ICBC Soft Tissue Injury Cases – Page 28

Pain and Suffering and Your ICBC Injury Claim

Written by admin on February 23, 2009. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, ICBC Spine Injury Cases, Uncategorized. 107 Comments on Pain and Suffering and Your ICBC Injury Claim

If you have an ICBC Injury Claim for Non-Pecuniary Damages as a result of a BC Car Crash (a tort claim) the best way to determine the potential value of your non-pecuniary damages (damages for things such as loss of enjoyment of life, pain and suffering) is to look at how courts have treated similar ICBC injury claims.
When looking to previous court cases for guidance some of the things you will want to look at are similarities with the type of injury, the severity of injury, the age of the Plaintiff, whether the injury involves a dominant or servient limb, the types of treatments involved and the prognosis. Another useful factor is recency. If you can’t find recent cases with similar injuries and are relying on older cases you should adjust the damages for inflation to get a sense of what they would be worth today.
No two injuries are identical and the best one can usually hope to do is find ICBC Injury Cases with a similar injuries to help establish a potential range of damages. In recognizing the the uniqueness of each ICBC Injury Claim Mr. Justice Halfyard said the following in the case of Tuner v. Coblenz:
It is well accepted that previously-decided cases have limited value which usually consists in establishing a general range of damages within which the award in a particular case may fall. No two plaintiffs will ever be the same in age, previous state of strength and health, occupation and other activities. The injuries sustained by one plaintiff will never be the same as those received by another, in kind or severity. The reaction of any two persons to the pain of a similar injury, or to particular treatments, will be different. The length of time that has passed between the date of the injury and the date of trial will vary from case to case, and can be a significant distinguishing feature.
As an ICBC Injury Claims Lawyer I have enjoyed publishing this blog to help people have access to a database of ICBC Injury Claims. Time permitting I intend to keep this service up. To this end, here is the latest ICBC Injury Claims update.
Reasons for judgement were released today by the BC Supreme Court (Rattenbury v. Samra) awarding a Plaintiff $30,000 in non-pecuniary damages as a result of an ICBC Injury Claim.
In today’s case the 23 year old plaintiff was injured when he was involved in an intersection crash in Surrey, BC. The crash occurred when the Defendant attempted a left hand turn in front of the Plaintiff’s vehicle. Fault was admitted leaving only the issue of quantum for trial (value of the claim).
In this case the Plaintiff suffered a concussion and had headaches, neck pain and shoulder pain. These injuries resolved fairly quickly. The most serious injury was an alleged low back injury. The Plaintiff’s physician gave evidence that the collision caused a disc injury to the L5/S1 level of the Plaintiff’s spine.
The court rejected this opinion and found that this disc injury could have easily preceded the car crash given the Plaintiff’s very active lifestyle. The court did find, however, that even if the disc injury was unrelated to the car crash this disc injury became symptomatic with pain because of the collision. The court made the following finding:

[86] I find myself unable to accept Dr. Fritz’s opinion that the disc injury occurred in the motor vehicle accident. Certainly the disc injury does exist but Dr. Fritz agrees that it is impossible to prove when it occurred and it could just as easily have occurred from the plaintiff’s other activities than from the motor vehicle accident. Dr. Fritz did not treat the plaintiff before his accident and it is therefore understandable that he would conclude that the disc injury occurred in the accident when the plaintiff demonstrated a restricted straight leg raising after the accident. However, I do not think that is enough to prove the disc injury occurred in the accident itself.

[87] In my view it is enough to prove, however, that even if the disc injury preceded the accident, it became symptomatic with back pain because of the accident. The evidence is that the plaintiff had no back problems before the accident and was a completely healthy and physically active young man. As a result of the accident he could not play soccer for six months and was unable to do any of the heavy lifting in his job at Black & Lee.

[88] The plaintiff’s evidence of originally not being able to do any heavy lifting at work but being able to do it at the time of his examination in January 2008, and then not being able to do it again by the time of trial, is certainly strange. However Dr. Fritz was never questioned about this evidence and it is logical to me that the plaintiff may have been able to resume the heavy lifting for a time after the accident, with back pain, but over time became too wearing on him and he had to stop.

[89] I am satisfied that it has been proven that the plaintiff has chronic back pain resulting from the disc injury, even if that injury preceded the accident. I must accept Dr. Fritz’s opinion that it is chronic because I have no other medical opinion.

[90] I do conclude, however, this chronic back pain is only mild in nature, in the nature of a nagging back pain that does not disable the plaintiff from pursuing his soccer at the highest level or his golf or any other sports that he used to enjoy, and does not prevent him from working full time at the business in a more supervisory role.

The following damages were awarded after a 2 day trial:
Non-Pecuniary Damages: $30,000
Past Wage Loss: $1,088
Special Damages: $271.56

A Busy day with ICBC Injury Claims

Written by admin on February 19, 2009. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Brain Injury Cases, ICBC Chronic Pain Cases, ICBC Head Injury Cases, ICBC Headache Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 42 Comments on A Busy day with ICBC Injury Claims

Several Judgements were released today by the BC Supreme Court addressing quantum of damages in ICBC Injury Claims. Here are the highlights of these judgements
In Guilbault v. Purser, Mr. Justice Blair from Kamloops, BC awarded a Plaintiff $75,500 in total damages as a result of an ICBC Claim arising from a August 2004 collision. The key findings of fact were as follows:

30] Ms. Guilbault describes the complaints which she attributes to the August 29, 2004 accident as including her right hip, neck and shoulder pain and her headaches as having slowed her down and preventing her from doing things that she has wanted to do. Her horse breaking and wakeboarding activities have largely ended because both activities cause her neck problems. Ms. Guilbault also testified that although her participation in many other outdoor pursuits has been diminished as a result of the injuries she has been able over time to return to those activities, just not as actively as before. She continues to suffer some neck pain and headaches, but not to the same extent as previously and she appears to have developed mechanisms to cope with and diminish her neck pain and headaches.

