At trial the Plaintiff testified that she suffered various injuries in this collision and that these continued to affect her at the time of trial some 9 years later.   Mr. Justice McEwan noted that the Plaintiff “twisted, turned, stretched and pushed herself against the edge of the (witness) box almost constantly” while testifying.
The Court concluded that the Plaintiff’s injuries were not as severe as presented and instead found that this crash caused “soft tissue injuries of an immediate duration of less than two years” and awarded $25,000 for the Plaintiff’s non-pecuniary damages.
In coming to his conclusions about the extent and severity of the Plaintiff’s injuries the Court noted the following about video surveillance evidence that was gathered on behalf of the defendant:

[50] The plaintiff was shown a surveillance video taken March 18 and 19, 2009, apparently showing her going about without any apparent pain.  After spending four hours at a wave pool she went to a very long movie without the sort of getting up and walking around that she suggested she needed.  In redirect she identified a few occasions on the video where she appeared to “crack” her neck…

[74] The plaintiff’s case is somewhat unusual in that there appear to be two quite different dimensions in which she moves.  The first is her ordinary, public life.  This is the world of school and teachers and social friends.  In the aftermath of the accident, the plaintiff’s physical education teachers noted no change.  The plaintiff’s marks were those of a diligent, hard working student.  Her social activities are in all respects normal.  The plaintiff’s friends consider her an outgoing, lively companion.  Significantly, the most obvious sign of pain they were able to remark upon was her habit of “cracking” her neck and back, something that is medically of no import according to those who have treated her, including Dr. Hahn.

[75] The surveillance video and the plaintiff’s observed behaviour do not show anything like the pattern demonstrated in court.  There may be a few occasions when the plaintiff “cracked” her neck, but it is very difficult to say.  The observations made by the surveillance operators specifically do not bear out the plaintiff’s suggestions that she is a drag on her friends, frequently holding them up to take rest breaks and unable to sit through movies.  She was observed to sit through a very long film with no trouble.  I recognize the caution with which surveillance of a brief sample of a person’s life must be approached, but I also note that the observers managed to spend a number of hours watching the plaintiff doing things she specifically cited as current examples of her disability, without noting any of the overt signs her evidence would suggest.

In addition to a useful and lengthy discussion on credibility in chronic pain cases Mr. Justice McEwan had the following statement of interest when it comes to doctor’s opinions regarding the severity of Chronic Pain in Subjective Injury Cases:

[72] The balance of the medical opinion divides along lines that depend on the degree of scepticism the doctors bring to the description of symptoms with which they were presented.  These range from very strong endorsements of the plaintiff’s claims (Dr. Kuttner, as reported by Dr. Hahn) to the blunt, contrary opinions offered by Dr. Weeks.

[73] I see very little purpose in parsing the medical reports to sort out who has the greater credibility based on their qualifications (i.e. “paediatric” physiatrists v. “adult” physiatrists).  As courts have observed on any number of occasions, the approach taken by medical professionals is not forensic: they assume that the patient is accurately reporting to them and then set about a diagnosis that plausibly fits the pattern of the complaint.  In the absence of objective signs of injury, the court’s reliance on the medical profession must, however, proceed from the facts it finds, and must seek congruence between those facts and the advice offered by the medical witnesses as to the possible medical consequences and the potential duration of the injuries.

When prosecuting a Chronic Pain claim the above quote is important to keep in mind.  Just because a physician accepts that a Plaintiff suffers from Chronic Pain as a consequence of a car accident and makes a diagnosis accordingly does not mean a Court has to accept the diagnosis.  The Court can and will make an independent finding of credibility and decide if the pain a Plaintiff complains of is sincere.