[31] I am satisfied that as a result of the August 29, 2004 accident Ms. Guilbault suffered soft tissue injuries to her neck, shoulder and right hip. I accept that her right hip complaint was an exacerbation of a pre-existing condition which followed her being kicked by a horse approximately 10 years before. I also find that as a result of the accident, Ms. Guilbault suffered from particularly distressing headaches. However, I also conclude that over time the complaints emanating from the accident have been largely resolved, although she continues to suffer the occasional headache and some neck pain.

[32] Ms. Guilbault has taken her pleasure in life from the outdoors and has enjoyed a physically active life, whether in her recreational or her employment pursuits. I consider it likely that those interests developed in part because of her dyslexia and attention deficit disorder which made scholastic endeavours difficult to pursue, but that had no or little impact on her ability to perform and thrive on physically demanding work around her family’s farm and her recreational pursuits. Her complaints following the August 2004 accident have impacted, I conclude, on her physical capabilities over the past four and a half years and will continue to impact on those capabilities to some degree into the future. To Ms. Guilbault, who so relies on her physical capacities for her enjoyment of life, such injuries have a more significant impact than on those whose lifestyle is more sedentary. The greater impact of the injuries to Ms. Guilbault and her lifestyle must be reflected in the measure of the non-pecuniary damages to which she is entitled.

The following damages were awarded:

Non-pecuniary damages:	$35,000.00
Special damages:	$8,500.00
Past loss of wages:	$12,000.00
Loss of capacity:	$20,000.00
TOTAL:	$75,500.00

In another ICBC Injury Claim Judgement released today (Haag v. Serry) Just over $120,000 in total damages were awarded to a Plaintiff injured in a 2005 collision which occurred in Surrey, BC.
The Injuries included soft tissue injuries and the onset of symptoms in the Plaintiff’s arthritic facet joints. Damages were awarded as follows:

[109] In summary, my conclusions are as follows:

(a) The accident on October 9, 2005 caused Mr. Haag to suffer soft tissue injuries and activated facet joint arthritis which has resulted in Mr. Haag suffering chronic lower back pain.

(b) I award Mr. Haag non-pecuniary damages in the sum of $63,000, which takes into account a reduction to reflect my conclusion that Mr. Haag comes within the “crumbling skull” rule.

(c) Mr. Haag’s claim for past income loss is dismissed.

(d) I award Mr. Haag $60,000 for loss of earning capacity.

(e) Mr. Haag is entitled to recover special damages in relation to the cost of physiotherapy treatments (including mileage) and for mileage in relation to his visits to Dr. Rebeyka up to the end of 2007 only. I will leave counsel to calculate the dollar amount. The claims for the cost of physiotherapy treatments (including mileage) and mileage in relation to Mr. Haag’s visits to Dr. Rebeyka in 2008 are dismissed.

(f) With respect of the balance of special damages claimed, Mr. Haag is entitled to recover these amounts.

The third ICBC Injury Claim judgement released by the BC Supreme Court today (Majewska v. Partyka) involved a 2007 collision which occurred in Coquitlam, BC. The Plaintiff suffered a soft tissue injury to her neck, lower back and a concussion. Her syptmoms improved by about 80% by the time of trial. The court was unable to conclude whether the symptoms would fully recover or not.

General Damages were assessed as follows:

(a)	Non-Pecuniary Damages	$30,000
(b)	Loss of Income to Trial	$15,000
(c)	Loss of Earning Capacity	$15,000
(d)	Future Care	$ 500

The last auto injury judgement released by the BC Supeme Court today was Moore v. Brown from the Victoria Registry. This case involved serious orthopaedic and soft tissue injuries in a 2005 motorcycle accident. Damages were assessed as follows:

1.	Pain and suffering	$115,000
2.	Past wage loss (gross)	$75,000
3.	Impairment of earning capacity	$262,000
4.	Special damages	$47,400
5.	Future care	$75,000

Whew! Now back to work.

Over $250,000 Awarded for Serious Injuries in ICBC Claim

Written by admin on February 12, 2009. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Brain Injury Cases, ICBC Chronic Pain Cases, ICBC Head Injury Cases, ICBC Psychological Injury Cases, ICBC PTSD Cases, ICBC Soft Tissue Injury Cases, ICBC Spine Injury Cases, Uncategorized. 66 Comments on Over $250,000 Awarded for Serious Injuries in ICBC Claim

Reasons for judgement were released today (Tchao v. Bourdon) in an ICBC Injury Tort Claim awarding $276,504.46 in total damages as a result of injuries suffered in a 2004 collision in the Lower Mainland.
I am still in trial still and only have time for bare bones reporting. In this case it appears the Plaintiff suffered significant injuries including a mild traumatic brain injury, significant soft tissue injuries, PTSD, depression and a lumbar facet syndrome. The court’s key analysis of injuries is set out below:

[73] I am satisfied that, as a result of the accident at issue in this action, the plaintiff suffered a knee injury that recovered within approximately a month, a significant soft tissue injury to the neck and upper back that recovered within approximately seven months but which has left the plaintiff more vulnerable to degenerative changes in the neck, a concussion with post-concussion syndrome that still causes headaches once or twice a week, but is likely to resolve, a mild post-traumatic stress disorder that is resolving but remains problematic, and a depressed mood.

[74] Counsel for the defendant suggested that the plaintiff did not suffer a concussion because there was no clear evidence of loss of memory. There is, however, evidence of a loss of awareness, a blow to the head, and ongoing symptoms consistent with post-concussion syndrome. Dr. Duncan, the treating GP, Dr. Bozek, the treating neurologist, and Dr. Hunt were all of the view that Mr. Tchao indeed suffered a concussion and post-concussion syndrome, and I find that conclusion to be consistent with all of the evidence.

[75] That brings us to the most serious of Mr. Tchao’s ongoing difficulties, his lower back.

[76] Counsel for the defendant conceded that Mr. Tchao suffered a soft tissue injury to his lower back in the accident, but submitted that Mr. Tchao had recovered from that injury by some point in 2005, and that his ongoing symptoms relate to his pre-existing degenerative condition. He based this argument on the absence from Dr. Duncan’s clinical record of any notes of complaints from the plaintiff about his lower back, as opposed to his upper back and neck, in the relevant period. I observe, however, that throughout that period, the plaintiff was attending at CBI undergoing rehabilitation therapy for his lower back, and I do not find it surprising that during the course of that treatment, he did not raise lower back issues with his GP.

[77] Defendant’s counsel also urged me to treat Dr. Hunt’s opinion with great caution because of his apparent advocacy. I find that the passages defence counsel brought to my attention in this regard are more consistent with a certain degree of impatience and curmudgeonliness on the part of a very senior and experienced surgeon, than with improper advocacy. There are nevertheless aspects of Dr. Hunt’s opinion that I am not prepared to accept. In particular, I do not accept his suggestion that Mr. Tchao possibly suffered a hiatus hernia in the accident, nor do I accept his opinion that Mr. Tchao may require surgery in the future as a result of the motor vehicle accident – although to be fair, Dr. Hunt raised these as possibilities, not probabilities.

[78] I do accept, however, Dr. Hunt’s opinion that Mr. Tchao’s pre-existing degenerative condition made him more vulnerable to injury in the motor vehicle accident (no expert disagrees with this), and that as a result of the effect of the accident on Mr. Tchao’s pre-existing condition, Mr. Tchao suffers from bilateral lumbar facet syndrome. This is supported by Dr. Purtzki’s findings of “predominately mechanical back pain due to a facet joint dysfunction”, and by Dr. Adrian’s impression of mechanical low back pain with radicular features. None of the pre-accident investigations demonstrated any facet joint issues.

[79] I observe further that regardless of how one characterizes the effect of the accident on Mr. Tchao’s pre-existing condition, there is no question that the accident aggravated it as noted by the defence expert, Dr. Arthur. There is also no doubt that, as reported by both Dr. Arthur and by Dr. Hunt, the plaintiff’s prognosis remains guarded.

[80] That the accident has had a significant and lasting impact on Mr. Tchao is also consistent with his own evidence. This brings me to the issue of his credibility. In general, I found the plaintiff to be a believable witness. I observed nothing that would suggest malingering or exaggeration on his part, and there is nothing in any of the medical records or reports, including those submitted by the defence, that would suggest that I may be mistaken in my impression.

[81] As previously noted, the CBI discharge report considered that his perceived functional ability was the same as his actual, demonstrated ability, and that there was maximal effort on his behalf. Ms. Jodi Fischer, who carried out a Functional/Work Capacity Evaluation, administered a number of tests from which she was able to conclude that Mr. Tchao was devoting his best efforts to the evaluation, and was reliably reporting his levels of pain and disability. There were no non-organic findings. I found Ms. Fischer to be a compelling witness.

[82] In these circumstances, I conclude that, as a result of the effect of this accident on his pre-existing degenerative condition, the plaintiff has suffered a significant injury in the form of a lumbar facet syndrome that causes him ongoing pain and disability, and which has left him with a guarded prognosis.

[83] There was very little evidence concerning what lower back problems the plaintiff would likely have suffered in the future as a result of his pre-existing degenerative condition, in the absence of the accident. Dr. Arthur, the defendant’s expert in orthopaedic surgery, was silent on this point. I nevertheless find that, as conceded by Dr. Hunt, problems of the sort that plagued Mr. Tchao before the accident would likely have recurred in the future. There is no evidence, however, that they would have been as disabling as the condition in which Mr. Tchao now finds himself. As I will explore further below, he was able to carry on with physical labour at his jobs at Safeway, Nexus and The Blox in the past, but is no longer able to do physical labour of any kind. No expert witness, including Dr. Arthur, has suggested that Mr. Tchao is presently capable of more than light and sedentary duties.

Damages were assessed as follows:

D. CONCLUSION

[127] I find the defendant 100% liable for the plaintiff’s damages. Those damages are assessed as follows:

non-pecuniary damages: $70,000.00

past loss of income: $67,500.00

loss of income earning capacity: $120,000.00

future care costs: $17,317.00

special damages: $1,687.46

Total: $276,504.46

$40,000 Pain and Suffering Awarded in ICBC Injury Claim Involivng Soft Tissue Injuries

Written by admin on February 10, 2009. Posted in ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases. 49 Comments on $40,000 Pain and Suffering Awarded in ICBC Injury Claim Involivng Soft Tissue Injuries

I am in trial this week and am a little short on time so this ICBC Injury Law update will be a little light on my desired level of analysis.
Reasons for judgement were released today (Lai v. Wang) compensating a Plaintiff for injuries sustained in a 2004 motor vehicle collision in Vancouver, BC.
In this ICBC Claim the Court found that the Plaintiff sustained various soft tissue injuries which plateaued after several months leaving the Plaintiff with occasional pain. The Court’s key findings and assessment of damages can be found at paragraphs 34-38 which I reproduce for your convenience:

[34] I am of the view that the plaintiff has suffered significant, but not disabling, pain, which should largely be compensated in damages for loss of enjoyment of life. I expect it will continue for some time into the future on an annoying, but not disabling basis, but that he will likely recover as Dr. Fenton suggests. The cases which seem to me to offer the best guidance are Hubbard v. Saunders, 2008 BCSC 486, and Jackson v. Gow, 2001 BCSC 54. I am of the view that $40,000 is an appropriate amount for these damages. I should add that there was some evidence of pre-accident complaints of pain requiring treatment. I do not think it was demonstrated that any of those problems were aggravated in a sense that required them to be taken into account.

[35] I do not accept the mathematics offered by the plaintiff for past income loss. I accept that the plaintiff may have lost some work due to pain while he worked at the Face Shop, but do not accept that he was disabled in relation to the jobs he chose to do. I estimate the actual interference with work he was available for and willing to do at $1000.

[36] With respect to loss of future earning capacity, I accept that the injuries the plaintiff suffered may affect his income earning capacity on the basis outlined in Palmer v. Goodall, [1991] 53 B.C.L.R. (2d) 44 (C.A.):

…Because it is impairment that is being redressed, even a plaintiff who is apparently going to be able to earn as much as he could have earned if not injured or who, with retraining, on the balance of probabilities will be able to do so, is entitled to some compensation for the impairment. He is entitled to it because for the rest of his life some occupations will be closed to him and it is impossible to say that over his working life the impairment will not harm his income ability.

[37] Mr. Lai is not disabled from the kind of work he has chosen in the past to do, and the kind of work he expects to qualify for in the future. He does, nevertheless, have a level of pain that Dr. Condon considers chronic and Dr. Fenton believes will ultimately resolve, particularly if the plaintiff works through the pain in the short term. I think it likely that the plaintiff will ultimately reach a point where he is only occasionally troubled by pain. When that may be is unknowable. In the meantime, although the plaintiff is unlikely, in any event, to work in fields imposing significant physical demands, he will suffer a loss of capacity to do such work, for which he is entitled to some compensation. I fix those damages at $25,000.

[38] The plaintiff is entitled to special claimed damages for sums expended to date, which I gather are agreed at $5193. I do not think the plaintiff can be faulted for the amounts spent in trying to obtain relief from the consequences of the accident to the date of trial. I am not satisfied that the $1200 for the Taiwan airplane ticket is justified and deny that claim. I accept that the plaintiff will require occasional prescriptions and therapy in the future, although such an award should be modest. I allow $1000 for this. I reject, as speculative, the pulse therapy suggested by Dr. Condon.

$115,000 Awarded in ICBC Low Velocity Impact (LVI) Claim

Written by admin on February 3, 2009. Posted in ICBC Chronic Pain Cases, ICBC LVI (Low Velocity Impact) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

(Please note the case discussed in this post was overturned by the BC Court of Appeal in reasons for judgment released on September 21, 2010. You can go to my September 2010 archives to read my summary of the BC Court of Appeal Decision)
Reasons for judgment were released today by the BC Supreme Court (Mariano v. Campbell) awarding a Plaintiff just over $115,000 as a result of injuries sustained in a 2006 rear end collision.
This was an ICBC Claim that apparently fit into ICBC’s Low Velocity Impact (LVI) Program. The vehicles sustained modest damage and the ICBC Claims Lawyer defending the Claim argued the Low Velocity Impact defence. The details of this are set out in paragraphs 33-41 of the judgment.

[33] The defendant says the accident was a low velocity impact claim. The cost of repair for the Ms. Mariano’s 2005 Ford Escape was $1,712.96. The cost of repair to Ms. Campbell’s 2000 Honda Civic was $3,714.07.

[34] The defendant argues that Ms. Mariano’s injuries should be consistent with a modest low impact accident and anything more than modest injuries from the accident are an unreasonable consequence. Relying on Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 at paras. 11-18, the defence argues that the injuries alleged are not a reasonably foreseeable consequence of the minor motor vehicle accident.

[35] Ms. Campbell was called by the defence presumably to testify that the collision was only a minor one. However even Ms. Campbell admitted to sustaining whiplash injuries.

[36] Ms. Campbell was stopped in gridlocked traffic waiting for the traffic light to change. When she saw the light turn green and traffic ahead of her starting to move, Ms. Campbell starting moving her vehicle. When Ms. Mariano’s vehicle suddenly stopped, Ms. Campbell did not apply her brakes before she rear-ended the Ford. When she got out of her vehicle, Ms. Campbell saw a stalled vehicle, one or two vehicles in front of her.

[37] Ms. Campbell could not estimate the speed of her vehicle at the time of impact but defence relies on her evidence that another car could not have fitted in between her vehicle and Ms. Mariano’s vehicle. However, Ms. Campbell said that on the impact, she immediately felt pain in her neck, the middle of her back, and her right arm. She went into shock and her whiplash injuries took three months to resolve.

[38] The defendant tried unsuccessfully to attack Ms. Mariano’s credibility and argues that because of the minimal impact, Ms. Mariano can only have suffered minimal injuries. However I find Ms. Mariano a very credible witness. She continues to work despite her symptoms. The pain in her neck and shoulders prevents her from working the way she used to work, and from doing the things she used to enjoy doing. She was unable to buy her sons a big pumpkin for Halloween as she had always done before because she is now unable to carry a big pumpkin. Ms. Mariano became quite visibly distressed when she described the activities she can no longer participate in with her children because of her injuries or because she is now simply too tired at the end of the work day to do anything else.

[39] The defendant points to Ms. Mariano’s application for mortgage life and disability insurance where she filled in “March 2006” as the “date of the last episode” of neck pain and that Dr. Darby wrote a note to the insurance company indicating that Ms. Mariano had fully recovered from the accident with no complications or sequelae.

[40] The statements may not have been entirely accurate but it was understandable. Ms. Mariano tried to put herself in the best light she could so that she could obtain, as she did before the accident, mortgage disability insurance with no exclusions. The defendant’s negligence caused the insurance company to dramatically limit the mortgage disability insurance available to Ms. Mariano through no fault of her own. The defendant should not be heard to be complaining too loudly.

[41] Terry Watson, an estimator for the Insurance Corporation of British Columbia, testified that neither Ms. Mariano’s vehicle nor Ms. Campbell’s vehicle sustained structural damage. However, the hood of Ms. Campbell’s vehicle collapsed and slid under the Ford Escape, striking the spare tire underneath. Mr. Watson agreed that that the impact of the collision was likely not absorbed by the bumpers.

The Defendants ICBC Claims Lawyer went on to argue that minimal damages should be paid because more severe injuries are not reasonably foreseeable from a minor or modest collision.
Madame Justice Loo rejected the defence arguments and accepted that the Plaintiff was indeed injured in this collision. The court found that the Plaintiff suffered soft tissue injuries which have resulted in chronic pain and that there was a chance that these symptoms would linger in the future.
Damages were awarded as follows:
1. Non Pecuniary Damages: $30,000
2. Past Wage Loss: $45,428.91
3. Loss of Earning Capacity: $15,000
4. Special Damages: $574.16
5. Cost of future care: $1,000
6. cost of re-training: $23,307

ICBC Expert Rejected in Injury Claim, $100,000 Awarded for Myofacial Pain

Written by admin on January 31, 2009. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Headache Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 115 Comments on ICBC Expert Rejected in Injury Claim, $100,000 Awarded for Myofacial Pain

Reasons for judgement were released today by the BC Supreme Court awarding a 22 year old Plaintiff $50,000 for pain and suffering and a further $50,000 for loss of earning capacity as a result of soft tissue injuries.
The court’s findings of injuries are summarized at paragraphs 45-46 which stated as follows:

[45] In the final analysis, I am unable to place much weight to Dr. Schweigel’s report. I accept Dr. Anton’s evidence that as a result of the accident, the plaintiff has suffered soft tissue injuries of the cervical and thoracic spine and shoulder girdle, which in turn have given rise to a myofascial pain syndrome.

[46] I accept his evidence that while there is some room for improvement, the plaintiff will likely suffer intermittent headaches and neck and upper back pain indefinitely. She must be careful to modify her activities and avoid bending, leaning, heavy lifting or repetitive lifting—particularly those involving sustained postures of the neck and upper arms or repetitive use of the upper arms—which will exacerbate her pain.

What interested me most in this judgement was the judges discussion weighing the Plaintiff’s medical evidence against the evidence tendered by the Defendant. The Defendant relied on Dr. Schweigel, a senior orthopaedic surgeon who is often retained by ICBC to review injury claims and often disagrees with Plaintiff’s physicians regarding the long term prognosis of soft tissue injuries. In today’s case the court largely rejected his opinion and offered the following analysis:

[36] The defence relies heavily on the evidence of Dr. Schweigel, an orthopaedic surgeon who examined the plaintiff in January 2008. Dr. Schweigel concluded the plaintiff suffered no more than a very minor soft tissue injury to the cervical and upper back area.

[37] In Dr. Schweigel’s opinion, cervical soft tissue injuries may be classified as either minor, moderate or severe, depending on the presence of various findings and complaints. In his opinion, a cervical soft tissue injury must be in the moderate to severe category before it will give rise to a chronic myofascial pain syndrome.

[38] In his opinion, before being diagnosed with a moderate to severe soft tissue injury the patient must present with a constellation of at least three complaints including: moderate to severe spasm, moderate to severe deformity, and a moderate loss of motion. Sometimes the patient will also present with neurological findings and/or x-ray changes and sometimes the patient will require strong pain medication for a few days.

[39] Based on his review of Dr. Fahim’s clinical records, including the CL-19 report, which he understood was completed on March 3, 2003, Dr. Schweigel concluded that the plaintiff did not suffer a moderate to severe soft tissue injury. In his view, since the CL-19 report reflects pain and tenderness of the neck and upper back, a good range of motion of the neck and upper back and mild tenderness of the neck and upper back, the physical abnormalities noted at this time were “extremely minimal”. He noted that “(s)he had mild tenderness of the neck muscles with good range of motion”.

[40] The difficulty here is that the CL-19 report relied upon by Dr. Schweigel was actually authored on March 3, 2004 rather than March 3, 2003. At that time the plaintiff was in Grade 12, she was dancing regularly and the intensive final examination study period had not begun. She was in fact doing quite well.

[41] This is in contrast to her condition just over a year earlier when Dr. Fahim examined her on February 15, 2003. At that point he noted her complaints of pain and tenderness in both the trapezius and upper back areas, and the decreased range of motion of her neck in all directions. There is no recording of “mild” tenderness with a good range of motion as Dr. Schweigel suggests in his report of January 14, 2008.

[42] While Dr. Fahim’s clinical records were available for review, Dr. Schweigel made no reference to them in his report. Nor did he refer to the records of the physiotherapist, Dawn Stevens, who, three weeks post accident, noted that the plaintiff’s neck was “very stiff” and that it was “very hard to mobilize (her) neck”.

[43] Quite apart from his erroneous reliance on the March 3, 2004 CL-19 report, I am not persuaded that Dr. Schweigel’s rigid classification of soft tissue injuries and his insistence that a myofascial pain syndrome may only arise in the case of a moderate to severe soft tissue injury case are reliable.

[44] While I accept that Dr. Schweigel is a very senior and experienced orthopaedic surgeon, with a long career focused particularly on spinal cord injury, in my view he did not demonstrate the same degree of expertise as Dr. Anton in the diagnosis and treatment of soft tissue injury. His categorization of soft tissue injuries struck me as both rigid and simplistic. No peer reviewed journals or other medical literature were produced to support his analysis. Nor did he demonstrate any in depth appreciation of the characteristics of a “trigger point”, as described by Dr. Anton.

Brain Injury Claim Dismissed, $55,000 Pain and Suffering for STI's and Hearing Loss

Written by admin on January 2, 2009. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Brain Injury Cases, ICBC Psychological Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

The first released judgment by the BC Supreme Court in 2009 dealing with an ICBC Injury Claim was handed down today.
The Plaintiff was involved in a 2005 motor vehicle collision. It was an intersection collision where the Defendant turned left in front of the Plaintiff’s vehicle. The Plaintiff had a green light and a significant impact occurred.
The Plaintiff’s vehicle sustained ‘considerable’ damage and her vehicle was written off. Liability (fault) was admitted on behalf of the defendants on the morning of trial. The trial focused on the Plaintiff’s injuries and their value.
The most contentious claimed injury was a concussive injury affecting cognitive abilities. The court dismissed the alleged brain injury stating that “The plaintiff bears the onus of proving that it is more probable than not that she suffered each of the injuries she alleges. In my opinion, it has been shown that there is a reasonable possibility that the plaintiff sustained a mild brain injury as a result of the motor vehicle accident. But I am not persuaded that it is more probable than not that this occurred.”
Mr. Justice Halfyard did a great job addressing the competing medical evidence and the discussion at paragraphs 30 – 58 of this judgement is worth reviewing for anyone advancing an ICBC brain injury claim to see some of the issues that often come into play during litigation.
In valuing the Plaintiff’s Pain and Suffering at $55,000 the court summarized her injuries and their effect on her life as follows:

[89] I conclude that the plaintiff sustained injuries to the soft tissues of her neck and upper back, the rotator cuff muscles in her left shoulder and the soft tissues in her chest wall. I would describe the severity of these injuries as being moderate.

[90] I find that the plaintiff sustained a loss of her hearing ability (much more pronounced in her left ear), as a result of a mild labyrinthine concussion caused by the accident. Not all of this loss of hearing was caused by the injury. Some of it was attributable to the normal aging process. I accept Dr. van Rooy’s description of the overall loss of hearing ability as being mild.

[91] I am not satisfied that the plaintiff sustained injury to her brain. Nor am I satisfied that any injury she sustained in the accident caused a loss of her ability to maintain proper balance or equilibrium.

[92] The plaintiff has substantially recovered from all of her injuries except for the injury to her left shoulder. Three years have elapsed since the accident, and the plaintiff’s symptoms may persist for another two years into the future. These symptoms will be troublesome and sometimes painful, when she is working with her hands while holding her arms in certain positions. To some degree, these effects will affect the plaintiff’s ability to make and repair costumes, and to work in her daughter’s shop. But her hip and her low back problem are probably as much or more a hindrance to the plaintiff, than is the residual problem with her left shoulder. The depression and anxiety that has plagued the plaintiff for some years is the most likely cause of her loss of motivation. But I accept that the plaintiff’s emotional reaction to her injuries from the motor vehicle accident did aggravate her pre-existing psychological condition, to some extent.

ICBC Claims, Medical Experts and Evasive Opinions

Written by admin on December 29, 2008. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC PTSD Cases, ICBC Soft Tissue Injury Cases, ICBC Spine Injury Cases, Uncategorized. 45 Comments on ICBC Claims, Medical Experts and Evasive Opinions

Reasons for judgement were released today awarding a Plaintiff $50,000 for non-pecuniary loss (pain and suffering) as a result of injuries sustained in a 2004 rear-end BC car crash.
The Plaintiff suffered various injuries including chronic pain, a disc herniation in her neck, a soft tissue injury to her neck, anxiety and depression. The chronic pain was the most significant symptom that was focused on at trial.
The Plaintiff called various witnesses to support her injuries including her family doctor. The Defendant, on the other hand, relied on the opinion of an ‘independent medical examiner’ who ICBC frequently uses in the defence of car accident injury claims (Dr. Schweigel).
In awarding $50,000 for pain and suffering the Court made the following findings:

[26] I am satisfied that as the result of the Defendants’ negligence, the Plaintiff suffered an injury to her shoulder and knee, a soft tissue injury to her neck and back which included a disc herniation; and an aggravation of her anxiety disorder and depression symptoms.

[27] Specifically, with respect to her psychological injuries, I am satisfied that as a result of the collision her anxiety disorder and depression symptoms worsened, and that the worsening included the development of additional phobias such as a fear of crowds, social interaction, and driving. There has been some improvement with respect to these symptoms. For example, the Plaintiff is now able to drive her vehicle and her fear of social interactions has lessened some.

[28] There has also been some improvement in her physical injuries. In particular, her knee and shoulder injuries resolved within a short period.

[29] As far as her chronic pain injury is concerned, I am satisfied that it arises primarily from the soft tissue injuries to her neck and back and from her disc herniation. However, the severity of the pain from these injuries is aggravated or intensified by her anxiety disorders. As her anxiety or stress levels increase, her chronic pain also increases in severity.

In ICBC injury claims judges and juries are often asked to pick between competing medical opinion evidence. It is not uncommon to read reasons for judgment in ICBC injury claims where a Plaintiff’s treating physicians support injuries while ICBC’s doctors testify that the injuries are not related to the trauma or that the injuries are not as severe as presented by the Plaintiff.
In today’s case Madam Justice Sinclair Prowse gave the following reasons in preferring the treating doctor’s opinion over Dr. Schweigel’s. Cases such as this one are worth reviewing for anyone preparing to take their ICBC injury claim to trial where there is competing medical evidence:

[34] In any event, on all material issues, the Plaintiff’s evidence was consistent with and supported by other evidence. In particular, the evidence of her injuries was supported by the evidence of her family doctor, Dr. Leong – a witness whom I found to be credible and on whose evidence I relied.

[35] As the Plaintiff’s treating physician, Dr. Leong had seen the Plaintiff over a long period of time. Dr. Schweigel, on the other hand, only saw the Plaintiff on one occasion for about an hour to an hour and a half.

[36] Throughout her testimony, Dr. Leong presented as a measured person who was endeavouring to be clear, accurate and fair. Her answers were thoughtful and balanced. Her testimony was both internally consistent and consistent with the other evidence.

[37] For example, it was Dr. Leong’s opinion that the collision caused the Plaintiff’s disc herniation in one of two ways: (1) either the collision caused the herniation completely; or (2) if the herniation pre-dated the collision, then the collision caused the herniation to become symptomatic. This evidence was based on the fact that the Plaintiff did not display any symptoms of cervical disc herniation prior to the collision. Although she had experienced some pain in her neck which had occasioned the earlier x-ray, that pain was occasional rather than chronic. It was also different in kind from the type of pain that can arise from disc herniation and that the Plaintiff experienced after the collision. Furthermore, the x-ray taken shortly before the collision did not show a disc herniation.

[38] Dr. Schweigel, on the other hand, was evasive and argumentative in his evidence. He gave opinions in this trial that were inconsistent with opinions that he had tendered in other trials, demonstrating that he was not impartial but, rather, tailored his evidence to favour the party that had called him. For example, in this trial he opined that arthritis could not be triggered by trauma whereas in another action he gave the opposite opinion.

[39] Dr. Schweigel opined that the Plaintiff had suffered a mild soft tissue injury to her neck and back as a result of this collision and that that injury had probably resolved itself within 3 to 4 months. He opined that the disc herniation pre-dated the collision as such conditions can arise from a longstanding arthritic condition and that, in any event, the Plaintiff’s chronic pain arose from neither the herniation specifically nor the collision generally but, rather, from her psychological or psychosomatic problems.

[40] However, during cross-examination, he did concede that trauma could trigger further degeneration. He further went on to testify that if this injury did not pre-date the collision, that it would probably have arisen within 2 to 3 years to a maximum of 5 years. In my view, this opinion contradicts his initial opinion that a disc herniation cannot be caused by trauma or become symptomatic because of trauma.

[41] For all of these reasons, I found Dr. Schweigel’s evidence to be unreliable. I preferred the opinion of Dr. Leong. Where her opinion differed from the opinion of Dr. Schweigel, I relied upon her opinion.

More on ICBC Injury Claims and Low Velocity Impacts

Written by admin on December 15, 2008. Posted in ICBC Back Injury (soft tissue) Cases, ICBC LVI (Low Velocity Impact) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases.

Reasons for judgement were released today awarding a Plaintiff $21,500 for pain and suffering plus ‘special damages’ (accident related out of pocket expenses) as a result of a 2005 motor vehicle collision.
While the judgement does not mention ICBC directly (BC personal injury tort judgements rarely mention who the insurer for the defendant is) this case appears to me to be one which was defended on the basis of ICBC’s Low Velocity Impact (LVI) program. The reason why I reach this conclusion is because the defence lawyer argued that “this was such a minor motor vehicle accident that no damages should be awarded”. This is a standard argument behind ICBC’s LVI program.
The accident did not occur at a significant rate of speed and resulted in little vehicle damage. The Plaintiff’s vehicle cost approximately $1,500 to repair.
The Plaintiff’s injuries are discussed at paragraphs 5-16 of the reasons for judgement which I reproduce below:

[6] She described her symptoms as significant pain in her wrist, pain in her neck, shoulders, lower back, and a small amount of pain in her jaw.

[7] The doctor told her to “take it easy”. She went home and put an ice pack on her wrist and shoulders.

[8] The pain in her wrist resolved within a month of the accident. The pain in her neck lasted for approximately a year and a half. Massage therapy helped with the pain in her neck; she developed better range of motion.

[9] She also began to experience headaches which resolved within a year and a half of the accident.

[10] The muscles in her jaw tightened and she experienced pain. She described the jaw pain starting after the accident as minor, though it continued to get worse. She still has some symptoms of jaw pain but it has improved with the use of a night guard.

[11] Three weeks after the accident she developed chest pains. She first noted the chest pains when she was jogging. She did not have this pain prior to the accident. When she developed the pain she stopped jogging. She has gradually built up her jogging and she can now jog for 6 km before the chest pain sets in.

[12] Her back pain first developed approximately an hour after she left work and it got worse the next day, but it resolved itself within a month of the accident.

[13] She did not play tennis for almost a year and a half because the right side of her body was sore.

[14] She attended the drop-in clinic on three occasions and saw her family doctor, Dr. Sewell, on three occasions. She had difficulty making appointments with Dr. Sewell because he did not work on Saturdays. Initially, however, she did not think her symptoms would last very long and therefore did not see him sooner.

[15] She has had massage therapy, physiotherapy, chiropractic treatment, attended her dentist for a night guard, and attended Pilates, and has incurred special damages in the amount of $3,982.

[16] The massage therapy was commenced shortly after the accident and a friend of hers did some initial massage therapy on her until she saw Ms. Chung who provided massage treatments for her from approximately December 2005 to April 2007, a total of 22 treatments. She had approximately 10 physiotherapy treatments between June and November 2006. She also had chiropractic treatments on 6 occasions in February and March 2006.

The court, in awarding damages, made the following findings:
[26] Here, however, I am satisfied that the plaintiff is a credible witness. She did not exaggerate any of her claims and the massage therapy provided by her friend Ms. Chung was done on a professional basis and she paid somewhat less than the going rate. Nevertheless, the massage therapy was beneficial and she should be reimbursed for those disbursements….
[28] I have no difficulty accepting those principles, but as stated above I found the plaintiff to be a credible witness. There is a lack of objective evidence and that has made me exceedingly careful in weighing the evidence, but at the end of the day I am satisfied that the plaintiff has suffered the injuries over the periods of time referred to in this judgment. I am of the view that this is a mild to moderate soft-tissue type injury and I am satisfied that the range of damages is between $20,000 to $25,000, as set out in Reyes v. Pascual, 2008 BCSC 1324, Pardanyi v. Wilson, 2004 BCSC 1804, and Walker v. Webb, 2001 BCSC 216. I am satisfied that she is entitled to non-pecuniary damages in the amount of $21,500 and special damages in the amount of $3,982. The plaintiff is also entitled to her costs.

Motorcyclist Found Liable for "Negligent Acceleration"

Written by admin on December 4, 2008. Posted in ICBC Liability (fault) Cases, ICBC Soft Tissue Injury Cases.

Reasons for judgement were released today by the BC Supreme Court finding a motorcyclist liable for injuries to his passenger.
The Plaintiff was a passenger on the Defendants motorcycle. He turned onto a highway in British Columbia and changed gears. This produced a ‘burst of accelaration’ and at this time the Plaintiff was thrown off the back of the motorcycle.
The Plaintiff sustained road rash types of injuries ‘including loss of skin to various parts of her body, soft tissue injuries, various extensions and strain injuries, a lingering loss of sensation in her fingertips, and a reoccurrence of previously suffered depression‘.
The court found that the Defendant driver was liable in negligence for these injuries. The courts key findings were made at paragraphs 23-24 which I reproduce below:

[23] I find that Mr. James was an experienced motorcyclist. I also find that Ms. Santiago was an experienced passenger on a motorcycle and that she had considerable experience as a passenger on a motorcycle driven by Mr. James. As an experienced passenger, Ms. Santiago would have been very much aware of what occurs when the driver of a motorcycle shifts gears. I find that nothing on August 13, 2002 would have diverted Ms. Santiago’s attention away from what she could expect would be how Mr. James would operate his motorcycle. I find that she would have no expectation of sudden acceleration and that her previous experience including the trip that day from Dewdney to Harrison Mills would not have led her to believe that the motorcycle would be driven by Mr. James in a way that sudden acceleration would occur.

[24] I find that Mr. James did operate the motorcycle negligently that day. I find that he accelerated between first and second gear and beyond in an unsafe manner and at a rate which was far in excess of what a passenger like Ms. Santiago would expect and was entitled to expect. I find that the excessive acceleration was undertaken without warning Ms. Santiago that it was about to occur.

The court assessed the Plaintiff’s non-pecuniary damages (pain and suffering) for her various injuries at $40,000.
This is a useful case for anyone advancing an ICBC injury tort claim who was injured even though no actual collision occurred. This case demonstrates that a collision is not a pre-requisite for succeeding in a tort claim in British Columbia.